Ericksen v. Kaplan Higher Education, LLC et al

Filing 62

MEMORANDUM ORDER ADOPTING 58 Report and Recommendations; GRANTING IN PART and DENYING IN PART 51 Motion for Sanctions. Signed by Judge Richard D Bennett on 2/22/2016. (hmls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
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KAREN ERICKSEN,
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Plaintiff,
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v.
Civil Action No. RDB-14-3106
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KAPLAN HIGHER EDUCATION,
LLC, et al.,
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Defendants.
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MEMORANDUM ORDER
Plaintiff Karen Ericksen (“Ms. Ericksen” or “Plaintiff”) filed this action against
Defendants Kaplan Higher Education, LLC (“Kaplan”) and TESST-KAP, LLC (“TESST”)
(collectively, “Defendants”), alleging various federal and state claims of employment
discrimination.1 On May 22, 2015, this Court referred this action to Magistrate Judge J. Mark
Coulson of this Court to resolve a discovery dispute related to alleged spoliation of certain
evidence. See Order, ECF No. 34. Specifically, review of Ms. Ericksen’s computer by a thirdparty forensic computer expert revealed that, immediately prior to the examination, she had
run several “optimizer” or “data destruction” programs2 that had destroyed at least some data.
Defendants argued that, as a result of Ms. Ericksen’s actions, they could not determine the
authenticity of the documents in question—a letter (the “Blount Letter”) purporting to show
that Ms. Ericksen was entitled to a raise, and an email (the “Gollnow Email”) allegedly
Although originally represented by counsel, this Court granted counsel’s Motion to Withdraw as Attorney
(ECF No. 39) on September 30, 2015. See Order, ECF No. 55. Ms. Ericksen now proceeds pro se.
2 As Judge Coulson notes in his Report and Recommendations , the programs were alternately labeled a “tool
to speed up a computer,” a “data cleanup” tool, and a “destruction tool.” Report and Recommendations, 3,
ECF No. 58.
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indicating that she was terminated as retaliation. Defendants thus filed the pending Motion
for Sanctions (ECF No. 51) seeking, inter alia, the dismissal of this case.
In response to Defendants’ Motion, Judge Coulson issued a Report and
Recommendations (ECF No. 58). Judge Coulson recommended that this Court: (1) preclude
the Blount Letter and Gollnow Email; (2) permit Defendants to present evidence related to
the loss of evidence and instruct the jury that they may consider the circumstances of the
loss, in addition to all other evidence presented at trial; and (3) award Defendants reasonable
attorney’s fees incurred in this discovery dispute. Defendants subsequently filed an objection
(ECF No. 59), and Plaintiff filed her Objection (ECF No. 60).
This Court has reviewed Judge Coulson’s Report and Recommendations and
Defendants’ and Plaintiff’s respective submissions. Having conducted a de novo review of
those portions of the Report and Recommendations to which an objection has been made,
this Court concludes that the objections lack merit. Primarily, Defendants label Plaintiff’s
behavior as “egregious,” thereby necessitating dismissal of the case. When spoliation has
occurred, a court may impose a range of sanctions, from preclusion of evidence and
reasonable attorney’s fees, to dismissal with prejudice of the case. Goodman v. Praxair Servs.,
Inc., 632 F. Supp. 2d 494, 506 (D. Md. 2009). Under the recently amended Rule 37(e) of the
Federal Rules of Civil Procedure,3 however, this Court need impose “measures no greater than
necessary to cure the prejudice[.]” Fed. R. Civ. P. 37(e)(1) (emphasis added); see also NuVasive,
Inc. v. Madsen Medical, Inc., Case No. 13cv2077 BTM(RBB), 2016 WL 305096 (S.D. Cal. Jan.
26, 2016).

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The amendments to the Federal Rules of Civil Procedure took effect on December 1, 2015.
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As Judge Coulson noted, Plaintiff acted willfully by running a computer program that
she knew, given her computer expertise, would destroy at least some data. She may not now
be permitted to present evidence that the Defendants could not, due to her actions, confirm
is authentic. Judge Coulson’s recommendations will cure the prejudice created by the loss of
evidence by eliminating any risk that the jury deems the Blount Letter and Gollnow Email
authentic. Dismissal is thus not a necessary antidote. This Court will abide by the high
standard set forth by the amended Rule 37(e) and allow Plaintiff’s case to proceed, but under
the limitations articulated by Judge Coulson.
In sum, this Court will ACCEPT Judge Coulson’s recommended disposition in
accordance with Rule 72(b)(3) of the Federal Rules of Civil Procedure. Accordingly, it is this
22nd day of February, 2016, ORDERED that:
1. Judge Coulson’s Report and Recommendations (ECF No. 58) is ADOPTED as an
Order of this Court;
2. Defendants’ Motion for Sanctions (ECF No. 51) is GRANTED IN PART and
DENIED IN PART;
3. Plaintiff is precluded from introducing the Blount Letter or the Gollnow Email into
evidence;
4. Defendants may present evidence related to the loss of evidence at trial; and

5. Plaintiff will pay Defendants’ reasonable attorney fees incurred due to this dispute.
______/s/_______________________
Richard D. Bennett
United States District Judge
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