Ralser v. Winn Dixie Stores, Inc.

Filing 89

ORDER & REASONS that Plaintiff Richard Ralser's 74 Motion for Sanctions is DENIED. Signed by Judge Eldon E. Fallon on 8/21/15. (dno)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

RICHARD RALSER

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versus
WINN DIXIE STORES, INC. A/K/A
BI-LO HOLDINGS

CIVIL ACTION
No. 13-2799
SECTION “L” (1)

ORDER & REASONS

Before the Court is Plaintiff Richard Ralser’s Motion for Sanctions Based on the
Spoliation of Evidence (Rec. Doc. 74). Having reviewed the parties’ briefs and the applicable
law, and having heard oral argument on the motion, the Court now issues this Order & Reasons.
I.

BACKGROUND
This case involves a claim made by Plaintiff Richard Ralser against Winn Dixie under the

Family Medical Leave Act ("FMLA"), 29 U.S.C. § 2601. According to Ralser's complaint, filed
on May 8, 2013, Ralser was hired by Winn Dixie in April 2011. (Rec. Docs. 1 at 2). Ralser
claims that on April 30, 2012, he informed his supervisors that he needed to take a medical leave
of absence because his treating orthopedic specialist recommended that he undergo a hip
replacement surgery. (Rec. Doc. 1 at 2). Ralser claims that he followed the Winn Dixie leave
policy and contacted the Human Resources department in order to obtain an FMLA leave
package. Ralser claims that his "Leave of Absence Request form" satisfied the FMLA serious
health condition requirement. (Rec. Doc. 1 at 3). According to Ralser, he provided his
physician's notice to Winn Dixie on May 7, 2012 and on May 8, 2012 he was terminated. (Rec.
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Doc. 1 at 3). Ralser alleges that Winn Dixie "knowingly, willfully, and recklessly violated the
FMLA and its own company policy by terminating Ralser for attempting to take a personal
medical leave of absence." (Rec. Doc. 1 at 3).
Following the Court's denial of Winn Dixie's Motion for Summary Judgment, Winn
Dixie filed an Answer to Ralser's Complaint. (Rec. Doc. 46). Winn Dixie asserts a number of
affirmative defenses. Winn Dixie contends that Ralser fails to state a claim under which relief
can be granted and contends that the actions alleged are against corporate policy and upper
management did not ratify those actions. (Rec. Doc. 46 at 5). Winn Dixie also contends that it
would have taken the same action against Ralser absent a request for FMLA. (Rec. Doc. 46 at 5)
II.

PRESENT MOTION
A brief recantation of facts is necessary for this motion. On April 30, 2012, Ralser

emailed Karena Niblett, Ralser’s supervisor, and requested FMLA leave for necessary hip
surgery. (Rec. Doc. 74-4). Pursuant to Winn-Dixie policy, it is necessary to prepare and
circulate an Executive Summary to document and recommend the termination of a store
associate. (Rec. Doc. 74-6 at 4). At 11:31 p.m. on April 30, 2012, the same day Ralser
requested FMLA leave, Niblett emailed an Executive Summary pertaining to Ralser’s
termination to Joey Medina, a Winn-Dixie regional vice-president, and to Timothy Darby, a
Winn-Dixie human resources manager. (Rec. Doc. 74-5). The present dispute concerns the fact
that Winn-Dixie no longer has access to the native version of the Executive Summary, which
would show the date of the Executive Summary’s creation, and the timing of when Niblett
started Ralser’s Executive Summary is crucial to Ralser’s case. Ralser argues that Niblett
prepared and sent the Executive Summary in response to his FMLA request, on the night of
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April 30, 2012. Winn-Dixie contends that the decision to terminate Ralser originated prior to
Ralser’s request, and Niblett testified that she began working on the Executive Summary after an
unsatisfactory walk-through of Ralser’s assigned store on April 19, 2012. (Rec. Doc. 74-6 at 2).
Niblett testified that Medina sent her another Executive Summary to use as a model. (Rec. Doc.
77-4 at 4). Niblett also testified that she believed she saved the Word document for a second
time under a different name before she emailed the finalized Executive Summary. (Rec. Doc.
74-6 at 5).
On February 2, 2015, Ralser requested the Executive Summary in its native format, but
Winn-Dixie responded that it was unable to produce the original Word document. (Rec. Doc.
74-9). During Darby’s deposition, however, Winn-Dixie represented that Darby was able to
retrieve a copy of the Executive Summary as emailed to Darby from Niblett. Winn-Dixie
forwarded Ralser’s counsel the email sent to Darby with the Executive Summary as an
attachment, entitled “Executive Summary – RRalser(2).doc.” But as noted by Winn-Dixie’s
counsel, this attachment is not the Executive Summary in its native format. Rather, the email
included a copy of the Executive Summary and not the original document in its native format.
(Rec. Doc. 74-10). Thus, from the copy, the parties were unable to ascertain when Niblett began
drafting the Executive Summary. (Rec. Doc. 74-10). Winn-Dixie explained it could not produce
the original Executive Summary because Niblett no longer had the computer she used in 2012.
(Rec. Doc. 74-8 at 1).
In response, Ralser requested on February 17, 2015 that Winn-Dixie identify a corporate
representative to respond to a 30(b)(6) deposition “about Winn-Dixie’s email system, data
storage (drives) system, and document retention policies in late April and early May of 2012.”
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(Rec. Doc. 74-11 at 1). On March 16, 2015, Winn-Dixie’s counsel emailed Ralser’s counsel and
stated:
Winn-Dixie’s IT team was able to find the [Executive Summary]
file on the backup of Ms. Niblett’s N: drive. Attached below is a
snapshot of the screen from the backup file, showing that the
original creation date of the document was February 3, 2012. This
is consistent with Ms. Niblett’s testimony that to prepare Mr.
Ralser’s Executive Summary, she modified an earlier-created
Executive Summary that her boss, VP Joey Medina, provided her.
(Rec. Doc. 74-13 at 1).
Ralser took the corporate deposition of Gary Klingerman, Winn-Dixie’s Senior Director
of IT Architecture, on May 13, 2015 and questioned him about the Executive Summary
“screenshot.” (Rec. Doc. 74-11). Klingerman testified that the screen shot of “Executive
Summary—RRalser2” shows that the document was created on February 3, 2012, was modified
on April 30, 2012 at 11:20 p.m., and was last accessed on August 1, 2014 at 7:50 p.m. (Rec.
Doc. 74-11 at 2). Klingerman further testified that he could forensically image the document and
produce it to Ralser. (Rec. Doc. 74-11 at 4),
Ralser filed a motion to compel discovery, which was referred to Magistrate Judge
Shushan, and sought (1) production of Winn-Dixie’s servers to permit the data imaging of
Niblett and Darby’s network drives; (2) for Ralser’s digital forensic experts to perform the
imaging; (3) payment by Winn-Dixie for fees incurred for the imaging; and (4) document
production related to certain requests. (Rec. Doc. 69 at 1). Magistrate Judge Shushan granted in
part and denied in part Ralser’s Motion to Compel and ordered the production of Winn-Dixie’s
servers to permit data imaging but ordered that a third-party vendor, and not Ralser’s digital
forensic experts, undertake the imaging of Niblett and Darby’s network drives. (Rec. Doc. 69 at
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4-6). Realizing that such a production would prove costly, Winn-Dixie offered to stipulate that it
could not “conclusively demonstrate that Karena Niblett began preparing the Executive
Summary for Richard Ralser prior to when Mr. Ralser notified her of his need for leave on April
30, 2012.” (Rec. Doc. 77-7 at 2). In line with this stipulation, Winn-Dixie indicated it would
not assert as evidence the timing of when Niblett began preparing the Executive Summary.
(Rec. Doc. 77-2 at 2). Ralser declined Winn-Dixie’s proposal, and the parties went forth with
the imaging of the servers.
The third-party vendor delivered a zip file to Ralser on August 3, 2015 containing the
servers’ images. Ralser’s digital forensic experts conducted a preliminary analysis and
concluded that there was no evidence that “Executive Summary – RRalser(2)” file was created
before April 30, 2012 at 11:31 p.m. (Rec. Doc. 74-17 at 1).
A. Ralser’s Spoliation Motion for Sanctions (Rec. Doc. 74)
Ralser now moves the Court to find that Winn-Dixie intentionally altered, destroyed, or
failed to preserve the Executive Summary prepared by Niblett resulting in prejudice to Ralser’s
claim and asks the Court to sanction Winn-Dixie “in the form of a finding of fact that [WinnDixie] never contemplated terminating Ralser prior to his request for leave under the Family
Medical Leave Act.” (Rec. Doc. 74 at 1). Ralser argues that Winn-Dixie “has continuously
attempted to discourage Ralser from exploring confirmation of its management’s testimony and
accounts about the timing of Ralser’s termination through verification of the originating Word
document and email exchanges of it.” (Rec. Doc. 74-3 at 13). Ralser highlights that the
screenshot of “Executive Summary – RRalser(2).doc” purports to show a creation date of
February 3, 2012, but the forensic experts concluded that the creation date was April 30, 2012,
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and Winn-Dixie offers no credible explanation for this discrepancy. (Rec. Doc. 74-1 at 13).
Ralser contends that there are two possible explanations: (1) the “Executive Summary –
RRalser(2) was created on April 30, 2012, or (2) Winn-Dixie has failed to comply with the its
own litigation hold and preserve evidence. (Rec. Doc. 74-1 at 13).
Ralser avers that “[o]nce a party reasonably anticipates litigation, it must suspend its
routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the
preservation of relevant documents. (Rec. Doc. 74-3 at 14) (citing Zubulake v. UBS Warburg,
LLC, 220 F.R.D. 212, 216 (S.D.N.Y 2003)). Further, Ralser argues that “[t]he failure to preserve
relevant evidence pursuant to a litigation hold impacting a party’s ability to offer ‘proof of an
issue at trial can support an inference that the evidence would have been unfavorable to the party
responsible for the destruction.’” (Rec. Doc. 74-3 at 14) (quoting Zubulake, 202 F.R.D. at 216).
Ralser thus argues Winn-Dixie had notice of Ralser’s litigation intentions within days of Ralser’s
termination and failed, despite Winn-Dixie’s record retention polices and backup procedures, to
preserve the Executive Summary drafts created prior to April 30, 2012. (Rec. Doc. 74-3 at 14).
Based on this information, Ralser concludes that either Winn-Dixie destroyed prior drafts or such
drafts never existed. (Rec. Doc. 74-3 at 15). Ralser argues that a sanction in the form of an
adverse finding is appropriate because Winn-Dixie exercised sole control over the evidence; it
had multiple opportunities to search and produce the materials; and Winn-Dixie has made
numerous inaccurate representations. (Rec. Doc. 74-3 at 15). Because Winn-Dixie’s own
protocol required retention of the “Executive Summary – RRalser(2).doc,” Ralser argues the
failure to follow such protocol should be construed as intentional. (Rec. Doc. 74-3 at 15-16).
B. Winn-Dixie’s Opposition (Rec. Doc. 77)
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Winn-Dixie opposes the motion. Winn-Dixie provides a summary of its document
retention system as described by Klingerman during his corporate deposition. Winn-Dixie
explains that every document in Winn-Dixie’s computer system falls under a particular retention
policy, which in turn, determines how many prior versions of the document will be retained and
for how long the most recent and prior versions of the document will be retained. (Rec. Doc. 77
at 3). The “Executive Summary – RRalser(2).doc” fell under the “Division Domain” retention
policy, which provides for up to four total versions of the document – the most recent version
and up to three previous versions – to be retained for 365 days. (Rec. Doc. 77 at 3). After the
first year, all earlier versions of a document are deleted from the system and only the most recent
version is retained. (Rec. Doc. 77 at 3). Winn-Dixie thus argues that the deletion of prior
versions of “Executive Summary – RRalser(2).doc” was pursuant to this policy because all prior
versions of “Executive Summary – RRalser(2).doc” should have been deleted on April 30, 2013,
and Ralser filed this suit on May 8, 2013. (Rec. Doc. 77 at 3).
Winn-Dixie avers there is no evidence that Ms. Niblett engaged in bad faith or destroyed
any electronic documents. Rather, Winn-Dixie maintains that Niblett was under the impression
that only the most recent version remained accessible to her on the N: drive, and Niblett thus
produced the most recent version of “Executive Summary – RRalser(2).doc” to Winn-Dixie’s
legal department. (Rec. Doc. 77 at 6). Even if Winn-Dixie negligently failed to preserve an
electronic copy of that document, Winn-Dixie maintains there is an “insufficient basis” for the
Court to conclude that Winn-Dixie engaged in intentional, bad-faith conduct. (Rec. Doc. 77 at
6).

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If this Court finds Winn-Dixie acted in bad faith, Winn-Dixie argues that the evidence at
issue would not support the inference Ralser seeks, that Winn-Dixie never contemplated
discharging him before he requested FMLA leave. (Rec. Doc. 77 at 7). Winn-Dixie emphasizes
that the missing electronic versions may have supported Winn-Dixie’s position that it
contemplated Ralser’s termination prior to his FMLA leave request. (Rec. Doc. 77 at 7). WinnDixie thus argues that the “adverse inference plaintiff seeks [ ] is much broader than simply
challenging when Ms. Niblett began preparing the Executive Summary.” Winn-Dixie argues this
is further evidenced by the fact that after Magistrate Judge Shushan’s order, Winn-Dixie offered
to stipulate, in exchange for not having to undertake the costly imaging project, that Winn-Dixie
would not offer the timing of when Ms. Niblett began the Executive Summary as evidence of
when the decision was made to discharge Ralser. (Rec. Doc. 77 at 8). Ralser rejected this offer,
and Winn-Dixie argues that Ralser now seeks a broad finding that goes beyond what the
evidence in question would show.
C. Ralser’s Reply (Rec. Doc. 81)
Ralser replies with leave of Court. Ralser argues that Winn-Dixie created the present
issue of when Winn-Dixie resolved to terminate Ralser because Winn-Dixie admitted in its
discovery responses, dated January 16, 2015, that Winn-Dixie reached this decision on April 30,
2012. (Rec. Doc. 81-1 at 1-2). Two weeks later, Ralser contends, Niblett and Darby
contradicted this response and testified that they reached this decision prior to April 30, 2012.
(Rec. Doc. 81-1 at 2). Ralser thus argues “[t]hat claimed testimony inspired the necessary
investigation to trace the true genesis of the file, leading to repeated misrepresentations and
obfuscations by Defendant….” (Rec. Doc. 81-1 at 2).
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Ralser next argues that there is no evidence that Niblett complied with the discovery hold
because Winn-Dixie fails to identify when Niblett handed over those documents. (Rec. Doc. 811 at 3). Rather, Ralser contends that Niblett handed over the documents in response to WinnDixie’s investigation of Ralser’s claim. (Rec. Doc. 81-1 at 2). Ralser further argues that Niblett
made no effort to preserve her electronic records, as required by Winn-Dixie’s own policies.
(Rec. Doc. 81-1 at 3).
Ralser argues that the evidence could have affirmatively proven the falsehood of the
February 3, 2012 creation date and proven evidence tampering. (Rec. Doc. 81-2 at 6). Ralser
also avers that Winn-Dixie’s proposed stipulation would not cure the prejudice created by the
missing evidence because Ralser is still unable to explore Niblett and Darby’s credibility
regarding the timing of when they decided to terminate him. (Rec. Doc. 81-2 at 5). During oral
argument, Ralser’s counsel represented that he believes the Executive Summary in its native
format would have shown that Niblett created the document on April 30, 2012.
III.

LAW AND ANALYSIS
Since this case is before the Court pursuant to this court’s diversity jurisdiction, the Court

applies federal evidentiary rules rather than state spoliation laws. Condrey v. SunTrust Bank of
Georgia, 431 F.3d 191, 203 (5th Cir.2005) (citing King v. Ill. Cent. R.R., 337 F.3d 550, 556 (5th
Cir.2003)); Lafayette Ins. Co. v. CMA Dishmachines, No. 03–1098, 2005 WL 1038495, at *3
(E.D.La. Apr. 26, 2005) (Vance, C.J.). Under Rule 37, a court may issue an order imposing an
array of sanctions if a party “fails to obey an order to provide or permit discovery.” Fed. R. Civ.
Proc. 37(b)(2)(A). Here, where the alleged conduct occurred prior to the commencement of
litigation, federal law provides that a trial court may exercise its discretion to impose sanctions
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on a party responsible for the spoliation (i.e. intentional destruction) of relevant evidence.
Menges v. Cliffs Drilling Company, No. 99-2150, 2000 WL 765082, at *1 (E.D. La. June 12,
2000) (Vance, C.J.). See also Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d
598, 612 (S.D. Tex. 2010) (“Spoliation is the destruction or the significant and meaningful
alteration of evidence.”). “Adverse inference sanctions “are properly viewed as among the most
severe sanctions a court can administer.” Spencer v. Hercules Offshore, Inc., No. No. 13-4706,
2014 WL 1681736, at *4 (E.D. La. Apr. 28, 2014) (Vance, C.J.).
For the spoliation of evidence doctrine to apply, the movant must prove two elements: (1)
that the party having control over the evidence had a duty to preserve the evidence at the time it
was destroyed; and (2) that the destruction of evidence was intentional. Garnett v. Pugh, 2015
WL 1245672, at *4 (E.D. La. March 18, 2015) (Barbier, J.); Menges, 2000 WL 765082, at *2.
“A duty to preserve arises when a party knows or should know that certain evidence is relevant
to pending or future litigation.” Premier Dealer Servs., Inc. v. Duhon, No. 12-1498, 2013 WL
6150602, at *3 (E.D. La. Nov. 22, 2013) (Roby, M.J.). See also Dixon v. Greyhound Lines, Inc.,
2014 WL 6087226, at*2 (M.D. La. Nov. 13, 2014) (“The duty to preserve material evidence
arises not only during litigation, but also during the period before litigation when a party knew or
should have known that litigation was imminent.”); Garnett, 2015 WL 1245672, at *4 (“In order
for a party to have a duty to preserve evidence, the party must have notice that the evidence is
relevant to the litigation.”). Further, it is well settled within the Fifth Circuit that an adverse
inference drawn from the destruction of records is predicated on bad faith. United States v. Wise,
221 F.3d 140, 154 (5th Cir. 2010); King v. Illinois Cent. R.R., 337 F.3d 550, 556 (5th Cir. 2003);
Vick v. Texas Employment Commission, 514 F.2d 734, 737 (5th Cir. 1975). “Culpability is not
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established by any bright line test, but rather, analyzed on a case-by-case basis.” Premier Dealer
Servs., Inc., 2013 WL 6150602, at 5.
Winn-Dixie concedes that it was aware that Ralser intended to pursue a wrongful
termination suit no later than May 31, 2012 and instituted a litigation hold on that date. (Rec.
Doc. 77 at 2). The Court thus finds that Winn-Dixie had a duty to preserve the document in
question, so the thrust of the Court’s analysis will focus on whether this destruction occurred in
bad faith, and the facts do not support such a finding. Niblett turned over all paper documents,
and she forwarded an electronic version of the “Executive Summary – RRalser(2).doc” to the
Winn-Dixie legal department. Such action would seemingly fulfill her duties under the litigation
hold, and it was not obvious that she would need to preserve, or that she even had access to, prior
versions of the document. Further, it was Winn-Dixie’s IT Department, and not Niblett, who
was charged with implementing any change to the electronic document retention system.
By the time Ralser filed this lawsuit, on May 8, 2013, a year had passed and any prior
version of the document would have been destroyed pursuant to Winn-Dixie’s document
retention policy. While this destruction still occurred during the litigation hold, the fact that
Winn Dixie’s normal retention policy called for the document’s destruction undermines a finding
of bad faith because Winn-Dixie’s failure to adjust the document retention system to comply
with the litigation hold signified an omission, and not a commission. In other words, WinnDixie’s failure to retain the electronic document was not the result of a directed action to delete
the document but rather a failure to turn off the automatic deletion mechanism. Such action, at
best, amounts to negligence and does not rise to the level of bad faith. Based on these facts, the
Court does not find bad faith on the part of Winn-Dixie or its employees. The Court will
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nevertheless allow the parties to admit evidence of these discovery issues and Winn-Dixie’s
failure to comply with the litigation hold during trial.
IV.

CONCLUSION
For the foregoing reasons, IT IS ORDERED that Plaintiff Ralser’s Spoliation Motion

for Sanctions (Rec. Doc. 74) is hereby DENIED.
New Orleans, Louisiana this 21st day of August 2015.

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UNITED STATES DISTRICT JUDGE

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