Mitcham v. Americold Logistics, LLC

Filing 42

MEMORANDUM OPINION AND ORDER by Magistrate Judge Nina Y. Wang on 9/20/2017. IT IS ORDERED that Defendant's 36 Motion for Sanctions is GRANTED IN PART and DENIED IN PART. (nywlc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-00808-WJM-NYW
KIM MITCHAM,
Plaintiff,
v.
AMERICOLD LOGISTICS, LLC,
Defendant.
MEMORANDUM OPINION AND ORDER
Magistrate Judge Nina Y. Wang
This matter is before the court on Defendant Americold Logistics, LLC’s (“Defendant”
or “Americold”) Motion For Sanctions For Failure To Timely Produce Documents And For
Spoliation Of Evidence And Memorandum In Support (the “Motion”). [#36, 1 filed Aug. 17,
2017].

The undersigned considers the Motion pursuant to 28 U.S.C. § 636(b), the Order

Referring Case dated April 3, 2017 [#7], and the Memorandum dated August 18, 2017 [#38].
Oral argument will not materially assist this court in the resolution of the Motion. Accordingly,
upon careful review of the Motion and associated briefing, the applicable case law, and the entire
docket, this court GRANTS IN PART and DENIES IN PART the Motion for the reasons stated
herein.
BACKGROUND
Plaintiff Kim Mitcham (“Plaintiff” or “Ms. Mitcham”) began working for Americold as a
Human Resource Manager on or about October 12, 2015. [#22 at ¶ 12]. She alleges that
1

[# _] is a convention I use to cite to documents in the ECF system. When citing to a transcript,
I use the document number assigned by the ECF system, but cite to the page and line numbers as
assigned in the original transcript.

Defendant has an “Open Door policy” whereby Defendant promised not to retaliate against its
employees for lobbying complaints or concerns against upper management.

[Id. at ¶ 20].

Pursuant to this policy, Plaintiff brought a complaint against Wendell Deboskie, the Director of
Human Resources and Plaintiff’s supervisor. [Id. at ¶¶ 33, 36]. Plaintiff complained that Mr.
Deboskie mistreated her because she was a woman, as he did not treat her male colleagues in a
similar manner. [Id. at ¶¶ 36–37]. Because of Mr. Deboskie’s mistreatment, Plaintiff struggled
to perform her job duties, and was encouraged to file a formal complaint with the
“MySafeWorkplace” hotline. [Id. at ¶ 38]. Plaintiff waited to file a formal complaint in hopes
that the situation with Mr. Deboskie would improve; however, upon informing the corporate
director of Human Resources of Mr. Deboskie’s behavior, Plaintiff alleges that Mr. Deboskie
became even more hostile towards her. See [id. at ¶¶ 40–42].
On October 3, 2016, Plaintiff filed a formal complaint against Mr. Deboskie with the
“MySafeWorkplace” hotline. [Id. at ¶ 44]. Not soon after, an Americold representative emailed
its Human Resource staff that Plaintiff was no longer employed with Americold. [Id. at ¶ 49].
Plaintiff alleges that she did not resign, despite Defendant’s contention to the contrary, but was
“involuntarily terminated.” Plaintiff alleges that she did not receive any explanation for her
firing, but alleges that it came on the heels of her “MySafeWorkplace” complaint. [Id. at ¶¶ 52–
54]. Following her termination, Plaintiff sought compensation for her unused vacation and her
“extra shift bonuses.” [Id. at ¶¶ 32–34]. Defendant denied Plaintiff’s requests. Plaintiff alleges,
however, that her male colleagues received their “extra shift bonuses.” [Id. at ¶¶ 30–34].
Plaintiff then initiated this action by filing her Complaint in the Denver County District
Court on March 7, 2017. [#1]. Ms. Mitcham’s Complaint asserted claims against Americold for
(1) negligent and intentional misrepresentation; (2) breach of contract, implied contract, and/or

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quasi-contract; and (3) violations of the Colorado Wage Act, Colo. Rev. Stat. § 8-4-101 et seq.
[#3].

Americold removed this action on March 31, 2017, invoking this court’s diversity

jurisdiction under 28 U.S.C. § 1332. [#1]. Following removal, Plaintiff filed her First Amended
Complaint [#9] and then Second Amended Complaint (“SAC”) [#22], the operative complaint in
this matter.

Pursuant to the SAC, the operative claims in this matter include:

(1) sex

discrimination and retaliation in violation of Title VII of the Civil Rights Act, 42 U.S.C. § 2000e
et seq.; (2) sex discrimination and retaliation in violation of Colorado’s Anti-Discrimination Act
(“CADA”), Colo. Rev. Stat. § 24-34-401 et seq.; (3) negligent and intentional misrepresentation;
(4) breach of contract, implied contract, and/or quasi-contract; and (5) violations of the Colorado
Wage Act, Colo. Rev. Stat. § 8-4-101 et seq. [#22].
On May 8, 2017, the undersigned held a Scheduling Conference, setting a pre-trial
discovery schedule in this matter. [#15]. This included a discovery deadline of September 29,
2017. [#16].

Since the Scheduling Conference, the Parties have appeared before this court for

several informal discovery dispute conferences. See [#29; #34; #39]. At the August 11, 2017
informal discovery dispute conference, the Parties discussed reopening Plaintiff’s deposition
given the recent production of a scanned copy of Plaintiff’s journal—it is undisputed that
Plaintiff destroyed the original. [#39]. Defendant explained that Plaintiff did not produce her
journal with her initial disclosures sent on May 1, 2017. See [#37 at ¶ 4]. Further, that
Americold requested any “handwritten note, recorded communications, calendars, journals,
diaries, logs, and the like” that related to this matter, but that Plaintiff responded that she had
produced all such documents. See [#36-1 at 16]. Defendant then followed up with Plaintiff’s
counsel to ensure that any “notes or diary” regarding her allegations in this matter had been
produced, especially in light of her detailed chronology of events provided in response to

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Interrogatory No. 9. [#36-2 at 2]. Plaintiff’s counsel again responded that Plaintiff had produced
all documents, and suggested that Defendant’s Denver counsel may have misplaced certain
documents. [Id.].
At Plaintiff’s deposition on July 13, 2017, Plaintiff disclosed that she kept a “journal” to
document all conversations she has had regarding this matter so that she could recall those
conversations in the future should the need present itself. [#36-4 at 100:9–14]. Ms. Mitcham
also testified that she scanned the original copy of the journal and submitted it to her attorney,
and then she shredded the original copy. See [id. at 101:9–14, 102:6–10, 102:15–20]; but see
[#40-3 at 289:8–25]. Further, when presented with her produced documents, Plaintiff testified
that her journal was not among those documents. [Id. at 148:14–18]. Plaintiff then produced a
scanned copy of the journal on July 15, 2017, after the completion of her deposition. [#37 at ¶
9].
During the August 11 informal discovery dispute conference, Plaintiff indicated that she
agreed to “resume” her deposition specifically to discuss her notebook. [#39]. Defendant
indicated that it would seek sanctions for Plaintiff’s failure to produce the notebook. [Id.].
Pursuant to this court’s direction, Defendant filed the instant Motion on August 18, 2017. See
[#36]. Defendant seeks fees and expenses incurred by having to re-depose Plaintiff and for filing
the instant Motion, as well as an adverse inference instruction under Rules 37(a) and (c) of the
Federal Rules of Civil Procedure. [Id.]. Plaintiff filed a Response and Defendant a Reply. [#40;
#41]. The Motion is ripe for resolution.
ANALYSIS
The Federal Rules of Civil Procedure provide for discovery procedures that seek to
further the interests of justice by minimizing surprise at trial and ensuring wide-ranging

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discovery of information. Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614,
619 (D. Colo. 2007) (citation omitted). To accomplish these objectives, Rule 26(a)(1) requires
parties to disclose certain information without awaiting a formal discovery request to
(1) accelerate the exchange of basic information, and (2) “provide an opposing party with
information essential to the proper litigation of all relevant facts[.]” Poitra v. Sch. Dist. No. 1 in
the Cty. of Denver, 311 F.R.D. 659, 663 (D. Colo. 2015). Rule 26(e)(1) provides that a party
must supplement its disclosure(s) and response(s) in a timely manner if the party learns that the
response(s) or disclosure(s) are incomplete or incorrect in some material respect, or by court
order. Fed. R. Civ. P. 26(e)(1)(A)–(B).
Rule 26(b)(1) defines the scope of permissible discovery, permitting discovery regarding
any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the
needs of the case. See Fed. R. Civ. P. 26(b)(1). To protect each party’s ability to participate in
meaningful discovery, putative litigants have a duty to preserve documents that may be relevant
to pending or imminent litigation.

See Cache La Poudre Feeds, 244 F.R.D. at 620. Rule 37

provides sanctions for the destruction or loss of evidence. E.E.O.C. v. Dillon Cos., Inc., 839 F.
Supp. 2d 1141, 1144 (D. Colo. 2011) (“Dillon”). “As a general rule, the trial court acts with
discretion in imposing sanctions for abuse of discovery under Rule 37, [but] the court [also] has
inherent power to impose sanctions for the destruction or loss of evidence.” Zbylski v. Douglas
Cty. Sch. Dist., 154 F. Supp. 3d 1146, 1158–59 (D. Colo. 2015) (internal citations omitted); Fed.
R. Civ. P. 37(c)(1) (providing for sanctions for a party’s failure to provide information or
witnesses as required under Rules 26(a) or (e)).

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I.

Failure to Disclose Plaintiff’s Journal
Defendant first moves for sanctions because Plaintiff failed to disclose her journal with

her May 1 initial disclosures or in response to Defendant’s first Rule 34 request for production of
documents. [#36 at 6; #41 at 2]. Further, both Plaintiff and her counsel certified under Rule
26(g) that Plaintiff’s initial disclosures and responses were complete and accurate; however, a
“minimal inquiry” by Plaintiff’s counsel would have revealed the existence of the journal and
required its production. [#36 at 6–7]. But because of Plaintiff’s and her counsel’s shortcomings,
Defendant was without the journal during Plaintiff’s deposition.

According to Defendant,

Plaintiff should thus bear the costs of reopening her deposition as well as Defendant’s fees and
expenses in taking the deposition and filing the instant Motion. [Id. at 7–8; #41 at 2–4]. Plaintiff
does not respond to these arguments, but appeared to concede during the August 11 informal
discovery dispute conference that re-opening Ms. Mitcham’s deposition to discuss the notebook
was appropriate.
This court has “broad discretion to determine whether a Rule 26 violation is
‘substantially justified’ or harmless.” Alvariza v. Home Depot, 241 F.R.D. 663, 665 (D. Colo.
2007) (citation omitted). Several factors guide the court’s determination: “(1) the prejudice or
surprise to the impacted party; (2) the ability to cure the prejudice; (3) the potential for trial
disruption; and (4) the erring party’s bad faith or willfulness.” O’Sullivan v. Geico Cas. Co., 233
F. Supp. 3d 917, 933 (D. Colo. 2017) (citing Woodworker’s Supply, Inc. v. Principal Mut. Life
Ins. Co., 170 F.3d 985, 993 (10th Cir. 1999)). Neither party addresses these factors explicitly.
However, it is undisputed that a Rule 26 violation occurred.
In considering the factors as set forth above, this court finds that while the Rule 26
violation may be cured to some extent (as discussed in more detail below), Ms. Mitcham’s

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failure to disclose the notebook in a timely fashion as part of her Initial Disclosures or in
response to written discovery was not substantially justified. Indeed, Ms. Mitcham offers no,
and this court cannot itself ascertain, a plausible explanation that Plaintiff was unaware of the
notebook or its relevance to this instant action. This court further notes that Plaintiff invoked the
assistance of the court on numerous occasions to obtain the discovery, including the scheduling
of depositions, which she required to prosecute the case. Nonetheless, it appears that Ms.
Mitcham was withholding information (whether intentionally or not) that has hindered the
progress of discovery—discovery that is set to close on September 29, 2017. This court now
turns to the Parties’ spoliation arguments—the crux of the instant Motion.
II.

Spoliation of Plaintiff’s Journal
“Spoliation is the destruction or significant alteration of evidence, or failure to preserve

property for another’s use as evidence in pending or reasonably foreseeable litigation.” Giblin v.
Sliemers, 147 F. Supp. 3d 1207, 1214 (D. Colo. 2015) (internal quotation marks and citation
omitted). “A spoliation sanction is proper where: ‘(1) a party has a duty to preserve evidence
because it knew, or should have known, that litigation was imminent, and (2) the adverse party
was prejudiced by the destruction of the evidence.’” Jones v. Norton, 809 F.3d 564, 580 (10th
Cir. 2015) (quoting Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009)
(further citations omitted)). The bad faith destruction of material “relevant to proof of an issue at
trial gives rise to an inference that production of the document would have been unfavorable to
the party responsible for its destruction.” Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th
Cir. 1997) (“Mere negligence in losing or destroying records is not enough because it does not
support an inference of consciousness of a weak case”) (citation omitted); see also Ehrenhaus v.
Reynolds, 965 F.2d 916, 920 (10th Cir. 1992) (identifying several factors for the court’s

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consideration in determining the appropriate severity of sanctions).
A.

Duty to Preserve

It is axiomatic that the filing of a lawsuit triggers a duty to preserve; however, this
obligation may arise earlier if a party has notice that future litigation is likely. See Estate of
Vallina v. Cty. of Teller Sheriff’s Office, No. 15–cv–01802–RM–STV, 2017 WL 1154032, at *5
(D. Colo. Mar. 28, 2017) (citation omitted). That is, “a party’s duty to preserve arises when it
has notice that the documents might be relevant to a reasonably-defined future litigation.”
Zbylski, 154 F. Supp. 3d at 1164. This determination depends on the particular facts of the case.
Cache La Poudre, 244 F.R.D. at 621. If such a duty exists, the inquiry into whether a party has
honored its duty is one of reasonableness under the circumstances. See Rimkus Consulting Grp.,
Inc. v. Cammarata, 688 F.Supp.2d 598, 613 (S.D. Tex. 2010).
Here, there is some ambiguity as to when Ms. Mitcham destroyed the original copy of her
journal. Compare [#36-4 at 101:9–14, 102:6–10, 102:15–20 (testifying that she shredded the
original journal after filing this lawsuit] with [#40-3 at 289:8–25 (testifying that she shredded the
original journal within a week of losing her job)]. 2

Nevertheless, this court agrees with

Americold that, regardless of when Ms. Mitcham destroyed the original journal, she was on
notice that the journal might be relevant to a reasonably-defined future litigation. [#36 at 10–11;
#41 at 5–6].
Ms. Mitcham testified that, while still employed with Americold, she began emailing
herself company emails and other documents to keep records of her issues with Mr. Deboskie,
2

In her deposition testimony cited by Plaintiff [#40 at 10], it appears Plaintiff misspoke that she
“brought her journal home on September 3[] . . . because [she] no longer had a job[.]” [#36-2 at
289:2–5]. The SAC alleges that she was terminated on October 3, 2016 [#22 at ¶ 49], and earlier
in her deposition she testified that she brought the journal home on October 3, see [#36-4 at
100:22–24 (Q: “Is that the notebook you removed from your office on October 3, 2016?” A:
“Yes.”). Thus, this court presumes that, at the earliest, Plaintiff destroyed her original journal
within a week after October 3.
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i.e., the “harassment and . . . the lawsuit claims.” [#36-4 at 17:1–8, 17:22–18:11, 18:16–19,
21:6–24, 309:25–310:4]. Also, that she began keeping a journal covering her first day of work
with Americold to her last day of work—something she has done throughout her career. [Id. at
100:10–14, 102:2–5, 148:21–23]. The journal included Ms. Mitcham’s transcribed notes of her
conversations with Americold employees, including Mr. Deboskie, her supervisor she alleges
discriminated against her. [Id. at 100:25–101:6]. Following her termination, Plaintiff scanned
the original journal, sent the scanned copy to her attorney, and then shredded the original. See
[id. at 101:7–14, 102:6–20, 288:22–289:25].
Plaintiff argues that her shredding the original journal does not constitute destruction,
because she “kept a journal in the ordinary court of business and transferred it to computerized
form as a matter of routine.” [#40 at 5 (emphasis in original)]. Plaintiff continues that this
satisfies the requirements of Rule 34(b)(2)(E), and that she timely supplemented her incomplete
discovery responses with the scanned journal. [Id. at 5–6]. These arguments are unavailing.
Plaintiff’s original journal does not constitute electronically stored information; thus, Rule
34(b)(2)(E) is inapplicable. And, as mentioned above, a Rule 26 violation occurred.
Plaintiff also argues that she did not contemplate filing suit at the time she destroyed her
original journal; rather, she merely wanted “an attorney to write a letter[] . . . to communicate
with management and try to get some clarity.” [#40 at 9–10; #40-2 at ¶ 7]. However, as
Defendant notes, Mr. Olsen’s October 4, 2016 letter appears to do more than seek clarification
from Defendant but, rather, that Plaintiff believes Defendant illegally discriminated and
retaliated against her, and warned that further retaliation is “forbidden by federal and Colorado
law.” [#36-6 at 3]; cf. Cache La Poudre, 244 F.R.D. at 622 (holding the letter the plaintiff’s
counsel sent defendant did not trigger its duty to preserve, because the letter merely informed the

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defendant of the plaintiff’s rights and sought to resolve the matter without litigation). Further, as
explained, the inquiry is not whether a party contemplates litigation but whether the party has
“notice that the documents might be relevant to a reasonably-defined future litigation.” Zbylski,
154 F. Supp. 3d at 1164. By Ms. Mitcham’s own testimony, she was documenting alleged
discriminatory conduct by Mr. Deboskie, and hired a lawyer within a day of being terminated.
Thus, it is immaterial that Plaintiff did not actually file suit until five months after her
termination in March 2017. See [#40 at 10–14]. Based on the facts presented, Ms. Mitcham had
a duty to preserve the original journal, whether she destroyed it within a week of her termination
or after initiating this lawsuit.
Additionally, Plaintiff abdicated that duty by shredding the original. It is clear that
Plaintiff retained counsel the day after her termination and that, at this point, had not yet
destroyed her original journal. Though Plaintiff stresses the fact that the scanned copy is just as
good as the original, I respectfully disagree. First and foremost, there is no way for this court or
the Parties to independently confirm that the scanned copy includes all the pages of the original
journal.

There is also no opportunity for the court or the Parties to determine from the

handwriting, the ink, or otherwise if there are timing differences as to when certain entries were
written. Therefore, this court concludes that the destruction of the original was unreasonable
under the circumstances, because Ms. Mitcham retained counsel prior to shredding the original,
and then scanned and sent a copy of the original to Mr. Olsen at his behest. See [#36-4 at 102:6–
17]. At this point, it should have been clear that Ms. Mitcham needed to preserve the original, or
counsel for Plaintiff should have specifically advised her of such.
B.

Prejudice to Defendant

In addition to establishing that Ms. Mitcham had a duty to preserve evidence, Defendant

10

must also demonstrate that it was prejudiced by Plaintiff’s destruction of the original journal.
Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). “When
considering whether the spoliation was prejudicial, a court must first determine whether the
evidence would be relevant to an issue at trial.” Giblin, 147 F. Supp. 3d at 1215 (internal
quotation marks and citation omitted). “The burden is on the aggrieved party to establish a
reasonable possibility, based on concrete evidence rather than a fertile imagination that access to
the lost material would have produced evidence favorable to his cause.” Gates Rubber Co. v.
Bando Chem. Indus., Ltd., 167 F.R.D. 90, 104 (D. Colo. 1996) (internal brackets, citations, and
quotation marks omitted).
Defendant argues that Plaintiff’s destruction of the original journal “prevents [it] from
challenging Plaintiff’s testimony about the creation, completeness[,] or accuracy of the journal.”
[#36 at 12]. Specifically, there is no way for Defendant to know if: (1) the scanned journal is
the same journal Plaintiff removed from her office on October 3, given the inconsistencies
between Plaintiff’s description of the journal and the scanned copy actually produced; (2) the
scanned journal is complete, i.e., have pages been added or removed; (3) the scanned journal has
been annotated or altered; and (4) the entries were actually contemporaneously made, as a black
and white photocopy does not allow for forensic testing of varying ink colors, impressions, or
age. [Id. at 12–13; #41 at 8]. Further, Defendant contends that Plaintiff’s testimony as to the
journal’s contents does not correspond with the scanned journal’s entries; that is, there are only a
handful of entries regarding Mr. Deboskie, contrary to Plaintiff’s testimony.

[#36 at 13].

Naturally, Plaintiff responds that Americold fails to demonstrate that it was prejudiced by “an
exact computerized copy” of the journal. [#40 at 15].
To state a prima facie sex discrimination claim, Ms. Mitcham must establish (1) she is a

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member of a protected class; (2) she suffered an adverse employment action; (3) she was
qualified for her position with Americold; and (4) she was treated less favorably than her male
co-workers. See Turner, 563 F.3d at 1142. Plaintiff’s retaliation claim requires a showing:
“(1) [] she engaged in protected opposition to discrimination; (2) [] she was subject to adverse
employment action; and (3) a causal connection exists between the protected activity and the
adverse action.” Kendrick v. Penske Transp. Servs., Inc., 220 F.3d 1220, 1234 (10th Cir. 2000).
Plaintiff’s CADA claim is subject to these same standards. See Johnson v. Weld Cty., Colo., 594
F.3d 1202, 1219 n.11 (10th Cir. 2010).
Here, Plaintiff testified that her original journal contained her transcribed notes of
conversations and interactions she had with Mr. Deboskie, including his alleged discrimination
against her. [#36-4 at 17:1–8, 17:22–18:11, 18:16–19, 21:6–24, 309:25–310:4]. Further, that
these notes were contemporaneously recorded. Certainly, such evidence is relevant to an issue at
trial. See Dillon, 839 F. Supp. 2d at 1144.
This court also agrees that Plaintiff’s destruction of the original journal prejudiced
Defendant given that Defendant could not inspect the journal in its original form. Cf. Sedrati v.
Allstate Life Ins. Co., 185 F.R.D. 388, 393 (M.D. Ga. 1998) (holding that the defendant’s
destructive fingerprint analyses performed on the original document prejudiced the plaintiff,
because the plaintiff’s expert could not “duplicate the conditions of the original documents and
account for the existence—or absence—of [the plaintiff’s] fingerprints on them.”). While not
binding, this court finds Leon v. IDX Systems Corporation persuasive on this point. 464 F.3d
951 (9th Cir. 2006). In Leon, Mauricio Leon filed suit against his former employer IDX Systems
Corporation (“IDX”) after IDX placed him on unpaid leave and sought to terminate him. Id. at
955.

Mr. Leon alleged that IDX terminated him in retaliation for certain whistle-blowing

12

activities in violation of Title VII, among other statutory and state law claims. Id. at 955–56. At
some point, IDX sought to retrieve Mr. Leon’s IDX-issued laptop, but when Mr. Leon returned
the laptop, IDX’s computer forensics expert concluded that Mr. Leon had deleted 2,200 files
from its hard drive. Id. at 956. Mr. Leon even admitted at his deposition that he deleted the files
and then wrote a program to “wipe” the deleted files from the hard drive; he testified, however,
that he did so mainly to protect his privacy. Id. at 956, 959. The United States Court of Appeals
for the Ninth Circuit (“Ninth Circuit”) upheld the district court’s dismissal of Mr. Leon’s lawsuit
for despoliation of evidence. In doing so, the Ninth Circuit held that Mr. Leon was on notice that
these personal files were potentially relevant to his claims, and that their destruction prejudiced
IDX in its defense of the lawsuit. Id. at 960.
Here, though Plaintiff produced a scanned copy of the journal unlike the complete
deletion in Leon, the contents of the original journal contained evidence relevant to Americold’s
defense of this lawsuit. Further, I respectfully agree with Americold that production of the
scanned copy does not necessarily provide Americold an opportunity to meaningful review the
journal’s contents. There is no way for Americold to understand whether Plaintiff’s notes were
in fact contemporaneous, annotated, altered, or complete, given that Defendant received only a
black and white photocopy. Defendant is now limited to Ms. Mitcham’s testimony about the
contents of the journal and its accuracy, having been deprived the ability to examine the original.
Cf. Dillon, 839 F. Supp. 2d at 1145 (holding in an ADA discrimination case that the plaintiff was
prejudiced by the defendant’s loss of the master copy of a video tape and its three copies that
depicted the alleged incident leading to the employee’s termination, when the defendant planned
to call witnesses to testify as to the tapes’ contents); Grady v. Brodersen, No. 13–cv–00752–
REB–NYW, 2015 WL 1384371, at *4–5 (D. Colo. Mar. 23, 2015).

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C.

Sanctions

In addition to fees and costs associated with bringing the instant Motion and reopening
Plaintiff’s deposition, Defendant also requests an adverse inference instruction should this case
go to trial. [#36 at 16]. Alternatively, Defendant seeks to cross-examine Plaintiff before the jury
regarding her destruction of the original journal.

[Id. at 16–17].

Under either scenario,

Defendant requests that Plaintiff and her witnesses be precluded from testifying about the
journal’s contents as corroborating evidence, so as to uphold the effectiveness of an adverse
inference instruction. [Id. at 17].
As explained, “courts require evidence of intentional destruction or bad faith before a
litigant is entitled to a spoliation instruction.” Henning v. Union Pac. R.R. Co., 530 F.3d 1206,
1220 (10th Cir. 2008) (“An adverse inference is a powerful sanction as it brands one party as a
bad actor and necessarily opens the door to a certain degree of speculation by the jury” (internal
quotation marks and citation omitted)). The court is within its discretion, however, to impose
lesser sanctions based on the culpability of the destructing party. See Estate of Trentadue ex rel.
Aguilar v. United States, 397 F.3d 840, 862 (10th Cir. 2005); Gates Rubber Co., 167 F.R.D. at
102 (observing that the Ehrenhaus factors should be considered even in cases that do not involve
dispositive sanctions).
Defendant argues that Plaintiff destroyed the original journal in bad faith because, even if
she had no “evil intent,” she and her counsel failed to take reasonable steps to preserve it. [#36
at 14–15]. It is clear that Plaintiff intentionally destroyed the original journal after she made a
scanned copy because she believed the journal contained sensitive information about other
individuals not party to or associated with this action. This reasoning seems at odds with
Plaintiff’s assertion that the copy is an exact duplicate of the original; the court presumes that if

14

Plaintiff is accurate that the scanned copy is an exact duplicate of the original, the same sensitive
information about which Plaintiff was concerned would appear in identical form in the scanned
copy. However, without the benefit of a more complete record, there is insufficient evidence for
this court to determine the scope and extent of any prejudice to Defendant arising from Ms.
Mitcham’s destruction. Accordingly, under the circumstances, I respectfully conclude that an
adverse inference instruction or request to cross-examine Ms. Mitcham about the spoliation is
not warranted at this time. 3 Rather, Plaintiff will be responsible for Defendant’s reasonable
attorney fees and costs associated with the taking of Plaintiff’s re-opened deposition for an
additional two (2) hours except that Plaintiff will not be responsible for any travel costs
associated with Defendant’s lead counsel traveling to Denver to take this additional deposition,
given that Defendant has local counsel in Denver. Lead counsel may, should he so choose, to
appear telephonically or via videoconference at his expense. Fed. R. Civ. P. 30(b)(4).
CONCLUSION
For the reasons stated herein, IT IS ORDERED that:
(1)

Defendant Americold Logistics, LLC’s Motion For Sanctions For Failure To

Timely Produce Documents And For Spoliation Of Evidence And Memorandum In Support
[#36] is GRANTED IN PART and DENIED IN PART;
(2)

Defendant is GRANTED leave to re-open Plaintiff’s deposition for an additional

two (2) hours to examine Plaintiff about the journal;
(3)

Defendant’s request for fees and expenses associated with the filing of the instant

Motion and additional two (2) hour deposition of is GRANTED IN PART and DENIED IN
3

To the extent that Defendant is able to establish specific instances of prejudice resulting from
the loss of the original journal that is not cured through the production of a copy of the journal
and Ms. Mitcham’s renewed deposition, it may file an appropriate motion for sanctions at that
time.
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PART. Plaintiff shall bear the costs and reasonable fees associated with the taking of an
additional two (2) hour deposition of Plaintiff, excluding any travel costs by counsel; and
(4)

All other requests for relief, including but not limited to Defendant’s request for

an adverse inference instruction and fees and costs associated with the filing of this instant
Motion, are DENIED.

DATED: September 20, 2017

BY THE COURT:
s/ Nina Y. Wang________
Nina Y. Wang
United States Magistrate Judge

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