Harper v. Lemon et al

Filing 38

ORDER denying 33 Motion to Produce; denying 34 Motion to Compel; denying 35 Motion for preservation of evidencefor preservation of notes and tapes; denying 37 Motion for preservation of evidencefor preservation of notes and tapes. Signed by Chief Judge Frank D. Whitney on 2/18/16. (Pro se litigant served by US Mail.)(clc)

DISTRICT COURT OF THE UNITED STATES
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:14-cv-182-FDW
MICHAEL S. HARPER,

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Plaintiff,
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vs.
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TERRY LEMON,
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FNU WHITLEY,
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Defendants.
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___________________________________ )

ORDER

THIS MATTER is before the Court on the following motions by Plaintiff: (1) Motion
for Production of Exculpatory Evidence, (Doc. No. 33), (2) Motion to Compel Investigating
Officers, (Doc. No. 34), (3) Motion for Preservation of Evidence, (Doc. No. 35), and (4) Motion
for Preservation of Notes and Tapes and Incorporated Memorandum of Law, (Doc. No. 37).
First, as to Plaintiff’s Motion for Production of Exculpatory Evidence and his Motion to
Compel Investigating Officers, in both of these motions, Plaintiff seeks an order from this Court
requiring disclosure of certain evidence relevant to Plaintiff’s claims. Pursuant to Local Rule
26.2 and the Court’s scheduling order entered on October 14, 2015, all discovery requests in this
matter are to be served on the parties, and discovery requests are not to be filed with the Court.
Thus, Plaintiff shall serve his discovery requests on Defendants directly.
Next, as for Plaintiff’s Motion for Preservation of Evidence, and his Motion for
Preservation of Notes and Tapes and Incorporated Memorandum of Law, the Court finds that an
order requiring Defendants not to destroy evidence is unnecessary because Defendants already
have a duty to preserve evidence. Under the doctrine of spoliation, parties have a duty to
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preserve (including a duty to not destroy) evidence when litigation is filed or becomes
reasonably anticipated. See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001);
Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 509 (D. Md. 2009). To fulfill the duty to
preserve relevant evidence, “[o]nce a party reasonably anticipates litigation, it is obligated to
suspend its routine document retention/destruction policy and implement a “litigation hold” to
ensure the preservation of relevant documents.” Id. at 511. Here, if Defendants destroy any
exculpatory evidence they will be subject to sanctions. However, because they are already under
a duty to preserve evidence, an order from this Court is not necessary. Accord Wright v.
Webber, C/A No. 1:11-2199-TLW-SVH, 2011 WL 6112371, at *3 (D.S.C. Nov. 10, 2011)
(“Plaintiff has not shown that he will suffer irreparable damage if an injunction does not issue, as
Defendants already have a legal duty to preserve existing evidence when a lawsuit is filed.”);
McNair v. Ozmint, C/A No. 3:07-3470-HFF-JRM, 2008 WL 2128121, at *4 (D.S.C. May 20,
2008) (denying a motion for a temporary restraining order to preserve cassette tapes because
there already existed a duty to preserve material evidence).
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s (1) Motion for Production of Exculpatory Evidence, (Doc. No. 33), (2)
Motion to Compel Investigating Officers, (Doc. No. 34), (3) Motion for
Preservation of Evidence, (Doc. No. 35), and (4) Motion for Preservation of Notes
and Tapes and Incorporated Memorandum of Law, (Doc. No. 37), are DENIED.

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