Prince v. University of St. Augustine for Health Sciences et al

Filing 155

ORDER denying 114 the plaintiff's motion for sanctions under Federal Rule of Civil Procedure 37(e). Signed by Magistrate Judge Patricia D. Barksdale on 3/15/2019. (ABK)

United States District Court
Middle District of Florida
Jacksonville Division
JOE L. PRINCE, II,
Plaintiff,
V.

NO. 3:16-CV-1016-J-39PDB

UNIVERSITY OF ST. AUGUSTINE
FOR HEALTH SCIENCES ET AL.,
Defendants.

Order
Claiming spoliation of electronically stored information (“ESI”), Joe Prince
moves for sanctions under Federal Rule of Civil Procedure 37(e) against the
University of St. Augustine for Health Sciences and Margaret Wicinski.1 Doc. 114.
He asks the Court to (1) enter default against them or give an adverse jury instruction
and (2) award fees and costs associated with the motion. Doc. 114 at 19. They argue
sanctions are unwarranted. Doc. 121.
Rule 37(e) provides,
(e) Failure to Preserve Electronically Stored Information. If
electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced
through additional discovery, the court:

1Since

the filing of the motion for sanctions, the remaining claim against the
university has been dismissed. Doc. 154. Under Rule 54(b), the action has not ended,
making it is appropriate to still consider the motion for sanctions against the
university.

(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information's use in the litigation
may:
(A) presume that the lost information was unfavorable to
the party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
The rule “does not apply when [ESI] is lost before a duty to preserve arises.”
Fed. R. Civ. P. 37(e) advisory committee’s notes to 2015 amendment. The rule applies
to ESI only “when such information is lost” and only “if the lost information should
have been preserved in the anticipation or conduct of litigation and the party failed
to take reasonable steps to preserve it.” Id. The rule does not demand “perfection in
preserving all relevant” ESI, which “is often impossible.” Id. The routine, good-faith
operation of an ESI system is a relevant factor[.]” Id.
The allegations and evidence are detailed at length in the former and current
complaints and exhibits, Docs. 1, 1-1 to 1-28, 44, 44-1 to 44-31, 62, 62-1 to 62-10, the
motion for sanctions and exhibits, Docs. 96, 112, 113, 114, 114-1, 114-2, 114-3, the
report and recommendation on the motion to dismiss, Doc. 71, and the order on the
motion for summary judgment, Doc. 154. With much already written on the
allegations and evidence, the undersigned refrains from repeating the allegations and
evidence here.
Even accepting as true the evidence that Prince presents for the motion for
sanctions, see Doc. 114 at 2–4, 7–14, the motion fails for at least one reason with
respect to the university and at least one additional reason with respect to Wicinski.

2

Regarding the university and Wicinski, despite that Prince retained his own
computer forensic expert, he presents no evidence (much less a preponderance of
evidence or clear and convincing evidence) that the information he seeks—ESI on
when and by whom the mid-December 2015 emails were deleted—existed on January
14, 2016, when the university’s duty to preserve began. See generally Docs. 96, 112,
113, 114, 114-1, 114-2, 114-3. Matthew Ford, Edward Hill, and Brad Holloman
declared or testified the audit or tracking function that would have allowed recovery
of that ESI had not been enabled in January 2016. Doc. 112 at 47–49, 93–94, 103–04,
107–08; Doc. 113 at 115 (Tr. 135), 139 (Tr. 159); Doc. 122-1 ¶¶ 11–17. Ricardo Alegria
did not testify to the contrary; he testified about his general understanding of the
audit or tracking function of Office 365 and his lack of knowledge about what had
been recoverable from Prince’s email account. Doc. 96 at 14, 47–49, 114–16.
Regarding Wicinski, Prince presents no evidence (much less a preponderance of the
evidence or clear and convincing evidence) showing she had pertinent preservation
duties.
Prince made no request for an evidentiary hearing to probe the credibility of
the witnesses, see generally Doc. 114, and neither his timeline nor his listing of
alleged suspicious activity by various people, including counsel, Doc. 114 at 3–14,
creates a reasonable inference the witnesses are lying.
Having failed to satisfy his burden of showing sanctions are warranted, the
motion for sanctions, Doc. 114, is denied. This ruling does not consider whether
Prince may confront witnesses about the alleged deletion of the emails during the
trial or argue to the jury—as he appears to plan to do—that Wicinski or her husband
deleted the emails as part of Wicinski’s plan to give him a failing grade because he is

3

black but make it appear he failed because he could not master the materials. See
Doc. 114 at 17. Those evidentiary decisions are reserved for the trial judge.2
Ordered in Jacksonville, Florida, on March 15, 2019.

c:

Counsel of Record

2Prince

requests the award of fees and costs under Rule 37(e), Doc. 114 at 19,
but Rule 37(e) does not specify fees and costs as a sanction, and whether inherent
authority is available to order those as a sanction is at least debatable. See Fed. R.
Civ. P. 37(e) advisory committee’s notes to 2015 amendment (explaining the rule is
intended to “foreclose[ ] reliance on inherent authority”). Having ruled Prince fails to
meet his burden, authority to award fees and costs is not further addressed.
4