Trainer v. Continental Carbonic Products, Inc.
Filing
55
ORDER denying 42 Motion to Compel Discovery, for Spoliation Sanctions Including Dismissal of Action, and for Attorneys' Fees (Written Opinion). Signed by Magistrate Judge Steven E. Rau on 6/15/2018. (EMA)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Timothy N. Trainer,
Plaintiff,
Case No. 16-cv-4335 (DSD/SER)
v.
ORDER
Continental Carbonic Products, Inc.,
Defendant.
Matthew J. Schaap, Esq., Dougherty, Molenda, Solfest, Hills & Bauer P.A., Apple
Valley, Minnesota, for Plaintiff.
Alyssa M. Toft, Esq., Jackson Lewis P.C., Minneapolis, Minnesota, for Defendant.
STEVEN E. RAU, United States Magistrate Judge
This matter comes before the Court on Defendant Continental Carbonic Products, Inc.’s
(“CCPI”) Motion to Compel Discovery, for Spoliation Sanctions Including Dismissal of Action,
and for Attorneys’ Fees (“Motion to Compel”) [Doc. No. 42]. This matter has been referred for
the resolution of pretrial matters pursuant to 28 U.S.C. § 636(b) and District of Minnesota Local
Rule 72.1. For the reasons stated below, the motion is denied.
I.
BACKGROUND
Plaintiff Timothy N. Trainer (“Trainer”) is a white male whose wife is African-American
and whose children are biracial. (Am. Compl.) [Doc. No. 13 ¶¶ 9–10]. CCPI’s Burnsville
location hired Trainer in August 2013 as a full-time driver. (Id. ¶ 8). After learning about the race
of Trainer’s family members, Trainer’s coworker, Travis Gilder (“Gilder”), began making
“offensive and derogatory comments” regarding Trainer’s family. (Id. ¶ 13). Gilder also made
racist jokes and showed Trainer racist cartoons and memes. (Id. ¶ 15). Gilder was promoted to
assistant manager in September 2014, thereby becoming Trainer’s direct supervisor, and
continued to make racist jokes and comments. (Id. ¶¶ 16–17).
In April 2015, Gilder again made racist statements about Trainer’s family, and the two
had a verbal altercation. (Id. ¶ 18). Trainer called an employee in CCPI’s human resources office
to report the behavior. (Id. ¶ 19). Trainer then called human resources repeatedly because his
calls were not returned for seven to ten days. (Id. ¶ 20). During this period, Gilder continued to
attempt to contact Trainer. (Id. ¶ 21). CCPI fired Gilder three weeks after Trainer’s first
complaint. (Id. ¶ 24). In October 2015, Trainer requested CCPI’s investigation file regarding
Gilder because he wanted to file a charge with the Equal Employment Opportunity Commission
(“EEOC”). (Id. ¶¶ 25–26). CCPI refused to provide the file, and fired Trainer three weeks later.
(Id. ¶¶ 27–28).
Trainer alleges that CCPI violated the Minnesota Human Rights Act provisions based on
his familial status and that CCPI wrongfully terminated him. (Id. ¶¶ 29–44).
In its Motion to Compel, CCPI argues Trainer deleted text messages and emails that are
responsive to its discovery requests. See (Def.’s Mem. of Law in Supp. of Mot. to Compel,
“Mem. in Supp.”) [Doc. No. 45 at 1]. CCPI seeks various forms of relief related to this
spoliation, and also seeks information regarding Trainer’s tax returns, government benefits,
evictions, and phone records. (Id. at 22–30). CCPI also seeks attorney’s fees. (Id. at 30–31).
Following the hearing, the Court ordered the parties to engage in further meet-and-confer
efforts. (Minute Entry Dated May 14, 2018) [Doc. No. 52]. As a result, the parties resolved the
majority of their dispute. (Letter Dated May 21, 2018) [Doc. No. 54]. The remaining issues relate
to text messages and emails that CCPI argues have not been produced and are relevant to the
2
claims and defenses in this case. 1 CCPI also seeks spoliation sanctions—up to and including
dismissal of this lawsuit—and attorneys’ fees. See (Mem. in Supp. at 12) (requesting dismissal);
(id. at 16–18) (requesting an adverse-inference instruction and a finding that destroyed evidence
was unfavorable to Trainer); (id. at 18) (requesting “any and all appropriate relief” and monetary
sanctions); (id. at 30) (requesting reimbursement of reasonable expenses and attorney’s fees).
II.
DISCUSSION
The Court first discusses whether the text messages and emails should be produced,
followed by a discussion of sanctions.
A.
Compelling Production
1.
Legal Standard
The Federal Rules permit
discovery regarding any nonprivileged matter that is relevant to any party’s claim
or defense and proportional to the needs of the case, considering the importance
of the issues at stake in the action, the amount in controversy, the parties’ relative
access to relevant information, the parties’ resources, the importance of the
discovery in resolving the issues, and whether the burden or expense of the
proposed discovery outweighs its likely benefit.
Fed. R. Civ. P. 26(b)(1). But discovery is not boundless. Discovery must be limited if:
(i)
the discovery sought is unreasonably cumulative or duplicative, or can be
obtained from some other source that is more convenient, less
burdensome, or less expensive;
(ii)
the party seeking discovery has had ample opportunity to obtain the
information by discovery in the action; or
(iii)
the proposed discovery is outside the scope permitted by Rule 26(b)(1).
1
Although the parties’ joint letter refers only to text messages, the parties provided the
Court with informal correspondence regarding the remaining issues that refers to both text
messages and emails. Because there is overlapping reasoning related to both, and in an effort to
fully resolve the Motion to Compel, the Court addresses emails in addition to text messages.
Further, the Court discusses text messages and emails broadly, rather than analyzing each
request separately because the text of various written discovery requests is often repetitive.
3
Fed. R. Civ. P. 26(b)(2)(C). Courts have broad discretion to decide discovery motions. Gov’t of
Ghana v. ProEnergy Servs., LLC, 677 F.3d 340, 344 (8th Cir. 2012).
2.
Analysis
The discovery at issue is electronically stored information (“ESI”). ESI discovery
requires a significant amount of attention from both the parties and the Court. To this end, the
undersigned dedicates his attention to this issue during the process of establishing the pretrial
scheduling order. See (Notice of Pretrial Scheduling Conf.) [Doc. No. 25 at 4] (requiring a
discovery plan to include “[h]ow the parties propose handling any issues relating to the
disclosure or discovery of [ESI], including the form or forms in which it should be produced”);
(id. at 6) (ordering the parties to be prepared to substantively discuss ESI issues at the pretrial
scheduling conference). In this case, the parties agreed to produce ESI in PDF format, with an
option “to seek discovery from the original source format if necessary.” (Rule 26(f) Report)
[Doc. No. 26 at 5]. Despite the Court’s best efforts, this dispute relates to the lack of production
and preservation of ESI.
The Court addresses CCPI’s requests related to text messages and emails separately.
They arise out of similar discovery requests, but have distinct subjects and histories.
a.
Text Messages Between Trainer and Gilder
Several of CCPI’s requests for production of documents request text messages. See
(Def.’s Mem. of Law in Supp. of its Mot. to Compel, “Mem. in Supp.”) [Doc. No. 45 at 8]. Both
Trainer and Gilder produced text messages to CCPI in the course of CCPI’s investigation into
Gilder’s conduct, which underlies this Complaint. In April 2015, Trainer provided CCPI with a
copy of text message exchanges between himself and Gilder. (Mem. in Supp. at 9); (Ex. H)
4
[Doc. No. 46-1 at 80]. 2 Gilder likewise provided his text messages as part of the investigation,
and the two productions differ. (Mem. in Supp. at 9); compare (Ex. H) (text messages Trainer
provided to CCPI), with (Ex. I) [Doc. No. 46-2 at 1–13] (text messages Gilder provided to
CCPI). In the messages Gilder provided to CCPI, Trainer complains about CCPI, says that he
will contact an attorney, and says that he will quit. See (Ex. I). CCPI argues “[t]hese text
messages to go the heart of the claims and defenses in this matter” because Trainer confided his
plans to sue CCPI to Gilder, Trainer was looking for a reason to quit, and Trainer was looking
for a reason to sue CCPI. (Mem. in Supp. at 10).
During his deposition, Trainer stated that he deleted his text messages with Gilder after
he provided them to CCPI because he needed the storage space on his cell phone. (Ex. E) [Doc.
No. 46-1 at 62]. CCPI asks the Court to compel the production of Trainer’s deleted text messages
by ordering that Trainer produce his devices for forensic imaging and review at Trainer’s
expense. (Mem. in Supp. at 21). CCPI also asks that Trainer sit for another deposition and seeks
fees and costs. (Id.).
The messages between Trainer and Gilder are marginally relevant at best. Trainer
provided them to CCPI with an intent to show that he was concerned that Gilder was worried
about “backlash” to himself (Gilder) based on issues with Trainer’s driving status. (Ex. E) [Doc.
No. 46-1 at 65, 71]. CCPI asserts additional messages between Trainer and Gilder are necessary
to its defense to show that Trainer had a friendly relationship and the two were confidants.
(Mem. in Supp. at 16). But CCPI has text messages from Gilder that show additional
correspondence between Trainer and Gilder that it likewise claims demonstrates their friendly
relationship. (Mem. in Supp. at 10). Nothing in CCPI’s arguments shows that additional text
2
All Exhibits referenced in this Order are attached to the Declaration of Alyssa Toft [Doc.
No. 46]. The Court refers to the document number and CM/ECF pages of the Exhibits.
5
messages of the same tenor would further bolster CCPI’s defense in this respect. See Fed. R. Civ.
P. 26(b)(2)(C) (stating a court may limit duplicative discovery). Additionally, Trainer has
averred that Gilder did not harass him via text message, and nothing in the record suggests that
this is untrue. See (Dec. of Timmy Trainer, “Trainer Decl.”) [Doc. No. 50 ¶ 5]. Trainer testified
that the references to a lawsuit and a lawyer relate to a potential age discrimination claim, which
he later realized would be fruitless. (Id. ¶ 6). Even if this demonstrates that Trainer always
intended to sue CCPI, as CCPI suggests, it has the messages it needs to assert this argument
because Gilder produced them. See (Mem. in Supp. at 9–10). CCPI also asserts that Trainer must
be hiding something because he deleted some messages where he made disparaging remarks
about CCPI. See (Mem. in Supp. at 8). But there is a plausible explanation for this: as Trainer
testified, he did not want his employer to “see” him speaking badly of the company because
some part of him wanted to keep his job. (Ex. E) [Doc. No. 46-1 at 71]. Deploying forensic
imaging, as CCPI requests, seems to be the only method available to retrieve the messages
Trainer acknowledged he deleted between himself and Gilder. (Ex. E) [Doc. No. 46-1 at 62]
(Trainer’s deposition testimony that he was unable to recover the content of his text messages
with Gilder); (Ex. V) [Doc. No. 46-3] (Trainer’s counsel’s statement that Trainer’s service
provider informed Trainer that “text communications cannot be recovered for any relevant times
in 2015”). But because the messages are only marginally relevant and because Gilder already
produced the messages, forensic imaging is not proportional to the needs of this case. 3 See Fed.
R. Civ. P. 26(b)(1). Therefore, the Court will not compel the production of text messages
between Trainer and Gilder.
3
CCPI did not provide a cost estimate of the imaging process, but in this Court’s
experience, the cost is significant, and it is not warranted here.
6
b.
Other Text Messages
Trainer testified that he continues to delete text messages with another former CCPI
employee. (Ex. E) [Doc. No. 46-1 at 76] (Trainer’s statement that he deletes his text messages
“pretty much every night”). Trainer avers that he has not communicated with other former or
current CCPI employees about this case, and nothing in the record suggests that this is untrue.
See (Trainer Decl. ¶¶ 18–19). CCPI appears to argue that because the information was requested,
it must be relevant. See (Mem. in Supp. at 16); (Def.’s Reply Mem. of Law in Supp. of Mot. to
Compel) [Doc. No. 51 at 3–4]. Although Trainer acknowledges that he deletes his text messages
on a daily basis, CCPI has failed to establish that Trainer deletes relevant text messages.
Therefore, the Court will not compel production of Trainer’s text messages.
c.
Emails
CCPI’s written discovery requests include emails. See (Mem. in Supp. at 8). Trainer
produced some emails, but some of the text appears to have been cut off when it was printed or
produced. See (Ex. K) [Doc. No. 46-2 at 29–36]. CCPI asserts that these emails “appear to relate
to [Trainer’s] damages/mitigation.” (Mem. in Supp. at 11). The Court refers to these as the
Damages Emails. CCPI tried to obtain better copies but ultimately, Trainer’s counsel advised
that the emails were deleted. (Ex. V) [Doc. No. 46-3 at 16]. During his deposition, Trainer
testified that he deleted an email from Jason Taulbee (“Taulbee”), who is apparently a former or
current CCPI employee, “within a day or two of getting it.” 4 (Ex. E) [Doc. No. 46-1 at 75]. The
Court refers to these as the Taulbee Emails.
4
Specifically, Trainer said that he deleted these emails in response to the question “When
did you start deleting e-mails related to CCPI?”. (Ex. E) [Doc. No. 46-1 at 75]. There is no
information in the surrounding deposition pages nor in CCPI’s briefing that explains Taulbee’s
relationship to this litigation or CCPI.
7
Assuming CCPI’s interpretation is correct, the Damages Emails are, as CCPI asserts,
relevant to Trainer’s mitigation of his damages. See (Mem. in Supp. at 11). Compelling the
production of emails from some other source, however, is ultimately not proportional to the
needs of this case given their relatively low importance. See Fed. R. Civ. P. 26(b)(1). Further,
CCPI could have—and perhaps did—explored this defense during Trainer’s deposition. See Fed.
R. Civ. P. 26(b)(2)(C) (stating that a court may limit discovery that can be “obtained from some
other source that is more convenient, less burdensome, or less expensive”). With respect to the
Taulbee Emails, CCPI has not established that these emails are relevant. For the foregoing
reasons, the Court will not compel the production of emails.
B.
Sanctions
1.
Legal Standard
CCPI seeks spoliation sanctions under Rule 37(e), which states:
If electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced through
additional discovery, the court:
(1)
upon finding prejudice to another party from loss of the information, may
order measures no greater than necessary to cure the prejudice; or
(2)
only upon finding that the party acted with the intent to deprive another
party of the information’s use in the litigation may:
(A)
presume that the lost information was unfavorable to the party;
(B)
instruct the jury that it may or must presume the information was
unfavorable to the party; or
(C)
dismiss the action or enter a default judgment.
See also (Mem. in Supp. at 12).
8
2.
Analysis
The Court concludes spoliation sanctions are unwarranted for both text messages and
emails. With respect to the text messages between Trainer and Gilder, the parties dispute whether
Trainer had an obligation to preserve these messages. CCPI argues Trainer’s obligation began in
April 2015, when he decided to file an EEOC complaint. (Mem. in Supp. at 13). Trainer avers
that, despite his comments in the text messages, he did not seriously consider litigation until late
2015 and did not know that filing with the EEOC was a requirement for filing a lawsuit until
October 2015. (Trainer Decl. ¶¶ 9–10). The Court finds that based on Trainer’s statements
delineating his understanding of EEOC complaints and when he contemplated initiation of a
lawsuit, Trainer was not required to preserve the text messages he exchanged with Gilder in
2015. See Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment (“The court
should be sensitive to the party’s sophistication with regard to litigation in evaluating
preservation efforts; some litigants, particularly individual litigants, may be less familiar with
preservation obligations than others who have considerable experience in litigation.”); see also
(Pl.’s Mem. of Law in Opp’n to Mot. to Compel) [Doc. No. 49 at 10] (noting that Trainer is “an
unsophisticated individual who had no litigation experience in April 2015”). Because there was
no requirement to preserve the information, spoliation sanctions are not warranted. 5 See Fed. R.
Civ. P. 37(e), advisory committee notes 2015 (stating that Rule 37(e) “does not apply when
information is lost before a duty to preserve arises”).
The Court next considers spoliation sanctions with respect to the other text messages.
“The obligation to preserve evidence begins when a party knows or should have known that the
5
Even if Trainer was required to preserve text messages—which the Court concludes he
was not—nothing in the record demonstrates that Trainer deleted the messages in order to
deprive CCPI of their use in this litigation, which is required to impose spoliation sanctions
under Rule 37(e)(2).
9
evidence is relevant to future or current litigation.” E*Trade Sec. LLC v. Deutsche Bank AG, 230
F.R.D. 582, 588 (D. Minn. 2005) (Kyle, J., adopting reporting and recommendation of Boylan,
Mag. J.) (citing Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 2004)). According
to Trainer’s deposition testimony, these messages appear to be exchanged after this lawsuit
started and appear to fall within the purview of documents CCPI requested in discovery. (Mem.
in Supp. at 8); (Ex. E) [Doc. No. 46-1 at 76]. Arguably, the more cautious approach would have
been for Trainer to preserve the text messages and resist production through a motion for a
protective order. See Fed. R. Civ. P. 26(c). But, as stated above, CCPI has not demonstrated why
these messages are relevant to this lawsuit in contrast to Trainer’s statements that the messages
are not about or related to this litigation. See (Ex. E) [Doc. No. 46-1 at 76]; (Trainer Decl. ¶¶ 18–
19). Even if Trainer was required to preserve these text messages, the record does not
demonstrate—much less suggest—that he deleted any text messages in order to prevent CCPI
from using them in this litigation, as required by Rule 37(e). Trainer’s behavior is more
accurately considered negligent, rather than intentional as Rule 37(e) requires. Negligence in
turn, does not support an inference that a party intentionally destroyed evidence and sanctions
are not appropriate. See, e.g., Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015
amendments (stating that adverse-inference instructions “were developed on the premise that a
party’s intentional loss or destruction of evidence to prevent its use in litigation gives rise to a
reasonable inference that the evidence was unfavorable to the party responsible for loss or
destruction of the evidence. Negligent or even grossly negligent behavior does not logically
support that inference”); see also Stevenson, 354 F.3d at 749 (noting that the Eighth Circuit has
“never approved of giving an adverse inference instruction on the basis of negligence alone”).
10
Similarly, because CCPI has not demonstrated that Trainer has deleted relevant text messages, it
has not demonstrated that it is prejudiced as required under Rule 37(e)(1).
The Court also declines to award spoliation sanctions for the deleted emails for the same
reasons explained as related to the other text messages. In short, at the time of the emails—late
2015 and early 2016—Trainer was contemplating litigation. See (Ex. K); 6 see also (Trainer Decl.
¶ 10) (Trainer’s statement that he began “thinking about a lawsuit in late 2015” but “did not
make a decision to act on it until [he] met with an attorney in 2016”). Therefore, he should have
preserved the emails. And in fact, Trainer did preserve them and they were produced. CCPI’s
characterizes these emails as “unreadable” and “incomplete,” but after reviewing them, the Court
finds that they can likely be used for their intended purpose—to show Trainer applied for other
jobs. See (Mem. in Supp. at 11, 18); (Ex. K) [Doc. No. 46-1 at 29–36]. Nothing in the record
demonstrates that CCPI is prejudiced by the missing emails, nor that Trainer deleted the emails
with the intent of preventing CCPI from using them in this litigation. See (Trainer Decl. ¶ 33)
(Trainer’s statement that emails were not cut off intentionally). Therefore, the Court determines
spoliation sanctions are not appropriate.
Because the Court denies the production of text messages and emails and denies
spoliation sanctions, the Court likewise determines that attorney’s fees are not appropriate.
Despite the fact that the Court is not compelling the production of text messages and
emails and is declining to award sanctions, the Court cautions the parties to pay close attention in
this case, and in all of their cases, to the important role ESI plays in discovery.
6
CCPI does not provide any information regarding the dates of emails with Taulbee. See
(Mem. in Supp. at 12). From Trainer’s deposition, however, it appears that the emails were eon
April 23, 2015 (testimony regarding emails to “Jason,” which is Taulbee’s first name). (Ex. E)
[Doc. No. 46-1 at 68].
11
III.
CONCLUSION
Based on all the files, records, and proceedings herein, IT IS HEREBY ORDERED that
Defendant Continental Carbonic Products, Inc.’s Motion to Compel Discovery, for Spoliation
Sanctions Including Dismissal of Action, and for Attorneys’ Fees [Doc. No. 42] is DENIED.
Dated: June 15, 2018
s/Steven E. Rau
STEVEN E. RAU
United States Magistrate Judge
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