Electrolux Home Prod v. Whitesell Corp
Filing
797
ORDER granting in part and denying in part 769 Motion to Compel; granting 774 Motion to Strike; granting 794 Motion for Leave to File. Signed by Judge J. Randal Hall on 03/31/2016. (thb)
IN THE UNITED
STATES DISTRICT COURT FOR THE
SOUTHERN DISTRICT OF GEORGIA
AUGUSTA DIVISION
WHITESELL CORPORATION,
*
Plaintiff,
*
*
ELECTROLUX HOME PRODUCTS,
INC., HUSQVARNA, A.B., and
HUSQVARNA OUTDOOR PRODUCTS,
INC.,
CV
103-050
*
*
*
*
*
Defendants.
*
ORDER
Presently before the Court is Defendants Electrolux Home
Products, Inc.
(UEHP") and Husqvarna Outdoor Products, Inc.'s
("Husqvarna")
Joint
Motion
to
Compel
Plaintiff
Whitesell
Corporation ("Whitesell") to respond to their Fourth Request
for Production of Documents.
Defendants also seek to overrule
certain privilege objections
deposition
of
Whitesell's
asserted by Whitesell
Rule
30(b)(6)
at
the
representative.
Defendants contend that Whitesell's privilege objections are
overborne
by
a
preliminary
showing
that
Whitesell
has
spoliated evidence in this case.
The
Court
has
chronicled
spoliation in other orders.
March 31, 2016.)
Whitesell's
assertions
of
(See Orders of Dec. 9, 2015 and
Alongside every such assertion, Defendants
have proclaimed that Whitesell has committed similar failings
in
discovery-what
discovery."
Defendants'
the
the
(See
Court
Orders
has
of
referred
Sept.
10
to
and
as
Dec.
"gaps
9,
in
2016.)
present motion brings their prior complaints to
forefront.
Both Husqvarna and EHP have produced privileged documents
based upon Whitesell's
preliminary
showing
Pursuant
of
9,
to
the
Order
December
of
2016,
spoliation.
EHP
produced
documents referenced in the deposition of its Rule 30(b)(6)
deponent such as a purge hold list, a litigation hold letter,
and
internal
consequence of
material
e-mails
regarding
this Order,
data
collection.
As
a
Husqvarna also produced certain
including preservation communications
to
document
custodians, a list of custodians who were searched, the search
terms used to conduct the search,
materials
relating
to
reciprocal discovery.
of
Documents,
such
and project documents and
searches.
Defendants
now
seek
In their Fourth Request for Production
Defendants
seek
documents
and
communications
related to Whitesell's document retention policies, litigation
holds and document preservation instructions, and efforts to
collect data including the search terms used.
(See Doc. No.
769-1.)
The Court cannot order the production of these documents
simply because Defendants were directed to produce similar
material.
Rather, the Court must determine whether Defendants
2
have made a preliminary showing of spoliation sufficient to
overcome Whitesell's privilege objections.
destruction
or
significant
alteration of
Spoliation is "the
evidence,
or
the
failure to preserve property for another's use as evidence in
pending or reasonably foreseeable litigation."
Ban a Marine
(quoted
Corp. , 310
source
instances
F. App'x 298,
omitted).
Here,
indicating spoliation.
301
E.g., Graff v.
(11th Cir.
Defendants
Of
these,
2009)
outline
the
six
following
circumstances compel a finding that Defendants have made a
preliminary showing of spoliation.1
On January 14,
Mr.
Robert Wiese,
2016, Defendants took the deposition of
Whitesell's Rule 3 0(b)(6)
representative.
Mr. Wiese testified that Whitesell did not have any type of
litigation hold policy or practice from 2000 until present.
(Wiese Dep. at 133.)
In 2006, in preparation for Whitesell's
February 2007 production,
Mr. Wiese explained to department
heads what documents he needed, but he did not tell them why.
(Id.
at 134,
138-40.)
He also discussed the need to retain
all communications related to Defendants with two executives,
Neil Whitesell and John Duffner.
these instances,
(Id.
at 135.)
Other than
when asked by the finance department if it
1 The Court need not discuss all six alleged instances
indicating spoliation once it determines that some of the
circumstances warrant the requisite finding.
3
could shred or destroy documents, he instructed that documents
related to Defendants be preserved.
(Id. at 135-36.)
Additionally, Mr. Wiese revealed that Whitesell took no
efforts to prevent employees from deleting e-mails from the
centralized server through a process referred to as
deletion."
(Id. at 79-80.)
"double
This oversight manifested itself
in the lack of production of e-mails from Todd Wagstaff and
four
other
former
employees
of
Whitesell.
For
instance,
Whitesell produced only one e-mail from the custodial mailbox
of Mr. Wagstaff.
At deposition, Mr. Wiese admitted that there
should have been a thousand or more.
then surmised that Mr.
prior
to
leaving
(Id.
at 60.)
Mr.
Wiese
Wagstaff double deleted the e-mails
Whitesell
in
2005.
Indeed,
Mr.
Wiese
testified that he had eliminated other potential explanations
for the missing e-mails.2'3
2
compel
(Id. at 71-74.)
Following Defendants' reliance in
upon Mr. Wiese's testimony about
their motion to
Todd Wagstaff's
custodial mailbox, Whitesell served upon Defendants an errata
sheet
to
Mr.
Wagstaffs
deposition.
Understandably,
Defendants filed a motion to strike the errata sheet.
Upon
due consideration, the Court concludes that the errata sheet
impermissibly contradicts Mr. Wiese's deposition testimony and
will
not
be
considered.
errata sheet (doc.
3
Mr.
Wiese
no.
774)
Defendants'
motion
to
strike
the
is hereby GRANTED.
testified that
the
custodial
mailboxes
of
the other four employees would have been searched for the 2007
production if they were employed by Whitesell at that time
because the mailboxes for all employees were searched for that
particular production.
(Wiese Dep. at 85-86.)
Thus, if the
employees were employed by Whitesell at that time and no emails were produced from their custodial mailboxes, the
logical explanation is that the employee deleted the e-mails.
4
These facts
property
for
show that Whitesell
another's
use
as
evidence
reasonably foreseeable litigation."
at 301.
"fail[ed]
to preserve
in
See Graff,
pending
or
310 F. App'x
Whitesell filed its complaint in October 2005, and
as the Court has noted previously, litigation in this case was
reasonably foreseeable prior to
admittedly
did
nothing
to
that time.
preserve
Yet,
Whitesell
evidence.
Without
litigation hold letters explaining to employees the importance
of document retention,
relevant
material
Defendants cannot be certain that all
has
been
preserved.
This
finding
is
bolstered by the failure to preserve e-mails from Mr. Wagstaff
and
perhaps
four
other
through its Rule 30(b)(6)
mails
are
simply
gone,
custodians.
As
representative,
i.e.,
not
Whitesell
Mr.
admits
Wagstaff's e-
preserved.
Whitesell
counters with evidence that it did produce a thousand Wagstaff
e-mails from other custodial mailboxes.
However,
there is no
way to assure that this other production constitutes the world
of
Wagstaff
e-mails
from his
custodial mailbox.
Nor must
Defendants accept this other production at face value in light
At deposition, Mr. Wiese explained that because these four
employees were not on the custodian list for the 2015
production, he did not further investigate the failure to
produce e-mails in preparation for the deposition. (Id. at 8384,
90-92.)
Nevertheless, he recalled that three or four of
the named employees were employed by Whitesell in 2006 and
2007 (id. at 87, 91-95), and the Court notes the spoliation
inference
to be drawn.
5
of
the
evidence
that
Whitesell
failed
to
communicate
the
importance of preservation to its employees.
In short, given Whitesell's apparent failure to implement
document
retention policies
or procedures
and evidence
of
missing e-mails, Defendants have made a preliminary showing of
spoliation.
Commensurate with the Court's rulings against
Defendants upon Whitesell's preliminary showing of spoliation,
the Court finds Defendants' Fourth Request for Production of
Documents to be reasonably related to their investigation of
Whitesell's potential spoliation of evidence.
Accordingly,
Whitesell is hereby ORDERED to produce documents responsive to
Defendants'
Fourth Request for Production of Documents.4
With respect to Defendants' motion to compel Whitesell to
present Mr. Wiese for re-examination, such request is DENIED.
Upon considering the subject areas that Defendants wish to
explore
with
Mr.
Wiese,
the
Court
finds
that
Whitesell's
court-ordered document production will be responsive to most
of
them.
For instance,
Mr.
Wiese did not answer questions
4 The Court notes that during his testimony, Mr. Wiese
explained that he had recently given Whitesell's counsel a
copy of e-mails and communications with counsel (in-house and
outside counsel) related to discovery as well as internal
communications between himself and other employees regarding
data collection for discovery in 2007 and 2015.
(Wiese Dep.
at 129-33.)
He also stated that he had provided to counsel
written documentation setting forth Whitesell's retention
policy related.to e-mail.
(Id. at 128.)
Production of these
documents is a fair start to Whitesell's obligations set forth
herein.
6
about
the
2 015
custodian
connection with the
list
or
the
search
terms
used
2007 and 2015 production efforts,
in
but
Defendants have asked for this same information in Request to
Produce
Numbers
showing of
and 4.
good cause,
examination of
this
3
the
Accordingly,
Court will
Whitesell's Rule
not
30(b)(6)
a
compel
further
the
re
representative at
time.
Upon the foregoing, Defendants'
no.
without
769)
motion to compel (doc.
is GRANTED IN PART and DENIED IN PART.
Because the
Court read and considered the sur-response attached to
motion for leave to file a sur-response,
for leave
(doc.
no.
794)
its
Whitesell's motion
is GRANTED.
ORDER ENTERED at Augusta, Georgia, this Js /5r~day of
March,
2016.
HONQRABiiE J.
RANDAL HALL
UNITED/STATES DISTRICT JUDGE
CRN DISTRICT
OF GEORGIA
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