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Defendant Sanctioned for Spoliation of Physical Evidence, But Not ESI: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Reed v. Kindercare Learning Centers et. al., No. 15-5634 (W.D. Wash., Nov. 17, 2016), Washington District Judge Benjamin H. Settle (yes, that’s his real name!) granted the plaintiff’s motion for discovery sanctions with respect to spoliation of physical evidence in the form of the facility where the plaintiff worked, but denied the plaintiff’s motion with regard to spoliation of ESI.

Case Background

In this disability discrimination case, the plaintiff had previously filed a Motion to Compel production of documents, which had been granted by the court (with certain limitations). After the defendants did not comply with the order, the plaintiff filed a motion for sanctions as well as a motion to compel entry upon land to inspect the facility where the plaintiff worked.  The plaintiff argued that, after she served the defendants with a notice of entry upon land to inspect the center where the plaintiff had worked, the defendants closed the center without notice and informed the plaintiff that the center had closed and that an inspection would not be possible, eventually informing the plaintiff that the fixtures/furniture were removed from the center and an inspection would not be possible, offering another center with a similar layout as an alternative.

The plaintiff also argued that Defendants “(a) failed to secure relevant email accounts prior to destruction; (b) searched for email and other records for the first time in response to this motion; and (c) possess dozens of relevant documents that were never produced or listed on a privilege log.”

The defendants filed a response to the motion for sanctions and also filed a motion for clarification or reconsideration of the granted motion to compel.

Judge’s Ruling

With regard to the request for the Court to clarify or reconsider its order based on the scope of the production and the deadline for production, Judge Settle, in denying the request, stated that “Defendants do not show a manifest error of law and, at most, submit new evidence that could have been brought to the Court’s attention earlier. Defendants previously argued, without support, that the requested production would not be proportional to the needs of the case. The Court dismissed this argument because it declined to evaluate proportionality in the absence of actual evidence. Thus, the fact that production may be disproportionate to the needs of the case is not an issue the Court will reconsider.”

With regard to the request for sanctions regarding spoliation of physical evidence (i.e., the center where the plaintiff had worked), Judge Settle stated “These facts show that Defendants have acted in at least a grossly negligent, irresponsible and cavalier manner with regard to the Notice of Entry upon the Lakewood center. Accordingly, the Court finds that an adverse instruction may be appropriate. The language of any instruction will be determined after Reed collects evidence from KinderCare’s other centers because, at this time, the Court is unable to properly weigh the prejudice Reed has suffered.”  Judge Settle also granted the plaintiff’s motion to inspect two other defendant locations, rejecting the defendant’s objection that the motion was untimely.

With regard to the request for sanctions for spoliation of ESI, Judge Settle stated that “[w]hile Defendants could have implemented better retention policies and more actively searched for electronically stored information, Reed has failed to show that Defendants have spoiled any evidence. In fact, Defendants have recently discovered and produced a relevant employee file.”

So, what do you think?  Was the Court’s argument for denying the ESI spoliation claim sufficient?  Please share any comments you might have or if you’d like to know more about a particular topic.

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