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)

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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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