Scarbrough v. Education Corporation of America
MEMORANDUM OPINION AND ORDER - So, several sources already require Virginia College to preserve the evidence Ms. Scarbrough identifies and threaten penalties for noncompliance. In her own words, Ms. Scarbrough seeks a court order only to put Virginia College on notice of its existing duties, but she gives no compelling reason for why the court must supplement Virginia Colleges duties with an order to obey the law. Indeed, [t]o supplement every complaint with an order requiring compliance with th e Rules of Civil Procedure would be a superfluous and wasteful task, and would likely create no more incentive upon the parties than already exists. Hester, 206 F.R.D. at 685. So, the court DENIES Ms. Scarbroughs motion to preserve evidence. (Doc. 23 ). Signed by Chief Judge Karon O Bowdre on 1/7/2019. (KEK)
2019 Jan-07 PM 03:11
U.S. DISTRICT COURT
N.D. OF ALABAMA
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
VIRGINIA COLLEGE, LLC,
CIVIL ACTION NO.
MEMORANDUM OPINION AND ORDER
This matter comes before the court on Plaintiff Ami Scarbrough’s motion to
preserve evidence. (Doc. 23). Ms. Scarbrough has requested that the court order
her prior employer, Defendant Virginia College, LLC, to preserve employment
records and emails relevant to her claims of FMLA interference and retaliation out
of concern for the corporation’s current financial situation. (Id. at 5–6).
On November 14, 2018, six months after Ms. Scarbrough filed her
complaint in this case, the U.S. District Court for the Middle District of Georgia
appointed a receiver to manage and take control of all of Virginia College’s
property and stayed all actions against the receivership estate. (See Doc. 21-1).
Virginia College then closed all of its campuses and executed mass layoffs. (Doc.
28 at 2). Ms. Scarbrough then filed her motion to preserve evidence “out of an
abundance of caution to place Defendant on notice of its obligations and to
preserve information that very easily could be lost or destroyed in the event
Defendant liquidates various assets that may contain the  sought-after
information.” (Doc. 23 at ¶ 11).
Courts have the discretion to order a party to preserve evidence, “basing
their authority in the ‘inherent power to regulate litigation, preserve and protect the
proceedings before [them], and sanction parties for abusive practices.’” Hester v.
Bayer Corp., 206 F.R.D. 683, 685 (M.D. Ala. 2001) (quoting Capellupo v. FMC
Corp., 126 F.R.D. 545, 551 (D. Minn. 1989)). But courts rarely find such orders
necessary because several laws impose the same preservation duties that a court
order would impose. When a plaintiff files a lawsuit, the Federal Rules of Civil
Procedure automatically require the defendant to preserve all information that
might be relevant to the litigation. See Hester, 206 F.R.D. at 685 (citing Fed. R.
Civ. P. 26). The court may sanction a party that fails to satisfy its duty to preserve.
See Fed. R. Civ. P. 37(b), (e). And though Alabama law does not recognize an
independent cause of action for spoliation of evidence, a court may permit a jury to
infer liability against a party that suppresses or destroys evidence. Cole v. Owners
Ins. Co., 326 F. Supp. 3d 1307, 1328 (N.D. Ala. 2018) (citing Christian v. Kenneth
Chandler Const. Co., 658 So. 2d 408, 413 (Ala. 1995)).
In addition, statutes and regulations might require a party to preserve
specific items. For example, relevant to this case, the FMLA requires employers to
maintain several specific records of their employees. 29 U.S.C. § 2616(b); 29
C.F.R. § 825.500. Though courts have not settled whether the violation of this
duty by itself gives rise to a cause of action, courts consider recordkeeping failures
as evidence for claims of interference with FMLA rights. See Gilliard v. Georgia
Dep’t of Corr., 2012 WL 12951863, at *39 (N.D. Ga. Mar. 2, 2012), aff’d, 500 F.
App’x 860 (11th Cir. 2012).
And, as Ms. Scarbrough acknowledges, FLSA regulations require employers
to maintain and preserve specific payroll and employment information records. 29
C.F.R. § 516.2. If an employer fails to produce such records in response to an
FLSA claim, the court may infer damages in an amount higher than the
employment records would have supported. Allen v. Bd. of Pub. Educ. for Bibb
Cty., 495 F.3d 1306, 1316 (11th Cir. 2007) (citing Anderson v. Mt. Clemens
Pottery Co., 328 U.S. 680, 688 (1946)).
So, several sources already require Virginia College to preserve the evidence
Ms. Scarbrough identifies and threaten penalties for noncompliance. In her own
words, Ms. Scarbrough seeks a court order only to put Virginia College on notice
of its existing duties, but she gives no compelling reason for why the court must
supplement Virginia College’s duties with an order to obey the law. Indeed, “[t]o
supplement every complaint with an order requiring compliance with the Rules of
Civil Procedure would be a superfluous and wasteful task, and would likely create
no more incentive upon the parties than already exists.” Hester, 206 F.R.D. at 685.
So, the court DENIES Ms. Scarbrough’s motion to preserve evidence. (Doc. 23).
DONE and ORDERED this 7th day of January, 2019.
KARON OWEN BOWDRE
CHIEF UNITED STATES DISTRICT JUDGE
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