Culler v. Shinseki
Filing
69
MEMORANDUM AND ORDER denying 50 pltf's Motion for Sanctions.Signed by Magistrate Judge Malachy E. Mannion on 8/26/11 (bs, )
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF PENNSYLVANIA
KEITH M. CULLER,
:
Plaintiff
v.
:
CIVIL ACTION NO. 3:09-0305
:
(MANNION, M.J.)
ERIC K. SHINSEKI, Secretary of
:
the United States Veterans Affairs,
:
Defendant
:
MEMORANDUM AND ORDER1
Pending before the court is the Plaintiff’s Motion for Sanctions for Failing
to Preserve Electronic Stored Information and Provide Such Information in
Discovery. (Doc. No. 50). Based upon a review of the motion and related
materials, the motion will be denied.
By way of relevant procedural background 2, the plaintiff filed the instant
action, (Doc. No. 1), on February 17, 2009, which he later amended on April
5, 2009, to include claims of age discrimination and retaliation (Count I), First
Amendment violations (Count II), and a hostile work environment (Count III),
1
For the convenience of the reader of this document in electronic format,
hyperlinks to the court’s record and to authority cited have been inserted. No
endorsement of any provider of electronic resources is intended by the court’s
practice of using hyperlinks.
2
Because the parties are familiar with the procedural history and factual
context of this case, only those facts relevant to the court’s analysis are set
forth herein.
in relation to his employment as an Orthotist at the Wilkes-Barre,
Pennsylvania, Veterans Affairs, (“VA”), Medical Center, (Doc. No. 3).
After consideration of the defendant’s initial motion for judgment on the
pleadings, (Doc. No. 30), and subsequent motion for summary judgment,
(Doc. No. 64), the only remaining claim in this action is whether the plaintiff
was discriminated against on the basis of reprisal for prior EEO activity with
regard to training when, on March 7, 2007, the decision to send him to the
National Training of VA Prosthetics/Orthotists Conference from March 19-24,
2007, was rescinded3.
Since the original scheduling order in this matter, (Doc. No. 19), the
court has granted a number of extensions of the discovery deadlines, (Doc.
Nos. 19, 28, 32, 36), and held a number of telephone conferences, (Doc. Nos.
20, 29, 34, 37), as a result of the parties’ ongoing discovery disputes mainly
related to electronically stored information, (“ESI”).
On July 12, 2011, the plaintiff filed the instant Motion for Sanctions for
Failing to Preserve Electronic Stored Information and Provide Such
Information in Discovery, in which he argues that the defendant failed to
properly preserve, search and produce ESI responsive to his claims. As a
result of these failures, the plaintiff argues that he has suffered real prejudice
3
The court will limit its consideration of the instant motion for sanctions
to this final remaining claim.
2
which requires the court to consider an adverse inference that such materials,
had they been provided, would have proven the assertions made in his
pleadings4 . In addition, the plaintiff is seeking an order for the defendant to
pay all costs, including but not limited to attorney’s and expert fees,
associated with his attempts at securing proper and complete discovery of
ESI. (Doc. No. 50). A brief in support of the plaintiff’s motion was filed on July
27, 2011. (Doc. No. 54). The defendant filed a brief in opposition to the motion
on August 11, 2011. (Doc. No. 65).
In opposing the plaintiff’s motion, the defendant initially argues that any
request for sanctions should focus only on discovery sought at the federal
level and relating to the remaining claim. The defendant argues that the only
discovery conducted by the plaintiff on the federal level in this matter was that
of interrogatories served upon the defendant on March 24, 2011, asking about
the defendant’s ESI preservation efforts. Because the plaintiff has not served
discovery requests seeking ESI in the instant action, the defendant argues
that the court should not now consider his motion for sanctions.
4
The plaintiff originally sought a jury trial in this matter and requested an
adverse inference jury instruction in relation to the instant motion. However,
he has brought his claims pursuant to the ADEA and Title VII against an
agency of the federal government for which Congress has not authorized jury
trials. See Lehman v. Nakshian, 453 U.S. 156, 160-68 (1981); Rogers v.
Hove, 20 F.Supp.2d 888, 889 (E.D.Pa. 1998). As such, a bench trial will be
held in this action and it will be for the court to consider any adverse
inferences.
3
With respect to this argument, the court notes that since the inception
of this matter, the plaintiff has been raising the issue of whether there has
been adequate preservation and production of ESI. The plaintiff first raised
the issue in the parties’ initial joint case management plan filed with the court
in December of 20095 , and the issue has been the subject of much debate
among the parties since that time. The plaintiff has specifically sought ESI
through the defendant’s initial disclosure obligations under Fed.R.Civ.P.
26(a)(1), which requires that parties make certain initial disclosures “without
awaiting a discovery request.” Among these required initial disclosures is the
requirement that each party disclose:
a copy-or a description by category and location-of all documents,
electronically stored information, and tangible things that the
disclosing party has in its possession, custody, or control and may
use to support its claims or defenses, unless the use would be
solely for impeachment;
Fed.R.Civ.P. 26(a)(1)(A)(ii).
Because the record makes clear that the plaintiff has been seeking both
information relating to the preservation, as well as the production, of ESI since
5
The initial joint case management plan was filed by the parties on
December 20, 2009. (Doc. No. 15). By order dated January 4, 2010, the court
directed that the parties re-file the joint case management plan utilizing the
new joint case management plan form found on the Middle District’s website.
(Doc. No. 16). As a result, a second case management plan was filed on
January 11, 2010, the substance of which mirrored that of the first. (Doc. No.
17).
4
early in this matter, the court finds it appropriate to consider the plaintiff’s
presently pending motion for sanctions. However, as noted above, the court
agrees with the defendant that consideration of the plaintiff’s motion should
be limited in context to the remaining claim of whether the plaintiff was
retaliated against when the approval for his March 2007 training was
rescinded.
The defendant next argues that the plaintiff has not presented a
complete picture of the discovery that was actually produced and additional
communications between the parties relating to ESI. The defendant argues
that the plaintiff has failed to acknowledge that, besides the materials that
were produced during the administrative proceedings (which the defendant
indicates consumes the better part of two boxes worth of materials), the
defendant has produced documents relating to ESI in this matter, which are
primarily emails. The defendant argues that on February 22, 2010, as per this
court’s direction, it produced over 230 pages of materials from Ms. GermainTudgay, the plaintiff’s supervisor at the Wilkes-Barre VA Medical Center, plus
a privilege log as to discovery for which there were objections. In addition, on
August 19, 2010, the defendant argues that it sent an additional 190 pages
of ESI to the plaintiff. Finally, after the plaintiff was concerned that not all ESI
had been produced as to the training claim, which is relevant for present
purposes, ESI materials were searched again and the plaintiff was sent an
5
additional fifty-plus pages which included some duplications of emails
previously produced.
Concerning the above, the court, through refereeing the parties’ ongoing
discovery disputes, is well aware of the attempts made by the defendant to
disclose existing ESI discovery to the plaintiff. However, for purposes of the
instant motion, the focal claim raised by the plaintiff is that the defendant
failed to properly preserve documents, the failure of which now prevents their
production and has prejudiced the plaintiff. While present counsel has
certainly made a concerted effort to produce those documents which have
been preserved, the main issue here is whether there previously existed
documents relevant to the plaintiff’s remaining claim which were not
preserved and cannot now be produced such that the plaintiff is prejudiced in
bringing his claim.
This leads the court into the heart of the instant motion, i.e., whether the
defendant failed to properly preserve and/or produce ESI causing prejudice
to the plaintiff such that he is entitled to sanctions in the form of an adverse
inference and costs and/or fees.
Spoliation is “the destruction or significant alteration of evidence, or the
failure to preserve property for another’s use as evidence in pending or
reasonably foreseeable litigation.” Ogin v. Ahmed, 563 F.Supp.2d. 539, 542
(M.D.Pa. 2008) (citing Mosaid Techs., Inc. v. Samsung Elecs. Co., Ltd., 348
6
F.Supp.2d 332, 335 (D.N.J. 2004) (citations omitted)).
The burden of proof on a spoliation claim lies with the party asserting
that spoliation of evidence has taken place. See Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 107-08 (2d Cir. 2001). See also Williams v. Klem,
2010 WL 3812350, *2 (M.D.Pa., Sept. 22, 2010) (Carlson, M.J.) (“As a
general rule, burden of proof on a spoliation claim lies with the party asserting
that spoliation of evidence has taken place.”) (citing Byrnie, supra);
Progressive Cas. Ins. Co. v. Winnebago Industries, Inc., 2010 WL 6371906,
*6 (W.D.Pa., Nov. 18, 2010) (same).
As a threshold matter, a party can only be sanctioned for spoliation of
evidence if it had a duty to preserve it. Micron Technology, Inc. v. Rambus,
Inc., — F.3d —, 2011 WL 1815975, * 6 (Fed. Cir.) (citing Zubulake v. USB
Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.)). The duty to preserve
evidence begins when litigation is “pending or reasonably foreseeable.” Id.
(citing Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001);
West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).
When litigation is “reasonably foreseeable” is “a flexible fact-specific standard
that allows a district court to exercise the discretion necessary to confront the
myriad factual situations inherent in the spoliation inquiry.” Id. (citing Fujitsu
Ltd. v. Fed. Express Corp, 247 F.3d 423, 436 (2d Cir. 2001)). The duty to
preserve is not triggered by “the mere existence of a potential claim or the
7
distant possibility of litigation.” Id. (citing e.g., Trask-Morton v. Motel 6
Operating L.P., 534 F.3d 672, 681-82 (7th Cir. 2008)). However, litigation also
need not be “imminent, or probable without significant contingencies.” Id.
When litigation is reasonably foreseeable is a question of fact. Id.
Once the duty to preserve arises, a litigant is expected, at the least, to
“suspend its routine document and retention/destruction policy and to put in
place a litigation hold” to preserve relevant ESI or other information pertaining
to the litigation. ACORN v. County of Nassau, 2009 WL 605859 (E.D.N.Y.)
(citing Zubulake, 220 F.R.D. at 218; Doe v. Norwalk Cmty Coll., 2007 U.S.
Dist. LEXIS 51084, at *14, 2007 WL 2066496) (a party needs to take
affirmative acts to prevent its system from routinely destroying information)).
Subsequent to the implementation of a litigation hold, counsel must oversee
compliance with the litigation hold, monitoring the party’s efforts to retain and
produce relevant documents. Zubulake v. USB Warburg LLC, 229 F.R.D.
422, 432 (S.D.N.Y. 2004).
In support of his claim that the defendant had a duty and failed to
properly preserve ESI, the plaintiff factually sets forth that, in 2004, he worked
at the Wilkes-Barre, Pennsylvania, Department of Veteran’s Affairs facility
when he was downgraded by means of an Agency Classification from Grade
11 to Grade 10. The plaintiff challenged the downgrade via an EEO formal
complaint, in which he alleged that the downgrade was a discriminatory action
8
taken by his supervisor, Antoinette Germain-Tudgay, based upon his age.
From 2004 to the present, the plaintiff provides that he has been in
constant litigation with the defendant through informal EEOC mediation,
formal complaint to and administrative proceedings before the EEOC, and
ultimately the filing of instant action. During this time, the plaintiff claims that
the defendant retaliated for his actions, even subsequent to his transfer to
Perry Pointe, Maryland, in April 2007, by providing negative employment
references and through other actions.
In conjunction with his EEOC proceedings, in January 2008, the plaintiff
indicates that he deposed several defense personnel, including Ms. GermainTudgay; Gene Molino, Associate Director; Donald Foote, Chief Financial
Officer; Linda Stout, Nurse Executive; Christopher Nowak, VISN (“Veterans
Integrated Service Network”) 4 Prosthetics Chief; Dr. Diane Smith6, Director
of Education/Training; and Bonnie Gurdock, GS-9 Education Technician,
placing the defendant on notice that these personnel would be witnesses in
this matter. On January 28, 2008, the plaintiff indicates that he filed an
emergency petition to compel responses to his discovery requests.
On May 8 and 9, 2008, an EEOC hearing was held, which the plaintiff
6
Plaintiff inadvertently refers to this witness as Dr. “Linda” Smith;
however, it is apparent from the record that the individual to whom he refers
is Dr. Diane Smith, who is the Director of Education, and would have relevant
information relating to the Wilkes-Barre VA Medical Center’s training
practices.
9
states concluded with him “substantially prevailing” and an order entering
judgment against defendant dated October 31, 20087. Subsequently, on
February 13, 2009, a right to file a civil action was issued to plaintiff, who
initially filed the instant action on February 17, 2009, and then amended the
action on April 5, 2009.
The plaintiff argues that the defendant had a duty to preserve relevant
ESI and that the defendant’s duty to preserve was triggered in 2004 when he
began filing his EEO complaints. The plaintiff argues, however, that the
defendant did not issue a litigation hold memo to preserve relevant ESI until
after the instant action was filed in 2009 and the most important years in the
life of the matter had passed. Prior to this, the plaintiff argues that the
defendant took no technical steps to preserve ESI, but simply gave a verbal
directive to preserve ESI, without auditing to see whether the custodians were
in compliance with that directive. Further, the plaintiff argues that the sole
person directed to preserve discovery was his supervisor, Ms. GermainTudgay, who is the individual at the center of his complaints.
The defendant’s position, on the other hand, is that the duty to preserve
relevant ESI was not triggered until the defendant was served with the federal
7
Upon review of the record, following a hearing on the plaintiff’s
consolidated second and third EEO complaints, the A.L.J. found against the
plaintiff as to all of the claims pending in those complaints, except the March
2007 training claim that is currently before this court, for which she ordered
the plaintiff reimbursed.
10
complaint, reviewed the allegations set forth therein, and had a reasonable
period of time to allow for notification to the subject agency.
In considering this threshold issue, the court finds that the defendant did
have a duty to preserve relevant ESI and that the defendant’s duty arose in
2004 when the plaintiff filed his initial EEOC complaint claiming that his
position downgrade was the result of age discrimination. See Adorno v. Port
Authority of New York and New Jersey, 258 F.R.D. 217, 228 (S.D.N.Y. 2009)
(filing of EEOC charge gave defendant reason to anticipate litigation and ‘put
in place a litigation hold’ extending to email as well as paper documents
relevant to the charge) (citing Zubulake, 220 F.R.D. at 216-18) (employer’s
duty to preserve back-up tapes of emails of certain supervisors and coworkers
involved in alleged gender discrimination arose, at the latest, when employee
filed her EEOC charge)). See also Northington v. H & M Intern., 2011 WL
663055, *6 (N.D.Ill. Jan. 12, 2011) (citing Jones v. Bremen High School Dist.
228, 2010 WL 2106640, *6 (N.D.Ill. May 25, 2010) (employer’s duty to
preserve relevant documents arose no later than when employer received
notice that plaintiff had filed a discrimination charge against it with the
EEOC)). At the time of the plaintiff’s initial EEOC complaint, the defendant
was undoubtedly aware that the plaintiff was protected by federal
discrimination laws which require a party to complete the administrative
process prior to filing federal litigation. The filing of a formal EEOC complaint
11
claiming age discrimination in employment, a form of litigation in itself, is
certainly an indication that more formal federal litigation may follow. Further,
the record demonstrates that, “early8” in the administrative process, agency
counsel exhibited an awareness of the potential for litigation by issuing a
“verbal” directive to the plaintiff’s supervisor to retain any emails and
documents on her computer or in her files that were relevant to the plaintiff’s
claims. At that time, counsel was apparently on notice of the potential for
litigation and was under an obligation to issue a litigation hold in order to
preserve ESI or other information relevant to the plaintiff’s claim.
Once a litigation hold is put into effect, the hold continues through the
final resolution of the relevant claims9 . Here, the plaintiff’s initial EEOC
complaint, which should have triggered a litigation hold, was filed in 2004 and
not denied until April 11, 2006. While that complaint was pending, in February
2006, the plaintiff filed his second EEOC complaint which contained
numerous additional claims of age discrimination, as well as retaliation claims.
While this second complaint was pending, the plaintiff filed a third EEOC
8
Although counsel is unable to provide the exact date of the verbal
directive, counsel has provided that the directive took place early in the
plaintiff’s administrative proceedings.
9
Shira A. Scheindlin et al., Electronic Discovery and Digital Evidence:
Cases and Materials 152 (West 2009) (“A legal hold may be lifted once the
litigation is finally resolved, assuming that preserved data is not relevant to
any other existing or anticipated litigation.”)
12
complaint in April 2007, which contained the retaliation claim still the subject
of the instant action10 . In each instance where the plaintiff filed subsequent
complaints raising additional claims prior to the resolution of his previous
claims, the litigation hold should have been modified to include that ESI or
documentation relevant to the additional claims.
As mentioned above, the defendant concedes that a litigation hold was
not put in place until after the instant federal action was filed in 2009. The
plaintiff argues that the defendant’s failure to issue a litigation hold in order to
preserve the ESI from the plaintiff’s own government computer11 or from the
computers of the above-named individuals from whom he sought discovery
at the administrative level, and all of whom had or were likely to have ESI
responsive to discovery requests12 , calls for sanctions. As a result of the
defendant’s failure to properly preserve ESI, the plaintiff argues that the three
10
In 2008, the plaintiff filed a fourth EEOC complaint which is of no
relevance for purposes of the instant action.
11
The defendant concedes that the plaintiff’s email folder was not
preserved by the VA after he transferred from the Wilkes-Barre VA Medical
Center, with the computers of departing employees being routinely cleaned
once they left. The plaintiff argues that the failure to preserve his own ESI in
light of the claims he had pending is sanctionable per se.
12
In his initial disclosures, with the exception of Mr. Molino, the
defendant concedes that the testimony of each of these individuals would
have some relevance to the remaining claim regarding the March 2007
training session. (Doc. No. 54).
13
productions of ESI made by the defendant are deficient such that he has
suffered real prejudice. Specifically, the plaintiff argues that the defendant
produced ESI that was almost entirely made up of e-mails responding or
pertaining to the litigation or administrative proceedings that preceded it. With
little exception, the plaintiff argues that the defendant produced no e-mails
that discussed the issues underlying the complaint. Having destroyed the
plaintiff’s own ESI, the plaintiff argues that the defendant has rendered it
impossible for the plaintiff to present his case. While, in the court’s opinion,
spoliation has been established to the extent that the defendant had a duty
to preserve relevant ESI by instituting a litigation hold and did not do so,
whether the plaintiff has established that sanctions are appropriate is another
issue.
Where a spoliation claim is established, sanctions may be appropriate,
including: 1) dismissal of a claim or granting judgment in favor of a prejudiced
party; 2) suppression of evidence; 3) an adverse inference, referred to as the
spoliation inference; 4) fines; and 5) attorneys’ fees and costs. Mosaid, 348
F.Supp.2d at 335.
When fashioning an appropriate sanction, courts must consider the
facts and circumstances of each case, but ultimately the use and manner of
sanctions are within “the inherent power of district courts . . . to manage their
own affairs so as to achieve the orderly and expeditious disposition of cases.”
14
Baliotis v. McNeil, 870 F.Supp. 1285, 1289 (M.D.Pa. 1994) (citing Chambers
v. NASCO, Inc., 501 U.S. 32, 43 (1991) (internal quotation marks omitted)).
The Third Circuit has instructed that when imposing sanctions, the court
should choose “the least onerous sanction corresponding to the willfulness of
the destructive act and the prejudiced suffered by the victim.” Schmid v.
Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994).
The spoliation inference, as sought in this case, permits the factfinder
to assume that “the destroyed evidence would have been unfavorable to the
position of the offending party.” Schmid, 13 F.3d at 78. See Howell v. Maytag,
168 F.R.D. 502, 505 (M.D.Pa. 1996). A spoliation sanction in the form of an
adverse inference is essentially an evidentiary ruling which rests in the sound
discretion of the court. Ward v. Lamanna, 334 Fed.Appx. 487, 492 (3d. Cir.
2009). In Schmid, the Third Circuit noted that use of an adverse inference is
less severe a sanction for the spoliation of evidence than dismissal or
suppression of evidence. Schmid, 13 F.3d at 79; see also Mosaid, 348
F.Supp.2d at 335–36. However, even being a less severe sanction, the
adverse inference often creates “too difficult a burden for the spoliator to
overcome” and therefore is “an extreme sanction and should not be given
lightly.” Zubulake, 220 F.R.D. at 219-20. See In re Methyl Tertiary Butyl Ether
(MTBE) Products Liability, 643 F.Supp.2d 482, 500 n.130 (S.D.N.Y. 2009)
(“The in terrorem effect of an adverse inference is obvious . . . Accordingly,
15
the adverse inference instruction is an extreme sanction and should not be
given lightly.”) (quoting Zubulake, 220 F.R.D. at 219-20)). See also In re
Semrow, 2011 WL 1304448, *3 (D.Conn.) (same) (quoting Zubulake, 220
F.R.D. at 219-20)).
Courts contemplate the following “key considerations” before
determining an appropriate sanction: (1) the degree of fault of the party who
altered or destroyed the evidence; (2) the degree of prejudice suffered by the
opposing party; and (3) whether there is a lesser sanction that will avoid
substantial unfairness to the opposing party and, where the offending party
is seriously at fault, will serve to deter such conduct by others in the future.
Kvitka v. Puffin Co., L.L.C., 2009 WL 385582, *4 (M.D.Pa., Feb. 13, 2009)
(citing Schmid, 13 F.3d at 79)13.
With respect to the instant action, the plaintiff has established that the
defendant failed to put into place certain procedural mechanisms in order to
13
In Schmid, the court considered these “key considerations” in
determining whether dismissal or complete suppression of evidence were
appropriate sanctions for spoliation. Id. at 79. However, within the Third
Circuit, courts have utilized these considerations as an initial step to
determining what, if any, sanctions are appropriate. See e.g., Ogin v. Ahmed,
563 F.Supp.2d 539, 545 (M.D.Pa. 2008) (Conaboy, J.); E.N. v. Susquehanna
Tp. School Dist., 2011 WL 2790266, *3 (M.D.Pa., Jul. 14, 2011) (Carlson,
M.J.); Bull v. United Parcel Service, Inc., 2010 WL 4553551, *2 (D.N.J., Oct.
29, 2010); Paluch v. Dawson, 2009 WL 3287395, *2 (M.D.Pa., Oct. 13, 2009)
(Rambo, J.); Dowling v. U.S. Government, 2008 WL 4534174, *1 (D.V.I. Oct.
06, 2008); Tripp v. Ford Motor Co., 1996 WL 377122, *2 (E.D.Pa., Jul. 03,
1996).
16
properly preserve ESI. However, despite this, the only evidence which the
plaintiff has established was actually destroyed or not preserved was the
contents of his own mailbox, which the defendant concedes was not
preserved by the VA after he transferred from the Wilkes-Barre VA Medical
Center to the Maryland VA Medical Center in March of 2007, with the
computers of departing employees being routinely cleaned once they left.
In considering the above “key considerations,” “[w]hen determining the
degree of fault and personal responsibility attributable to the party that
destroyed the evidence, the court must consider whether that party intended
to impair the ability of the other side to effectively litigate its case.” AMG Nat’l
Trust Bank v. Ries, 2011 WL 2099629, *5 (E.D.Pa., Jul. 22, 2011) (quoting
Paramount Pictures Corp. v. Davis, 234 F.R.D. 102, 111 (E.D.Pa. 2005)
(internal quotation marks omitted)). See also Hechinger Investment Co. of
Delaware, Inc. v. Universal Forest Products, Inc., 489 F.3d 568, 579 (3d Cir.
2007) (affirming Bankruptcy Court’s denial of a motion for an evidentiary
inference partially on the basis that the moving party failed to show that
documents were intentionally destroyed under the first of the Schmid factors).
Here, the plaintiff has presented no evidence that the deletion of his mailbox
in 2007 upon his transfer to the Maryland facility was an intentional act on the
part of the defendant to impair his ability to litigate his claims rather than part
of its routine practice of cleaning the computers of departed employees.
17
Therefore, this factor does not weigh in favor of sanctions.
Moreover, the record does not support the fact that the plaintiff was
actually prejudiced by the defendant’s failure to preserve in any way. “When
considering the degree of prejudice suffered by the party that did not destroy
the evidence, the court should take into account whether that party had a
meaningful opportunity to examine the evidence in question before it was
destroyed.” AMG Nat’l Trust Bank, supra (citing Paramount, 234 F.R.D. 112
(internal quotation marks omitted)). Here, the evidence which the defendant
failed to preserve was the plaintiff’s own emails. Certainly, during the course
of his employment at the Wilkes-Barre VA Medical Center and prior to his
transfer, the plaintiff had the opportunity to meaningfully review those emails.
In fact, the record establishes that during his administrative proceedings the
plaintiff produced copies of emails which he had received and sent relating to
his claims. (Doc. No. 65, Ex. G).
In addition, in order to establish prejudice, a party seeking spoliation
sanctions must “come forth with plausible, concrete suggestions as to what
the [missing] evidence might have been.” Medeva Pharma Suisse A.G. v.
Roxane Laboratories, Inc., 2011 WL 310697 (D.N.J., Jan. 28, 2011) (quoting
Schmid, 13 F.3d at 80)). Relatedly, the moving party must establish that the
missing evidence would be relevant to his claims. See Chirdo v. Minerals
Technologies, Inc., 2009 WL 2195135, *1 (E.D.Pa., Jul. 23, 2009). Relevant
18
evidence is evidence that tends “to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Id. (quoting Fed.R.Evid. 401;
see also, Fed.R.Evid. 402; Waters v. Genesis Health Ventures, Inc., 400
F.Supp.2d 808, 811 (E.D.Pa. 2005)). In this case, the plaintiff has not
presented the court with any “plausible, concrete suggestions” as to what the
missing emails would have contained. Further, he has failed in any way to
establish whether they would have made his claim of retaliation more
probable than not. See Hechinger, supra (affirming Bankruptcy Court’s denial
of a motion for an evidentiary inference partially on the basis that moving
party failed to establish prejudice in that it failed to identify any destroyed
evidence that would have aided it in its claims).
To further undermine the plaintiff’s claim of prejudice, although the
contents of the plaintiff’s email folder was admittedly not preserved, the
plaintiff himself can certainly provide testimony and call witnesses regarding
information he believes to have been contained in the emails. In fact, during
the administrative proceedings, the plaintiff deposed numerous witnesses that
would have had relevant information with respect to his training claim.
In light of the court’s findings with respect to the first two of the Schmid
factors, as to the third (i.e., the appropriateness of sanctions), the court finds
that sanctions, either in the way of an adverse inference or the imposition of
19
costs and/or fees, are not warranted in this case. Accordingly, the plaintiff’s
motion for sanctions will be denied on this basis.
In addition to his argument that the defendant failed to properly preserve
ESI, the plaintiff argues that the defendant failed to conduct a proper search
of the ESI which was preserved. For purposes of the claim which remains, the
only relevant argument regarding the search is that the defendant failed to
solicit his input or agreement on the search, which resulted in a search which
was too restrictive and which was of an incomplete dataset. Challenges to
particular search methodologies of ESI “requires knowledge beyond the ken
of a lay person (and a lay lawyer) and requires expert testimony that meets
the requirements of Rule 702 of the Federal Rules of Evidence.” Equity
Analytics, LLC v. Lundin, 248 F.R.D. 331, 333 (D.D.C., 2008) (citing United
States v. O’Keefe, 2008 WL 449729, at *8 (D.D.C., Feb. 18, 2008)).
Generally, neither lawyers nor judges are qualified to opine that certain search
terms or files are more or less likely to produce information than those
keywords or data actually used or reviewed14 . Since the plaintiff has failed to
present any expert testimony by affidavit or otherwise which would allow the
court to conclude that the defendant’s search was inadequate, the plaintiff’s
14
Judge John M. Facciola described this as going “where angels fear to
tread.” United States v. O'Keefe, 537 F.Supp.2d at 24.
20
motion will be denied on this basis.
Finally, the plaintiff argues for various reasons that the three
productions of ESI made by the defendant during the course of discovery
were insufficient. In relation to this argument, the plaintiff makes no mention
of the only remaining claim in this action. Therefore, the court will deny the
plaintiff’s motion on this basis as well.
On the basis of the foregoing, IT IS HEREBY ORDERED THAT:
the plaintiff’s motion for sanctions, (Doc. No. 50) is DENIED.
s/ Malachy E. Mannion
MALACHY E. MANNION
United States Magistrate Judge
Date: August 26, 2011
O:\shared\MEMORANDA\2009 MEMORANDA\09-0305-02.wpd
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