Stovall v. Brooklyn Barbeque Corporation et al
Filing
72
ORDER denying 59 Motion for Sanctions. Signed by Magistrate Judge James P. O'Hara on 2/7/2019. (amh)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
GLADYS M. STOVALL,
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Plaintiff,
v.
BRYKAN LEGENDS, LLC,
Defendant.
Case No. 17-2412-JWL
ORDER
In this employment-discrimination case, plaintiff has filed a motion for sanctions
based on defendant’s alleged spoliation of evidence (ECF No. 59). The motion centers on
a surveillance video that shows an altercation between plaintiff and her supervisor. No one
disputes the video exists—or existed at one point—but defendant is unable to locate it.
Plaintiff asks the court to sanction defendant for spoliation by either entering default
judgment in her favor or by giving the jury an adverse-inference instruction. Because
plaintiff has failed to meet the requirements of Fed. R. Civ. P. 37(e)(2), the motion is
denied.
I.
Background
Plaintiff’s complaint alleges that while she was employed at defendant’s restaurant,
her direct supervisor, Vincent Martin, made ongoing sexually harassing comments and
advances toward her. On May 15, 2016, plaintiff was injured in a physical confrontation
with Martin. Plaintiff asserts Martin became jealous when she gave her telephone number
1
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to a male customer, and reacted by assaulting her. The confrontation was recorded on one
of defendant’s surveillance cameras. Shortly thereafter, on May 31, 2016, plaintiff filed a
claim for workers’ compensation based on her alleged injuries.
On about October 11, 2016, plaintiff filed a discrimination charge with the Kansas
Human Rights Commission (“KHRC”). The charge mentioned, in part, the May 15, 2016
altercation. The KHRC sent defendant a letter dated October 11, 2016, which advised
defendant that the destruction of records related to the charge was forbidden by law.1
Plaintiff’s workers’ compensation claim was settled on January 23, 2017.
About one week later, on February 1, 2017, plaintiff’s current counsel sent
defendant a letter, stating plaintiff had retained them to represent her in connection with
employment discrimination claims and advising defendant of its obligation to preserve
records, videos, and files pertaining to plaintiff’s employment and discharge. 2 Plaintiff
filed this suit on July 13, 2017.
On July 3, 2018, plaintiff tendered a document request for, among other things,
“surveillance footage, recordings or other video . . . that refer or relate to any events alleged
in Plaintiff’s Complaint.”3 Defendant responded that there “was a surveillance tape that
depicted the altercation between the Plaintiff and Vincent Martin” but that defendant “is
1
ECF No. 60-2.
2
ECF No. 60-3.
3
ECF No. 60-6 at 3.
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unable to locate the tape.” 4 The response also advised that a “copy or link” of the video
was provided to the attorney representing defendant in the workers’ compensation matter,
but that “the link has expired.”5 Defendant’s representative, Gerald Rauschelbach, testified
at his deposition that after the incident, he maintained a copy of the surveillance video in
his desk drawer, but that he can no longer find it, despite “desperately looking.” 6 He is
unsure when it became lost.7 Rauschelbach further stated he sent a copy of the video to
defendant’s workers’ compensation insurance carrier sometime between May 15, 2016,
and January 23, 2017;8 defendant represents in its response brief that the copy was sent
prior to October 11, 2016, when defendant was first given notice of plaintiff’s potential
discrimination claims and the preservation requirement.9 To date, defendant has not
produced either copy of the surveillance video.
4
ECF No. 60-6 at 3-4.
5
Id.
6
ECF No. 60-5 at 2.
7
Id. Thus, Rauschelbach testified he was not sure whether he had a copy of the
video tape on February 1, 2017, when he received the retention letter from plaintiff’s
counsel.
8
ECF No. 60-5 at 3.
9
ECF No. 62 at 3.
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II.
Analysis
During the pretrial conference held on January 18, 2019, the parties agreed the
surveillance video is a form of electronically stored information (“ESI”) subject to the
preservation requirements of Rule 37(e). The rule reads,
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:
(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.10
The sanctions requested in plaintiff’s motion—entry of default judgment or the giving of
an adverse-inference instruction—fall under subsection (e)(2).
Before reaching the sanctions provision of subsection (e)(2), plaintiff must meet
three prerequisites to a finding of spoliation. Rule 37(e) permits the court to sanction the
loss of ESI only if (1) the ESI should have been preserved, (2) a party failed to take
“reasonable steps” to preserve it, and (3) it cannot be restored or replaced. If these three
prerequisites are met, then the court may go on to determine if defendant acted with the
requisite bad-faith intent necessary to impose the sanctions requested by plaintiff under
10
Rule 37(e) was significantly amended in 2015.
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subsection (e)(2). Here, the court finds plaintiff has not met her burden to prove all three
prerequisites to spoliation, and even if she had, has shown no bad faith on the part of
defendant.
Duty to Preserve. “A litigant has a duty to preserve evidence that it knows or should
know is relevant to imminent or ongoing litigation, and this duty to preserve evidence
extends to electronically stored information.”11 There is no dispute that the video is
relevant to both plaintiff’s workers’ compensation and employment-discrimination
claims.12 Thus, defendant had a duty to preserve the video as early as May 31, 2016, when
plaintiff filed her workers’ compensation claim. And defendant concedes that as of
October 11, 2016, the date on which it received notice of plaintiff’s discrimination charge
from the KHRC, it “had an obligation to preserve the video.” 13 Defendant contends,
however, that as of that date, it had already “turned the video over to its insurance
company” in connection with the workers’ compensation claim. 14 The problem with
11
Marten Transp., Ltd. v. Plattform Advert., Inc., No. 14-cv-02464-JWL, 2016 WL
492743, at *5 (D. Kan. Feb. 8, 2016) (internal quotations and citations omitted).
Defendant acknowledged the video’s relevance at the January 18, 2019 pretrial
conference.
12
13
ECF No. 62 at 4. See also Jones v. Easter, No. 17-3089, 2018 WL 4063487, at
*2 (D. Kan. Aug. 27, 2018) (holding a party has a duty to preserve video evidence “showing
that the events in Plaintiff’s complaint did or did not occur” once it receives notice that
litigation is likely to commence); Herrmann v. Rain Link, Inc., No. 11-1123-RDR, 2013
WL 4028758, at *2 (D. Kan. Aug. 7, 2013) (holding receipt of letter from KHRC put
defendant on notice of duty to preserve ESI).
14
Id. at 4-5.
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defendant’s argument is that it does not account for the fact that defendant had two copies
of the surveillance video. Defendant does not address the duty it had to preserve the copy
of the video kept in Rauschelbach’s desk drawer.
No Reasonable Steps to Preserve. As of the date that defendant’s duty to preserve
the video arose, defendant had an obligation to take reasonable steps to preserve it. Rule
37(e) recognizes that “‘reasonable steps’ to preserve suffice; it does not call for
perfection.”15 Nonetheless, defendant does not suggest any steps it took to preserve the
video. Defendant does note it sent a copy of the video to its workers’ compensation insurer.
Although this was a logical step (and certainly not nefarious), defendant has presented no
support for its assertion this was an affirmative step taken to preserve the video. The court
knows of no case construing such an action as a step to preserve. Nor has defendant
suggested that it informed its workers’ compensation insurer of the need to preserve the
video or that it took steps to ensure the link to the video would not expire.
No Ability to Restore or Replace. Next, “Rule 37(e) directs that the initial focus
should be on whether the lost information can be restored or replaced through additional
discovery.”16 Neither party has addressed this factor to the court’s satisfaction. On the one
hand, Rauschelbach testified that he has looked for the video by “going back to look in sent
15
Fed. R. Civ. P. 37, Advisory Committee Note to Subdivision (e)(2) (2015
Amendment) (cited in Marten Transp., 2016 WL 492743, at *4).
16
Fed. R. Civ. P. 37, Advisory Committee Note to Subdivision (e)(2) (2015
Amendment) (quoted in Marten Transp., 2016 WL 492743, at *5).
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folders and sent files” and by retracing his “steps at each restaurant at different times trying
to locate this tape.”17 But on the other hand, plaintiff acknowledged during the pretrial
conference that she had not issued a subpoena to the workers’ compensation insurer in an
attempt to have a copy of the video retrieved off of their system or a computer hard drive.
And, to the court’s knowledge, neither party has engaged a computer specialist for the
purpose of locating the video on defendant’s computer hard drive or back-up system. In
the end, the court concludes plaintiff has not proven the video cannot be replaced or
restored.
Although a close call, the court has not found all three prerequisites to spoliation
met. Even if it had, however, plaintiff’s motion would be denied because plaintiff has not
proven defendant’s failure to preserve the video was the result of bad faith (and not mere
negligence) as required by subsection (e)(2) of Rule 37.
Bad-Faith. “If an aggrieved party seeks an adverse inference jury instruction—as
plaintiff does here—that party must also prove bad faith on the part of the producing
party.”18 Rule 37(e)(2) imposes the same culpability requirement when a plaintiff seeks
default judgment as a sanction.19 The Advisory Committee comments accompanying the
2015 Amendments to subsection (e)(2) direct that such “severe measures” may only be
17
ECF No. 60-5 at 2.
18
Herrmann, 2013 WL 4028758, at *2.
19
Fed. R. Civ. P. 37, Advisory Committee Note to Subdivision (e)(2) (2015
Amendment).
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imposed upon a court finding that “the party that lost the information acted with the intent
to deprive another party of the information’s use in the litigation.” 20 Negligence in losing
evidence is not sufficient “because it does not support an inference of consciousness of a
weak case.”21 As the Tenth Circuit has recognized, the advisory-committee note to Rule
37(e)(2) provides a “commonsense explanation” for the bad-faith requirement:
Adverse-inference instructions were developed on the premise that a party’s
intentional loss or destruction of evidence to prevent its use in litigation gives
rise to a reasonable inference that the evidence was unfavorable to the party
responsible for loss or destruction of the evidence. Negligent or even grossly
negligent behavior does not logically support that inference. Information lost
through negligence may have been favorable to either party, including the
party that lost it, and inferring that it was unfavorable to that party may tip
the balance at trial in ways the lost information never would have. 22
Plaintiff asserts bad-faith is demonstrated here simply by defendant’s failure
to preserve the video after receiving multiple notices of its obligation to preserve
evidence. Plaintiff has cited no support for this theory that defendant’s failure
20
See also Storey v. Effingham Cty., No. CV415-149, 2017 WL 2623775, at *4
(S.D. Ga. June 16, 2017) (“Rule 37(e) reserves the harshest discovery sanctions, such as
adverse inference instructions, dismissals, or default judgments, only for cases in which
the court can find that the spoliating party acted with the intent to deprive another party of
the information’s use in the litigation.” (internal quotation and modification omitted)).
21
Herrmann, 2013 WL 4028758, at *2; see also Fed. R. Civ. P. 37, Advisory
Committee Note to Subdivision (e)(2) (2015 Amendment) (stating subsection (e)(2)
“rejects cases . . . that authorize the giving of adverse-inference instructions on a finding
of negligence or gross negligence”).
22
Fed. R. Civ. P. 37, Advisory Committee Note to Subdivision (e)(2) (2015
Amendment) (cited in Equal Emp’t Opportunity Comm’n v. JetStream Ground Servs., Inc.,
878 F.3d 960, 966 (10th Cir. 2017)).
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“shows the required culpable state of mind.”23 Although defendant’s failure to take
steps to preserve the ESI may be negligent, even grossly negligent, nothing in the
record suggests defendant intentionally lost the video. With respect to the copy kept
in Rauschelbach’s office, the only evidence in the record on this issue—
Rauschelbach’s deposition testimony—indicates the opposite conclusion is true.
Rauschelbach testified he does not know when the video became lost and has been
desperately searching for the copy. With respect to the copy given to the insurance
carrier, it was not unreasonable for defendant to assume the insurer would protect
and retain it.
In the end, plaintiff has cited no fact that could support a finding that
defendant intended to deprive her of the surveillance video. The court is not
convinced that defendant’s negligence—even recklessness—in not taking steps to
preserve the “desk drawer” copy of the video and in allowing the normal expiration
policy of the “workers’ compensation” copy of the video to proceed unimpeded
23
ECF No. 60 at 6.
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rises to the stringent “intent” requirement set forth in the amended Rule 37(e).24
Accordingly, plaintiff’s motion for sanctions is denied.25
IT IS THEREFORE ORDERED that plaintiff’s motion for sanctions is denied. No
attorneys’ fees are awarded.26
Dated February 7, 2019, at Kansas City, Kansas.
s/ James P. O=Hara
James P. O=Hara
U.S. Magistrate Judge
24
Fed. R. Civ. P. 37, Advisory Committee Note to Subdivision (e)(2) (2015
Amendment) (Rule 37(e)(2) “rejects cases ... that authorize the giving of adverse-inference
instructions on a finding of negligence or gross negligence.”); see also Oil Equip. Co. v.
Modern Welding Co., 661 F. App’x 646, 653 (11th Cir. Sept. 9, 2016) (noting, “bad faith”
generally is found where the spoliator’s actions are both responsible for the destruction of
the evidence and he “fully appreciated the significance of the evidence to the anticipated
litigation.” (internal quotation and citation omitted)).
The undersigned notes that “subdivision (e)(2) would not prohibit a court from
allowing the parties to present evidence to the jury concerning the loss and likely relevance
of information and instructing the jury that it may consider that evidence, along with all
other evidence in the case, in making its decision,” Fed. R. Civ. P. 37, Advisory Committee
Note to Subdivision (e)(2) (2015 Amendment); but such is a decision for the presiding U.S.
district judge at trial.
25
Defendant makes a request for attorneys’ fees in its surreply. Notwithstanding
the inappropriateness of raising this request in a surreply, defendant has cited no legal
support for its fee request.
26
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