Groves Incorporated v. R.C. Bremer Marketing Associates Inc et al

Filing 286

MEMORANDUM Opinion and Order: Groves' motion for an adverse inference instruction under Rule 37(e) 255 is denied without prejudice. The Court will take up the issue at the appropriate time, if it ever even needs to address it. Shepperd should give serious consideration regarding resolving this action without further court intervention. If Groves and Shepperd need help in this regard, Magistrate Judge Schneider can assist with a settlement conference. See the attached order for details. Signed by the Honorable Iain D. Johnston on 11/22/2024: (yxp, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
WESTERN DIVISION
Groves Incorporated,

)
)
)
)
) No. 22 CV 50154
) Judge Iain D. Johnston
)
)
)

Plaintiff,
v.
R.C. Bremer Marketing Associates, et al.,
Defendants.

MEMORANDUM OPINION AND ORDER
INTRODUCTION
This Court attracts Rule 37(e) motions like chum attracts sharks. (So—yes—
in this simile, the Court is fish guts and fish heads.) 1 This Court has been
presented with Rule 37(e) motions at various stages of an action. It has received
spoliation motions during discovery. Snider v. Danfoss, 15 CV 4748, 2017 U.S. Dist.
LEXIS 167591 (N.D. Ill. Jul. 12, 2017). Allegations of spoliation have been made in
the middle of summary judgment briefing, requiring the briefing to be stayed while
the spoliation issue could be resolved. DR Distribs., LLC v. 21 Century Smoking,
Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021). It has received Rule 37(e) motions in the
form of a motion in limine after the issue was raised during summary judgment.
Hollis v. Ceva Logistics U.S., Inc., 603 F. Supp. 3d 611 (N.D. Ill. 2022). And, in the
middle of trial, a party even requested for the first time an adverse inference jury
For people in a particular age range, “fish heads” will immediately cause recall of a certain
music video. Demented Punk, “Fish Heads” Barnes & Barnes (OFFICIAL VIDEO - BEST
QUALITY), YouTube (Aug. 30, 2019), https://www.youtube.com/watch?v=n9TNcI7eUXY.
And, for that, the Court sincerely apologizes.
1

1

instruction under Rule 37(e) for the spoliation of electronically stored information
(ESI). Kirchoff v. Chem Processing, No. 20 CV 50242, 2021 U.S. Dist. LEXIS 33022
(N.D. Ill. Feb. 19, 2021). 2 This current motion is just the latest. And another fully
briefed Rule 37(e) motion is on the Court’s to-do list.
This is a hotly contested case. The case has already generated nearly 300
docket entries. Three of those entries relate to this motion. Groves Incorporated
filed a spoliation motion against Christopher Shepperd, one of many defendants.
Dkt. 255. Shepperd has responded. Dkt. 265. And Groves has replied. Dkt. 268.
So, the motion is now fully briefed. 3
Raising Rule 37(e) issues or any spoliation issue for the first time during trial is far from
best practices. Doing so begs for the motion to be denied as untimely. Olson v. Shawnee
County Bd. of Comm’rs, 7 F. Supp. 3d 1162, 1199 (D. Id. 2014) (“‘[A] party who fails to raise
the issue of spoliation sanctions prior to or within the final pretrial order has waived the
issue absent an explanation for the delay.’”); Permasteelisa CS Corp. v. Airolite Co., LLC,
No. 06-cv-569, 2008 U.S. Dist. LEXIS 109329, at *8 (S.D. Ohio June 18, 2008) (“In this case,
where Plaintiff mentioned nothing of the spoliation issue in the Final Pretrial Order or at
the Final Pretrial Conference, and where Plaintiff has offered absolutely no explanation for
waiting until just one week before trial to bring this matter to the Court’s attention, the
Court finds that Plaintiff has waived the issue.”). Final pretrial orders frame the issues for
trial. Minemyer v. R-Boc Reps., Inc., 283 F.R.D. 392, 397–98 (N.D. Ill. 2012). These orders
may only be modified to prevent manifest injustice. Fed. R. Civ. P. 16(e). So, if the
spoliation issue is not contained in the final pretrial order, it is very likely waived.
Minemyer, 283 F.R.D. at 397–98. Indeed, the Sedona Principles provide an illustration of
waiving ESI issues by failing to raise them until “[s]hortly before trial.” The Sedona Conf.,
The Sedona Principles, Third Edition: 14, Comment 14.c, Illustration I, 19 SEDONA CONF. J.
1, 194 (2018).
3 Strangely, in places, the parties take certain positions regarding Rule 37(e), ignoring the
Court’s previous extensive decisions concerning Rule 37(e) motions. See, e.g., Hollis v. Ceva
Logistics U.S., Inc., 603 F. Supp. 3d 611 (N.D. Ill. 2022); DR Distribs., LLC v. 21 Century
Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021); Snider v. Danfoss, LLC, No. 15 CV
4748, 2017 U.S. Dist. LEXIS 167591 (N.D. Ill. July 12, 2017). No doubt, the parties are not
ethically bound to cite this Court’s prior decisions regarding Rule 37(e) and this Court’s
orders are not precedential. But one would think that rather than completely ignoring this
Court’s orders directly on point and citing other district court decisions—which are likewise
not precedential—the parties would at least address these decisions and attempt to
distinguish them. See Walker v. Spina, 359 F. Supp. 3d 1054, 1066 n.3 (D.N.M. 2019) (“One
2

2

But the case is still proceeding with expert discovery, as well as a couple of
depositions of fact witnesses. Dkt. 279. No date has been set for summary
judgment motions, and no trial date has been set. The Court appreciates Groves
timely informing the Court of the spoliation issue. However, to paraphrase
Inspector Clouseau, now is not the time to be filing a spoliation motion. The motion
is denied without prejudice.
The Court takes this opportunity to address the timing of filing spoliation
motions seeking sanctions. Spoliation motions can be filed too early. And they can
be filed too late. As shown in this order, there’s a sweet spot when the filing of the
spoliation motion is just right. But determining that sweet spot will vary depending
on the specific facts presented as well as the judge who decides the motion. The
best way to find that sweet spot is “to have a conversation”—in the words of one of
the Court’s former law clerks. 4 Notify the court and opposing counsel as soon as
possible about a spoliation concern and calmly and professionally talk to them about
the most reasonable and best options to address the concern.
Fair enough, Groves raised its concerns with Magistrate Judge Schneider
through multiple motions to compel, which were generally granted. As a result, a

of the things that consistently amazes the Court is the unwillingness of modern lawyers to
tailor their briefing to the particular judge before whom they argue. The Court still gets
briefings filled with citations to other district cases, even though it has written opinions
more directly on point. * * * There is nothing wrong—and a lot right—with our colleagues
in other states, but it mystifies the Court why lawyers continue not to research and know
the judge before whom they are practicing.”). The filings also cite to and rely upon multiple
cases that pre-date the 2015 amendments to Rule 37(e). Those cases are of extremely
limited value.
4
A shout out to Grayson Wells is deserved here.

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forensic examination was completed that provided fairly damning information
against Shepperd, which in retrospect gives color to possible reasons for Shepperd’s
foot-dragging in discovery. But, as far as the Court can tell, nobody addressed with
Magistrate Judge Schneider the best way and best time to raise Groves’ requested
relief for an adverse inference instruction due to alleged spoliation of ESI.
Certainly, nobody raised the best way and best time to seek this relief with the
undersigned, before whom the motion is pending.
The Court recognizes that some counsel view assertions of spoliation as a
declaration of war. That’s understandable. Spoliation is a serious allegation that
should not be thrown around lightly. Phoenix Process Equip. Co. v. Capital Equip.
& Trading Co., No. 16-CV-24, 2022 U.S. Dist. LEXIS 140668, at *2 n.1 (W.D. Ky.
Jul. 18, 2022). But litigation is not high tea at the Savoy. In re Marriage of Adler,
271 Ill. App. 3d 469, 474 (1st Dist. 1995). So, if there’s a legitimate concern about
spoliation rooted in fact and law, then counsel should raise it with opposing counsel
immediately and then fairly and accurately convey the parties’ discussion about the
concern with the court at the next opportunity. Of course, all counsel are duty
bound to promptly notify opposing counsel and the court when they have learned
that relevant evidence has been spoliated. See DR Distribs., 513 F. Supp. 3d at
905–06; see also Donoforio v. IKEA US Retail, LLC, Nos. 19-1286, 18-599 and 19723, 2024 U.S. Dist. LEXIS 81853, at *50–51 (E.D. Pa. May 6, 2024); Phil Favro,
New Federal Cases Spotlight 2021’s Key Trends in E-Discovery, Law.com (May 13,
2021).

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Again, to be fair to Groves, it raised its legitimate concerns about spoliation
with Magistrate Judge Schneider in a timely manner. As to whether Groves and
Magistrate Judge Schneider were promptly notified that the emails were “not
accessible,” the Court has its doubts. Nevertheless, the undersigned was unaware
of the motion’s request for a permissive adverse inference instruction until after the
motion was fully briefed and made its way to the top of a very long motions list.
PROPER TIMING OF SPOLIATION MOTIONS
Much ink has been spilled addressing tardy spoliation motions. 5 On the flip
side, courts have also addressed premature spoliation motions. 6 This order
addresses the best time to file spoliation motions.

See, e.g., Freedman Normand Friedland, LLP v. Cryulink, No. 21-cv-1746, 2024 U.S. Dist.
LEXIS 91321, at *6–7 (S.D.N.Y. May 21, 2024); Pratt v. Robbins, No. 20-cv-170, 2024 U.S.
Dist. LEXIS 11100, at *5–7 (W.D.N.C. Jan. 22, 2024); Atanassoova v. GM LLC, No. 20-cv1728, 2023 U.S. Dist. LEXIS 54619, at *7–10 (D.S.C. Mar. 28, 2023); Gruenstein v.
Browning, No. 17-cv-2328, 2022 U.S. Dist. LEXIS 148542, at *7–10 (N.D. Ill. June 21,
2022); Wine Educ. Council v. Ariz. Rangers, No. CV 19-2235, 2021 U.S. Dist. LEXIS 151140,
at *5-7 (D. Ariz. Aug. 11, 2021); Mahboob v. Educ. Credit Mgmt. Corp., No. 15-cv-628, 2021
U.S. Dist. LEXIS 38309, at *4-5 (S.D. Cal. Mar. 1, 2021); Larios v. Lunardi, 442 F. Supp. 3d
1299, 1305–06 (E.D. Cal. 2020); Mannion v. Ameri-Can Freight Sys., No. CV-17-3262, 2020
U.S. Dist. LEXIS 12695, at *9–11 (D. Ariz. Jan. 27, 2020); Wakefield v. ViSalus, Inc., No.
15-cv-1857, 2019 U.S. Dist. LEXIS 52557, at *7–9 (D. Or. Mar. 27, 2019); Sherwood v.
BNSF Ry. Co., No. 16-cv-8, 2019 U.S. Dist. LEXIS 33378, at *5–7 (D. Idaho Mar. 1, 2019);
Olson v. Shawnee Cnty. Bd. of Comm’rs., 7 F. Supp. 3d 1162, 1199 (D. Kan. 2014); see also
Robert Adler, When the Timing of Your Spoliation Motion Can Be as Important as Its
Substance, JDSupra (April 23, 2024).
6
See, e.g., Ol Priv. Couns., LLC v. Olson, No. 21-cv-455, 2024 U.S. Dist. LEXIS 81502, at
*16 (D. Utah May 3, 2024); Playup, Inc. v. Mintas, No. 21-cv-2129, 2024 U.S. Dist. LEXIS
21370, at *4–5 (D. Nev. Feb. 6, 2024); Sanchez v. Silbaugh, No. 20-1005, 2023 U.S. Dist.
LEXIS 227225, at *5 (W.D. Pa. Dec. 21, 2023); Paul v. W. Express, Inc., No. 20-cv-51, 2021
U.S. Dist. LEXIS 255142, at *8–12 (W.D. Va. Oct. 27, 2021); Wai Feng Trading Co. v. Quick
Fitting, Inc., No. 13-33, 2019 U.S. Dist. LEXIS 4113, at *26–27 (D. R.I. Jan. 7, 2019); Kolas
v. Wal-Mart Stores, Inc., No. 17-cv-1597, 2018 U.S. Dist. LEXIS 246745, at *2–3 (D. Nev.
Mar. 23, 2018); Miller v. Lemhi Cnty., No. 15-cv-156, 2018 U.S. Dist. LEXIS 34835, at *21
(D. Idaho Mar. 2, 2018); Taylor v. AFS Techs., Inc., No. CV-09-2567, 2010 U.S. Dist. LEXIS
93664, at * 2 (D. Az. Aug. 18, 2021).
5

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Tardy Spoliation Motions
Predictably, a—if not the—leading opinion regarding tardy spoliation motions
was authored by Judge Paul Grimm (ret.): Goodman v. Praxair Servs., 632 F. Supp.
2d 494 (D. Md. 2009). In Goodman, Judge Grimm made the critical point that
spoliation motions should be “filed as soon as reasonably possible after discovery of
the facts that underlie the motion.” Id. at 508. In support of this axiomatic
proposition, he listed several reasons why spoliation issues should be raised with
the court as soon as practicable. These motions are fact intensive, can require
extensive evidentiary hearings, can disrupt the timing of the rest of the case (with
significant costs resulting to the parties and the court), and the remedy sought or
provided can significantly affect the case. Id. at 508. Having decided many
spoliation motions, the Court can attest that all of this is true. Judge Grimm also
identified five factors courts should consider in determining if a spoliation motion is
tardy. These factors are (1) “how long after the close of discovery the relevant
spoliation motion has been made,” (2) the “temporal proximity between a spoliation
motion and motions for summary judgment,” (3) whether the spoliation motion was
made on the eve of trial, (4) whether a Rule 16 scheduling order or local rule set a
deadline for filing spoliation motions, and (5) the moving party’s explanation why
the spoliation motion was not filed earlier. Id. at 506–08. The first factor was
described as the “key.” Goodman, 632 F. Fupp. 2d at 506. The second factor
assumes that generally spoliation motions should be made before summary
judgment motions are filed. Id. at 507.

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Later, in National Fair Housing All v. Bank of America, N.A., No. 18-1919,
2023 U.S. Dist. LEXIS 127334, at *13 (D. Md. Jan. 23, 2023), Judge Gallagher
explicitly added prejudice as a sixth Goodman factor. Other courts have likewise
focused on the lack of prejudice in determining that a spoliation motion was timely
filed. See, e.g., O’Connor v. Ford Motor Co., 683 F. Supp. 3d 793, 796 (N.D. Ill. 2023)
(“Whatever the merits of Ford’s reasons for delay, Marino has not persuaded me
that the delay was prejudicial to him or offered Ford a tactical advantage . . . .”).
But implicit in some of the Goodman factors is the concept of prejudice. Take
the summary judgment factor. Summary judgment motions are time consuming
and expensive. Martino v. Shakir, 643 B.R. 203, 208 n.2 (N.D. Ill. 2022); Wilson v.
Chicago Transit Auth., No. 93 C 5461, 1994 U.S. Dist. LEXIS 2703, at *8 n.2 (N.D.
Ill. Mar. 9, 1994). Indeed, this Court’s summary judgment standing order makes
that point clear. Standing Order on Summary Judgment Motions (“Summary
judgment motions aren’t cheap. Properly prepared summary judgment motions
require extensive attorney time and client expense.”) So, a spoliation motion that
would have altered the Parties’ briefs and the Court’s ruling would result in
significant wasted resources. Similarly, making a spoliation motion on the eve of
trial can completely derail the scheduled trial, which—again—prejudices the nonmovant, the court, and the other litigants who are seeking to have their actions
resolved.
Other decisions have identified similar but slightly different factors. In Long
v. Howard Univ., 561 F. Supp. 2d 85, 91 (D.D.C. 2008), the court identified three

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factors: (1) when the movant learned of the discovery violation, (2) how long the
movant “waited before bringing it to the court’s attention,” and (3) whether
discovery was completed by the time the motion was brought. Note that the second
factor speaks to notifying the court of a potential spoliation motion—such as in a
status report or status hearing. This factor doesn’t demand that a motion
necessarily be filed, but it does demand prompt notification of the issue.
But, regardless of the factors, the ultimate question in determining whether
a spoliation motion is tardy is this: whether the requested relief sought was made
without “unreasonable delay.” Promier Prods., Inc. v. Orion Cap. LLC, No. 21 CV
1094, 2023 U.S. Dist. LEXIS 238493, at *12 (N.D. Ill. Dec. 22, 2023) (citing Brandt
v. Vulcan, Inc., 30 F.3d 752, 756 (7th Cir. 1994)).
Unquestionably, Groves’ motion is not tardy. The Court’s concern is that the
motion is premature.
Premature Spoliation Motions
In addition to filing spoliation motions too late, counsel can also jump the gun
and file them too early.
A common problem that results from premature spoliation motions is filing
those motions when the movant doesn’t have sufficient facts. For example—and
this would seem obvious—a spoliation motion shouldn’t be filed before discovery has
been served and responded to. James v. US Bancorp, No. CV 18-1762, 2021 U.S.
Dist. LEXIS 24707, at *18 (C.D. Cal. Feb. 5, 2021). But a more common example is
filing spoliation motions under Rule 37(e) when the movant hasn’t yet established

8

that the ESI can’t be restored or replaced. OlPriv. Couns., LLC v. Olson, No. 21-cv455, 2024 U.S. Dist. LEXIS 81502, at *16 (D. Utah May 13, 2024). The inability to
restore or replace ESI is a prerequisite to obtaining relief under Rule 37(e). DR
Distribs., 513 F. Supp. 3d at 958; see also Promier Prods., Inc. v. Orion Cap. LLC,
708 F. Supp. 3d 1376, 1386 (N.D. Ill. 2023).
But once it’s been established that the spoliated ESI can’t be restored or
replaced, other factors impact the appropriate timing of spoliation motions. For
example, the existence and proximity of case management deadlines must be
considered. Is fact discovery closed, or if it’s about to close, how soon? Are amended
pleadings still allowed? Has a trial date been set, and if so, how far in the future is
that date? If the parties are still in pretrial discovery and not near the date for
filing summary judgment motions, some courts might find a spoliation motion
premature. Paul v. W Express, Inc., No. 20-cv-51, 2021 U.S. Dist. LEXIS 255142, at
*8–9 (W.D. Va. Oct. 27, 2021). This is particularly true if the summary judgment
filing date is far in the future and no trial date is set. Swindell Dressler Int’l Co. v.
Travelers Cas. & Sur. Co., 827 F. Supp. 2d 498, 508 (W.D. Pa. 2011).
There are some excellent reasons for delaying a decision on alleged
spoliation. “Federal courts have broad discretion in controlling their dockets.
Courts also have a general duty to avoid deciding unnecessary issues. To that end,
courts may sequence motion practice in an effort to avoid deciding unnecessary
issues and will generally resolve trial related motions after it is clear that there will
likely be a trial.” Kolas v. Wal-Mart Stores, Inc., No. 17-cv-1597, 2018 U.S. Dist.

9

LEXIS 246745, at *1–2 (D. Nev. Mar. 23, 2018) (cleaned up); see also Playup, Inc. v.
Mintas, No. 21-cv-2129, 2024 U.S. Dist. LEXIS 21370, at *4–5 (D. Nev. Feb. 6,
2024). But the movant’s desire to obtain a ruling that it can use as settlement
leverage is not on the list of excellent reasons.
Another critical factor to consider is the likely remedy—whether it be a
corrective measure or a sanction—that the moving party anticipates seeking. This
factor goes to the core characterization of spoliation motions: Are spoliation
motions discovery motions or evidentiary motions? The answer is that they might
be both. Just as Federal Rule of Evidence 502 is an evidentiary rule and its major
effect relates to discovery, so too Rule 37 is a discovery rule that can affect
evidentiary matters. No doubt, spoliation motions are founded in discovery
principles. After all, Rule 37(e) is a discovery rule. And spoliation issues—whether
relating to ESI or tangible evidence—come to light during discovery because a party
has sought relevant and proportional evidence that can’t be produced because it was
spoliated. But the remedy sought by the spoliation motion informs the
consideration of the best time for the motion.
The range of remedies for spoliation of evidence falls within the vast
discretion of the trial court. DR Distribs., 2024 U.S. Dist. LEXIS 99866, at *33–34;
Committee Notes, 2015 Amendments to Fed. R. Civ. P. 37(e). The remedies could
range from relatively minor to nuclear. DR Distribs., 2024 U.S. Dist. LEXIS 99866,
at *33–-34. So, a party seeking to extend or re-open discovery should file a
spoliation motion before discovery closes or as soon as possible thereafter. Mid-

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State Aftermarket Body Parts, Inc. v. MQVP, Inc., No. 03 CV 733, 2009 U.S. Dist.
LEXIS 143050, at *11 (D. Ark. Apr. 27, 2009). Alternatively, if a party anticipates
seeking evidentiary remedies, filing the spoliation motion before or with the
summary judgment motion (provided that the court has previously been promptly
notified) might make more sense. Taylor v. AFS Techs., Inc., No. CV-09-2567, 2010
U.S. Dist. LEXIS 93664, at *2 (D. Az. Aug. 18, 2010). Or it might not.
For example, if the evidentiary sanction would affect the summary judgment
briefing by seeking that certain facts be deemed admitted or that the spoliating
party be barred from presenting evidence, then filing the spoliation motion before or
with the summary judgment briefing would likely be the better approach. The
same is true if the movant is seeking to strike claims or defenses. But if the
spoliation motion wouldn’t affect the summary judgment motion, then the better
approach would likely be to defer the issue and motion until after the summary
judgment motion is decided.
Additionally, if the spoliation motion seeks default or dismissal as a sanction,
then it likely makes more sense to file the motion before the summary judgment
motion. There’s no sense wasting time and expense of the parties and the court
addressing a summary judgment motion if a dispositive sanction will be imposed.
Having said that, a reasonable district judge may want the spoliation motion and
summary judgment motion filed simultaneously and then, after reviewing the
filings, decide which to address first.

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Moreover, another critical factor is whether an evidentiary hearing will be
necessary to resolve factual disputes relating to the spoliation. This issue intersects
with the previously identified critical factors of (a) having sufficient facts and (b) the
remedy sought. Evidentiary hearings are anticipated by the rules. Committee
Notes, 2015 Amendments to Fed. R. Civ. P. 37(e). Sometimes evidentiary hearings
are helpful—and even necessary—but sometimes they are not. See, e.g., Stokes v.
Cross, 327 F.3d 1210, 1216 (D.C. Cir. 2003); Whitten v. Johnson, No. 19-cv-728,
2022 U.S. Dist. LEXIS 54178, at *18–19 (D. W.Va. Mar. 25, 2022); Van Buren v.
Crowford Cnty., No. 13-cv-14565, 2016 U.S. Dist. LEXIS 131151, at *1 (E.D. Mich.
Mar. 26, 2016).
This Court has determined spoliation motions both with and without
evidentiary hearings. Some judges might want to take up a spoliation issue at the
final pretrial conference after they have been informed of the issue. Sanchez v.
Silbaugh, No. 20-1005, 2023 U.S. Dist. LEXIS 227225, at *5 (W.D. Pa. Dec. 21,
2023). This Court recognizes that some other judges might want to simply take up
a spoliation issue at trial while hearing evidence before deciding whether to give a
jury adverse inference instructions because of a spoliation issue. See, e.g., Wai Feng
Trading Co. v. Quick Fitting, Inc., No. 13-33, 2019 U.S. Dist. LEXIS 4113, at *24,
26–27 (D. R.I. Jan. 7, 2019); Miller v. Lemhi Cnty., No. 15-cv-156, 2018 U.S. Dist.
LEXIS 34835, at *20–21 (D. Idaho Mar. 2, 2018); but see n.2 supra. This Court
would be wary of that approach.

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Among other concerns, allowing one party to present evidence to the jury
about the other party’s failure to preserve evidence without also providing an
instruction could result in serious Rule 403 problems. Fed. R. Evid. 403 (court may
exclude relevant evidence if its probative weight is substantially outweighed by its
unfair prejudice, confusion of the issues, misleading of the jury or wasting time).
And simply instructing the jury to disregard the evidence of failing to preserve if an
adverse inference instruction is not given is a hollow remedy. Laudicina v. City of
Crystal Lake, 328 F.R.D. 510, 517–18 (N.D. Ill. 2018). Knowing which route the
judge wants to take is key in determining when to file a spoliation motion that may
need a more significant evidentiary basis. And the only way of knowing this is to
ask the specific judge who will decide the motion.
Judges will want to consider these critical factors in determining when to
address the spoliation issue. But they won’t be able to consider the impact of these
factors on the timing of the spoliation motion unless the parties inform that judge of
the facts that affect these factors. So—again—have a conversation. There’s a
reason why Rule 16 allows judges to require parties to hold a conference with them
before filing discovery motions. See Fed. R. Civ. P. 16(b)(3)(B)(v). Indeed,
Magistrate Judge Tim Baker would cite to this motion as a prime example of a
motion that wouldn’t have been filed if a prefiling conference had occurred. In fact,
as a general principle, spoliation motions are a good example of why those types of
discussions can further the goals of Rule 1.

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ANALYSIS
As previously stated, the parties are still engaged in expert discovery as well
as finishing up two fact depositions. Groves has not asserted that the alleged
spoliation of various emails will hinder its ability to conduct expert discovery.
As Groves has raised the issue even before the close of fact discovery, there
can be no doubt that it has timely identified the issue. What’s more, the Court
won’t tolerate any grumbling by Shepperd about the timing of any renewed
spoliation motion. There’s no prejudice to Shepperd if the spoliation issue is decided
later.
Critically, the relief sought by Groves’ spoliation motion is a permissive
adverse inference jury instruction. But there’s a lot of work before this case gets to
a jury trial. And there are off-ramps for this action before a jury trial, too. There’s
the possibility of settlement, for example. Additionally, there’s the nearly
obligatory motion for summary judgment.
So, instead of spending resources on Groves’ motion at this time when they
could be used elsewhere, the Court denies the motion without prejudice. After the
close of all discovery, if any of the parties intend on moving for summary judgment,
Groves can take up the issue with the Court during its summary judgment prefiling
conference. And even then, if the spoliation issue will not affect the summary
judgment briefing, the Court will defer the issue until resolution of any summary
judgment motions. If Groves believes that the spoliation issue will affect any
summary judgment briefing, it should inform the Court during the summary

14

judgment prefiling conference so that the issue can be addressed in the most
efficient way. If the case bypasses the seemingly obligatory summary judgment
process and proceeds directly to a jury trial, then the Court will address the issue of
an adverse jury instruction by way of a motion in limine with the final pretrial
order.
Groves can rest assured that it has not waived this issue. It has timely
raised its concern about the spoliation of the emails and brought it to the attention
of Shepperd and the Court. No party will be prejudiced by deferring the issue under
the facts of this case, including the fact that the specific relief sought is a permissive
adverse jury instruction. Instead, the parties, the Court, and other litigants seeking
access to the Court’s resources will benefit by holding the issue in abeyance until it
needs to be decided.
Going forward, consistent with Rule 1, it would behoove parties to raise any
spoliation concerns with the judge who is going to decide the spoliation motion. In
this way, the judge can determine the best way to proceed before the parties engage
in extensive briefing that might be unnecessary.
Having conducted this analysis about the timing of Groves’ motion, the Court
would be remiss if it didn’t note that it has grave concerns about Shepperd’s conduct
about the emails that are “not accessible.” There’s a lot to be desired by his conduct
and much that remains unexplained. And those few explanations that are provided
are not particularly satisfactory or persuasive. If Shepperd didn’t know this before,
he is now on notice that the Court is more than willing to impose appropriate

15

sanctions for spoliation of ESI (and any other type of evidence), including adverse
inference instructions and significant attorneys’ fees, when they are available.
CONCLUSION
Groves’ motion for an adverse inference instruction under Rule 37(e) is
denied without prejudice. The Court will take up the issue at the appropriate time,
if it ever even needs to address it. Shepperd should give serious consideration
regarding resolving this action without further court intervention. If Groves and
Shepperd need help in this regard, Magistrate Judge Schneider can assist with a
settlement conference.

Entered: November 22, 2024_

By:__________________ ______
Iain D. Johnston
U.S. District Judge

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