Civil Action No. 07–931–JVP–SCR
United States District Court, M.D. Louisiana
April 24, 2009
Jill L. Craft, Baton Rouge, LA, for Zelia E. Brown.
Laurie M. Chess, Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Miami, FL, Jennifer L. Englander, Pauline F. Hardin, Jones Walker, New Orleans, LA, for ICF International.
RULING ON MOTION FOR RULE 37(b) SANCTIONS AND FOR ADVERSE INFERENCE
*1 Before the court is a Motion for Rule 37(b) Sanctions and for Adverse Inference filed by ICF Emergency Management Services, L.L.C. Record document number 57. The motion is opposed.
Plaintiff Zelia Brown filed this action alleging acts of racial and gender discrimination and retaliation committed by her employer, defendant ICF Emergency Management Services, L.L.C. Defendant's present motion was separated into two requests: (1) sanctions under Rule 37(b); and, (2) an adverse inference jury instruction.
Defendant filed this motion for sanctions arguing that the plaintiff failed to comply with the ruling issued on February 2, 2009, ruling on the defendant's Motion to Compel Discovery (hereafter “discovery ruling”).
In that discovery ruling, the court required the plaintiff to produce or make available for inspection and copying an audio recording of her May 2007 meeting with George Rodriguez and Renee Brinkhaus (hereafter “the Rodriguez recording”) and to pay the $300.00 in attorney's fees.
When the plaintiff failed to produce the Rodriguez recording, the defendant sought an order under Rule 37(b)(2)(A), Fed. R.Civ.P. prohibiting the plaintiff from supporting her claims of harassment, discrimination, retaliation, and/or whistle-blowing to the extent they are based on the actions or treatment by George Rodriguez, and prohibiting the plaintiff from introducing evidence of Rodriguez's alleged mistreatment of her. Defendant also requested that the plaintiff be held in contempt of court for failing to pay the attorney's fees awarded in the discovery ruling and be required to pay additional fees incurred in bringing the present motion.
Plaintiff argued that she complied with the discovery ruling. Plaintiff asserted that she provided an affidavit to the defendant stating that after a good faith search, she determined that she was not in possession of the Rodriguez recording.
Plaintiff asserted that while she testified in her deposition that she had the Rodriguez recording, she was mistaken about the identities of those ICF personnel she recorded because she had never listened to any of the recordings. Plaintiff also submitted evidence to establish that she submitted a check for $300.00 to the defendant on February 27, 2009, five days before the defendant filed this motion for sanctions .
The discovery ruling was based on all the facts relevant to the production of the Rodriguez recording submitted by both parties. If the plaintiff was not in possession of the recording, she should have made that assertion before the discovery ruling was issued. Plaintiff never indicated in her opposition to the motion to compel there was even a possibility that she was not in possession of the Rodriguez recording.
Instead, the plaintiff provided evidence to show that she had been working on producing the Rodriguez recording. The October 22, 2008 letter to counsel for the defendant, stated: “We are currently working on obtaining and producing a copy of the audio recording of Ms. Brown's meeting with Mr. Rodriguez.”
The November 26, 2008 letter to counsel for the defendant provided an outline of three recordings, but it made no representation that the plaintiff did not possess the Rodriguez recording.
Plaintiff also asserted in her opposition to the motion to compel, which she filed December 16, 2008, that she needed additional time to listen to her audio tapes and prepare outlines of the conversations.
Nothing in the opposition memorandum suggests that the plaintiff did not have possession of the Rodriguez recording. After reviewing both parties arguments and evidence, the court determined that the plaintiff was in possession of the Rodriguez recording and required her to produce it to the defendant.
*2 Either the plaintiff's failed to determine whether the Rodriguez recording existed prior to the discovery ruling, or she had the Rodriguez recording and decided she would not produce it. The evidence and sequence of events support finding the latter is what occurred. Consequently, there is no basis to retroactively change the discovery ruling.
The applicable sanctions for violation of a court order are found under Rule 37(b)(2)(A). Under the circumstances presented in this case, an appropriate sanction is to prohibit the plaintiff from supporting her claims of harassment, discrimination, retaliation, and/or whistle-blowing to the extent they are based on the actions, treatment/mistreatment or statements by George Rodriguez.
Defendant also requested that the plaintiff be held in contempt of court for failing to pay $300.00 in attorney's fees as required by the February 2, 2009 discovery ruling. Although the plaintiff provided evidence showing that payment was made on February 27, 2009, the discovery ruling required her to pay the defendant within 10 days. Plaintiff has offered no explanation for the delay. While the defendant requested that the plaintiff be held in contempt of court, the court finds that additional monetary sanctions under Rule 37(b)(2)(C) are more appropriate for the delinquent payment. Plaintiff will also be required pay to the defendant under Rule 37(b)(2)(C) the reasonable expenses incurred in bringing this motion .
Because the defendant did not submit any evidence of its expenses, the defendant will have 10 days to submit evidence to establish additional fees and expenses that were incurred in conjunction with collecting the attorney's fees awarded in the discovery order and drafting its motion for sanctions. Plaintiff will then be allowed 10 days to file a response. The court will then determine the amount to be awarded.
Defendant also sought an inference that the plaintiff's handwritten notes detailing allegations of her discrimination, harassment, retaliation, and/or whistle-blowing claims, which she subsequently destroyed, were adverse to her claims. Plaintiff asserted that the content of her notes was documented in her typed time lines and synopses, which were already produced to the defendant. Plaintiff argued that there is no evidence to support a finding that she intentionally destroyed evidence in bad faith or that the handwritten notes contained any information unfavorable to her position. Plaintiff also argued that the defendant was not prejudiced by the her actions because the information was preserved and the defendant had the opportunity to obtain additional information regarding the notes from the plaintiff and the people mentioned in those notes.
“Under the spoilation doctrine, a jury may draw an adverse inference ‘that a party who intentionally destroys important evidence in bad faith did so because the contents of those documents were unfavorable to that party.’ “
An adverse inference instruction based upon the spoliation of evidence is warranted only if the moving party establishes three elements: (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with a “culpable state of mind,” and (3) that the destroyed evidence was “relevant” to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.
The Fifth Circuit also requires a showing of “bad faith” or “bad conduct” before imposing an adverse inference sanction against a destroyer of evidence.
*3 A review of the record establishes that an adverse inference jury instruction is warranted. The facts presented by the defendant demonstrate the relevance of the handwritten notes. Defendant has been prejudiced by the destruction of the handwritten notes, despite the plaintiff's assertion that she transcribed those notes into a typed format.
At the time the notes were destroyed, the plaintiff had a duty to preserve the handwritten notes relevant to her claims.
As discussed in detail above, the evidence does not establish that these notes were transcribed verbatim, thus the plaintiff was still under an obligation to preserve and produce the notes. Plaintiff also cannot rely on the defense counsel's agreement to a typed version because the evidence shows that the handwritten notes were destroyed before this agreement was made. Moreover, the defense counsel's agreement to a “typed-up version” is vague and does not establish whether the defendant was satisfied with the plaintiff's Road Home Timeline and Synopsis in lieu of an actual transcription of the notes.
Plaintiff should have—and her counsel surely must have—been aware that the plaintiff's selective transcription did not relieve her of the duty to preserve the notes. Plaintiff had an obvious duty to preserve the underlying evidence she intended to use to support her claims.
During her deposition, the plaintiff testified that she “transcribed the important notes into typing.”
Plaintiff also acknowledged that the information from her yellow tablet notes was typed into the Synopsis and Timeline on Road Home Program.
These facts demonstrate that the notes were not actually transcribed, but instead the plaintiff used information from the notes to create supportive litigation documents. Defendant now cannot determine whether the notes contained any information contrary to what she put in her Synopsis and Timeline or which was detrimental to the plaintiff's claims. Obviously the plaintiff could have failed to include unfavorable information in her typed document. Without the handwritten notes, the defendant, the court—and ultimately the jury—is left only with the plaintiff's say-so about what was or was not in her notes.
Furthermore, with respect to the issue of culpability, the plaintiff originally testified that she had the notes at home,
but later claimed that she threw the notes away as she transcribed them into litigation documents. Plaintiff's blatant change in position demonstrates a lack of honesty. When these facts and all of the other circumstances are viewed in light of the plaintiff's prior acts and failures during the discovery process, particularly those surrounding the failure to produce the Rodriguez recording, they establish that the plaintiff acted in bad faith and with a culpable state of mind when she destroyed her yellow tablet notes.
The cases cited by the plaintiff are distinguishable and not controlling. In both In re DaimlerChrysler AG
and Hamilton v. Mount Sinai Hospital,
the underlying information was not lost. Rather, the decisions in those cases indicate that the handwritten notes were fully transcribed into a typed format. Plaintiff here did not transcribe her notes. Instead, she used the information selectively to create new documents to support her claims. The circumstances of those cases indicated nothing sinister or dishonest had occurred in connection with the destruction of the original notes. That is not true in this case.
*4 Accordingly, the Motion for Rule 37(b) Sanctions and for Adverse Inference filed by ICF Emergency Management Services, L.L.C. is granted in part, and denied in part. Pursuant to Rule 37(b)(2)(A)(ii), the plaintiff is prohibited from supporting her claims of harassment, discrimination, retaliation, and/or whistle-blowing with evidence of the actions, statements, treatment or mistreatment of the plaintiff by George Rodriguez. The jury shall be instructed that it may infer from the plaintiff's culpable, bad faith destruction of her handwritten yellow tablet notes after the litigation was initiated that these handwritten notes contained information adverse to her claims.
Pursuant to Rule 37(b)(2)(C), the defendant will have ten days to submit evidence to establish the fees and expenses incurred in conjunction with collecting the attorney's fees awarded in the discovery ruling and drafting its motion for sanctions. Plaintiff will then be allowed 10 days to file a response. The court will then determine the amount to be awarded.
Record document number 60.
Record document number 28, Ruling on Motion to Compel Discovery.
Record document number 60, exhibit G, Copy of Verification Affidavit of Zelia Brown. This affidavit was also submitted in conjunction with her appeal of the ruling on a Motion for Sanctions. Record document number 55. The appeal was denied on April 9, 2009. Record document number 61.
Plaintiff's exhibit H, Letter to Jennifer Englander dated February 27, 2009.
Record document number 43.
Record document number 43, p. 6.
There no other circumstances which make an award of expenses unjust.
Whitt v. Stephens County, 529 F.3d 278, 284 (5th Cir.2008), citing,
Russell v. Univ. of Tex., 234 Fed.Appx. 195, 207 (5th Cir.2007).
Consolidated Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 340 (M.D.La. July, 19, 2006), citing,
Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 220 (S.D.N.Y. Oct. 22, 2003).
Condrey v. Sun Trust Bank of Georgia, 431 F.3d 191 (5th Cir.2005).
Plaintiff did not dispute the fact that the notes were destroyed after the litigation had been instituted.
Plaintiff exhibit B, deposition of Vanessa Brower, p. 278.
Plaintiff exhibit A, deposition of plaintiff, p. 218.
Plaintiff exhibit E, Plaintiff's Answers to Second Set of Interrogatories and Request for Production of Documents, Response to Interrogatory No. 20.
Plaintiff exhibit A, deposition of plaintiff, p. 218.
2003 WL 22951696 (D.Del.2003), 2003 U.S.Dist.LEXIS 27720 (D.Del.2003).
528 F.Supp.2d 431 (S.D.N.Y.2007).
The exact jury instruction will be determined by the district judge.
End of Document.