Equal Employment Opportunity Commission v. Performance Food Group, Inc. et al

Filing 225

MEMORANDUM OPINION. Signed by Magistrate Judge Beth P. Gesner on 3/6/2019. (bmhs, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION,

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Plaintiff,

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v.

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Civil No.: CCB-13-1712

PERFORMANCE FOOD GROUP, INC.,

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Defendant.
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MEMORANDUM OPINION
This case was originally referred to me for all discovery and related scheduling matters in
accordance with 28 U.S.C. § 636 and Local Rules 301 and 302 of the United States Court for the
District of Maryland. (ECF No. 57). This case was subsequently re-referred to me for all discovery
and related scheduling matters, including the resolution of the motions at hand. (ECF No. 209).
Currently pending are: plaintiff’s Motion for Sanctions for the Spoliation of Paper Applicant Files
(“Paper Spoliation Motion”) (ECF Nos. 203, 204), plaintiff’s Motion for Sanctions for the
Spoliation of ESI (“ESI Spoliation Motion”) (ECF Nos. 205, 206), defendant’s Opposition to
Plaintiff’s Motion for the Spoliation of Paper Applicant Files and Motion for Sanctions for the
Spoliation of ESI (“Opposition”) (ECF Nos. 218, 219), and plaintiff’s Reply Memorandum in
Support of Plaintiff’s Motions for Sanctions for the Spoliation of Paper Applicant Files and ESI
(“Reply”) (ECF No. 221). No hearing is deemed necessary. Loc. R. 105.6. For the reasons noted
below, plaintiff’s motions are DENIED.

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I.

Factual Background
In 2013, plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this

employment action against defendant Performance Food Group, Inc. and its successors,
predecessors, affiliates, and subsidiaries (collectively “PFG” or “defendant”), alleging unlawful
sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964 and Title I of the
Civil Rights Act of 1991. (ECF No. 5 at 2). Defendant is “engaged in the business of marketing
and distributing branded food and non-food products to various customers in the food service
industry nationwide.” (ECF No. 5 at 3). Prior to May of 2008, defendant was comprised of two
divisions, Broadline and Customized. (ECF No. 5 at 4). Defendant operated approximately twenty
distribution centers, called operating companies (“OpCos”), in the Broadline division.

Id.

Operative positions at these OpCos are “intermediate-skilled occupations and include workers who
operate machines or factory-related processing equipment,” and include, but are not limited to:
“selector; receiving clerk; yard jockey, driver; driver trainee; driver check-in; forklift operator;
mechanic; dispatcher; fueler; meat cutter; meat packer; router; sanitation specialist; transportation
supervisors; and warehouse supervisors.” (ECF No. 5 at 18).
In the summer of 2007, plaintiff served defendant with three charges alleging
discrimination based on sex filed by employees at defendant’s Carroll County Foods (“CCF”)
OpCo.1 (ECF No. 203 at 11). Each charge included a preservation notice referencing the Title
VII recordkeeping regulation, 29 C.F.R. § 1602.14, which requires retention of “all personnel
records relevant to the charge or the action until final disposition of the charge or action.” 2 (ECF

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One employee, Julie Lawrence, alleged that she was rejected for a promotion in favor of a male and that upper
management had stated that “no one is interested in a woman.” (ECF No. 203 at 11). Two other employees alleged
that they were “informed by members of [defendant]’s corporate management of its displeasure with the hiring of
some females to work in the warehouse.” Id.
2
29 C.F.R. § 1602.14 further states that “[t]he term personnel records relevant to the charge, for example, would
include personnel or employment records relating to the aggrieved person and to all other employees holding positions
similar to that held or sought by the aggrieved person and application forms or test papers completed by an

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No. 203 at 11–12). On November 14, 2007, plaintiff requested, among other information,
demographic information for all CCF warehouse employees and the status and contact information
of two members of corporate management, Broadline Division’s Corporate Vice-President of
Operations Dan Peckskamp and Regional Vice-President of Operations David Russ. Id. On
August 7, 2008, plaintiff notified defendant by letter that “its investigation included ‘potential sex
discrimination in hiring, discharge, promotion, and compensation at all of [defendant]’s facilities’
from 2004 to the present.” (ECF No. 203 at 12 (quoting ECF No. 203-8)). Along with this letter,
plaintiff filed a Computerized Data Information Request.3 (ECF No. 203 at 12).
On August 11, 2008, plaintiff notified defendant that it was investigating defendant’s’
compliance with the Equal Pay Act and requested a visit to inspect and copy, among other
documents, “individual employee and/or job applicant data (job applications, test scores, job and
wage histories, performance appraisals, etc.” (ECF Nos. 203 at 12, 203-9). Plaintiff issued
administrative subpoenas for this information in October of 2008 and February of 2009, (ECF Nos.
203-10, 203-11), and this court enforced the subpoenas “to the extent [they] seek[] hiring data for
employees and applicants under Peckskamp’s or Russ’s ultimate control.” Memorandum and
Order re: Subpoena Enforcement, EEOC v. Performance Food Group Co., LLC, No. MJG-092200 (D. Md. February 28, 2010), ECF No. 29 at 20. In September of 2012, plaintiff issued a
letter finding “that there is reasonable cause to believe that since at least July 1, 2004, [defendant]
has, within its Broadline Division, subjected a class of female applicants and employees to a

unsuccessful applicant and by all other candidates for the same position as that for which the aggrieved person applied
and was rejected.”
3
Specifically, plaintiff requested all files maintained “since January 1, 2004 to the present which contain electronic
data on personnel activities regarding hiring, discharge, promotion and compensation for all positions, at all of
[defendant]’s facilities, including subsidiary organizations,” including, but not limited to, “information such as the
name, sex, last known address, social security number, date of application and/or promotion, date of hire, position and
job title at hire, reason for non-selection, applicant reports on gender, amounts of pay and salary history, test results,
training, terminations/resignations, job status, etc.” (ECF No. 203-9).

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company-wide pattern of denied hire and promotion.” (ECF No. 205-25 at 2). In June of 2013,
plaintiff filed the instant suit, alleging that, “[s]ince at least July 1, 2004, [defendant] has
maintained and continues to maintain a standard operating procedure of discriminating against
females in its hiring of operatives at its Broadline facilities. This standard operating procedure
emanates from [d]efendant’s top management, and in particular, from its Corporate and Regional
Vice Presidents.” (ECF No. 5 at 19). Plaintiff also alleged that defendant discriminated against
Julie Lawrence by failing to promote her to Nighttime Warehouse Training Supervisor at its CCF
OpCo. (ECF No. 5 at 22).
On March 12, 2014, this Court bifurcated the case into two phases. (ECF No. 37). The
Court ordered that Phase One would consist of a determination of the extent to which, if at all,
plaintiff could establish its pattern or practice claim. (ECF No. 37 at 12). If plaintiff prevailed in
Phase One, the case would proceed to Phase Two to resolve any individual claims. (ECF No. 37
at 13). As to plaintiff’s second claim that defendant failed to promote Julie Lawrence, the parties
agreed that all issues pertaining to that claim would be tried without bifurcation. (ECF No. 37 at
14). The court ordered that discovery regarding the second claim and Phase One of the first claim
would proceed simultaneously. Id. The parties have spent the last few years engaged in discovery.
Currently pending are plaintiff’s Paper Spoliation Motion (ECF No. 203) and ESI Spoliation
Motion (ECF No. 205). Each motion will be addressed separately.
II.

Spoliation of Paper Applications
A. Legal Standard
Federal courts have two sources of authority for the imposition of sanctions due to

spoliation of non-electronically stored information.

First, a court may issue sanctions

under Federal Rule of Civil Procedure 37 when a party commits spoliation in violation of a specific

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court order. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 505–06 (D. Md. 2009). A
court may also impose sanctions for spoliation based upon its inherent authority to control the
judicial process. Id. Here, plaintiff has not identified any court order violated by defendant in its
alleged spoliation; “accordingly, the [c]ourt's ability to impose any sanction must derive from its
inherent authority to regulate the litigation process, rather than from any sanction prescribed by
the Federal Rules of Civil Procedure.” Id. at 506.
In addressing issues regarding spoliation, the term “spoliation” means “the destruction or
material alteration of evidence or . . . the failure to preserve property for another's use as evidence
in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583,
590 (4th Cir. 2001) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.
1999)). A party seeking sanctions based on the spoliation of evidence must establish three
elements:
(1) the party having control over the evidence had an obligation to preserve it when it was
destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of
mind;” and (3) the evidence that was destroyed or altered was “relevant” to the claims or
defenses of the party that sought the discovery of the spoliated evidence, to the extent that
a reasonable factfinder could conclude that the lost evidence would have supported the
claims or defenses of the party that sought it.
Goodman, 632 F. Supp.2d at 509 (quoting Thompson v. U.S. Dep't of Hous. & Urban Dev., 219
F.R.D. 93, 101 (D. Md. 2003)).
If a court finds the above elements to be met, then it may impose sanctions that must serve
“the purpose of leveling the evidentiary playing field and . . . the purpose of sanctioning the
improper conduct.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995). Courts
have broad discretion to impose sanctions for spoliation of relevant evidence and the available
sanctions “rang[e] from dismissal or judgment by default, preclusion of evidence, imposition of
an adverse inference, or assessment of attorney’s fees and costs.” Goodman, 632 F. Supp. 2d at
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506 (citing In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 191 (S.D.N.Y. 2007)). For the following
reasons, I conclude that the spoliation at issue here does not warrant the imposition of the sanctions
sought by plaintiff.
B. Discussion
i.

Breach of the Obligation to Preserve Relevant Evidence

In determining whether to impose sanctions for spoliation, the first element is whether “the
party having control over the evidence had an obligation to preserve it when it was destroyed or
altered.” Thompson, 219 F.R.D. at 101. “The duty to preserve material evidence arises not only
during litigation but also extends to that period before the litigation when a party reasonably should
know that the evidence may be relevant to anticipated litigation.” Id. (quoting Silvestri, 271 F.3d
at 591). The duty to preserve relevant evidence is an independent duty that exists even if the party
seeking the evidence did not request a court order for its preservation. Thompson, 219 F.R.D. at
100. In order to fulfill the duty to preserve relevant evidence, “[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.” Id. (quoting Zubulake
v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Zubulake IV”)).
Plaintiff alleges that defendant has failed to preserve an estimated 23,769 paper application
files from the period of January 1, 2004, to June 30, 2009. (ECF No. 203 at 7). Plaintiff further
alleges that defendant primarily failed to preserve the files of applicants who were not hired, and
that this failure to preserve was especially stark for female applicants who were not hired. Id.
Plaintiff argues that defendant was on notice to preserve all Broadline OpCo applications in August
of 2007, once it received three charges by employees alleging discrimination on the basis of sex,
as these charges placed defendant on notice of a potential pattern or practice claim. (ECF No. 203

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at 13). Plaintiff also argues that defendant was placed on further notice on November 14, 2007,
when plaintiff demanded workplace-wide demographic information and asked to interview VicePresidents Peckskamp and Russ. (ECF No. 203 at 14).
Plaintiff argues that, under defendant’s retention policies,4 as of August of 2007, defendant
should have possessed “non-hired” applicant documents for 2005–2007 and hired applicant
documents for 2004–2007. (ECF No. 203 at 15). Plaintiff further argues that defendant should
have possessed all applications for 2004–2007 for its CCF OpCo, as in 2004, defendant was in
litigation with plaintiff in a different case where a consent decree required defendant to retain job
applications until at least June of 2007. Id. (citing Consent Decree at ¶¶ 2, 10(c), EEOC v. Carroll
County Foods, Civ. No. MJG-03-1698 (D. Md. June 3, 2004), ECF No. 32).
Defendant argues that it was not placed on notice of a company-wide pattern or practice
claim until August 7, 2008, when plaintiff issued a letter informing defendant of its expanded
investigation. (ECF No. 218 at 68). Defendant argues that the three employee charges filed in
2007 only required defendant to preserve CCF OpCo applications. Id. Similarly, defendant argues
that plaintiff’s request for information in November of 2007 was limited to CCF employees and
two corporate employees, such that defendant “could not have reasonably anticipated in November
2007” that plaintiff would “file a complaint alleging systemic companywide sex discrimination at
all of its warehouses with respect to selectors and drivers.” (ECF No. 218 at 54–55).
Defendant does not dispute that its duty to preserve CCF OpCo applications began in the
summer of 2007 when it received individual employee charges.5 Id. These charges, however, did

Defendant’s recommended retention policy was to retain documents for “non-hired” applicants for two years, for
three years beyond termination for hired applicants, and for legal investigations, through final disposition plus the
expiration of the applicable statute of limitations. (ECF No. 203 at 13 (citing ECF Nos. 203-12, 203-13)).
5
The three charges were filed on June 11, 2007 (ECF No. 203-1), July 16, 2007 (ECF No. 203-2), and July 15, 2007
(ECF No. 203-3).
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“not indicate whether the offending conduct was localized or part of a company-wide policy, thus
it is insufficient notice of a pattern-or-practice claim.” EEOC v. L.A. Weight Loss, 509 F. Supp.
2d 572, 539 (D. Md. 2007). Further, plaintiff’s November 14, 2007 letter failed to place defendant
on notice of a pattern-or-practice claim, as it specifically requested information about employees
from only the CCF OpCo. See id. at 540 (finding that defendant was placed on notice of a
company-wide pattern or practice claim when plaintiff provided a request for additional
documentation of all vacancies). Accordingly, defendant’s duty to preserve all OpCo applications
did not begin until August 7, 2008, when plaintiff informed defendant that it was expanding the
scope of the investigation.
While plaintiff argues that defendant should be charged with failing to preserve
applications in accordance with its document retention policy (ECF No. 203 at 15), defendant’s
document retention policy does not have the force of law.6 Rather, defendant was only required
by law to retain applications for one year after an applicant was not selected or an employee was
terminated. See 24 C.F.R. § 1602.14 (“Any personnel or employment record made or kept by an
employer (including but not necessarily limited to . . . application forms submitted by
applicants . . .) shall be preserved by the employer for a period of one year from the date of the
making of the record or the personnel action involved, whichever occurs later. In the case of
involuntary termination of an employee, the personnel records of the individual terminated shall
be kept for a period of one year from the date of termination.”) Accordingly, by law, defendant

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Similarly, while plaintiff argues that defendant was required to retain all CCF OpCo applications for three years
under a consent decree in a different case, this consent decree only required defendant to “take adequate measures” to
achieve the goal of “the implementation of defined and consistent job application, record-keeping, and records
retention procedures, including the development and retention of applicant flow data.” Consent Decree at ¶¶ 2, 10(c),
EEOC v. Carroll County Foods, Civ. No. MJG-03-1698 (D. Md. June 3, 2004), ECF No. 32.

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was only required to keep applications dating from June 11, 20067 for CCF OpCos and from
August 7, 20078 for all other OpCos.
Plaintiff alleges that defendant spoliated approximately 23,769 paper application files from
all OpCos during the period of January 1, 2004, to June 30, 2009. (ECF No. 203 at 7). Defendant
“acknowledges that it did not preserve all of the application data that it had a duty to preserve,”
but argues that “almost half of the alleged missing applications are for male and female applicants
who applied during calendar years 2004 and 2005, the period of time before PFG’s preservation
duty was triggered,” and that defendant produced application data for “81% of applicants who
applied between 2006 through mid-2009.” (ECF No. 218 at 68). Because defendant was only
required to keep applications dating from June 11, 2006 for CCF OpCos and from August 7, 2007
for all other OpCos, defendant was not responsible for preserving all 23,769 paper application files
identified by plaintiff. Rather, plaintiff reports that, for all OpCos, defendant failed to produce
4,668 applications from 20079, 447 from 2008, and 3,337 from the first half of 2009. (ECF No.
203 at 17). In sum, defendant failed to preserve between 3,78410 and 8,54211 applicant files out
of a total of between 31,46212 and 53,65313 applicants for all OpCos between August 7, 2007, and
June 30, 2009.

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This date is one year prior to June 11, 2007, the earliest date that a charge was filed. (ECF No. 203-1).
This date is one year prior to August 7, 2008, the date that plaintiff informed defendant that it was expanding the
scope of its investigation. (ECF No. 203-8).
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The data provided by the parties is divided by year, such that it is impossible to tell which applications from the year
2007 defendant had a duty to preserve (i.e., which applications were dated after August 7, 2007).
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This is the total number of files that defendant failed to produce from 2008 and 2009.
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This number includes all 4,668 files that defendant did not produce from the year 2007. Because it is impossible to
tell which applications from this year that defendant had a duty to preserve, it is impossible to determine the total
number of files that defendant failed to preserve.
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This is the total number of applicants for the years 2008 and the first half of 2009. (ECF No. 203 at 17).
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This number includes all 22,191 applicants from the year 2007. Because it is impossible to tell when each of these
individuals applied to defendant, it is impossible to determine how many of these files defendant had a duty to preserve
(i.e., which applications were dated after August 7, 2007). (ECF No. 203 at 17).
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As to the alleged destruction at the CCF OpCo during the year 2006, plaintiff reports that
defendant failed to produce 144 “non-hire” applications. (ECF No. 203 at 19). Plaintiff does not
specify, however, which of these applications that defendant had a duty to preserve, i.e. which
applications were dated after June 11, 2006. Defendant may have failed to preserve anywhere
between zero and 144 applications, and I cannot determine the extent of spoliation from the CCF
OpCo for the year 2006 based on the information available to me. Nonetheless, while defendant
did not fail to preserve the total amount of applications alleged by plaintiff, plaintiff has established
defendant did fail to preserve a number of applications from all OpCos dating back to August 7,
2007, and likely some applications from the CCF OpCo for the year 2006. The first element of
the Thompson analysis is satisfied.
ii.

Culpability

The second element to consider is whether the destruction or loss of evidence was
accompanied by a “culpable state of mind.” Thompson, 219 F.R.D. at 101. Plaintiff alleges that
“[d]efendant did not simply fail to pay attention to its legal duties, fail to notice when they accrued,
fumble its litigation hold, or suffer the misfeasance of one or two individuals with sole control
over the documents,” but that defendant acted willfully and in bad faith. (ECF No. 203 at 30).
Defendant argues that plaintiff “has not proffered any evidence that [defendant] failed to produce
paper applications in bad faith or that it engaged in egregious conduct.” (ECF No. 218 at 70).
Three possible states of mind “can satisfy the culpability requirement: bad faith/knowing
destruction, gross negligence, and ordinary negligence.” Goodman, 632 F. Supp. 2d at 518 (citing
Thompson, 219 F.R.D. at 101). The Fourth Circuit only requires a showing of fault, with the
degree of fault impacting the severity of sanctions. Silvestri, 271 F.3d at 590. For the reasons

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discussed below, I find that there is insufficient evidence to conclude that defendant acted willfully
or in bad faith, but there is sufficient evidence to conclude that defendant was negligent.
Ordinary negligence is “[t]he failure to exercise the standard of care that a reasonably
prudent person would have exercised in a similar situation[.]” Victor Stanley, Inc. v. Creative Pipe,
Inc., 269 F.R.D. 497, 529 (D. Md. 2010) (citing Black’s Law Dictionary 846 (Bryan A. Garner
ed., abridged 7th ed., West 2000)). Gross negligence “is something more than carelessness,”
which “‘differs from ordinary negligence only in degree, and not in kind.’” Id. (citing Pension
Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 464
(S.D.N.Y. 2010)). Willfulness and bad faith both require “intentional, purposeful, or deliberate
conduct.” Id. at 530 (citing Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008)). For a court
to find that a party acted willfully, “it is sufficient that the actor intended to destroy the evidence.”
Id. (citing Goodman, 632 F. Supp. 2d at 520). Bad faith, on the other hand, “requires ‘destruction
for the purpose of depriving the adversary of the evidence.’” Id. (quoting Powell v. Town of
Sharpsburg, 591 F. Supp. 2d 814, 820 (E.D.N.C. 2008)).
In Victor Stanley, this court found that defendants “set out to delete, destroy, or hide
thousands of files containing highly relevant ESI pertaining to [p]laintiff’s claims . . . lied about
their ESI production; obstructed the discovery process; and intentionally destroyed evidence when
they were aware of the lawsuit.” Id. at 531. Here, however, plaintiff has not provided any evidence
that defendant destroyed the paper applications “for the purpose of depriving [plaintiff] of the
evidence” or that defendant “intended to destroy the evidence.” Id. Rather, plaintiff’s arguments
focus on defendant’s failure to implement a proper litigation hold. (ECF No. 203 at 24–27).
Accordingly, I do not find that plaintiff has established that defendant acted willfully or in bad
faith.

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In determining whether defendant’s conduct was negligent, the court must first consider
defendant’s failure to institute a litigation hold or advise employees to retain documents.
Generally, if a company has a document retention or destruction policy, it must suspend that policy
and “implement a ‘litigation hold’ to ensure the preservation of relevant documents” once the
preservation duty attaches. Goodman, 632 F. Supp. 2d at 511 (citing Thompson, 219 F.R.D. at
100). Courts have found that the quality of the litigation hold instituted directly correlates to the
level of culpability and sanction that attaches to the inadequacy of those efforts, if any. When no
litigation hold has been instituted, courts have found such conduct to be grossly negligent. In
Cognate Bioservices, Inc., et al. v. Smith, Civ. No. WDQ-13-1797, 2015 WL 5158732 (D. Md.
August 31, 2015), the defendant failed to institute a litigation hold at his consulting firm. Id. at
*5. As a result, multiple potentially relevant emails and documents were deleted by employees.
Id. The court noted “had [defendant] instituted any litigation hold–even a less-than-ideal litigation
hold–the circumstances might have warranted a finding of regular negligence.” Id. (citing Victor
Stanley, 269 F.R.D. at 529). But, under the circumstances, since no steps were taken to preserve
such evidence, the court found the defendant’s conduct to be grossly negligent. Id.
In this case, there is ample evidence that defendant failed to properly institute a litigation
hold. As previously discussed, defendant’s duty to preserve paper applications attached to its CCF
OpCo on June 11, 2007, and to all other OpCos on August 7, 2008. Defendant was required to
implement a litigation hold once this duty attached. Defendant’s designee testified that it believed
it first became aware of a litigation hold in late 2008 but could not recall any details about the hold.
(ECF No. 203 at 25). Defendant’s designee could not recall whether the hold required the OpCos
to preserve paper applications. Id. Defendant’s designee also could not recall what was included
in litigation hold notices, and defendant could not produce any such notices. Id. Plaintiff also

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provides evidence that, if there was a litigation hold, it was not communicated to all OpCo HR
managers.14 (ECF No. 203 at 26).
Even if there was a litigation hold, however, defendant’s designee testified that the
litigation hold was merely self-enforced.15 Id. “A party’s obligations ‘do not end with the
implementation of a litigation hold . . . [c]ounsel must oversee compliance with the litigation hold,
monitoring the party’s efforts to retain and produce the relevant documents.” In re Ethicon, Inc.
Pelvic Repair Systems Product Liability Litigation, 299 F.R.D. 502, 521 (S. D. W. Va. 2014)
(quoting Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Zubulake V”)).
“At a minimum . . . counsel should have educated employees on what measures were expected of
them to collect and preserve material evidence.” Id. Here, however, even if there was a litigation
hold, it was not properly implemented, and there was no monitoring for compliance. Under the
circumstances, I conclude that defendant’s failure to implement any measures to ensure that
potentially relevant evidence would be preserved constituted at least ordinary negligence.16 The
second element of the Thompson analysis is satisfied.
iii.

Relevance and Prejudice

The third element that must be met before sanctions are imposed is that the destroyed or
altered documents are relevant to the proponent's claims and defenses. In the Fourth Circuit, “a
finding of ‘relevance’ for purposes of spoliation sanctions is a two-pronged finding of relevance
and prejudice.” Victor Stanley, 269 F.R.D. at 532. When the alleged spoliator is found to have

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For example, the Vice-President of Human Resources at the Springfield and Florida OpCos through June of 2009
testified that she never received instructions to suspend normal document retention policies and comply with a
litigation hold. (ECF No. 203-33 at 2).
15
Defendant’s designee testified that it was her understanding that “any recipient of the notice was responsible for
retaining documents in that person’s control.” (ECF No. 203-29 at 16).
16
I need not determine whether defendant’s conduct constituted gross negligence at this time, given the type of
sanctions requested by plaintiff. As further discussed below, the applicability of the sanctions sought by plaintiff does
not turn on the level of negligence, but rather on whether defendant acted willfully or in bad faith.

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acted willfully or in bad faith in failing to preserve evidence, “the relevance of that evidence is
presumed in the Fourth Circuit.” Id. at 532. When a failure to preserve evidence is the result of
either ordinary or gross negligence, as is the case here, the plaintiff must establish that the lost
documents were relevant to their case. Thompson, 219 F.R.D. at 101 (quoting Zubulake IV, 220
F.R.D. at 220).
Evidence is relevant if a “reasonable trier of fact could conclude that the lost evidence
would have supported the claims or defenses of the party that sought it.” Victor Stanley, 269
F.R.D. at 531 (quoting Thompson, 219 F.R.D. at 101). Here, plaintiff alleges that the missing
paper applications are relevant to its pattern or practice claim. (ECF No. 203 at 33). Specifically,
the missing paper applications here would likely be relevant to plaintiff’s pattern or practice claim,
as the applications would allow plaintiff to evaluate the qualifications of the Phase I female
claimants and male hires for individual comparisons. (ECF No. 203 at 34). Similarly, this
evidence would allow plaintiff to evaluate the reasons given by defendant for why individual
female claimants were not hired. Id. Indeed, defendant does not challenge the relevance of these
documents in its Opposition. Accordingly, I find that a reasonable factfinder could conclude that
these missing employment records would have supported plaintiff’s claims.
Turning to whether plaintiff has been prejudiced due to the spoliation, spoliation is
prejudicial if “a party’s ability to present its case or to defend is compromised.” Victor Stanley,
269 F.R.D at 532 (citing Silvestri, 271 F.3d at 593–94). Here, plaintiff alleges that defendant’s
conduct has prejudiced plaintiff “by preventing it from identifying and preventing it from
identifying and evaluating aggrieved females whom it could have used as Phase I claimants, and
from seeking relief for those unidentified non-Phase I claimants during Phase II.” (ECF No. 203
at 33). Plaintiff has also alleged that it is prejudiced by the lack of “individual comparator

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information needed to rebut pretextual explanations for why [defendant] did not hire [plaintiff’s]
Phase I claimants” and that “[t]he failure to preserve has also opened the door for [defendant] to
attack [plaintiff’s] statistical populations as insufficiently representative.” Id. Plaintiff further
details how the spoliation prejudiced the claims brought on behalf of specific Phase I claimants.17
(ECF No. 203 at 35–39).
Defendant alleges that plaintiff was not deprived “of any evidence it needs to establish its
pattern or practice claim.” (ECF No. 218 at 71). Defendant argues that the issue in Phase I is
whether defendant has a companywide pattern or practice of failing to hire women into operative
positions, which can be proven through statistical and anecdotal evidence. (ECF No. 218 at 71–
72). Defendant further asserts that plaintiff submitted an expert report supporting its pattern or
practice theory and that, in this report, its expert did not claim that the missing applicant data
prevented her from making relevant findings. (ECF No. 218 at 73). In response to plaintiff’s
argument that “[t]he failure to preserve has also opened the door for [defendant] to attack
[plaintiff’s] statistical populations as insufficiently representative,” (ECF No. 203 at 33), defendant
argues that its expert does not base any challenges on missing data, but rather on plaintiff’s expert’s
flawed methodology and failure to use all data that was available for analysis. (ECF No. 218 at
74–75).
Additionally, defendant claims that plaintiff was not prejudiced by its inability to identify
and evaluate aggrieved females. (ECF No. 218 at 74). Defendant argues that plaintiff was able to
select nineteen female applicant who applied during the years in question, between 2004 and mid-

17

In one example, defendant preserved the application for a female applicant but failed to preserve the applications of
five males hired for the same position over the next few months. (ECF No. 203 at 36). In another example, defendant
failed to preserve a female applicant’s file, and the only data that remains is that she was “not selected” and that “better
candidates,” all male, were selected. Id.

15

2009.18 Id. Similarly, defendant argues that plaintiff did not experience prejudice to the claims
brought on behalf of the Phase I claimants. Rather, defendant argues, these claims will not be tried
until Phase II, and the claimants’ only role in Phase I is to provide anecdotal testimony in support
of the pattern or practice claim, so there is no prejudice at this time. (ECF No. 218 at 75).
In response, plaintiff asserts that paper applications and related documents “are essential
to proving the pretext of [d]efendant’s asserted reasons for not selecting the female applicant,”
particularly when plaintiff “has the burden of actually proving [defendant’s] representations to be
false.” (ECF No. 221 at 21–22 (emphasis in original)). Furthermore, plaintiff argues, it is “using
the circumstances of Phase I witness’ non-selections to help prove a pattern or practice of
discrimination . . . their qualifications, those of their comparators, [defendant’s] purported reasons
for not selecting them, and proof of pretext is all at play in Phase I liability phase.” 19 (ECF No.
221 at 12). Plaintiff further argues that the prejudice is significant in light of defendant’s second
expert report, which claims that the disparity between the number of male and female applicants
hired was due to a disparity in prior experience. (ECF No. 221 at 28). Specifically, plaintiff argues
that its expert cannot properly rebut defendant’s expert reports without data from the spoliated
applications. (ECF No. 221 at 29).
Here, plaintiff alleges that PFG “has maintained and continues to maintain a standard
operating procedure of discriminating against females in its hiring of operatives at its Broadline
facilities.” (ECF No. 5 at 19). As noted by plaintiff, “[t]he relative qualifications of the claimant
and comparators as they existed on the documents reviewed by the decisionmakers, and
[d]efendant’s actual deliberative process, is critically at issue.” (ECF No. 221 at 22 (emphasis in

18

Defendant argues that female applicants who applied during these years represented 35% of the total number of
female applicants but represent 48% of the total Phase I claimants selected by plaintiff. Id. Defendant argues that this
“shows clearly that [plaintiff’s] claim that it was prejudiced in selecting its 40 Phase I claimants is false.” Id.
19
Plaintiff argues that “[o]nly the amounts of individual damages are reserved for Phase II.” Id.

16

original)). Plaintiff’s ability to present evidence in support of its pattern or practice claim is
compromised by the spoliation of such documents. Although individual claimants may testify
anecdotally, their testimony does not cure this prejudice, as they will only be able to testify as to
their own qualifications.

Additionally, plaintiff is harmed by its inability to offer paper

applications and related documents to rebut defendant’s proffered explanations for not hiring
female applicants. As to plaintiff’s ability to present expert witness testimony, I do not have
sufficient information before me to determine whether plaintiff has experienced prejudice at this
time. As discussed further below, this issue may be more appropriately presented by a motion in
limine, including a Daubert motion, to the trial judge. Nonetheless, excluding plaintiff’s ability to
present expert witness testimony, based on the record before me, I find that plaintiff has been
prejudiced by this spoliation, plaintiff’s ability to present its case has been compromised, and the
final element of the Thompson analysis has been satisfied.
C. Sanctions
After finding that all three elements of the Thompson analysis are satisfied, a court may
impose sanctions that must serve “the purpose of leveling the evidentiary playing field and . . . the
purpose of sanctioning the improper conduct.” Vodusek, 71 F.3d at 156. Here, plaintiff requests
a variety of “remedial and punitive sanctions” that it argues are warranted because “this is a rare
case in which a party’s behavior has been so egregious, and/or the prejudice so substantial.” (ECF
No. 203 at 42).
i.

Limited Default Judgment

Plaintiff first requests that the court grant limited default judgment against defendant for
the period of January 1, 2004, through June 30, 2009, or in the alternative, grant limited default

17

judgment against defendant for six OpCos in which the spoliation has been most severe and for
the applicants for whom no application materials remain. (ECF No. 203 at 42–43).
The Fourth Circuit has indicated, however, that courts should only impose sanctions that
dispose of a case, such as a dismissal or default judgment,20 in the most extreme circumstances:
[T]o justify the harsh sanction of dismissal, the district court must consider both the
spoliator's conduct and the prejudice caused and be able to conclude either (1) that the
spoliator's conduct was so egregious as to amount to a forfeiture of his claim, or (2) that
the effect of the spoliator's conduct was so prejudicial that it substantially denied the
defendant the ability to defend the claim.
Silvestri, 271 F.3d at 593. “Although Silvestri posits an either/or test . . . this [c]ourt has not
terminated a case where a spoliator acted in bad faith, absent a showing of substantial prejudice.”
Victor Stanley, 269 F.R.D. at 535 (citations omitted). In Silvestri, the plaintiff allowed the “sole
piece of evidence” in a products liability action, a vehicle, to be repaired and sold without giving
defendant notice and an opportunity to inspect it. Id. at 585. The court found that plaintiff's actions
“denied [defendant] access to the only evidence from which it could develop its defenses
adequately,” and was therefore “so prejudicial that it substantially denied the defendant the ability
to defend the claim.” Id. at 593–94.
Here, unlike Silvestri, defendant’s spoliation does not justify the severe sanction of a
default judgment. While plaintiff has established that it is prejudiced by the spoliation, plaintiff
has not established that it was denied the only means available to prove its case. As noted by
defendant, plaintiff has submitted an expert report “which [plaintiff] asserts establishes that
[defendant] has a pattern or practice of failing to hire women for operative positions.”21 (ECF No.

20

Most of the Fourth Circuit cases involving sanctions for spoliation of evidence arise in the context of a defendant
asking for dismissal of a plaintiff's claims because of destruction of evidence by the plaintiff. As the Fifth Circuit has
noted, “[b]ecause ... rendering default judgment is equally as harsh a sanction as dismissing the case of a plaintiff with
prejudice, we cite cases involving these sanctions interchangeably.” Pressey v. Patterson, 898 F.2d 1018, 1021 n.2
(5th Cir. 1990). The court here cites cases involving requests for default judgment and for dismissal interchangeably.
21
Plaintiff also states that “[a]pplication spoliation may not have prevented [plaintiff] from rendering a number of
expert statistical opinions.” (ECF No. 221 at 28).

18

218 at 72). Additionally, plaintiff has designated 40 Phase I claimants to provide anecdotal
testimony to support plaintiff’s pattern or practice claim. (ECF No. 218 at 74). Specifically, these
claimants can testify “about their work experience and qualifications, and their experience when
they applied for a position at PFG, i.e., whether they were interviewed, whether they were hired,
and whether anyone at PFG said anything about women working at PFG.” (ECF No. 218 at 76).
Accordingly, I find that the severe sanction of a default judgment is not warranted.
ii.

Adverse Inference Instructions

Plaintiff also asks that the court instruct the jury with a mandatory adverse instruction
stating that defendant “had legal obligations to preserve approximately a third of their paper
applications from 2004 to 2009 at a time when litigation was foreseeable, willfully failed to retain
them all at any facility, retained none for non-hires at the VFG and Middendorf facilities and
retained none for 1,721 females; and that the jury shall presume these applications, as a whole or
in individual cases, contained information detrimental to [d]efendant.” (ECF No. 203 at 43).
Alternatively, plaintiff asks for a permissive inference instruction, specifically requesting that the
court “instruct the [j]ury as to the fact and extent of spoliation it finds, as well as the fact that
[d]efendant destroyed the evidence at a time when it knew it had a legal duty to preserve it,
affording the [j]ury a permissive inference as to what the evidence may have shown.” (ECF No.
203 at 44). Defendant argues that these requests are improper, as “there is no showing that
[defendant] acted willfully or in bad faith,” and “the fact that there are missing paper applications
has no bearing on and is not relevant to the issue to be tried in Phase I, i.e., whether [defendant]
had a pattern or practice of failing to hire women, and thus there is no prejudice to [plaintiff].”
(ECF No. 218 at 81).

19

A court may use its discretion to “order an adverse inference instruction, which informs a
jury that it may ‘draw adverse inferences from . . . the loss of evidence, or the destruction of
evidence,’ by assuming that failure to preserve was because the spoliator was aware that the
evidence would have been detrimental.” Victor Stanley, 269 F.R.D. at 535 (quoting Vodusek, 71
F.3d at 156). “The court may instruct the jury that ‘certain facts are deemed admitted and must be
accepted as true’; impose a mandatory, yet rebuttable, presumption; or ‘permit[] (but . . . not
require) a jury to presume that the lost evidence is both relevant and favorable to the innocent
party.’” Id. (quoting Pension Comm. of Univ. of Montreal Pension Plan, 685 F. Supp. 2d at 470–
71). To impose any adverse jury instruction, “the court ‘must only find that the spoliator acted
willfully in the destruction of evidence.’” Victor Stanley, 269 F.R.D. at 536 (quoting Goodman,
632 F. Supp. 2d at 519). “[N]egligence or even gross negligence is not sufficient in this Circuit.”
Id. An adverse inference instruction “cannot be drawn merely from [defendant’s] negligent loss
or destruction of evidence; the inference requires a showing that the party knew the evidence was
relevant to some issue at trial and [defendant’s] willful conduct resulted in its loss or destruction.”
Vodusek, 71 F.3d at 156.
Here, plaintiff has not established that defendant acted willfully or in bad faith in failing to
preserve the relevant applications. Although plaintiff has established that defendant was negligent,
negligent conduct is insufficient to warrant the sanction of an adverse inference instruction. See
Victor Stanley, 269 F.R.D. at 526 (“[A]n adverse inference instruction makes little logical sense
if given as a sanction for negligent breach of the duty to preserve, because the inference that a
party failed to preserve evidence because it believed that the evidence was harmful to its case does
not flow from mere negligence[.]”)

Accordingly, plaintiff’s requests for mandatory and

permissive adverse jury instructions are denied.

20

iii.

Preclusion of Evidence and Summary Judgment

Plaintiff also asks that defendant be precluded from (1) using as evidence in Daubert
motions, summary judgment proceedings, or trial the application material of male hires and
comparators of certain Phase I claimants; (2) stating or implying opinions faulting plaintiff’s expert
“for using in her calculations fewer items of specific application information (e.g., licensure data
points, resume material) than PFG can demonstrate it has actually produced to [plaintiff]”; and (3)
“from presenting argument extrapolating samples to any populations of documents larger than
what PFG can prove it actually produced.” (ECF No. 203 at 43). Defendant argues that this
request is inappropriate as to the Phase I claimants, as the individual claims will not be addressed
until Phase II, and plaintiff has not established any basis or authority for such a sanction. (ECF
No. 218 at 78). Defendant further argues that plaintiff’s request as to opinions faulting plaintiff’s
expert “is unwarranted because neither [defendant] nor [defendant’s expert] have ever [faulted
plaintiff’s expert] for using data that was not produced to [plaintiff].” (ECF No. 218 at 62).
As noted by defendant, plaintiff has failed to provide any legal support for this type of
sanction and its applicability to this case. Furthermore, I find that this request is premature. The
three issues raised by plaintiff in its request are all evidentiary issues that are more appropriately
presented in motions in limine to preclude evidence or in the form of Daubert motions asking the
trial court to exclude certain expert opinions.

Accordingly, because this request is more

appropriately addressed to the trial judge at a later time, this request is denied without prejudice.
Plaintiff also requests that defendant be precluded from moving for summary judgment as
to plaintiff’s pattern or practice claim, twelve specific Phase I claimants whose claims have been
prejudiced by defendant’s spoliation, and 1,721 potential Phase II claimants that plaintiff will not
be able to identify due to the spoliation of their applications. (ECF No. 203 at 44). Plaintiff relies

21

solely on Equal Employment Opportunity Commission v. JP Morgan Chase Bank, North America,
295 F.R.D. 166, 174 (S.D. Ohio 2013), recons. denied, 2013 WL 1787577 (S.D. Ohio Mar. 20,
2013), a case in which the court exercised its discretion to deny defendant’s summary judgment
motion, to support its position. In that case, the court held that denial of defendant’s motion for
summary judgment was necessary to “counter[] any summary judgment advantage that [d]efendant
may have obtained by its conduct that could contribute to [p]laintiff never reaching a jury.” Id. at
174. Defendant argues that this sanction is not warranted. Specifically, defendant argues,
“[u]nlike the cases cited by [plaintiff] in support of its request . . . the missing data in this case
does not hamper [plaintiff’s] ability to prove its claim or prevent fair consideration of the full
merits of this litigation in Phase I.” (ECF No. 218 at 77). Defendant also reiterates its argument
that this request is inappropriate as to the Phase I claimants, as the individual claims will not be
addressed until Phase II, and plaintiff has not established any basis or authority for such a sanction.
(ECF No. 218 at 78).
Plaintiff has failed to provide any legal support for its request that defendant not be
permitted to file a summary judgment motion. Indeed, even in JPMorgan Chase Bank, the
defendant was not precluded from filing a summary judgment motion as requested by plaintiff
here. Here, the trial judge can decide what impact the evidence, or lack of evidence, has at the
summary judgment stage. Further, as noted by defendant, the court’s inherent power to impose
sanctions “must be exercised with the greatest restraint and caution, and then only to the extent
necessary.” United States v. Shaffer Equip. Co., 11 F.3d 450, 462 (4th Cir. 1993). I find that the
requested sanction is inappropriate, given defendant’s lack of bad faith and plaintiff’s expert report
which claims that it does have sufficient evidence to provide an opinion in support of plaintiff’s
claim. Plaintiff’s request is denied.

22

iv.

Extension of Discovery

Finally, plaintiff asks that if any of the spoliated evidence is later discovered, that plaintiff
be allowed 60 days to redesignate Phase I claimants, take depositions of any newly revealed
decisionmakers, and, “if any application information is found in such quantity as to indicate
supplementation of [plaintiff’s] expert report,” that plaintiff be allowed until the time of pretrial
disclosures to key in the information, prepare the data sets, and supplement its expert statistical
opinion pursuant to Fed. R. Civ. P. 37(c)(1). (ECF No. 203 at 44). This request is denied, without
prejudice, as it is premature at this time. If any of the spoliated evidence is later discovered,
plaintiff may raise this issue to be addressed by the court at that time.
III.

Spoliation of Electronically Stored Information (“ESI”)
A. Legal Standard
As discussed above, federal courts have two sources of authority for the imposition of

sanctions due to spoliation, Federal Rule of Civil Procedure 37 and the court’s inherent authority
to control the judicial process. Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 505–06 (D.
Md. 2009). Plaintiff relies on the latter source of authority in its ESI Spoliation Motion, while
defendant argues that Rule 37(e) is the proper source of authority for spoliation of ESI. (ECF No.
218 at 33). Federal Rule of Civil Procedure 37(e), as amended in 2015, states:
(e) 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;

23

(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.
Fed. R. Civ. Pro. 37(e). As noted by defendant, the Committee Notes on the 2015 Amendment to
this Rule state that the amended rule “forecloses reliance on inherent authority or state law to
determine when certain measures should be used.” (ECF No. 218 at 33). Defendant, therefore,
argues that the court may not rely on its inherent authority to impose sanctions, as argued by
plaintiff, and must rely on Rule 37(e). Id.
In response, plaintiff argues that, pursuant to the Supreme Court’s Order amending Rule
37, the amended rule took effect on December 1, 2015, and “govern[s] all proceedings in civil
cases thereafter commenced and, insofar as just and practicable, all proceedings then pending.”
(ECF

No.

205

at

31–32

(quoting

Supreme

Court

Order,

April

https://www.supremecourt.gov/orders/courtorders/frcv15(update) _1823.pdf).

29,

2015,

Plaintiff argues

that this amendment should not govern this case, as plaintiff filed suit in June of 2013, served the
discovery requests at issue in April 2014, and defendant’s duty to preserve evidence attached, and
the alleged destruction of such evidence occurred, before 2015. (ECF No. 205 at 32). Defendant
argues that it is “just and practicable” to apply the amended Rule here, as the motion was filed two
and a half years after the amended Rule went into effect. (ECF No. 218 at 35).
At the outset, however, I find it unnecessary to determine which standard applies in this
case. Under either standard, as a threshold issue, the court must find that there was a destruction
of evidence that the party had a duty to preserve. See Fed. R. Civ. Pro. 37(e) (allowing the court
to impose sanctions when ESI “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”); Thompson v. U.S.
Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003) (requiring that the court find that
24

“the party having control over the evidence had an obligation to preserve it when it was destroyed
or altered” before imposing sanctions). For the reasons discussed below, I find that plaintiff has
only established that defendant failed to preserve evidence relating to internal complaint
documents and that the sanction sought by plaintiff for the spoliation of these documents is
inappropriate at this juncture.
B. Duty to Preserve
Plaintiff alleges that defendant failed to create an appropriate litigation hold on its
employees’ emails and electronic documents and that, accordingly, defendant has failed to produce
relevant ESI that it had a duty to preserve. (ECF No. 205 at 14–15). Plaintiff specifically alleges
that defendant has failed to preserve emails belonging to nineteen custodians22 (ECF No. 205 at
19–20) and documents related to internal complaints of gender hostility or discrimination (ECF
No. 205 at 24). As discussed previously, defendant was on notice after June 11, 2007, to preserve
any ESI related to the charges filed by Julie Lawrence, Jason Geib, and Kyle Gardner at the CCF
OpCo. Defendant was further placed on notice to preserve any ESI related to plaintiff’s pattern or
practice claim after August 7, 2008.
i.

Custodian Emails

In its ESI Motion, plaintiff named nineteen custodians “of greatest interest” who were
“named in [plaintiff’s] Complaint, named in complaints filed privately, or who themselves alleged
gender discrimination” and alleged that defendant failed to preserve all relevant emails from these
custodians. (ECF No. 205 at 18). Three of these individuals, Julie Lawrence, Jason Geib, and
Kyle Gardner, are former CCF employees who filed the initial charges in the summer of 2007.
(ECF No. 205 at 19). Another three individuals, Dave Russ, Jeff Wismans, and Dan Peckskamp,

22

These custodians are employees of defendant who alleged gender discrimination or allegedly engaged in
discriminatory behavior. (ECF No. 205 at 18).

25

were Vice Presidents of Operations that Kyle Gardner alleged opposed hiring female workers.
(ECF Nos. 205-5, 205-6). Two individuals alleged gender discrimination by defendant.23 (ECF
No. 205 at 19). Nine of these individuals24 held management positions and allegedly engaged in
discriminatory behavior during their employment.

(ECF No. 205 at 19–20). Finally, one

individual, Jeff Williamson, replaced Dan Peckskamp as Vice President of Operations. (ECF No.
205 at 20).
Pursuant to the Protocol for the Search of Defendant Performance Food Group, Inc.’s
Electronic Mail Collections (ECF No. 113) (“ESI Protocol”), defendant searched its email data for
those custodians listed in the ESI Protocol25 and produced all relevant, responsive, and nonprivileged documents to plaintiff. (ECF No. 218 at 23). While defendant’s email data included
3,383 email backup tapes, the ESI Protocol did not require defendant to restore and search all of
its email backup tapes, but rather only required defendant to restore and search “one full weekly
backup of each email server for each quarter of each year for the time period of January 2004
through January 2010,” (ECF No. 113 at 2), which constituted approximately 25 percent of all
tapes. (ECF No. 218 at 36). Plaintiff argues that defendant has failed to preserve all relevant
emails from these custodians, primarily relying on defendant’s “meager overall email production.”
(ECF No. 205 at 21). Additionally, plaintiff argues that defendant failed to preserve the passwords

One individual, Deidre Robinson, was a Vice President of Training and Development who “told EEOC investigators
in 2008 that [d]efendant fostered a discriminatory and hostile working environment for women.” (ECF No. 205 at 19
(citing ECF No. 205-43)). Another, Chief Human Resources Officer Charlotte Perkins, sued defendant in a separate
lawsuit. Id.
24
These individuals include Graylon MacFall (Regional President), Bogdan Lucyzk (Springfield warehouse manager),
Paul Green (Springfield Vice President of Operations), Dwight Gorsuch (CCF President), Rudy Ayala (Little Rock
warehouse manager and director), James McColloch (VFG Vice President of Operations), Donnie Miniard (Somerset
supervisor of transportation), Byron Flores (AFI warehouse supervisor), and Phillip Franzoni (Temple and Springfield
warehouse manager). (ECF No. 205 at 19–20). Also included is Christopher Stacey, who allegedly worked as a
warehouse manager at the Lester and Springfield OpCos “during a period in which Green gave orders not to hire
females there.” (ECF No. 205 at 19).
25
As noted by defendants, four of the “custodians of greatest interest” (Lawrence, Ayala, Flores, and Miniard) were
not included on the ESI Protocol. (ECF No. 218 at 40).
23

26

to 3,326 password-protected documents found within the emails that were produced. (ECF No.
205 at 23).
(1) Julie Lawrence, Jason Geib, and Kyle Gardner
As to the three individuals who initially filed charges in this case, Julie Lawrence, Jason
Geib, and Kyle Gardner, defendant has produced zero emails from Lawrence’s email data, fiftyfour emails from Geib’s email data,26 and nineteen from Gardner’s email data. Defendant had a
duty to preserve all relevant emails from these custodians beginning on June 11, 2007, the date
that the first charge was filed. Defendant notes that Julie Lawrence, a warehouse worker, did not
even have an email account with defendant. (ECF No. 218 at 40). For Geib and Gardner, plaintiff
fails to offer any evidence, however, that defendant did not preserve all relevant emails from these
individuals, beyond a general argument that, because defendant’s overall production was
“meager,” more emails must have existed.27 (ECF No. 205 at 21).
As argued by defendant, plaintiff’s “contention that an email production is ‘meager’ does
not mean relevant evidence was destroyed.” (ECF No. 218 at 38 (citing Harris v. Koenig, 271
F.R.D. 356, 370 (D.D.C. 2010) (“If plaintiffs are speculating that documents responsive to these
requests do exist, there must be a reasonable deduction that that is true, and not a mere hunch.”);
Freedman v. Weatherford Int’l, 2014 WL 4547039, *3 (S.D.N.Y. Sept. 12, 2014) (denying further
discovery despite evidence of three emails missing from defendant’s production, explaining that
the Federal Rules “do not require perfection” in discovery, and noting none of the other allegedly
missing relevant documents would have been identified via the keyword search). This is especially

Plaintiff notes that “[a]ll 54 consisted of separate sections of a corporate policy manual and its transmittal.” (ECF
No. 205 at 20).
27
While plaintiff does note that defendant failed to produce the emails that it attached to its position statements as to
the Jason Geib and Kyle Gardner charges in 2007, upon review of the emails, the emails are not relevant to the instant
case, as they only pertain to Geib’s overall performance and Family and Medical Leave Act (“FMLA”) requests and
Gardner’s overall performance and racial discrimination claims. (ECF Nos. 205-7, 205-8).
26

27

true in light of the fact that defendant only restored a sample of its backup tapes, as it is possible
that, if relevant emails were missing, the emails were not destroyed, but rather located on backup
tapes that were not sampled. (ECF No. 218 at 39 (citing ECF No. 113 at 1–2)). Accordingly, I
find that plaintiff has failed to meet its burden of establishing that defendant failed to preserve
relevant emails from Julie Lawrence, Jason Geib, or Kyle Gardner that it had a duty to preserve.
Plaintiff’s motion is denied as to these custodians.
(2) Dave Russ, Jeff Wismans, and Dan Peckskamp
As to the three individuals named in the initial charges, Dave Russ, Jeff Wismans, and Dan
Peckskamp, defendant produced zero emails from Russ’ email data, thirteen emails from
Wismans’ email data, and four28 emails from Peckskamp’s email data. (ECF No. 205 at 20). In
his initial charge, dated July 15, 2007, Kyle Gardner alleged that corporate management, including
Russ, Wismans, and Peckskamp, opposed hiring female workers. (ECF No. 205-5). At that point,
defendant was placed on notice of its duty to preserve any relevant documents pertaining to these
allegations or its investigation thereof, including any emails from these individuals. Plaintiff fails
to offer sufficient evidence, however, that defendant did not preserve all relevant emails from these
individuals.
As to Dave Russ, he separated from defendant on May 5, 2007. (ECF No. 218 at 54 n.110).
Defendant represented that “[a]ctive email accounts of employees are purged after they separate
from the company pursuant to regular business practices.” (ECF No. 218 at 41). Defendant has
also stated that Russ’ emails were “purged before any duty to preserve arose.” Id. Plaintiff has
not offered any proof to rebut defendant’s assertion that Russ’ emails were deleted before it was
placed on notice of its duty to preserve relevant emails on July 15, 2007. Plaintiff has not met its

Plaintiff notes that these emails consist of “[t]hree EEOC Notice of Charges and the email transmittal.” (ECF No.
205 at 20).
28

28

burden of establishing that defendant destroyed relevant emails from Russ that it had a duty to
preserve.29
As to Jeff Wismans, the only argument advanced by plaintiff is its general argument that
defendant’s overall email production was “meager.” (ECF No. 205 at 21). Absent further evidence
that defendant has failed to preserve Wismans’emails that are relevant to plaintiff’s claims, this
general argument is insufficient to establish that defendant destroyed relevant evidence that it had
a duty to preserve, especially in light of the fact that not all backup tapes were sampled, and
relevant emails may still exist on unsampled tapes. (ECF No. 218 at 39). In sum, plaintiff’s
arguments amount to mere speculation, and plaintiff has failed to meet its burden of establishing
that defendant failed to preserve emails from Jeff Wismans that it had a duty to preserve.
As to Dan Peckskamp, plaintiff alleges that defendant failed to preserve his emails and
relies on the small number of emails produced from Peckskamp’s account and defendant’s inability
to locate Peckskamp’s work laptop to support this argument. (ECF No. 205 at 13, 25). As noted
by defendant, however, it restored the sampled backup tapes which contained Peckskamp’s emails,
searched those emails, and produced all non-privileged responsive emails. (ECF No. 218 at 43).
Peckskamp testified that he did not remember deleting emails, and plaintiff offers no evidence that
there would be additional emails on Peckskamp’s laptop that would not also be located on its
server, which defendant already searched.30 (ECF No. 218 at 44). Finally, while plaintiff argues
that Peckskamp produced one hundred pages of personally-saved printouts of electronic
documents that defendant never produced (ECF No. 221 at 41), these appear to have been from

29

Plaintiff does allege that evidence that relevant emails existed are shown by emails printed by defendant and placed
in Russ’ personnel file, but offers no evidence that these emails were printed after defendant’s duty to preserve
evidence arose. (ECF No. 205 at 41 n.17 (citing ECF No. 206-25)).
30
As noted by defendant, plaintiff “did not ask Peckskamp about whether unique relevant emails were stored on his
[work laptop]. Nor has [plaintiff] presented other evidence demonstrating that relevant emails would have been stored
on his [work laptop] and not have been available from the copies of his emails found on the sampled backup tapes.”
(ECF No. 218 at 44).

29

Peckskamp’s personal email account, which defendant had no duty to preserve. (ECF No. 218 at
31 n.96). Consequently, plaintiff has not met its burden of establishing that defendant failed to
preserve relevant emails from Peckskamp’s PFG email account that it had a duty to preserve. For
the foregoing reasons, Plaintiff’s motion is denied as to Russ, Wismans, and Peckskamp.
(3) Deidre Robinson, Graylon MacFall, Dwight Gorsuch, Rudy Ayala,
James McColloch, and Byron Flores
Of these six employees, one individual, Deidre Robinson, alleged that defendant created a
discriminatory and hostile work environment for women, and the other five allegedly engaged in
discriminatory behavior during their employment. (ECF No. 205 at 18–19). None of these
employees were employed at the CCF OpCo or named in the initial charges by Lawrence, Geib,
and Gardner, so defendant was under no duty to preserve their emails until August 7, 2008, when
defendant was placed on notice of a pattern or practice claim. All six of these individuals, however,
were no longer employed by defendant as of this date, and, pursuant to defendant’s standard policy,
these custodians’ email accounts would have been purged upon termination. (ECF Nos. 205 at
18–19, 218 at 41). Plaintiff has offered no evidence that defendant purged these employees’ email
accounts after August 7, 2008. Accordingly, plaintiff has not met its burden of establishing that
defendant failed to preserve relevant emails from accounts that it had a duty to preserve. Plaintiff’s
motion is denied as to these custodians.
(4) Charlotte Perkins
Perkins, a former Chief Human Resources Officer, sued defendant in state court in July
2008, and filed a charge of sex discrimination against defendant with plaintiff. (ECF No. 205 at
14). Defendant produced forty-two31 emails from her email data. (ECF No. 205 at 20). Defendant

Plaintiff notes that “[h]alf were transmissions of correspondence with [Office of Federal Contract Compliance
Programs] and/or the three CCF charges; seven were training PowerPoints; only one concerned an internal
investigation of a discrimination complaint.” (ECF No. 205 at 20).
31

30

had a duty to preserve all relevant emails from her account after August 7, 2008, when defendant
was placed on notice of a pattern or practice claim.32 Plaintiff alleges that defendant destroyed
Perkins’ work laptop, and the emails contained therein, in 2011, as part of an agreement following
settlement of a separate lawsuit, in violation of its duty to preserve relevant emails in this case.
(ECF No. 205 at 25). Defendant states, however, that it has retained control of the forensic image
of Perkins’ work computer, that it searched this forensic image for relevant emails, and that it
produced relevant emails in accordance with the ESI Protocol. (ECF No. 218 at 45). Defendant
further argues that Perkins separated from the company in August of 2008, but that it searched for
and located emails dating back to November of 2004. Id. Plaintiff points to no evidence to rebut
defendant’s representations, and merely relies on speculation that additional emails should have
existed. For the foregoing reasons, plaintiff has failed to meet its burden in establishing that
defendant failed to preserve relevant emails that it had a duty to preserve. Plaintiff’s motion is
denied as to these custodians.
(5) Phillip Franzoni, Paul Green, Bogdan Lucyzk, and Jeff Williamson
Three of these individuals allegedly engaged in discriminatory behavior, while the last, Jeff
Williamson, replaced Dan Peckskamp as Vice President of Operations after Peckskamp’s
resignation in January of 2009. (ECF No. 205 at 19–20). Defendant produced zero emails from
Franzoni’s email data, thirteen33 from Green’s email data, two emails from Lucyzk’s email data,
and seventeen from Williamson’s email data. (ECF No. 205 at 20). Defendant had a duty to
preserve all relevant emails from these accounts after August 7, 2008, when defendant was placed
on notice of a pattern or practice claim, and all of these individuals were employed with the

32

Plaintiff also notes that Perkins may have received emails regarding the initial CCF charges, which defendant had
a duty to preserve after June 11, 2007. (ECF No. 205 at 20).
33
Plaintiff notes that “[a]ll 13 concern only the receipt of an employee handbook.” (ECF No. 205 at 20).

31

company after August 7, 2008. Id. Defendant has provided a sworn affidavit by counsel that it
collected, searched, and produced relevant emails for these custodians. (ECF No. 218-2 at 5).
Plaintiff fails to offer any evidence, that defendant did not preserve all relevant emails from these
individuals, beyond a general argument that, because defendant’s overall production was
“meager,” more emails must have existed. Absent further evidence that these custodians would
have possessed any emails relevant to plaintiff’s claims, this general argument is insufficient to
establish that defendant destroyed relevant evidence that it had a duty to preserve. In sum, plaintiff
has not met its burden of establishing that defendant failed to preserve relevant emails that it had
a duty to preserve.34 Plaintiff’s motion is denied as to these custodians.
(6) Donnie Miniard and Christopher Stacey
Donnie Miniard was a supervisor of transportation who allegedly engaged in
discriminatory behavior, while Christopher Stacey worked as a warehouse manager during a time
when Paul Green allegedly gave orders to another employee not to hire females. (ECF No. 205 at
19–20). Defendant has represented that it was unable to locate emails for either of these
individuals. (ECF No. 205 at 21). Defendant had a duty to preserve all relevant emails from these
accounts after August 7, 2008, when defendant was placed on notice of a pattern or practice claim,
and these individuals were employed with the company after August 7, 2008. Id. Plaintiff argues
that both individuals should have had relevant emails, but because none were produced, defendant
has failed to preserve these emails. (ECF No. 205 at 44).
As to Donnie Miniard, defendant notes that “there are handwritten notes of a sexual
harassment complaint against him.” (ECF No. 218 at 40). Defendant argues, however, that
plaintiff “presents no testimony or documentary evidence of any email communications by or to

34

Additionally, as previously noted, it is possible that there may still be relevant emails on backup tapes that defendant
did not sample. (ECF No. 218 at 39).

32

Miniard that concerned or indicated that he disfavored hiring female operatives and drivers, or that
he was a key player in hiring decisions given his short tenure35 in a supervisory role.” Id.
Defendant also notes that it searched the emails of Dana Shea, the person with the handwritten
notes about Miniard, but “found no emails between her and Miniard or emails related to the hiring
of women for operative positions.” Id. at 40 n.86. Plaintiff’s argument that Miniard should have
possessed relevant emails is therefore speculative, and plaintiff has failed to meet its burden of
establishing that defendant failed to preserve emails from Miniard’s account that it had a duty to
preserve.
As to Christopher Stacey, plaintiff argues that he may have relevant emails because he
reported to Paul Green and because he was a hiring manager. (ECF No. 205 at 19). Defendant
argues, however, that plaintiff has provided no evidence that Stacey would have relevant emails.
Specifically, defendant notes that plaintiff deposed Green, but never asked Green about his
interactions with Stacey, including whether they exchanged relevant emails. (ECF No. 218 at 42).
Defendant also states that it has produced emails for Green and other managers at Stacey’s OpCos,
and that if relevant emails existed between those managers and Stacey, defendant would have
produced them under the ESI Protocol. Id. Absent further evidence, plaintiff’s argument that
Stacey should have possessed relevant emails amounts to mere speculation, and plaintiff has not
met its burden of showing that defendant failed to preserve relevant emails that it had a duty to
preserve. For the foregoing reasons, plaintiff’s motion is denied as to Miniard and Stacey.
(7) Password-Protected Documents
In its discussion of the alleged spoliation of emails, plaintiff also briefly mentions that
defendant reported identifying 3,326 password-protected documents that it could not open. (ECF

35

Miniard was a Transportation Supervisor and Manager for the Somerset OpCo from December 2009 to December
2010. (ECF No. 218 at 40 n.86).

33

No. 205 at 23). Plaintiff further states that, “[g]iven that many of the custodians are current
employees under [d]efendant’s control . . . the [c]ourt must accept the representation and its
implication that [d]efendant has not preserved the passwords to these files, rendering them
inaccessible.” Id. Plaintiff fails, however, to go into any greater detail regarding these documents,
and therefore has not met its burden of establishing the relevance of these documents or
defendant’s duty to preserve the passwords to these documents.
(8) Conclusion
For the foregoing reasons, plaintiff has not established that defendant has failed to preserve
relevant emails from the accounts of any of the nineteen custodians identified by plaintiff in its
motions papers. Specifically, plaintiff has failed to establish that such ESI “should have been
preserved in the anticipation or conduct of litigation” and was “lost because [defendant] failed to
take reasonable steps to preserve it” under Rule 37(e) or that defendant “destroyed or altered” ESI
that it had control over and “had an obligation to preserve” under the first element of the Thompson
analysis. Fed. R. Civ. P. 37(e); Thompson, 219 F.R.D. at 101. Accordingly, plaintiff’s motion for
sanctions for the spoliation of custodian emails is denied.
ii.

Internal Complaint Documents

Plaintiff also briefly argues that defendant has failed to produce documents related to
internal complaints of gender hostility or discrimination, specifically, documents relating to
anonymous employee complaints made through a third-party hotline. (ECF No. 205 at 24).
Defendant offered an employee hotline, hosted by a third party, Danbee Investigations (“Danbee”),
to take anonymous employee complaints. Id. For each complaint, Danbee would transcribe the
call, create a one-page “report” detailing the time, date, and subject of the call, and prepare an
entry in a spreadsheet summary of the number of calls during a specific period. (ECF No. 206-4

34

at 1–2). From approximately 2006 to 2012, Vice President of Human Resources Nancy Rooke
was defendant’s point of contact to receive notice of Danbee calls. (ECF No. 205 at 24 (citing
ECF No. 206-5 at 2)). Rooke reported these complaints to the regional human resources officer
as well as the chief human resources office. (ECF No. 206-5 at 3). Rooke also created a
spreadsheet with the details of all hotline calls, from which she created a log that periodically
summarized the hotline calls. (ECF No. 206-5 at 4–5). Rooke also testified at her deposition that
these documents were saved on her computer and that she never deleted any such documents.
(ECF No. 206-5 at 6–7).
Plaintiff argues that defendant has failed to produce all hotline detail documents, call
transcriptions, and periodic summaries. (ECF No. 205 at 24). Defendant has produced three
transcriptions and redacted summaries that only cover the periods of 6/15/05–5/4/06, 6/16/06–
9/13/06, 2/1/07–4/30/07, and the fourth quarter of 2012. Id. (citing ECF No. 206-6)). Defendant
argues that plaintiff has provided no evidence that more documents should have been produced.
Specifically, defendant argues, Rooke never testified at her deposition as to how frequently she
updated this log, and that she stated that she did not delete any documents and was aware of legal
holds that required her to preserve such documents. (ECF No. 218 at 46 (citing ECF No. 206-5 at
6–7). Defendant further argues that these documents are not relevant to the case, as the hotline
was only available to employees, and the claims in this case concern the hiring of external
applicants. (ECF No. 218 at 46).
This court has previously ruled that defendant was required to produce documents related
to internal complaints of gender hostility or discrimination. (ECF No. 65 at 3). Defendant was
placed on notice of a pattern or practice claim on August 7, 2008. Accordingly, defendant had a
duty to preserve evidence regarding relevant internal employee complaints, including call

35

transcriptions, hotline detail documents, and hotline summaries, after August 7, 2008. See
Thompson, 219 F.R.D. at 101. Defendant has failed, however, to produce any documents from
this time period, save for one hotline summary that covered the fourth quarter of 2012. Rooke has
testified that, during this time period, she received notice of Danbee calls and recorded the details
of all complaints. (ECF No. 206-5 at 2–5). It is also notable that defendant was able to produce
redacted summaries that covered time periods in 2006, 2007, and 2012, but had no such summaries
for the years 2008 to 2011. Plaintiff also notes that a human resource officer stated in an email in
2012 that there was “an excess of Hotline Calls,” that an HR goal in 2014 was “[r]eduction of
Danbee calls/issues,” and that Danbee’s logs for 2004 to 2009 showed 39 calls classified as
complaints of “harassment” or “discrimination.” (ECF No. 205 at 24 (citing ECF Nos. 206-7, 2068, and 206-9)). Accordingly, it appears that additional ESI should have existed regarding internal
employee complaints, specifically, call transcriptions, hotline detail documents, and hotline
summaries after August 7, 2008, and that defendant has failed to preserve such evidence.
The parties have failed, however, to provide sufficient information regarding the remaining
elements under both the Thompson and Rule 37(e) analyses. As to the requisite level of
culpability, plaintiff largely reiterates its argument that defendant failed to properly institute
safeguards to ensure preservation of relevant documents (ECF No. 205 at 32), which suggests that
defendant may have negligently failed to preserve such documents. Plaintiff largely focuses its
arguments on the alleged spoliation of custodian emails, however, rather than the missing internal
complaint documents. As to relevance and prejudice, while it appears that the missing documents
would likely be relevant to plaintiff’s pattern or practice claim, I note that the hotline was used for
“anonymous employee complaints,” (ECF No. 205 at 24), which undoubtedly encompasses more
than just complaints of gender hostility or discrimination. Additionally, plaintiff does not specify

36

how it would have utilized these documents to present its case or how it is therefore prejudiced by
the lack of such information. Nonetheless, I find that it is not necessary to reach a conclusion as
to these remaining elements under either the Thompson analysis or Rule 37(e), because, as
discussed below, the only sanction sought by plaintiff is inappropriate for my review at this time.
C. Sanctions
Based on the foregoing analysis, plaintiff has only established that defendant failed to
preserve internal complaint documents, specifically, call transcriptions, hotline detail documents,
and hotline summaries after August 7, 2008. Plaintiff requests that, as a sanction for the spoliation
of these documents, the court preclude defendant from introducing any employee hotline
transcripts or internal summaries into evidence. (ECF No. 205 at 43). Plaintiff similarly requests
that the court preclude defendant from mentioning the existence of its employee hotline “in defense
of alleged good faith or other affirmative defenses.” Id. Defendant argues that plaintiff has failed
to offer any authority for the “harsh sanction” of precluding defendant from offering these
documents into evidence or from mentioning the hotline in its defense. (ECF No. 218 at 65–66).
As noted by defendant, plaintiff does not provide any legal support for this blanket
preclusion of evidence and its applicability to this case. Moreover, I find that this request is
premature, as it raises evidentiary issues that should be addressed in a pretrial motion in limine or
as an objection to the proffered evidence at trial. Further factual development, particularly as to
the remaining Thompson/Rule 37(e) factors, will be necessary to resolving such evidentiary issues.
Accordingly, this request is denied without prejudice, as it is premature. The wholesale preclusion
of the evidence at issue, as requested by plaintiff, is not warranted at this stage of the proceedings.
These issues are more appropriately addressed by the trial judge at a later juncture.

37

Additionally, plaintiff requests generally that, if any of the spoliated evidence is later
discovered, it be allowed 60 days to redesignate Phase I claimants, take depositions, and
supplement its expert reports. (ECF No. 205 at 45). This request is also denied, without prejudice,
as it is premature at this time. If any of the spoliated evidence is later discovered, plaintiff may
raise this issue to be addressed by the court at that time.
IV.

Conclusion
For the foregoing reasons, plaintiff’s motions (ECF Nos. 203, 205) are DENIED. A

separate order will be issued.

March 6, 2019

/s/
Beth P. Gesner
Chief United States Magistrate Judge

38