Robinson v. Renown Regional Medical Center et al

Filing 66

ORDER DENYING ECF No. 54 Motion for Sanctions. Signed by Magistrate Judge William G. Cobb on 5/24/2017. (Copies have been distributed pursuant to the NEF - DRM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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SHAUN ROBINSON,

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Plaintiff,
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vs.
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RENOWN REGIONAL MEDICAL
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CENTER, et al.,
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Defendants.
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______________________________________)

3:16-cv-00372-MMD-WGC
ORDER
Re: ECF No. 54

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Before the court is Plaintiff’s Motion for Sanctions for Spoliation of Evidence (ECF No. 54).

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Defendants have responded to the motion (ECF No. 62) and Plaintiff has replied (ECF No. 64). The

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court conducted a hearing on Plaintiff’s motion on Wednesday, May 17, 2017. For the reasons

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expressed in this order, Plaintiff’s motion is denied.

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I. BACKGROUND OF MOTION

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Plaintiff’s motion arises from allegations contained in his Fifth Claim for Relief regarding

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“Hostile Environment and Harassment.” (ECF No. 54 at 3.) Plaintiff avers in his motion certain nurses

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employed by Renown Regional Medical Center (“Renown”) where Plaintiff worked as a Certified

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Nursing Assistant1 “...antagonized, worked against and intentionally sabotaged Plaintiff’s work

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performance by not answering Plaintiff, avoid (sic) answering call lights, avoiding their responsibilities

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to patients... .” (Id., citing Plaintiff’s Second Amended Complaint, ECF No. 13, p. 17, ¶ 69.)

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Plaintiff’s motion arises from certain discovery he commenced with respect to Plaintiff’s

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averments of discrimination/hostile employment environment. Plaintiff sought production of data from

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Plaintiff’s motion only pertains to Renown and not the individually named Defendants.

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a Renown phone/computer system Plaintiff states was known as “Avaya.” More specifically, Plaintiff’s

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motion states that “Plaintiff simply asks for inbound/outbound calls for the days he was schedules (sic)

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at Renown on the 8th Floor Tahoe Tower Telemetry Unit. [Exhibit 2, p. 8, ¶ 12].” (ECF No. 54 at 6; see

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also id. at ¶ 12.)

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Plaintiff contends that Renown initially represented it could produce a “Nurse Call Activity

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Report” for the relevant time period. (ECF No. 54 at 12, 13.) Renown, however, subsequently advised

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Plaintiff that due to a pre-existing computer “crash,” Renown could not produce any reports pertinent

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to the 2014 time period during Plaintiff’s employment, including a date specifically targeted by Plaintiff

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of October 1, 2014:

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“Renown Health is agreeable in principle to producing the
inbound/outbound calls for Tahoe Tower Telemetry 8 on October 1,
2014. However, such call reports are non-existent or non-retrievable
because the server that housed such reports crashed approximately 3 years
ago and was not replaced. I will continue to follow up with Renown
Health’s IT specialists and will notify you if I learn of information that
may change my understanding.” (ECF No. 54 at 12; referencing
document ECF No. 54-16 (Exhibit 15).)

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Plaintiff contends that under Fed. R. Civ. P. 37(e), Renown should have anticipated the relevance
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of such call logs and attendant data and undertaken steps to preserve such materials. (ECF No. 54 at 6.)
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Plaintiff argues the failure to preserve this evidence connotes an “intent to deprive” Plaintiff access to
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such documentation. (Id. at 7.) As a sanction, Plaintiff requests that under Rule 37(e)(2)(B), the court
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order that the jury be instructed the Renown data, had it been available, would have been “unfavorable”
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to Renown. (ECF No. 54 at 14.)
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Renown opposed Plaintiff’s motion (ECF No. 62). Renown submits that its telephone system
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as it existed in 2014 did not have the “exact same type of Avaya software” referred to in Plaintiff’s
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internet searches which are the predicate for his motion. Instead, Renown utilized a PBX system which
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was comprised of over 7,000 phone lines. The “reporting capabilities for a PBX system is not inherent.”
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Declaration of Renown’s Manager of IT Client Services, Cyndia Fernandez (ECF No. 62-2 at 3, ¶ 5.)2

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Ms. Fernandez at the time of Plaintiff’s employment was Renown’s “Telecom Manager.”
(ECF No. 62-2 at 2, ¶ 2.)
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Most importantly to this motion, Ms. Fernandez further represents the Renown server which

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housed the “call log data” sought by Plaintiff “failed prior to 2014.” (Id. at ¶ 8.) At oral arguments on

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Plaintiff’s motion, Renown’s counsel represented more specifically that the PBX server crashed in

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January 2013. Renown is currently in the process, estimated to last 18 months and at considerable

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expense, of installing a new Cisco system.

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Based on the Fernandez declaration, Renown states that data Plaintiff seeks for 2014 is simply

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not available and that because of the server’s crash prior to 2014 (ECF No. 62-2 at 8), Renown “did not

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have the capability to produce call log reports or data in 2014.” (Id. at 7.)

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Renown also argues that Renown in any event was not under a duty to preserve such evidence

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until - at the earliest - upon the commencement of Plaintiff’s lawsuit in August 2016. (ECF No. 62 at

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3.) Prior to that date, Plaintiff’s charges of discrimination in employment made to the Nevada Equal

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Rights Commission (NERC) and to the EEOC were only predicated on alleged discrimination by other

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Renown nurses (mainly female) who harassed Plaintiff because he was “the only male CNA.”

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(ECF No. 54-6.) Plaintiff did not assert in his NERC complaint, Renown argues, that the discrimination

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to which he was subjected was predicated upon or demonstrated by Renown nurses rejecting Plaintiff’s

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phone calls or failing to communicate with Plaintiff by telephone. Renown states “Rather, Plaintiff’s

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Charge of Discrimination only references an alleged denial of “phone coverage.” (ECF No. 62 at 3.)

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Plaintiff’s reply memorandum (ECF No. 64) restates his earlier arguments. Plaintiff contests the

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conclusions submitted by Renown’s IT Manager, describing them as being “extremely convenient” and

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that Ms. Fernandez’s statements constitute “a very vague declaration which is an unjust excuse.”

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(ECF No. 64 at 4.) Plaintiff contends the Fernandez declaration does not establish what server system

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Renown utilized in 2014, nor an explanation how the post-2013 system functions. He characterizes the

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declaration as being “fundamentally defective.” (Id. at 7.) Plaintiff does not, however, submit a counter

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declaration of a qualified information technology individual to rebut any of the Fernandez

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representations.

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II. GOVERNING LAW RE FAILURE TO PRESERVE ESI
Federal Rule of Civil Procedure 37(e) governs Plaintiff’s motion. It provides as follows:
(e)

Failure to Preserve Electronically Stored Information. If
electronically stored information that should have been preserved
in 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.

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Prior to invoking the sanction sought by Plaintiff to be imposed against Renown, i.e., the adverse
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jury instruction under Rule 37(e)(2)(B), Plaintiff is required to demonstrate that (1) Renown failed to
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take reasonable steps to preserve evidence which Renown should have appreciated could be relevant to
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possible claims, (2) that Renown did so with the intent to deprive Plaintiff of such data, and (3) that the
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“lost” evidence is prejudicial to the Plaintiff.
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III. DISCUSSION
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As a starting point, it appears to the satisfaction of the court that the Renown server which might
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have maintained certain data sought by Plaintiff “crashed” or otherwise ceased functioning as a data
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maintenance device prior to 2014. Additionally, although Plaintiff contests the conclusory nature of
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the Fernandez declaration, Plaintiff presents no credible information the Renown telephone server was
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even recording that data sought by Plaintiff in the 2014 era. The simple fact of the matter is that the
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documentation never existed during the relevant time period.
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Secondly, the court is skeptical of and therefore rejects Plaintiff’s claims that his NERC and
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EEOC complaints should have put Renown on notice of the potential relevance of his call data - even
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if it were recoverable (which the court finds the 2014 data Plaintiff seeks was neither saved nor
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recoverable). As such, not being reasonably aware of the potential relevance of such data, and because
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the data is unavailable through mechanical-electronic equipment failure, the court necessarily finds there
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is no credible evidence of any intent by Renown to deprive Plaintiff of the telephonic data, an

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indispensable element of the criteria for imposition of the adverse jury instruction Plaintiff seeks herein.

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Fed. R. Civ. P. 37(e)(3).

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Finally, the court questions the relevance of the call data. Plaintiff’s argument that a call log

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might have revealed a telephone call Plaintiff made to one of the individually-named Defendants went

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unanswered is of dubious relevance to his claims of discrimination/hostile environment.

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Plaintiff’s Motion for Sanctions for Spoliation of Evidence (ECF No. 54) is DENIED.

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IT IS SO ORDERED.

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DATED: May 24, 2017.

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_____________________________________
WILLIAM G. COBB
UNITED STATES MAGISTRATE JUDGE

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