B.L. v. Lamas et al

Filing 140

MEMORANDUM OPINION AND ORDER - IT IS ORDERED that the plTfs motion to compel (Doc. 118 ) is GRANTED, in part, and DENIED in part, as follows: 1. IT IS ORDERED that on or before January 5, 2018, the subpoenaed party will confirm that the search for these records included not only electronic copies of any records, but also any existing paper copies and will produce any existing, responsive paper copies of such records. 2. In addition, with respect to those records which reportedly no longer exi st on or before January 5, 2018, the subpoenaed party will confirm, if known, when these records were discarded.3. With respect to attachments to previously produced e-mails, on or before January 5, 2018, the parties will agree upon a mutually conven ient date, time and place for this review to occur. Any disputes regarding the relevance ofparticular attachments may then be addressed by the court following the completion of this review. 4. In all other respects, the motion is DENIED. Signed by Magistrate Judge Martin C. Carlson on December 12, 2017. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
BRIAN LANDAU,

Plaintiff
v.
REBECCA AMBER ZONG, et al.,
Defendants

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Civil No. 3:15-CV-1327
(Judge Mariani)
(Magistrate Judge Carlson)

MEMORANDUM OPINION AND ORDER
I.

Factual Background

This is a §1983 civil rights action brought by Brian Landau, a state inmate,
against some 20 correctional defendants, arising out of allegations by Landau that
he was sexually harassed and abused by a female correctional officer at SCI
Rockview, Defendant Rebecca Zong, in 2013 and 2014, and other correctional
staff failed to intervene and protect Landau from this conduct. The parties are
engaging in what has been a halting, and often contentious, course of discovery,
frequently marked by disputes that counsel could seemingly resolve with a
modicum of mutual accommodation but which have instead been placed before the

court for resolution.1 While we commend to all parties the value of mutually
cooperative discovery we stand ready to assist them in resolving their current
discovery disputes, which include a motion to compel filed by the plaintiff which
seeks further supplementation of responses to two subpoenas duces tecum served
on Superintendent Garman, at SCI Rockview. (Doc.118.)
The first of these subpoenas, issued on July 17, 2017, called for the
production of staff daily rosters for certain dates in 2013 and 2014; print-outs of
emails between and among twelve different correctional staff from November
2013 through July 2014; and copies of email retention policies. (Doc. 119-2.) The
second subpoena duces tecum, dated September 30, 2017, called for production of
certain pat search logs and punch-in records for time check points at the prison for
various dates in 2013 and 2014. (Doc. 119-5.)
Superintendent Garman has responded to these subpoenas, but in some
instances has indicated that certain records, such as punch-in reports and emails

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For example, we have been asked to determine the location of depositions
of certain inmate witnesses, even though it was apparent from the parties’
pleadings that all parties agreed that the depositions should take place at the
institutions where the inmate are currently confined. Likewise on November 13,
2017 the plaintiff filed a motion to compel the scheduling of certain depositions,
even though the date of the filing of this motion, November 13, was also the date
that defense counsel initially offered for scheduling these depositions, and the
motion’s briefing schedule took us far beyond the November 13 date proposed by
defense counsel, leading to the curious result that the parties actually delayed
scheduling of these depositions for nearly a month in order to litigate the
scheduling of these depositions.
2

sent by Defendant Zong, who was terminated as a state prison employee in 2014,
no longer exist. In other instances, Garman has produced emails but not released
the attachments to those emails, although Garman through Department of
Corrections counsel has represented that they have offered to provide plaintiff’s
counsel with a mutually convenient opportunity to review these email attachments.
Finally, Superintendent Garman has objected to the disclosure of pat search
records from throughout the prison, arguing that only pat search records relating to
physical contact between Landau and Zong have relevance to the issues in this
lawsuit.
For the reasons set forth below, while we find that these responses are
generally adequate and fully responsive to the requests made in the subpoenas, we
will direct some further clarification and supplementation of those responses, as set
forth below.
II.

Discussion

Several basic guiding principles inform our resolution of the instant motion
to compel, which relates to compliance with subpoenas duces tecum. At the outset,
“[r]ule 45 of the Federal Rules of Civil Procedure establishes the rules for
discovery directed to individuals and entities that are not parties to the underlying
lawsuit. Fed.R.Civ.P. 45. A subpoena under Rule 45‘must fall within the scope of
proper discovery under Fed.R.Civ.P. 26(b)(1).’ OMS Invs., Inc. v. Lebanon
3

Seaboard Corp., No. 08–2681, 2008 WL 4952445, at *2 (D.N.J. Nov. 18, 2008).”
First Sealord Sur. v. Durkin & Devries Ins. Agency, 918 F. Supp. 2d 362, 382
(E.D. Pa. 2013). Thus, contrary, to plaintiff’s assertion, concepts of relevance do
define the scope of a subpoena response.
Rule 45 also confers broad enforcement powers upon the court to ensure
compliance with subpoenas, while avoiding unfair prejudice to persons who are the
subject of a subpoena’s commands. In this regard, it is well settled that decisions
on matters pertaining to subpoena compliance rest in the sound discretion of the
trial court and will not be disturbed absent a showing of an abuse of that discretion.
R.J. Reynolds Tobacco v. Philip Morris Inc, 29 F. App’x 880, 881 (3d Cir. 2002).
This far-reaching discretion extends to decisions regarding whether to enforce
compliance with subpoenas, where “ ‘[i]t is well-established that the scope and
conduct of discovery are within the sound discretion of the trial court.’ Guinan v.
A.I. duPont Hosp. for Children, No. 08–228, 2008 WL 938874, at *1 (E.D.Pa.
Apr.7, 2008) (quoting Marroquin–Manriquez v. INS, 699 F.2d 129, 134 (3d
Cir.1983)).” Coleman-Hill v. Governor Mifflin School Dist,. 271 F.R.D. 549, 552
(E.D.Pa. 2010).
Another immutable rule defines the court’s discretion when ruling on
motions to compel discovery. It is clear that the court cannot compel the
production of things that do not exist. Nor can the court compel the creation of
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evidence by parties who attest that they do not possess the materials sought by an
adversary in litigation. See, e.g., AFSCME District Council 47 Health and Welfare
Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 08-5904, 2010 WL
5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 08-1698, 2009 WL
975251 (M.D.Pa. April 9, 2009).
With these legal guideposts in mind, we turn to consideration of the instant
discovery dispute which divides these parties.
At the outset, we note that with respect to at least two categories of
information sought by Landau through these subpoenas—emails from and between
Defendant Zong and 11 other corrections employees as well as punch-in checks
point records from 2013 and 2014—Landau has been told that these materials do
not exist. While this report has inspired follow-up questions by Landau, there was
nothing inappropriate about the initial response to these subpoenas which noted
that certain records no longer existed. See, e.g., AFSCME District Council 47
Health and Welfare Fund v. Ortho-McNeil-Janssen Pharmaceuticals, Inc., No. 085904, 2010 WL 5186088 (E.D.Pa. Dec. 21, 2010); Knauss v. Shannon, No. 081698, 2009 WL 975251 (M.D.Pa. April 9, 2009). Moreover, the use of a subpoena
duces tecum may be an inefficient vehicle for posing follow up questions
concerning non-existent documents. Thus, there is some great force to the
suggestion that these follow up questions are more appropriately posed through a
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deposition rather than some awkward process of document subpoenas, replies,
disputes, disagreements, and motions to compel.
Nonetheless, Landau poses two additional questions, which in the exercise
of our discretion we will direct the subpoenaed party to attempt to answer. First,
Landau requests confirmation that the search for these records included not only
electronic copies of any records, but also a reasonable search for any existing paper
copies. In addition, with respect to those records which no longer exist Landau has
requested confirmation, if known, regarding when these records were discarded. In
the exercise of our discretion, we will direct that supplemental answers be provided
on these two scores to Landau.
As for the question of access to email attachments, we agree with Landau
that such attachments should be considered components of the emails themselves.
See In re Denture Cream Products Liab. Litig., 292 F.R.D. 120, 125 (D.D.C. 2013)
(collecting cases); Cohen v. Trump, 13-CV-2519-GPC WVG, 2015 WL 3617124,
at *19 (S.D. Cal. June 9, 2015) (same); Andy Hoang Nguyen v. Roth & Rau AG,
CCB-06-1290, 2009 WL 10682036, at *2 (D. Md. July 28, 2009) (same). We note,
however, that defense counsel has apparently extended what we regard as a
reasonable offer to plaintiff’s counsel to view these attachments, stating that:
“Attempting to moot this issue, Undersigned offered Plaintiff's Counsel to view the
attachments on his computer. Plaintiff’s Counsel insisted on doing so the next day
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or having Undersigned burn onto a disc and mail overnight. The next day was not
convenient for DOC Defense Counsel due to other obligations. Plaintiff’s Counsel
was offered to pick any time the following week. She declined to do so, opting
instead for filing the present motion.” (Doc. 125, p. 5.) We regard this as a
practical, reasonable alternative given some of the technological issues reported by
counsel, and will direct the parties to agree upon a mutually convenient date, time
and place for this review to occur. Any disputes regarding the relevance of
particular attachments may then be addressed by the court following the
completion of this review.
Finally, with respect to Landau’s request for access to all pat search logs
from throughout the prison on several given dates in January of 2014, we agree
with corrections counsel that this request, while temporally limited, is overly broad
in its scope, when the crucial issues relate to allegedly inappropriate physical
contact between former Correctional Officer Zong and inmate Landau. Therefore,
we will sustain this objection to the scope of the subpoena duces tecum.2

Landau suggests that this overly broad sample of pat search records is necessary
in some way to test the randomness of any search of the plaintiff by Zong, but
Landau does not explain how this broader, but non-random sample of additional
records would sustain any statistically valid randomness analysis. Moreover, the
fact of sexual physical contact between Landau and Zong seems undisputed,
making this randomness analysis only marginally relevant. However, broad
disclosure of other inmate pat searches throughout the prison would involve
disclosures of matters that would be invasive of the personal privacy of other
searched inmates.
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2

While these rulings resolve the underlying merits of the plaintiff’s motion to
compel, we note two other matters. First, the plaintiff has also sought an award of
attorney’s fees. Finding that Garman was substantially justified in many of the
initial responses provided to Landau, we will decline this request. Second, the
parties have addressed spoliation issues in their pleadings. Nothing in this ruling is
intended to, or should be construed as, suggesting any view regarding spoliation
claims or defenses. However, we encourage the parties to fully consider what
conduct constitutes spoliation. “Spoliation occurs where: the evidence was in the
party's control; the evidence is relevant to the claims or defenses in the case; there
has been actual suppression or withholding of evidence; and, the duty to preserve
the evidence was reasonably foreseeable to the party.” Bull v. United Parcel Serv.,
Inc., 665 F.3d 68, 73 (3d Cir. 2012). “In assessing a spoliation claim: ‘[R]elevant
authority requires that four (4) factors be satisfied for the rule permitting an
adverse inference instruction to apply: 1) the evidence in question must be within
the party's control; 2) it must appear that there has been actual suppression or
withholding of the evidence; 3) the evidence destroyed or withheld was relevant to
claims or defenses; and 4) it was reasonably foreseeable that the evidence would
later be discoverable.’” Victor v. Lawler, No. 3:08-CV-1374, 2011 WL 1884616,
at *2–3 (M.D. Pa. May 18, 2011), on reconsideration, No. 3:08-CV-1374, 2011
WL 4753527 (M.D. Pa. Oct. 7, 2011).
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In practice, spoliation litigation rarely turns on issues relating to the first two
aspects of this four-part test. In most instances, and in this case, it is self-evident
that: “ [1] the evidence was in the party's control; [and] [2] the evidence is relevant
to the claims or defenses in the case.” Bull v. United Parcel Serv., Inc., 665 F.3d at
73. Rather, the critical issues in assessing whether spoliation inferences are proper
typically revolve around the latter two aspects of this four-part test; namely,
whether: “[3] there has been actual suppression or withholding of evidence; and,
[4] the duty to preserve the evidence was reasonably foreseeable to the party.” Id.
Turning first to the duty to preserve, the applicable benchmark in this regard
is whether that duty was “reasonably foreseeable to the party.” Id. “[T]he question
of reasonable foreseeability 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.’ Micron Technology, Inc., 645 F.3d at
1320.” Bull v. United Parcel Serv., Inc., 665 F.3d at 77-78. Thus, “[a] party which
reasonably anticipates litigation has an affirmative duty to preserve relevant
evidence. Baliotis v. McNeil, 870 F.Supp. 1285, 1290 (M.D. Pa.1994). Where
evidence is destroyed, sanctions may be appropriate, including the outright
dismissal of claims, the exclusion of countervailing evidence, or a jury instruction
on the ‘spoliation inference.’ This inference permits the jury to assume that ‘the
destroyed evidence would have been unfavorable to the position of the offending
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party.’ Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir.1994).”
Howell v. Maytag, 168 F.R.D. 502, 505 (M.D.Pa. 1996).
However, a finding that a party had a duty to preserve evidence which was
lost will not, by itself, warrant a finding of spoliation. The party seeking a
spoliation finding must also prove a culpable state of mind. In this respect:
For the [spoliation] rule to apply ... it must appear that there has been an
actual suppression or withholding of the evidence. No unfavorable
inference arises when the circumstances indicate that the document or
article in question has been lost or accidentally destroyed, or where the
failure to produce it is otherwise properly accounted for. See generally
31A C.J.S. Evidence § 156(2); 29 Am.Jur.2d Evidence § 177 (“Such a
presumption or inference arises, however, only when the spoliation or
destruction [of evidence] was intentional, and indicates fraud and a
desire to suppress the truth, and it does not arise where the destruction
was a matter of routine with no fraudulent intent.”).
Brewer, 72 F.3d at 334 (emphasis added). Therefore, a finding of bad
faith is pivotal to a spoliation determination. This only makes sense,
since spoliation of documents that are merely withheld, but not
destroyed, requires evidence that the documents are actually withheld,
rather than—for instance—misplaced. Withholding requires intent.
Bull v. United Parcel Serv., Inc., 665 F.3d at 79 (emphasis added and in original).
In sum, any party seeking spoliation sanctions should do so by a separate
motion but should be mindful of the exacting standards set by law for such
motions. An appropriate order follows.

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III.

Order

AND NOW, this 12th day of December, 2017, IT IS ORDERED that the
plaintiff’s motion to compel (Doc. 118) is GRANTED, in part, and DENIED in
part, as follows:
1.

IT IS ORDERED that on or before January 5, 2018, the subpoenaed

party will confirm that the search for these records included not only electronic
copies of any records, but also any existing paper copies and will produce any
existing, responsive paper copies of such records.
2.

In addition, with respect to those records which reportedly no longer

exist on or before January 5, 2018, the subpoenaed party will confirm, if known,
when these records were discarded.
3.

With respect to attachments to previously produced e-mails, on or

before January 5, 2018, the parties will agree upon a mutually convenient date,
time and place for this review to occur. Any disputes regarding the relevance of
particular attachments may then be addressed by the court following the completion
of this review.

4.

In all other respects, the motion is DENIED.

S/Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
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