Wilson v. South Carolina Department of Corrections et al

Filing 147

ORDER: The Court ADOPTS the R & R (Dkt. No. 139) as the order of the Court. The portion of Plaintiffs amended motion for sanctions (Dkt. No. 85) seeking sanctions for Defendant SCDCs loss of ESI is DENIED. AND IT IS SO ORDERED. Signed by Honorable Richard M Gergel on 9/21/20.(ltap, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Garcia Wilson,

)
)
Plaintiff,
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)
v.
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South Carolina Department of Corrections, )
et al.,
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Defendants.
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___________________________________ )

Civil Action No. 1:17-3032-RMG

ORDER AND OPINION

Before the Court is the Magistrate Judge’s report and recommendation (“R & R”) (Dkt.
No. 139) recommending that the Court deny Plaintiff’s amended motion for sanctions (Dkt. No.
85) as it applies to Defendant South Carolina Department of Corrections’ allegedly lost or
destroyed electronically stored information. For the reasons set forth below, the Court adopts the
R &R as the order of the court.
I.

Background
Plaintiff Garcia Wilson claims that Defendants violated his constitutional rights by failing

to protect him from fellow inmate violence while incarcerated at Turbeville Correctional
Institution. Wilson alleges that he suffered injuries as a result of six separate assaults from June
2016 through August 2017. He brings fifteen causes of action. Claims against the individual
defendants are made against them in their individual and official capacities as employees of
Defendant South Carolina Department of Corrections (“SCDC”).
II.

Legal Standard

A.

Review of the R & R
The Magistrate Judge makes only a recommendation to this Court. The recommendation

has no presumptive weight and the responsibility to make a final determination remains with the
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Court. See, e.g., Mathews v. Weber, 423 U.S. 261, 270-71 (1976). The district court may “accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C). Where there are specific objections to the R & R, the Court
“makes a de novo determination of those portions of the report or specified proposed findings or
recommendations to which objection is made.” Id. In the absence of objections, the district court
reviews the R & R to “only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s note; see also
Camby v. Davis, 718 F.2d 198, 199 (4th Cir. 1983) (“In the absence of objection . . . we do not
believe that it requires any explanation.”).
B.

Sanctions Pursuant to Rule 37(e) of the Federal Rules of Civil Procedure
Spoliation is “the destruction or material alteration of evidence or the failure to preserve

property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri v.
Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Spoliation must involve more than the
“negligent loss or destruction of evidence,” as “the alleged destroyer must have known that the
evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in
conduct resulting in the evidence’s loss or destruction. Turner v. United States, 736 F.3d 274, 282
(4th Cir. 2013). A district court’s power to sanction spoliation derives from two sources, Rule
37(e) and its “inherent power . . . to redress conduct ‘which abuses the judicial process.’” Id.
(quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991)).
Rule 37(e) governs the spoliation analysis for electronically stored information (“ESI”). It
provides:
If electronically stored information that should have been preserved in the
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:

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(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.
Fed. R. Civ. P. 37(e).
“In order to warrant sanctions under Rule 37(e), which concerns only electronically stored
information, certain threshold elements must be established: (1) the information should have been
preserved, (2) the information was lost, (3) the loss occurred because a party failed to take
reasonable steps to preserve it, and (4) the information cannot be restored or recovered through
additional discovery.” In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2327,
No. 2:12-cv-00497-JRG, 2016 WL 5869448, at *3 (S.D. W.Va., Oct. 6, 2016). If these four initial
requirements are satisfied, Rule 37 “next establishes two different avenues parties can take to
demonstrate that sanctions are warranted.” Id. “The first avenue, Rule 37(e)(1), requires a court
to make a finding of prejudice before sanctions may be warranted. The second avenue, Rule
37(e)(2), requires a court to make a finding that a party acted with the intent to deprive the opposing
party” of the ESI. Id. Courts have broad discretion when deciding whether to impose spoliation
sanctions. See Turner, 736 F.3d at 281.
III.

Discussion
Plaintiff contends that Defendant SCDC failed to preserve certain emails containing

documents that Thomas Roth reviewed in drafting the Roth Report. (Dkt. No. 85 at 27.) Existence
of these documents came to light when Mr. Roth produced a flash drive containing approximately

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305 emails and 1,788 pages of attachments, in response to Plaintiff’s August 2019 third-party
deposition subpoena. (Dkt. No. 101 at 15.) Plaintiff contends that these and potentially other
documents that Defendant SCDC supplied to Mr. Roth should have been captured from SCDC’s
servers and produced. (Dkt. No. 85 at 24.) Defendant SCDC argues that it could not identify and
produce any such documents because their time-sensitive secure links expired and were
automatically deleted (Dkt. No. 125 at 9, No. 128), but, in any event, the information remains
discoverable by other means (Dkt. No. 101 at 20, 22).
This Court previously remanded to the Magistrate Judge specific inquiries relating to a
sanction based on loss of ESI; specifically: (1) review the list of allegedly missing documents
provided by Plaintiff and make findings concerning whether such documents have been produced
or whether SCDC failed to preserve or otherwise failed to produce such documents; (2) make a
finding of any specific prejudice that Plaintiff suffered, if any, if the ESI has been lost; and (3)
recommend any sanctions, if appropriate, based upon those findings. (Dkt. No. 111 at 5.) The
Magistrate Judge has reviewed the six encrypted links emailed by Defendant SCDC to Mr. Roth
from September 2017 through January 2018. (Dkt. No. 121-1.) The documents underlying the
links cannot be identified because the secure links have expired and Defendant SCDC retained no
other records of the documents and, therefore, are considered lost under Rule 37(e).

The

Magistrate Judge finds that this loss appears to be a result of Defendant SCDC’s failure to take
reasonable steps to preserve the information recorded at these links, and that at least four of the six
links reasonably should have been preserved in light of the complaint being served on Defendant
SCDC on or around October 23, 2017. See In re: Ethicon, Inc. Pelvic Repair Sys. Prod. Liab.
Litig., 299 F.R.D. 502, 512 (S.D. W.Va. 2014).

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Critically, as discussed, imposing sanctions under Rule 37(e) requires a showing of
prejudice. Fed. R. Civ. P. 37(e)(1). Spoliation “causes no prejudice [if] the evidence destroyed
was not relevant, or as merely cumulative to readily available evidence, or [if] the same evidence
could be obtained from other sources.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497,
526 (D. Md. 2010). Similarly, “prejudice is less acute when there are sources from which at least
some of the allegedly spoliated evidence can be obtained . . . [and] when the party seeking
discovery can obtain extrinsic evidence of the content of at least some of the deleted information
from other documents, deposition testimony, or circumstantial evidence.” In re Ethicon, 299
F.R.D. at 523. The Magistrate Judge cannot discern any specific prejudice Plaintiff has suffered
from the loss of the allegedly missing documents, including because Defendant SCDC has
represented that it will not contest the contents of the Roth Report and Plaintiff had opportunity to
depose Mr. Roth about his report, conclusions and data collected for it. See Knight v. Boehringer
Ingelheim Pharma, Inc., 323 F. Supp. 3d 837, 845 (S.D. W.Va. 2018) (noting that courts typically
find prejudice under Rule 37(e)(1) “when spoliation compromises [another] party’s ability to
present its case,” particularly where the “party cannot present evidence essential to its underlying
claim.”) (internal quotation marks omitted).1 Nor is there any reasonable basis to find that
Defendant SCDC acted with an intent to deprive Plaintiff of the information’s use in litigation.
Fed. R. Civ. P. 37(e)(2). No party filed an objection to the Magistrate Judge’s R & R.

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The Magistrate Judge also noted in her prejudice analysis that Plaintiff did not rely on the Roth
Report or Mr. Roth’s deposition testimony when opposing Defendants’ motion for summary
judgment. The Roth Report was not in the record on summary judgment at the time. It is now in
the record pursuant to the Court’s order on its rule to show cause.
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Therefore, having carefully considered the Magistrate Judge’s findings and the basis
thereof, the Court adopts as the order of the Court the recommendation that the portion of
Plaintiff’s amended motion for sanctions seeking sanctions on the basis of lost ESI be denied.
IV.

Conclusion
For the foregoing reasons, the Court ADOPTS the R & R (Dkt. No. 139) as the order of

the Court. The portion of Plaintiff’s amended motion for sanctions (Dkt. No. 85) seeking sanctions
for Defendant SCDC’s loss of ESI is DENIED.
AND IT IS SO ORDERED.

s/ Richard Mark Gergel
Richard Mark Gergel
United States District Judge
September 21, 2020
Charleston, South Carolina

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