Bishop v. Sessions et al

Filing 40

MINUTE ORDER granting in part and denying in part Plaintiff's 26 Motion to Compel. Except as specifically granted, plaintiff's motion to compel and for discovery sanctions is DENIED. The Court DECLINES to award attorney's fees or costs to either party. Authorized by Judge Thomas S. Zilly. (PM) (William Barr added and Jefferson Beauregard Sessions, III terminated)

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

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CHERYL BISHOP,

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Plaintiff,

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C18-599 TSZ

v.

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WILLIAM BARR, United States
Attorney General, 1

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MINUTE ORDER

Defendant.
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The following Minute Order is made by direction of the Court, the Honorable
Thomas S. Zilly, United States District Judge:
(1)
Plaintiff’s motion to compel and for discovery sanctions, docket no. 26, is
GRANTED in part, and DENIED in part, as follows:
(a)
Defendant is DIRECTED to produce, within fourteen (14) days of
the date of this Minute Order, any Standard Form 50 (“SF50”) or “Notification of
Personnel Action” issued with respect to Michael Hodnett serving in a supervisory
capacity for more than 30 days between January 1, 2013, and December 31, 2017;
defendant shall redact from such SF50s, in the manner described in Local Civil
Rule 5.2(a), all personal data identifiers, including social security numbers.

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(b)
The Court is satisfied that defendant timely instituted and adequately
maintained a litigation hold, made reasonable inquiry about the existence of
relevant text messages, and complied with discovery obligations in reporting that
no text messages concerning plaintiff had been found. Nevertheless, for the sake
of completeness, the Court DIRECTS defendant to disclose, within twenty-one

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Pursuant to Federal Rule of Civil Procedure 25(d), Attorney General Barr is SUBSTITUTED

22 for former United States Attorney General Jeff Sessions.
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MINUTE ORDER - 1

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(21) days of the date of this Minute Order, whether any text messages regarding
plaintiff were inadvertently lost, intentionally deleted, or otherwise destroyed by,
or from the government-issued smartphones of, any of the following individuals:
Douglas Dawson, Bradford Devlin, Michael Gleysteen, and Celinez Nunez.

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(c)
Plaintiff’s request to sanction defendant for alleged spoliation of text
messages is DENIED without prejudice. 2 Plaintiff has so far made no showing
that any text messages were lost or destroyed. Plaintiff identifies two chains of
text messages between her and Celinez Nunez that were not produced by
defendant in discovery, apparently because Ms. Nunez has repeatedly dropped her
smartphones and lost the data on them, see Nunez Dep. at 192:3-12, Ex. H to
Morehead Decl. (docket no. 30-8), but those text messages have been preserved
(presumably by plaintiff) and were submitted to the Court as an exhibit to
plaintiff’s counsel’s declaration, see Ex. 2 to Wing Decl. (docket no. 27-1 at 2124). Thus, plaintiff has failed to establish that she has suffered any prejudice from
defendant’s inability to procure text messages from Ms. Nunez’s previous, now
inoperative, smartphones, and, on this record, sanctions are not warranted. See
Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 989-95 (N.D. Cal. 2012).

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(d)

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(e)
Except as specifically granted, plaintiff’s motion to compel and for
discovery sanctions is DENIED. The Court DECLINES to award attorney’s fees
or costs to either party.

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Plaintiff’s request to further depose Gregory Carroll is DENIED.

(2)
record.

The Clerk is directed to send a copy of this Minute Order to all counsel of

Dated this 15th day of August, 2019.
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William M. McCool
Clerk

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s/Karen Dews
Deputy Clerk

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Although defendant aptly observes that plaintiff has known about the lack of production of text
messages since at least September 25, 2017, when she filed a motion to compel with the Equal
21 Employment Opportunity Commission, see Ex. A to Morehead Decl. (docket no. 30-1), the
Court does not view plaintiff’s motion for spoliation remedies as untimely. Because such motion
seeks an adverse inference jury instruction, it was not required to be filed before the deadline for
22 discovery motions.

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MINUTE ORDER - 2