Filed: Jun. 19, 2019
Latest Update: Jun. 19, 2019
Summary: ORDER ONA T. WANG , Magistrate Judge . On October 1, 2018, Plaintiff filed a Motion for Sanctions for spoliation of Plaintiff's email account and SAP login and use data. (ECF 42-46). In that motion, Plaintiff requests, in the alternative, that the Court strike Defendants' answer and enter a default judgment; strike Defendants' affirmative defenses and issue a preclusion order; or allow the jury to be given an adverse inference instruction. Plaintiff also seeks costs and attorneys' fees. I
Summary: ORDER ONA T. WANG , Magistrate Judge . On October 1, 2018, Plaintiff filed a Motion for Sanctions for spoliation of Plaintiff's email account and SAP login and use data. (ECF 42-46). In that motion, Plaintiff requests, in the alternative, that the Court strike Defendants' answer and enter a default judgment; strike Defendants' affirmative defenses and issue a preclusion order; or allow the jury to be given an adverse inference instruction. Plaintiff also seeks costs and attorneys' fees. In..
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ORDER
ONA T. WANG, Magistrate Judge.
On October 1, 2018, Plaintiff filed a Motion for Sanctions for spoliation of Plaintiff's email account and SAP login and use data. (ECF 42-46). In that motion, Plaintiff requests, in the alternative, that the Court strike Defendants' answer and enter a default judgment; strike Defendants' affirmative defenses and issue a preclusion order; or allow the jury to be given an adverse inference instruction. Plaintiff also seeks costs and attorneys' fees.
In a Report and Recommendation filed concurrently with this Order, I recommended to Judge Gardephe that Plaintiff's request for an adverse inference instruction be granted but that Plaintiff's request to strike Defendants' answer or affirmative defenses be denied. The Report and Recommendation includes a full recounting of the facts, as well as my analysis of Plaintiff's motion for spoliation sanctions. For the reasons discussed in the Report and Recommendation, this Court finds that at the time Defendants deleted Plaintiff's ESI (her work email account and SAP account), they had an obligation to preserve Plaintiff's ESI in anticipation of litigation, yet they took no reasonable steps to preserve it, and now it cannot be restored or replaced through additional discovery. Further, Plaintiff has been prejudiced by Defendants' failure to preserve her ESI, warranting sanctions under Rule 37(e)(1).
Because Plaintiff was prejudiced by Defendants' failure to preserve her ESI, this Court may "order measures no greater than necessary to cure the prejudice," Fed. R. Civ. P. 37(e)(1), including attorney's fees and costs. An order for attorney's fees and costs under Rule 37(e)(1) is non-dispositive; thus, unlike Plaintiff's request for an adverse inference, I have authority to decide Plaintiff's request for attorney's fees and costs.1
Accordingly, it is HEREBY ORDERED that Plaintiff's request for attorney's fees and costs is GRANTED. Plaintiff is entitled to the attorney's fees and costs she incurred from May 2, 2018 to the present in litigating the issues of Plaintiff's email account and SAP account, including those Plaintiff incurred in connection with the instant motion. As to the amount of the award, Plaintiff shall submit her fee application by July 18, 2019. Defendants may submit a challenge to Plaintiff's calculation by August 1, 2019, and Plaintiff may reply by August 8, 2019.
SO ORDERED.
