KENNETH G. GALE, Magistrate Judge.
Before the Court is Plaintiff's "Motion for a Finding of Spoliation and for Sanctions" (Doc. 121), in which Plaintiff argues that Defendant spoliated evidence that was "necessary for a fair and just trial" and violated prior discovery Orders from this Court. Defendant responds that "no relevant MS Word documents were destroyed after [its] preservation obligations were initiated" and that neither it nor its attorneys "have `intentionally destroyed or hidden any ESI." (Doc. 128.) For the reasons set forth below, Plaintiff's motion is
Plaintiff Linda D. Hudson instituted the present action against her former employer AIH Receivable Management Services ("AIH" or "Defendant"), bringing claims for racial discrimination harassment, hostile work environment and retaliation pursuant to Title VII of the Civil Rights Act of 1964, the Kansas Act Against Discrimination, and 42 U.S.C. 1981; for age discrimination and harassment pursuant to the Age Discrimination in Employment Act and the KAAD; sexual harassment and hostile work environment in violation fo Title VII and the KAAD; and whistle-blower retaliation. The District Court recently granted summary judgment in regard to Plaintiff's claim under Title VII, her claim for age discrimination under the ADEA and KAAD, her claim for sexually hostile work environment under the KAAD, her claim for retaliation under §1981 and the KAAD that is not based on her termination, and her claim for whistleblower retaliation under Kansas law. Plaintiff's claims that remain pending are those for racially hostile work environment under §1981 and the KAAD as well as her claim of retaliation based on her termination under §1981 and the KAAD. (See generally, Doc. 133.)
In ruling on summary judgment, the District Court summarized the relevant, uncontroverted facts of the case. (Id., at 5-15.) That summary is incorporated herein by reference. For purposes of this motion, the Court notes the following additional relevant facts.
Plaintiff filed her KHRC/EEOC charge of discrimination on March 9, 2009. (Doc. 1-1.) This was approximately one month after Defendant terminated her employment. (See Doc. 133, at 15.) Enclosed with her charge, Defendant received an information sheet from the EEOC detailing its duties of nonretaliation and to maintain documentation relating to Plaintiff's allegations. (See, id.) Defendant also received correspondence from the KHRC on that date informing it of its duties under K.S.A. 44-1013, prohibiting the "destruction of records or other acts, which would prevent, impede, or interfere with investigation of this complaint. . . ." (Doc. 128-19.) Plaintiff contends that despite Defendant's knowledge of her claims, it "refused to issue a litigation hold or take any affirmative steps to preserve evidence in its possession or under its control" at the time. (Doc. 122, at 1-2.)
Plaintiff's lawsuit was filed on May 19, 2010. (Doc. 1.) On September 13, 2010, the Court entered its Initial Order Regarding Planning and Scheduling. (Doc. 18.) That Order specifically instructs the parties that
(Id., at 1-2.)
The Court entered its Scheduling Order on October 19, 2010, which included the following instructions regarding ESI:
(Doc. 21, at 3-4.) Plaintiff contends that "it was not until late October or November 2010 that [Defendant] even considered the preservation of evidence relevant to [Plaintiff's] case." (Doc. 122, at 2.)
Throughout this time, Defendant's employee Travis Joyce, the individual at the heart of Plaintiff's claims of discrimination and harassment, continued to empty his work e-mail inbox on a daily basis — even after the litigation hold was put in place. Defendant admits that in March 2011, shortly before Joyce's deposition, counsel discovered that Joyce allegedly "misunderstood the requirements of the litigation hold." (Doc. 128, at 15.) Up until this conversation, Joyce continued the "routine document destruction" of his e-mail that he began at the commencement of his employment for Defendant; he "would delete every e-mail in his in box every day, except for one periodic e-mail regarding collection statistics." (Id., at 15-16.)
Joyce informed defense counsel that "he believed that the litigation hold only required the preservation of e-mails relating to [Plaintiff] and her lawsuit." (Id., at 15.) Even so, he testified that he "neither received nor erased any e-mails" regarding Plaintiff or facts relevant to her lawsuit. (Id., at 16; see also Doc. 128-14, at 30-31.) Further, Joyce did not delete any e-mails from his e-mail "sent box." (Id.) Thus, all e-mail he sent was retained and produced to Plaintiff. Also, all e-mail Joyce received from Defendant's other managers was maintained in the e-mail sent folders of those other managers as they are all alleged to have complied with the litigation hold. (Id., at 16.)
Plaintiff previously filed a Motion to Compel in this matter, in part arguing that Defendant refused to produce electronically stored information (ESI). (Doc. 48.) A hearing on the motion occurred on April 5, 2011, and was followed by a written Order, granting the motion in part, on April 13, 2011. (Doc. 100.) By the time of the hearing, the only category of ESI remaining at issue was Defendant's e-mail. (Id., at 4.)
In addressing the issue of balancing the costs of producing ESI (id., at 2-4), the Court acknowledged that Defendant's e-mail is
(Id., at 5.)
The Court further ordered Defendant
(Id., at 10.) Thus, the Court gave the parties parameters within which to work regarding ESI and specifically instructed them to "confer further to agree to search term strategies designed to efficiently identify documents with the applicable software." (Id., at 5.)
Although titled "Motion for a Finding of Spoliation and for Sanctions," a reading of Plaintiff's supporting memorandum raises two distinct issues: 1) whether Plaintiff is entitled to an inference that Defendant "destroyed or failed to produce" the documents at issue and that such documents "would have been favorable" to Plaintiff's case, (Doc. 122, at 12-14) and 2) that Defendant failed to comply with this Court's Order of April 13, 2011, regarding Plaintiff's prior Motion to Compel. Each will be discussed in turn.
"`Spoliation' has been defined as `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.'"
Thus, spoliation is both the destruction of evidence and/or the failure to preserve evidence. As such, litigants have a duty to preserve documents or materials — including electronic documents and materials — that may be relevant to ongoing and potential future litigation.
Typically, the duty to preserve commences with the filing of a lawsuit, but the duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.
A party alleging spoliation of evidence must generally establish the following elements:
There is no doubt that Defendant had a duty to preserve the electronically stored evidence at issue, establishing the first of these elements. As discussed above, Defendant had notice of the likelihood of future litigation when it received Plaintiff's EEOC/KHRC filing in March 2009. Communication from both agencies discussed Defendant's duty to maintain relevant documents and information. Even so, as discussed above, Travis Joyce's received e-mails were not maintained. The evidence does not establish that Joyce or Defendant wilfully destroyed relevant evidence. Defendant's description of Joyce's "misunderstanding" of the requirements of the litigation hold (Doc. 128, at 15-16, Doc. 128-14, at 30-31), however, would clearly constitute "ordinary negligence," establishing the second element. The analysis will thus turn on the final element — whether the destroyed evidence was relevant and favorable to Plaintiff's claim such that a reasonable trier of fact could find it would support that claim.
It is undisputed that Mr. Joyce is the individual about whom Plaintiff was complaining. It is also undisputed that he continued to delete his email for months after Defendant received notice of Plaintiff's administrative filings — and continued to do so after this Court entered its Scheduling Order with specific instructions regarding the retention of ESI.
Given the nature of Plaintiff's complaints directed at Joyce and the fact that she worked directly with him, a reasonable trier of fact could find that his e-mail could include information regarding Plaintiff. This is especially so considering the two year time frame from the date Defendant received notice of Plaintiff's administrative charges in March 2009 until Mr. Joyce is alleged to have finally "understood" the litigation hold in March 2011. Further, Defendant received notice of Plaintiff's administrative charges merely a month after Plaintiff's employment was terminated.
Thus, the Court is satisfied that a reasonable trier of fact could find that the destroyed e-mail would contain information relating to Plaintiff's claims and
Courts have identified five factors to determine the correct sanction for spoliation of evidence:
Plaintiff asks the Court to provide an inference that Defendant "destroyed or failed to produce" the documents at issue and that such documents "would have been favorable" to Plaintiff's case, that Defendant's Answer and affirmative defenses be stricken, and that she receive monetary sanctions. (Doc. 122, at 12-14.) The Court
Plaintiff's request to have Defendant's Answer and affirmative defenses stricken, however, is not supported by the evidence and arguments presented by Plaintiff. "Dismissal is an extreme sanction which is only appropriate in cases involving willful misconduct."
Even so, the degree of prejudice to Plaintiff is not heightened. The evidence presented to the Court establishes that all e-mail Joyce sent was retained and produced to Plaintiff. Also, all e-mail Joyce received from Defendant's other managers was maintained in the e-mail sent folders of those other managers as they are all alleged to have complied with the litigation hold. (Doc. 128, at 16.) Thus, the only relevant e-mail that could have been destroyed would be e-mail regarding Plaintiff's claims and allegations that Joyce received from individuals other than Defendant's other managers, but to which he did not respond.
As such, this Court does not find striking Defendant's Answer and/or affirmative defenses to be an appropriate sanction. Rather, this Court
Plaintiff has also requested monetary sanctions for her "attorney's fees and costs incurred for all work, briefing and proceedings associated with the delayed production and spoliated ESI evidence." (Doc. 122, at 16.) Based on the limited findings of this order, such sanctions would be limited to a portion of the cost of briefing. However, because the violation was unintentional, and because the injury was limited by the availability of other evidence, the Court finds that the recommended remedial instruction is a sufficient remedy. Thus the request for monetary sanctions is denied.
Plaintiff's current motion, filed six months after the hearing, contends that Defendant "refused to search for and produce responsive electronically stored information ("ESI") in the format required by the Court's Orders and requested by [Plaintiff's] discovery requests." (Doc. 122, at 2.) Plaintiff complains that the ESI searches conducted by Defendant were conducted by "a non-certified IT consultant [Don Dale] who blindly searched [Defendant's] computers within arbitrary parameters imposed by [Defendant's] counsel." (Id.) Plaintiff continues that the searches were "incomplete because the IT consultant did not search external medial, discs, flash drives, external hard drives, cookies, images or metadata." (Id.) According to Plaintiff, the "resulting searches were not forensically sound and lack any shred of legitimacy." (Id.)
Defendant responds that the search techniques it used were compliant with this Court's previous Order and in accordance with the technique its third-party IT expert described to this Court during the April 2011 hearing. (Doc. 128, at 18-20.) Further, Defendant argues that
(Id., at 18.) Defendant continues that "Plaintiff's counsel was unwilling to provide guidance as to his demands prior to the search and now complains that the search was not performed to his expectations." (Id., at 21.) Additionally, Defendant contends that "[i]f Plaintiff was uncomfortable with Mr. Dale running the search, [counsel] had every opportunity to speak up about his concern at the hearing before Judge Gale when the parties were discussing the prospect of passing these uninsured litigation costs to AIH." (Id., at 22.) The Court agrees. It does not appear that the parties complied with the Court's direction to confer further concerning search methodology. To the extent that failure caused an ineffective search, Plaintiff was complicit in that failure.
The hearing on Plaintiff's motion to compel — which resulted in the ESI search at issue — occurred on April 5, 2011. (Doc. 91.) The subsequent written Order was entered by this Court on April 13, 2011. (Doc. 100.) Based on the information available to the Court, the actual documents gleaned from Defendant's ESI search were produced in May 2011, constituting approximately 70,000 pages. (Doc. 128, at 10.) Thereafter, Defendant contends it continued to review the documents at issue "for privilege and [to] generate a privilege log." (Id.) Plaintiff's counsel was notified of defense counsel's "ongoing work" in this regard. (Id.; see also Docs. 128-8, 128-9, 128-10.) These communications occurred in May and June 2011. (Id.) The resulting privilege log was produced to Plaintiff's counsel on August 29, 2011. (Doc. 128.) The present motion (Doc. 121) was not filed by Plaintiff's counsel until October 3, 2011 — 6 months after the hearing on Plaintiff's underlying motion to compel (Doc. 91), some 5 months after the ESI documents were delivered to Plaintiff's counsel in May 2011, and 35 days after the August 29, 2011, production of the privilege log at issue.
The Court thus finds Plaintiff's complaints regarding the format and substance of the production to be untimely, as are any complaints regarding Defendant's privilege log. The underlying issue relating to these documents stems from Defendant's responses to Plaintiff's discovery requests and Defendant's compliance with this Court's Order on Plaintiff's prior motion to compel. Following the hearing and written Order on Plaintiff's motion to compel, Defendant produced the resulting discovery documents at issue to Plaintiff in May 2011. Therefore, pursuant to D. Kan. Rule 37.1(b), any additional motion relating to the sufficiency of this production should have been filed within 30 days "of the default or service of the response . . . that is the subject of the motion, unless the court extends the time for filing such motion for good cause." Plaintiff has not established good cause for waiting approximately 5 months after the document production to bring the present motion.
