Equal Employment Opportunity Commission v. JP Morgan Chase Bank, N.A.

Filing 160

ORDER denying 105 Defendant's Motion for Summary Judgment and granting 154 Plaintiff's Motion for Sanctions. Signed by Judge Gregory L Frost on 2/28/13. (sem1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
EQUAL EMPLOYMENT
OPPORTUNITY COMMISSION,
Plaintiff,

Case No. 2:09-cv-864
JUDGE GREGORY L. FROST
Magistrate Judge Norah McCann King

v.
JP MORGAN CHASE BANK, N.A.,
Defendant.

ORDER
This matter is before the Court for consideration of Plaintiff’s October 29, 2012 motion
for sanctions (ECF No. 154), Defendant’s memorandum in opposition (ECF No. 158), and
Plaintiff’s reply memorandum (ECF No. 159). For the reasons that follow, the Court finds the
motion well taken.
I. Background
In this Title VII litigation, Plaintiff, the Equal Employment Opportunity Commission,
claims that Defendant, JP Morgan Chase Bank, N.A., has subjected female employees as a class
to terms and conditions of employment that differed from similarly situated male employees.
One theory of Plaintiff’s case is that Defendant removed female employees from the call queue
at Defendant’s Polaris Park facility and had lucrative calls instead directed to male employees.
Plaintiff therefore sought discovery of Defendant’s skill login data records. These records
include what skills were assigned by Defendant to individual mortgage consultants. The
assignment of skills controls into what call queues a mortgage consultant is placed. In other
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words, an electronic code groups calls into different skills that are identified by a three-digit
number and that number controls what types of calls a mortgage consultant receives. The
records also indicate the time at which a mortgage consultant logged into the automated call
distribution system to receive incoming calls. Plaintiff’s theory is that statistical analysis of this
data would reveal discrimination. When Defendant did not provide Plaintiff with select data
records and other information, Plaintiff filed a motion to compel. (ECF No. 30.)
On March 30, 2011, the Magistrate Judge filed an Order that addressed the relevant
motion to compel. (ECF No. 66.) The Magistrate Judge explained in that Order that Plaintiff
had previously served upon Defendant numerous document requests, including skill login data
from January 1, 2006, through December 31, 2009. The parties disagreed over what could and
should be produced and whether Defendant had violated a litigation hold by purportedly
engaging in a routine purge of some data. In a thorough and well-reasoned opinion, the
Magistrate Judge granted in part and denied in part Plaintiff’s motion to compel. She concluded
that Plaintiff “is entitled to discover the requested data from July 8, 2006 through December 31,
2009.” (ECF No. 66, at PAGEID # 1361.) The Magistrate Judge therefore ordered Defendant
to supplement its discovery response for the period July 8, 2006, through December 31, 2009.
(ECF No. 66, at PAGEDID # 1370.) The Order provided that Defendant had to produce all such
discovery by April 13, 2011. (Id.)
That production did not occur. Instead, on December 30, 2011, Plaintiff filed a motion to
compel this and other discovery. (ECF No. 88.) The Magistrate Judge therefore held a
telephone status conference on January 30, 2012, which led to an order that the parties confer
and the scheduling of a second conference. (ECF No. 98.) On February 6, 2012, the Magistrate
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Judge filed an Order in which she explained that the parties had agreed to resolve issues
surrounding various motions, with Plaintiff withdrawing its motion to compel without prejudice
to re-filing following the denial of a motion for summary judgment and with Defendant
withdrawing a related motion to strike. (ECF No. 100.)
Plaintiff asserts that Defendant has failed to comply with the Magistrate Judge’s Order.
Plaintiff explains that Defendant purged data from July 8, 2006 through March 10, 2007,
allegedly as a result of Defendant’s erroneous insistence that this litigation involved only one
mortgage consultant and not class claims. Following an express demand for data preservation,
Plaintiff contends, Defendant still either allowed data to be purged or otherwise actively
destroyed data from May to September 2007 and from September 2, 2009, through October 25,
2009, despite the fact that Defendant initially relied on excerpts of this data in earlier stages of
this litigation.1 Plaintiff seeks discovery sanctions under Federal Rule of Civil Procedure 37(b)
and (c) and the inherent authority of this Court against Defendant.
Following the filing of the motion for sanctions, Defendant provided Plaintiff with the
2009 data on November 16, 2012. A few hours later, Defendant responded to the motion for
sanctions by filing a memorandum in opposition in which Defendant stated that the 2009 data

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The parties apparently disagree on the scope of the gap dates involved in the discovery
and sanctions requests. The Magistrate Judge ordered production of data covering from July 8,
2006, through December 31, 2009. (ECF No. 66, at PAGEDID # 1370.) Plaintiff’s motion for
sanctions targets two time periods or data gaps, from “July 8, 2006, to September 8, 2007, and
September 2, 2009, to October 26, 2009.” (ECF No. 154-1, at PAGEID # 9840.) Defendant’s
memorandum in opposition then characterizes the motion as addressing “skill login data for two
time periods: (1) September 2, 2009 through October 27, 2009; and (2) July 8, 2006 through
September 7, 2007.” (ECF No. 158, at PAGEID # 10244.) The one-day discrepancy for each
time period is unexplained. For ease of reference, this Court shall simply use the shorthand
labels of “2007 data” and “2009 data.”
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“was not destroyed–in fact, EEOC is in possession of all 2009 skill login data for all relevant
Mortgage Consultants.” (ECF No. 158, at PAGEID # 10244.) Defendant then points out that
because Plaintiff failed to comply with an asserted meet and confer obligation prior to the filing
of the motion for sanctions, Plaintiff failed to learn of the existence of this data and its
inadvertent omission from Defendant’s supplementation before bringing the issue before this
Court.
Briefing on the motion for sanctions has concluded, and the motion is ripe for
disposition.
II. Analysis
A. Procedural Arguments
Before addressing the substance of Plaintiff’s motion for sanctions, the Court must first
discuss the threshold matter of whether it is procedurally barred from reaching the merits.
Defendant argues that the Court cannot reach the merits of whether sanctions are warranted
because Plaintiff’s filing of the motion for sanctions contravenes the Magistrate Judge’s
February 6, 2012 Order. (ECF No. 100.) As noted, that Order memorialized various agreements
between the parties, including the withdrawal of a motion to compel filed by Plaintiff. The
Magistrate Judge included in that Order that “prior to any refiling of the motion to compel or the
motion to strike, the parties shall attempt to resolve any remaining dispute relating to those
motions.” (Id. at PAGEDID # 2444-45.) Defendant’s premise is that because the motion to
compel targeted, among other things, skill login data from July 8, 2006, through September 7,
2007, Plaintiff’s motion for sanctions relates to this same data and therefore falls within the
preclusive scope of the Magistrate Judge’s Order.
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Plaintiff attempts to counter Defendant’s argument by insisting that the parties’
agreement does not preclude the filing of a motion for sanctions. This may be true, but what
Plaintiff overlooks is that regardless of whether any such intended preclusive effect was part of
the parties’ agreement, such a preclusive consequence nonetheless could exist as a result of the
Magistrate Judge’s February 6, 2012 Order. The relevant question is whether the preclusive
effect of that Order reaches the filing of the motion for sanctions.
The Magistrate Judge stated in her Order that “[b]ased on the parties’ agreement, it is
ORDERED that - prior to any refiling of the motion to compel or the motion to strike, the
parties shall attempt to resolve any remaining dispute relating to those motions.” (ECF No. 100,
at PAGEID # 2444-445.) The “based on” clause is ambiguous in that it does not make clear
whether what follows are orders memorializing additional agreement terms specifically reached
by the parties or whether what follows are orders that originated with the Magistrate Judge and
that flow from what the parties did agree upon. In other words, the latter possibility is that as a
result of what the parties agreed upon, the Magistrate Judge issued orders setting forth additional
consequences that flowed from her perceived implications of the agreed terms. It does not
matter which scenario is correct–whether the parties agreed to the orders or whether the
Magistrate Judge came up with and then imposed the orders–because the end result is the same:
there is a condition precedent to the filing of an additional motion to compel or motion to strike,
and that is that the parties discuss between themselves “any remaining dispute” related to the
motion to compel or motion to strike.
Defendant would have this Court accept the proposition that “any remaining dispute”
sweeps in the motion for sanctions. Certainly, the motion for sanctions addresses subject matter
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involved in the withdrawn motion to compel. But that certainty does not carry the dispositive
force that Defendant assigns. Rather, the Magistrate Judge’s Order is simply a directive that
neither party can file a specific motion without first consulting with the other side. Plaintiff must
consult Defendant and, in the event of a failure to reach an agreement resolving their discovery
dispute, Plaintiff can then re-file its motion to compel. This clear directive does not speak to the
filing of other motions Plaintiff could pursue, such as the motion for sanctions. The directive
reaches only a re-filed motion to compel and motion to strike.
Plaintiff’s motion for sanctions therefore falls outside the Magistrate Judge’s Order.
Nothing in that judicial officer’s directives means that Plaintiff could not file the pending motion
for sanctions.
Defendant also argues that this Court should not consider the motion for sanctions
because Plaintiff has failed to follow prerequisite procedures mandated by the Federal Rules of
Civil Procedure and the Local Civil Rules. Defendant’s premise is that because Plaintiff did not
confer with Defendant on the substance of the motion for sanctions, Plaintiff has violated Federal
Rule of Civil Procedure 37(d)(1)(B) and S. D. Ohio Civ. R. 37.1.
The Federal Rule provides that “[a] motion for sanctions for failing to answer or respond
must include a certification that the movant has in good faith conferred or attempted to confer
with the party failing to act in an effort to obtain the answer or response without court action.”
Fed. R. Civ. P. 37(d)(1)(B). The Local Civil Rule in turn provides that
Objections, motions, applications, and requests relating to discovery shall not be
filed in this Court, under any provision in Fed.. R. Civ. P. 26 or 37 unless counsel
have first exhausted among themselves all extrajudicial means for resolving the
differences. After extrajudicial means for the resolution of differences about
discovery have been exhausted, then in lieu of immediately filing a motion under
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Rules 26 and 37, Fed. R. Civ. P., and S. D. Ohio Civ. R. 37.2, any party may first
seek an informal telephone conference with the judicial officer assigned to supervise
discovery in the case.
S. D. Ohio Civ. Rule 37.1. Local Rule 37.1 references Local Rule 37.2, which in turn provides:
To the extent that extrajudicial means of resolution of differences have not disposed
of the matter, parties seeking discovery or a protective order may then move for a
protective order or a motion to compel discovery pursuant to Fed. R. Civ. P. 26(c)
or 37(a). Such motion shall be accompanied by a supporting memorandum and by
a certification of counsel setting forth the extrajudicial means which have been
attempted to resolve differences. Only those specific portions of the discovery
documents reasonably necessary to a resolution of the motion shall be included as
an attachment to it.
S. D. Ohio Civ. R. 37.2.
On its face, Local Rule 37.1 thus contemplates one mandated step: that the parties
exhaust among themselves all extrajudicial means for resolving any discovery dispute before
filing any Rule 26 or 37 motion. Local Rule 37.1 then contemplates one discretionary step: that
if the inter-party discussions have failed, either party may but is not required to request an
informal telephone conference before filing a motion. Once extrajudicial means have failed,
Local Rule 37.2 permits a party seeking or opposing discovery to file a motion with a supporting
memorandum and certification.
As Plaintiff correctly points out, Defendant’s reliance on these rules is a red herring.
Neither the Federal Rules of Civil Procedure nor the Local Civil Rules require the filing of a
certification here.
Plaintiff’s failure to comply with the certification requirement of Rule 37(d)(1)(B) does
not matter here because the requirement is inapplicable to Plaintiff’s motion for sanctions. Rule

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37(d)(1)(B) applies only to a motion for sanctions for failing to answer or respond under Rule
37(d)(1)(A). Plaintiff originally filed its motion for sanctions under Rule 37(b) (failure to
comply with a court order) and Rule 37(c) (failure to disclose, to supplement an earlier response,
or to admit), as well as the inherent authority of the Court. (ECF No. 154-1, at PAGEID #
9840.) After belatedly receiving the 2009 data, Plaintiff elected to withdraw that portion of its
motion targeting spoliation of the 2009 data. (ECF No. 159, at PAGEID # 10271.) That election
was curious because even if Defendant had turned over the full 2009 data, Defendant still failed
to do so by the deadline set forth in the Magistrate Judge’s March 3, 2011 Opinion and Order.
(ECF No. 66, at PAGEID # 1361, 1370.) In other words, sanctions may not have been
appropriate for spoliation, but sanctions might have been warranted under Rule 37(b) for failing
to comply with a court order. Regardless, the end point is the same: Plaintiff is pursuing
sanctions under a part of Rule 37 to which Rule 37(d)(1)(B) does not apply.
Local Rule 37.1 also does not provide Defendant protection from the merits of the
motion for sanctions. There is no question that the motion for sanctions is a motion related to
discovery filed under a provision of Rule 37. But there is equally no question that the parties’
prior dealings indicate that no extrajudicial means exist for resolving the dispute that lies at the
heart of the motion for sanctions. See, e.g., ECF No. 159, at PAGEID # 10273 n.1 (summarizing
voluminous dealings between parties). This exhaustion is enough to satisfy the rule here,
regardless of whether the exhaustion has been memorialized in a certification.
Local Rule 37.1 does not itself impose a certification requirement; rather, the local rule
mandates only that the parties exhaust extrajudicial means. Local Rule 37.2 does contain a
certification of exhaustion requirement, but only in regard to the filing of a motion to compel or

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a motion for a protective order. The plaint text of Local Rule 37.2 makes its inapplicability here
obvious in two ways, just as it did in May v. Pilot Travel Centers LLC, No. 2:05-cv-918, 2006
WL 3827511 (S.D. Ohio Dec. 28, 2006). The same reasons that this Court identified in May
apply here:
First, Plaintiff is not “seeking discovery or a protective order” as Local Rule 37.2
contemplates; rather, Plaintiff is seeking the imposition of sanctions. Second, the
local rule contemplates only motions filed specifically pursuant to Federal Rules of
Civil Procedure 26(c) or 37(a), not a motion under Rule 37(c).
Id. at *3. Thus, Local Rule 37.2 is inapplicable to Plaintiff’s motion under Rule 37(c), and to the
extent that Defendant seeks to apply the rule in this context, Defendant errs.
Pointing to Corzin v. Crown Appraisal Group, Inc., Nos. 2:10-cv-00581, 2:10-cv-00764,
2011 WL 3566004 (S.D. Ohio Aug. 15, 2011), Defendant argues that the undersigned has
previously held that the failure to file a certification that extrajudicial resolution has been
exhausted mandates rejection of the motion for sanctions.2 In Corzin, this Court addressed a
motion for reconsideration of a decision that denied a motion for a protective order and for
sanctions. The Court stated:
Fed. R. Civ. P. 37(a)(1) states that any motion under this rule “must include a
certification that the movant has in good faith conferred or attempted to confer with
the person or party failing to make disclosure or discovery in an effort to obtain it
without court action.” This is no idle formality or technical requirement. The Local
Rules of the Southern District of Ohio mandate that “[o]bjections, motions,
applications, and requests relating to discovery shall not be filed in this Court, under
any provision in Fed. R. Civ. P. 26 and 37 unless counsel have first exhausted among
themselves all extrajudicial means for resolving the differences.” S.D. Ohio Civ. R.
37.1, emphasis added. Furthermore, they state that “[t]o the extent that extrajudicial
2

The parties cite Corzin in their briefing using the spelling of the plaintiff’s name as it
appears on Westlaw. As a result of a scrivener’s error, that spelling is incorrect. The Court has
used the correct spelling herein.
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means of resolution of differences have not disposed of the matter,” parties may file
motions under Rule 37, although “[s]uch motion shall be accompanied by a
supporting memorandum and by a certification of counsel setting forth the
extrajudicial means which have been attempted to resolve differences.” S.D. Ohio
Civ. R. 37.2. Failure to include such certification that the movant has attempted to
resolve the controversy without recourse to the immediate filing of a motion is
grounds, as the Magistrate Judge correctly found, for rejection of the request on its
face.
Id. at *2. This reasoning is partially flawed.
The end result in Corzin remains correct given that there was no informal efforts to
resolve a readily resolvable dispute. Id. at *1. The lack of any such efforts violated Local Rule
37.1. Additionally, by pursuing a protective order (regardless of whether that was the best
characterization of the relief sought), the movants in Corzin subjected at least part of their
motion to the certification requirement of Local Rule 37.2. In hindsight, the Court should have
avoided the loose language that appeared to extend the specific Local Rule 37.2 certification
requirement to all Rule 37 motions.
This Court’s imposition of a certification requirement culled from Rule 37(a)(1) was
simply incorrect. There was no motion to compel at issue in Corzin, which meant that the Rule
37(a)(1) certification requirement was inapplicable. By conflating the Rule 37(c)(1) motion
standard with the Rule 37(a)(1) certification requirement, this Court required more of the
movants than Rule 37 demands. Corzin thus fails to provide the persuasive authority Defendant
assigns it.
Given the foregoing and without even needing to explore inherent authority arguments,
the Court rejects Defendant’s procedural bars to consideration of the motion for sanctions.
Defendant asserts that Plaintiff failed to “make any effort whatsoever to meet and confer with
[Defendant] before filing its Motion for Sanctions.” (ECF No. 158, at PAGEID # 10248.)
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Defendant also faults Plaintiff for failing to file a certification of exhaustion of extrajudicial
means of resolution. The history of the skill data records issue points to an ongoing fruitless
effort at achieving extrajudicial resolution. The parties have wasted enough of their time and
resources–and more than enough of this Court’s time and resources–in regard to this issue.
Moreover, what could come of a meet and confer on this issue? Defendant admits the relevant
data has been destroyed; all that remains is determining whether such destruction was
impermissible and, if so, what sanctions, if any, would be appropriate. It is nonsensical to expect
that additional consultation could lead Defendant to agree it has engaged in sanctionable conduct
and to sign on to sufficient, negotiated sanctions. Finally, there is no certification requirement
applicable here. This Court can properly consider the merits of the motion for sanctions.
B. Merits
Having apparently narrowed the scope of its motion via the reply memorandum, Plaintiff
now seeks sanctions under only Rule 37(c) and the inherent authority of this Court.3 See ECF
No. 159, at PAGEID # 10272 n.1 (“Fed. R. Civ. P. 37(c) and the Court’s inherent authority to
sanction spoliation are the bases upon which EEOC brings its Motion.”). Rule 37(c) targets a
party’s failure “to provide information or identify a witness as required by Rule 26(a) or (e)”
and provides for the discretionary imposition of specific possible sanctions or any other
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The Court uses the word “apparently” because although Plaintiff indicates on the first
page of its reply memorandum that it communicated to Defendant that Plaintiff “deems it
prudent to withdraw the portion of its Motion for Sanctions pertaining to the alleged spoliation
of 2009 gap data pending detailed review,” Plaintiff proceeds later in that brief to argue why the
belated production of the 2009 data is prejudicial and warrants sanctions. (ECF No. 159, at
PAGEID # 10271, 10280-83.) Regardless of what Plaintiff intended to accomplish by
introducing confusion into its request for sanctions, the full scope of its motion is ultimately
irrelevant because the sanctions the Court deems appropriate would not change even if the 2009
data disclosure remains relevant.
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sanctions the Court deems appropriate. Fed. R. Civ. P. 37(c)(1). Additionally, this Court has the
inherent authority to sanction a violation of the Rule 26(a) duty to disclose or the Rule 26(e) duty
to supplement that is not tied to Rule 37. Toth v. Grand Trunk R.R., 306 F.3d 335, 344 (6th Cir.
2002).
There is no question that Defendant engaged in the conduct for which Plaintiff seeks
sanctions: the destruction of 2007 skill login data. Defendant concedes that it destroyed this
data, but asserts that such action was the result of routine purging of electronic records. Plaintiff
counters that Defendant could have and should have stopped such purging given the fact that
Defendant was on notice that the destroyed data was relevant to this litigation.
Defendant’s position that it was not necessary to safeguard such data from purging is
simply without foundation. Defendant asserts that “[u]ntil September 2010, [Plaintiff] did not
articulate its allegations in a manner that made the skill login data relevant to its claims.” (ECF
No. 158, at PAGEID # 10244.) This Court disagrees. In her March 30, 2011 Opinion and
Order, the Magistrate Judge provided a detailed account of the background surrounding this data
and correctly concluded that, despite Defendant’s protestations to the contrary, this data and the
discriminatory practices it may or may not have indicated informed the time period involved in
this litigation. (ECF No. 66, at PAGEID # 1360-61.) Plaintiff’s pleading put Defendant on
notice of the scope of the individuals involved–a class, as opposed to a single person–and of the
reach backward in time to data preceding the period before the filing of the EEOC claims.
Additionally, as Plaintiff details in its briefing, Plaintiff provided Defendant with notice
on numerous occasions of the need to retain the destroyed data. Especially notable are the
December 15, 2008, April 21, 2009, and June 8, 2009 notices by Plaintiff that a class was at
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issue; these notices came immediately prior to the destruction of relevant data from the three
years prior. This data likely would inform Plaintiff’s claims and Defendant’s defense; both sides
rely on expert statistical analysis and opinions related to skill login data. It is curious to this
Court that defendant began to preserve some other electronic information shortly thereafter, but
not all skill login data until late 2010. This has left Plaintiff with indirect data for a period of
2006-2007, such as call records. Defendant’s own expert argues that such call records cannot
provide an accurate picture of the time period in question, and Defendant has in fact moved to
strike Plaintiff’s expert’s analysis of the call records.
Defendant’s failure to establish a litigation hold is inexcusable. The multiple notices that
should have triggered a hold and Defendant’s dubious failure if not outright refusal to recognize
or accept the scope of this litigation and that the relevant data reaches beyond the statutory
period present exceptional circumstances that remove the conduct here from the protections
provided by Rule 37(e). See Fed. R. Civ. P. 37(e) (“Absent exceptional circumstances, a court
may not impose sanctions under these rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an electronic information
system.”).
The conduct involved here is sanctionable even without resort to the federal rules or to
state law claims for relief. The Sixth Circuit has explained that “the authority to impose
sanctions for spoliated evidence arises not from substantive law but, rather, ‘from a court’s
inherent power to control the judicial process.’ ” Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir.
2009) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)). This inherent
power is tied to addressing conduct that disrupts the judicial process, and such conduct is
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precisely what is before the Court today. As the Fourth Circuit explained in Silvestri, “[t]he
policy underlying this inherent power of the courts is the need to preserve the integrity of the
judicial process in order to retain confidence that the process works to uncover the truth.” 271
F.3d at 590. Defendant’s destruction of evidence under the auspices of routine purging has
hampered the ease of if not the ability to uncover exactly what if anything impermissible has
transpired here.
Defendant has engaged in sanctionable conduct in regard to the destroyed 2007 data, and
sanctions are warranted. The extant question is what is the appropriate remedy.
C. Sanctions
Defendant’s conduct warrants one or more sanctions. It does not warrant the windfall
Plaintiff seeks by asking for partial default judgment, preclusion, adverse inferences, rebuttable
adverse inference, and other sanctions. Some of the sanctions sought are more punitive than
remedial, and while this Court is not pleased with Defendant’s conduct, it is interested foremost
in reaching the truth of the matter involved here and not in punishing Defendant excessively. As
the Sixth Circuit has explained, “a proper spoliation sanction should serve both fairness and
punitive functions.” Adkins, 554 F.3d at 652. This is often a tricky balancing act.
The Court is cognizant that “the severity of a sanction may, depending on the
circumstances of the case, correspond to the party’s fault.” Id. at 652-53. Defendant’s conduct
constitutes at least negligence and reaches for willful blindness bordering on intentionality.
Fairness and punitive considerations thus promote more than a slap on the wrist. Entering
summary judgment or a default judgment for Plaintiff is too much in light of the fact that
although the spoliation involved here hampers Plaintiff’s ability to prove its case, the spoliation
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does not destroy it. Providing the jury with a permissive adverse inference instruction related to
the destroyed evidence as the only sanction, however, is too little in light of the fact that one of
Defendant’s pending summary judgment motions theoretically could prevent Plaintiff from ever
reaching a jury. Nor do several of the other sanctions that this Court has considered truly
address the possible effect of the spoliation on the merits, as opposed to mitigating any increased
costs or inconvenience that Plaintiff has endured. For example, awarding Plaintiff the costs it
incurred in employing its expert to engage in the likely otherwise unnecessary task of analyzing
the call records (with a deduction of course for the time the expert would have spent analyzing
skill login data for that period) does little to serve the search for truth.4
The most reasonable and pragmatic course is to couple the giving of a permissive adverse
inference instruction with a sanction that counters any summary judgment advantage that
Defendant might have obtained by its conduct that could contribute to Plaintiff never reaching a
jury. Accordingly, the Court in its discretion concludes that denying Defendant’s motion for
summary judgment that turns in part on skill login data is not simply appropriate, but also
necessary. (ECF No. 105.)
This Court recognizes that the lack of the destroyed skill login data can also logically
inform Plaintiff’s own motion for summary judgment, which is currently pending before this
Court. (ECF No. 101.) Because this motion cannot result in the failure of Plaintiff’s claims, the

4

Along these same lines, this Court considered and rejected awarding Plaintiff the
attorney fees and costs incurred in briefing the motion for sanctions. Defendant in fact asked for
its attorney fees and costs if it prevailed on the motion for sanctions. Because the Court is most
concerned with the effect of the spoliation on the merits, this Court has attempted to fashion
sanctions that primarily mitigate the effect of Defendant’s conduct on the merits rather than
sanctions that heal every inconvenience incurred.
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effect that the lack of the destroyed data might have on this Plaintiff’s motion is quite different
than the effect it could have had on Defendant’s motion. In other words, because the success of
Defendant’s motion could end some or all of Plaintiff’s claims, denial of that motion is
necessary. Because the failure of Plaintiff’s motion would simply mean that Plaintiff would
proceed to trial on its claims, the possible spoliation-related effect on Plaintiff’s motion is
notably less. This distinction removes the necessity of including Plaintiff’s motion within the
scope of the sanctions imposed today, although the Court recognizes that the spoliation likely
has some effect on Plaintiff’s pursuit of partial summary judgment. The Court will address the
merits of Plaintiff’s motion in a subsequent Opinion and Order.
Also beyond the necessary scope of the sanctions is Defendant’s other motion for
summary judgment. (ECF No. 107.) Because the destroyed skill login data does not inform that
motion, which is based on judicial estoppel, the other motion falls outside the scope of this
Court’s attempt to remedy the effect of the spoliation. The Court will also address the merits of
this remaining motion in a subsequent Opinion and Order.
In addition to the denial of the summary judgment motion, the Court concludes that a
permissive adverse inference instruction is necessary because the effect of the spoliation of
course does not end with consideration of dispositive motions. Because the spoliation informs
the trial evidence as well, an adverse inference instruction is necessary for remedial purposes.
Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 555 (6th Cir. 2010). In concluding that such an
instruction is warranted, this Court is cognizant of the Sixth Circuit’s articulation of the threepart standard involved:
“[A] party seeking an adverse inference instruction based on the destruction of
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evidence must establish (1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) that the records were
destroyed ‘with a culpable state of mind;’ and (3) that the destroyed evidence was
‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could
find that it would support that claim or defense.
Johnson v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., Nos. 10-6102 & 11-5174, 2012
WL 4945607, at * 7-8 (6th Cir. Oct. 18, 2012) (quoting Beaven, 622 F.3d at 553). The
circumstances of this case satisfy each prong of the mandated inquiry.
First, as noted, Defendant was put on sufficient notice multiple times that the destroyed
data might be relevant to potential litigation. The Sixth Circuit has held that “the obligation
element is met where a defendant knows evidence might be relevant to future potential
litigation.” Id. at *8. Second, Defendant, which was well aware of its three-year purge cycle
and that the data at issue here fell within that period, was at best negligent and at worst defiant of
its litigation responsibilities in knowingly permitting the unqualified destruction of data. The
court of appeals has explained that “the ‘culpable state of mind’ element may be satisfied by
showing only that ‘the evidence was destroyed “knowingly, even if without intent to breach a
duty to preserve it, or negligently.” ’ ” Id. (quoting Beaven, 622 F.3d at 553). Third, as
discussed above, the destroyed data was relevant to Plaintiff’s case. Defendant’s own expert
values skill login data as the best evidence relevant to the claims and defenses involved.
The Court therefore imposes the sanctions of denying Defendant’s merit-based motion
for summary judgment and providing the jury with a permissive adverse inference instruction
regarding the destroyed data.
III. Conclusion

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For the foregoing reasons, the Court GRANTS Plaintiff’s motion for sanctions (ECF No.
154) and DENIES Defendant’s motion for summary judgment (ECF No. 105). Plaintiff is also
entitled to a permissive adverse jury instruction related to the spoliation if this litigation proceeds
to a jury trial.
IT IS SO ORDERED.
/s/ Gregory L. Frost
GREGORY L. FROST
UNITED STATES DISTRICT JUDGE

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