No. 10–2696 STA/TMP
September 25, 2012
Anica C. Jones, Equal Employment Opportunity Commission, Nashville, TN, Faye A. Williams, Joseph M. Crout, Kelley R. Thomas, Matthew H. McCoy, Equal Employment Opportunity Commission, Memphis, TN, for Plaintiff.
Delaine R. Smith, Asia Nicole Diggs, Louis P. Britt, III, Memphis, TN, Jason Keith Priebe, Ada W. Dolph, Christopher J. DeGroff, Gerald L. Pauling, Rebecca Sharon Bromet, Seyfarth Shaw, LLP, Chicago, IL, for Defendant.
ORDER ON EEOC'S SUPPLEMENTAL MOTION FOR SANCTIONS
*1 Before the court by order of reference is plaintiff Equal Employment Opportunity Commission's (“EEOC”) Supplemental Motion for Sanctions.
(ECF No. 88.) Defendant New Breed Logistics (“New Breed”) filed a response in opposition. (ECF No. 90.) The court conducted a hearing on the motion, and took the matter under advisement. After the hearing, New Breed filed a Supplemental Memorandum Regarding Plaintiff's Motion for Sanctions (ECF No. 97), which prompted the EEOC to file a response in opposition to New Breed's supplemental response. (ECF No. 98.)
For the reasons below, the motion is GRANTED in part and DENIED in part.
A. Factual Background
On September 23, 2010, the EEOC filed this action against New Breed alleging violations of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq. and Title I of the Civil Rights Act of 1991, 42 U.S.C. § 1981a. The complaint was filed on behalf of Tiffany Pete, Capricious Pearson, Jacqueline Hines, and other female workers who were adversely affected by New Breed's alleged unlawful employment practices that occurred during April and May of 2008. The EEOC claims that James Calhoun, a supervisor at New Breed's facility in Memphis, Tennessee, subjected Pete, Pearson, and Hines to unwanted sexual advances and that New Breed retaliated against them for opposing the sexual harassment, by having them fired. The EEOC also alleges that New Breed retaliated against Christopher Partee for opposing these practices, by terminating his employment.
Pete, an employee of Select Staffing (a temporary staffing agency), was placed on a work assignment at New Breed's Memphis facility on April 1, 2008. She worked in the Shipping Department for approximately one week before being transferred to the Receiving Department, where Calhoun was the Receiving Department Supervisor. Within a day or two of Pete's transfer, Calhoun allegedly began sexually harassing her by frequently making sexually explicit comments about her clothes and body, and about wanting to engage in sexual acts with her. Pete was warned by other female employees that she would be fired if she complained about the harassment.
On May 13, 2008, Pete placed an anonymous call to New Breed's “Alertline” EEO compliance hotline and complained that Calhoun was making sexually explicit remarks to female employees and showing favoritism to one of the female workers. (See
ECF No. 27–4.) Pete informed the operator that Calhoun “continuously comments on female employees' breasts and behind, always in a complimentary fashion. However, these comments are not welcomed.” She also stated that “the remarks are inappropriate and violate the company's sexual harassment policies” and requested that New Breed interview employees to investigate Calhoun's conduct. The EEOC claims that New Breed did not promptly investigate Calhoun in response to Pete's complaint.
*2 New Breed subsequently transferred Pete to the Returns Department under the supervision of Elizabeth Malone. On May 17, 2008, Pete returned home from work to discover a phone message from Select Staffing, advising her that her assignment at New Breed had been terminated. According to New Breed, Malone made the decision to terminate Pete—along with another Select Staffing employee who worked with Pete at New Breed, Capricious Pearson-because they failed to follow Malone's instructions regarding inventorying of parts. On May 19, Pete complained in writing to Select Staffing about the sexual harassment she experienced while working at New Breed. (ECF No. 27–5.) Select Staffing forwarded the written complaint to New Breed. On May 21, Pete called the Alertline twice to follow up on her initial complaint, at which time she disclosed her identity to the operator. Pete named co-worker Christopher Partee as a person having knowledge of the reported behavior, and she gave the operator his phone number. She also identified Pearson as a witness to the harassment. New Breed placed Calhoun on suspension on May 22, pending an internal investigation. According to New Breed, beginning on May 13, its Human Resources Manager, Carissa Woods, conducted an investigation and interviewed nine individuals. Based on Woods's investigation, New Breed terminated Calhoun on May 30. (ECF No. 27–10, 27–11.)
Pete filed a discrimination charge on June 17, 2008, alleging “[d]uring my employment, I was subjected to sexual harassment from James Calhoun, a male. The sexual harassment included, but was not limited to: sexual gestures and sexual comments. I reported the sexual harassment to the company and thereafter, my assignment ended for no reason. I believe that I have been discriminated against because of my sex, female, and retaliated against for reporting the sexual harassment....” Of the former employees named in the EEOC's complaint, only Pete filed a formal charge of discrimination. Notice of the charge was mailed to New Breed on June 19, 2008. However, because the charge contained an incorrect address, New Breed did not receive the charge until, at the earliest, June 23, 2008.
Pearson was placed on a work assignment in the Receiving Department at New Breed's Memphis facility on April 8, 2008. Within Pearson's first week of work, Calhoun allegedly began making sexually explicit remarks to her and touching her inappropriately. Pearson complained directly to Calhoun and asked him to stop. Calhoun allegedly responded by telling Pearson, “If anyone goes to [the Human Resources Director] on me, they will be fired.” Pearson was subsequently transferred to the Returns Department. On May 17, Pearson saw Calhoun and Malone engage in a lengthy conversation, and by the end of the day, her job was terminated (on the same day as Pete). Like Pete, Pearson submitted a written complaint of sexual harassment to Select Staffing on May 19, which Select Staffing forwarded to New Breed. In her May 19 complaint, Pearson listed Partee as a person with knowledge of her allegations. (ECF No. 27–5.)
*3 Hines, also a Select Staffing employee, worked in the Receiving Department at New Breed's Memphis facility in May 2008. On a daily basis, she was allegedly subjected to sexually explicit and hostile comments by Calhoun. Hines complained directly to Calhoun and asked him to stop the behavior, and within a week of her complaint, Hines was terminated from her employment. On May 22, Woods interviewed Hines over the phone as part of the Calhoun investigation. Hines told Woods that Calhoun had subjected her to sexual harassment and that she had witnessed him harass other female employees. On May 28, 2008, Hines applied for a job at New Breed's facility in Olive Branch, Mississippi, without revealing that she had previously worked at the Memphis facility. She was hired as a permanent employee at the Olive Branch facility on June 11, 2008. On June 20, 2008, Hines was fired from her position at the Olive Branch facility, allegedly at the direction of Woods, because she had failed to disclose in her employment application her prior employment at the Memphis facility. The EEOC claims that this second termination was in retaliation for participating in the Calhoun investigation.
Partee worked at New Breed's Memphis facility from October 2007 through May 2008. He worked as a forklift driver in the Receiving Department under the supervision of Calhoun. As part of the Calhoun investigation, Woods interviewed Partee on May 22. Partee told Woods that he had witnessed Calhoun sexually harass female employees. At around this same time, Calhoun reported that Partee had falsified time records. According to Calhoun's deposition testimony, he and another management-level employee (Sheldon Culp) watched video surveillance recordings on May 24, 2008, which allegedly showed Partee falsifying his time records. (ECF No. 42, Ex. 7.) On May 29, 2008, New Breed fired Partee.
However, according to New Breed, LuAnne Hearn (a member of New Breed's Human Resources department) suspended Partee on May 21, 2008, conducted an investigation, and submitted an investigation report recommending that Partee's employment be terminated for falsifying his time records. His termination was approved on May 27, and became effective May 29. It is undisputed that New Breed did not preserve the surveillance video that allegedly showed Partee falsifying his time records. According to New Breed, the Partee video was erased within thirty days after Partee's termination, because the company's surveillance videos are recorded on a thirty-day cycle and are automatically recorded over if not saved.
B. Supplemental Motion for Sanctions
Although New Breed received notice of the charge filed by Pete on June 23, 2008, and was subsequently investigated by the EEOC on Pete's charge, New Breed made no effort to preserve any emails or any other electronically stored information (“ESI”) relating to Pete's charge until shortly after it received notice of the EEOC's complaint over two years later.
During that 27–month period, New Breed did not issue a litigation hold letter, take steps to preserve emails, suspend or alter routine destruction of emails, or collect emails from the company's key players.
Also during that 27–month period, New Breed's email server backup tapes for 2008 were overwritten in 2009, because the company used the 2008 tapes to make the 2009 backups. Moreover, according to New Breed, Calhoun's email account was purged thirty to sixty days after his termination. (ECF No. 97.)
*4 According to New Breed, the EEOC, during its investigation, did not request that New Breed produce or make available for inspection any emails or other ESI. The EEOC spent at least a full day on-site at New Breed's Memphis facility, interviewed several witnesses, and sent multiple letters requesting documents and information. However, the EEOC did not request emails until several months after the lawsuit was filed.
On September 23, 2010, New Breed learned of the complaint and retained outside counsel.
New Breed immediately preserved the emails for certain key players: Richard Valitutto, Culp, Hearn, Dan Pryzbelinski, and Woods. New Breed then issued a litigation hold letter, dated September 28, 2010, to Culp, Hearn, Pryzbelinski, and Woods. However, no effort was made to preserve any emails for Malone. In July 2011, two IT employees for New Breed sorted and collected the previously preserved emails, as well as emails from the local computer files for Culp, Hearn, Pryzbelinski, Woods, and Malone. New Breed's counsel reviewed the collected emails that were within the date range of April 1, 2008 through May 31, 2008, and produced relevant emails to the EEOC. The 2009 year end backup tapes have been preserved by New Breed, but have not been restored or searched.
In its Supplemental Motion for Sanctions, the EEOC contends that its efforts to obtain discovery have been thwarted by New Breed's failure to preserve evidence. Specifically, the EEOC claims that New Breed's duty to preserve relevant evidence was triggered, at the latest, on June 23, when New Breed received notice of Pete's charge. The EEOC asserts that New Breed spoliated evidence by failing to identify and timely preserve relevant emails from the computers and network accounts belonging to Calhoun, Malone, and Woods; erasing the hard drive on Calhoun's work laptop computer after he was terminated; and taping over the video surveillance recording that purportedly showed Partee falsifying time records and which served as the basis for his termination. The EEOC seeks spoliation sanctions in the form of an adverse inference jury instruction; expenses associated with restoring the 2009 backup tapes and conducting forensic examinations of the servers, computers, and hard drives “of all the key players,” including the cost of making mirror images of and analyzing data on all the hard drives; and payment of attorney's fees and costs.
Pursuant to Fed.R.Civ.P. 37, a court is authorized to impose sanctions when a party fails to cooperate in discovery or obey a discovery order. Provience v. City of Detroit, No. 10–11719, 2011 WL 7445088, at *6 (E.D.Mich. Nov.28, 2011) (citing Grange Mut. Cas. Co. v. Mack, 270 F. App'x 372, 376 (6th Cir.2008)). A court may use its inherent powers to enter sanctions against a party due to spoliation of evidence. Id.
(citing Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir.2009)). Spoliation of evidence occurs when a party destroys, significantly alters, or fails “to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Nacco Materials Handling Grp. v. Lilly Co., 278 F.R.D. 395, 402 (W.D.Tenn.2011) (internal quotation marks and citations omitted). The court has “broad discretion in crafting a proper sanction for spoliation[,]” and “the severity of a sanction may, depending on the circumstances, correspond to the party's fault.” Adkins, 554 F.3d at 652–53. Spoliation sanctions are now governed by federal law. Id.
*5 Only after proof of a discovery violation will sanctions for the spoliation of evidence become available. A discovery violation occurs when a party (1) has a duty to preserve evidence, and (2) fails to take reasonable steps to do so. See, e.g.,
Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir.2010); Northington v. H & M Int'l, No. 08–CV–6297, 2011 WL 663055, at *11 (N.D.Ill. Jan.12, 2011) (“A party fulfills its duty to preserve evidence if it acts reasonably.”). The duty to preserve evidence arises when a party either (1) receives “notice that the evidence is relevant to litigation” or (2) should “know[ ] that the evidence may be relevant to future litigation.” John B. v. Goetz, 531 F.3d 448, 459 (6th Cir.2008).
Spoliation sanctions are available for the destruction of both ESI and non-electronic evidence. Goetz, 531 F.3d at 459. A proper spoilation sanction “should serve both fairness and punitive functions.” Adkins, 554 F.3d at 652. In Nacco Materials,
Magistrate Judge Diane K. Vescovo found sanctions to be appropriate where the defendant “failed to timely issue an effective written ligation hold, to take appropriate steps to preserve any existing electronic records, to suspend or alter automatic delete features and routine overwriting features, and to timely and effectively collect ESI.” 278 F.R.D. at 404.
In the present case, the EEOC argues that three pieces of evidence were spoliated by New Breed: Calhoun's work laptop computer, the video that allegedly showed Partee falsifying time records, and the emails for key players. As an initial matter, the court finds, based on the affidavit from Thomas Doan (IT Security Analyst for New Breed), that Calhoun did not have a work laptop computer. Doan states in his affidavit that New Breed's IT group mistakenly believed that Calhoun had been issued a laptop computer, when in fact the laptop in question was actually issued to a different employee named Joe Calhoun. (Doan Aff. 4.) Instead, James Calhoun accessed his computer documents through a “virtual” user profile on a terminal that did not permit the local storage of electronic documents. (Id. 6.) Although Calhoun could have accessed documents located on his virtual user profile from any computer within New Breed's Memphis facility, he would not have been able to save any documents locally to any of those computers. (Id. 7.) All documents had to be saved to the “virtual” user profile, which is stored on New Breed's network file server. (Id.
) By accessing the network server, New Breed was able to locate within James Calhoun's “My Documents” subfolder two Microsoft Excel spreadsheets and two Microsoft Word documents. (Id. 8.) Of these four documents, only one was relevant to this litigation-a document which had been previously produced by New Breed during discovery. To state the obvious, because James Calhoun did not have a work laptop computer, New Breed could not have spoliated this non-existent hard drive evidence.
Therefore, the court will only consider below whether New Breed spoliated the Partee video and potentially relevant emails.
A. New Breed's Failure to Preserve Evidence
*6 1. When New Breed's Duty to Preserve Evidence was Triggered
The EEOC must first show that New Breed “had an obligation to preserve [the allegedly spoliated evidence] at the time it was destroyed because [i]t goes without saying that a party can only be sanctioned for destroying evidence if it had a duty to preserve it.” Provience, 2011 WL 7445088, at *7 (quoting Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., No. 06–CV–13143, 2009 WL 998402, at *5 (E.D.Mich. Apr. 14, 2009)) (internal quotation marks omitted). New Breed received notice of Pete's EEOC charge on June 23, 2008. Therefore, the duty to preserve documents relevant to Pete's charge arose on that date. See
Curcio v. Roosevelt Union Free School Dist., No. 10–5612(SJF)(AKT), 2012 WL 3236645, at *6 (E.D.N.Y. Aug. 10, 2012) (concluding that the defendant's duty to preserve arose no later than the time that it received the plaintiff's EEOC charge); Adorno v. Port Auth., 258 F.R.D. 217, 228 (S.D.N.Y.2009) (“With the filing of EEOC Charge, Defendant had reason to anticipate litigation and was under an obligation to put in place litigation hold extending to email as well as paper documents relevant to the charge.”); Zubalake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003) (duty to preserve arose when plaintiff filed her EEOC charge). However, the duty to preserve documents relevant to the EEOC's complaint, which makes allegations that are broader in scope than Pete's original charge, did not arise until New Breed learned about the complaint on September 23, 2010. While New Breed's duty to preserve could have arisen earlier had it been put on notice during the EEOC investigation of the future claims, the record before the court contains no evidence that the EEOC advised New Breed of the broader allegations prior to September 23.
Therefore, the court finds that there are two relevant trigger dates for preservation purposes: June 23, 2008 for Pete's charge and September 23, 2010 for the charges in the complaint.
“A party has a duty to preserve all relevant documents ... in existence at the time the duty to preserve attaches and any relevant documents created thereafter ... includ[ing] ... electronic evidence.” Nacco Materials, 278 F.R.D. at 403 (citing Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Secs., LLC, 685 F.Supp.2d 456, 475 (S.D.N.Y.2010)). Under the facts of this case, New Breed's duty to preserve did not include preserving all (or even many) of its employees' emails. The allegations of sexual harassment are based on conduct that took place in a warehouse environment, perpetrated by one supervisor who, as evidenced by the recently produced “virtual” file documents, infrequently used the computers at work. The allegations of unlawful termination and retaliation relate to a narrow group of key players. None of the victims of Calhoun's harassment had access to email accounts at work, nor have any of them alleged that Calhoun or anyone else used email to communicate with them. Calhoun, Woods, Hearn, and other New Breed employees have been deposed, and there is no evidence to suggest that any other employees' email accounts other than the key players identified in the EEOC's motion could potentially have relevant emails.
*7 Nevertheless, these facts do not obviate New Breed's obligation to preserve relevant electronic evidence. The court finds that, as of June 23, 2008, the scope of New Breed's duty to preserve evidence included relevant emails for Calhoun (who allegedly harassed Pete), Malone (who terminated Pete, as well as Pearson), and Woods (who investigated Pete's complaint). When New Breed received notice of the September 23, 2010 complaint, the duty to preserve expanded based on the broader claims brought on behalf of other employees. Of course, New Breed had a continuing duty to preserve emails for Woods, Malone, and Calhoun.
The EEOC contends that, as of June 23, the scope of New Breed's duty to preserve relevant documents included preserving the Partee video. The court disagrees. It was not reasonable for New Breed to make the connection between Pete's charge and the Partee video based on the filing of the charge. While it is true that New Breed was aware that Partee was identified as a potential witness, and that he was interviewed by Woods in connection with the Calhoun investigation, his role as a witness did not make the video relevant to Pete's charge. Indeed, there is no evidence that during its investigation the EEOC ever asked New Breed for a copy of the Partee video. It was not until New Breed received notice of the EEOC complaint that it became aware of the relevance of the video, and by then the video had long been erased. In addition, because New Breed received Pete's charge after the thirty-day period in which New Breed recycles its surveillance videos, the Partee video would have been erased by June 23. For these reasons, the court concludes that New Breed did not have a duty to preserve the Partee video on June 23, and therefore did not spoliate this piece of evidence.
Upon being notified of Pete's charge on June 23, 2008, New Breed took no action to issue a written litigation hold, to prevent emails from being deleted, to prevent data from being overwritten, and to identify and preserve backup tapes. Nacco Materials, 278 F.R.D. at 403. New Breed's preservation efforts did not begin until shortly after the EEOC filed its complaint, and even then, its preservation efforts did not include Malone. As discussed above, New Breed's preservation efforts after receiving notice of Pete's charge were deficient with respect to Calhoun, Woods, and Malone. Furthermore, New Breed should have mitigated the spoliation of these emails by preserving the 2008 backup tapes, but instead allowed them to be overwritten in 2009. New Breed's action and inaction constitute discovery violations and may
have resulted in the permanent loss of relevant emails.
B. Appropriate Sanctions
The EEOC requests an adverse inference jury instruction based on New Breed's spoliation. An adverse inference instruction “is an extreme sanction and should not be imposed lightly.” Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y.2009) (citation omitted). The moving party must prove that (1) the spoliator had control over the evidence and an obligation to preserve it at the time of destruction or loss; (2) the spoliator acted with a culpable state of mind upon destroying or losing the evidence; and (3) the spoliated evidence is relevant to the moving party's claim or defense. Pension Comm., 685 F.Supp.2d at 467; see also
Provience, 2012 WL 7445088, at *6. For severe sanctions such as adverse inference instructions, “the court must consider, in addition to the conduct of the spoliating party, whether any missing evidence was relevant and whether the innocent party has suffered prejudice as a result of the loss of evidence.” Pension Comm., 685 F.Supp.2d at 467. “It is not enough for the innocent party to show that the destroyed evidence would have been responsive to a document request. The innocent party must also show that the evidence would have been helpful in proving its claims or defense-i.e., that the innocent party is prejudiced without that evidence.” Id.
*8 The court finds that an adverse inference instruction is not warranted in this case. There is no evidence that New Breed's failure to preserve emails was done intentionally, willfully, or in bad faith. Even though negligence in certain situations may support the sanction of an adverse inference instruction, see Provience, 2011 WL 7445088, at *8–9 (discussing split of authority), this case does not present such a situation. Importantly, the EEOC has not shown whether any emails that may have been destroyed were relevant, nor has it shown that it has suffered prejudice. Instead, as discussed below, the court will require New Breed to pay for restoration and examination of the 2009 backup tapes.
Alternatively, the EEOC requests that the court require New Breed, at its own expense, to restore the 2009 backup tapes and to pay for a forensic examination of the backup tapes, servers, computers, and hard drives of all key players, including the cost of making mirror images of all the hard drives and analyzing the data. “Courts should be free to tailor sanctions in order to remedy any harm caused by a failure to implement ligation holds to preserve potentially relevant evidence.” Nacco Materials, 278 F.R.D. at 406. According to New Breed, the cost for restoring the 2009 backup tapes would be between $6,000.00 to $10,000.00. There are a total of 33 backup tapes, and the final cost will depend on whether the tapes with emails happen to be among the first set of tapes restored or the last set of tapes restored. According to New Breed's IT professionals, the 2009 backup tapes contain all network server data (including emails) that was in existence at the time the backup tapes were made. Thus, the 2009 backup tapes may or may not contain emails from 2008, depending on whether emails from 2008 were deleted from the server when the 2009 tapes were made. However, because of New Breed's failure to preserve emails timely and its failure to save the 2008 backup tapes, it is only fair and equitable for the court to give the EEOC an opportunity to find out if the 2009 tapes have relevant emails. As stated in Nacco Materials,
“[t]he only way to determine if relevant evidence currently exists or previously existed and was lost or destroyed is to conduct a forensic examination to see if such evidence exists.” Id.
Moreover, New Breed must bear all of the costs associated with restoring and examining the tapes because its preservation and collection efforts were inadequate. Nacco Materials, 278 F.R.D. at 407. Therefore, New Breed shall, at its own expense, restore the 2009 backup tapes, review the data, and produce relevant emails to the EEOC, within thirty days from the date of this order. As for further examination of servers, computers, and hard drives of all key players, these examinations are not warranted. The EEOC hass not identified any other deficiencies in New Breed' production of emails, other than the emails for Calhoun, Malone, and Woods from 2008. The most likely source of those emails would be the 2009 backup tapes. Therefore, the motion is denied as to these additional forms of relief.
*9 The EEOC's final request is for attorney's fees related to these discovery disputes. Awarding attorney fees “serves the remedial purpose of compensating [the movant] for the reasonable costs it incurred in bringing” motions for sanctions and motions to compel. Pension Comm., 685 F.Supp.2d at 471. The original motions filed by the EEOC contained numerous discovery disputes, not just the three disputes at issue in this order. The parties, after further meetings between counsel, were able to resolve the vast majority of those disputes. Of the three remaining disputes, only one warranted relief. And for the email dispute, the court has ordered New Breed to pay for all of the restoration and examination costs. Under these circumstances, an award of attorney's fees is not appropriate.
For the reasons above, the EEOC's motion to order New Breed to restore the 2009 backup tapes and to produce relevant emails is GRANTED. New Breed shall complete the tape restoration and document production within thirty days from the date of this order. As to all other forms of relief sought, the motion is DENIED.
This motion also relates to the EEOC's previously filed Motion to Compel and Motion for Spoliation Sanctions. (ECF Nos. 25, 27.) At the conclusion of the hearing on those earlier motions, the court ordered the parties to meet and confer on the issues raised. As set forth in the parties' status reports (ECF Nos. 79, 81) and the EEOC's Supplemental Motion for Sanctions, the parties resolved most of the discovery disputes raised in the prior motions. Only three discovery issues remain in dispute. This order resolves all of the remaining issues raised in the pending motions.
At the hearing, New Breed stated that it was possible New Breed's in-house counsel did not actually receive notice of the EEOC charge until sometime in early July 2008. However, because New Breed did not date stamp the receipt of the notice, it could not say for certain on what day after June 23 it received the notice. Because there is no further evidence supporting a later receipt date, the court will use June 23 as the date of New Breed's receipt of Pete's charge.
It is unclear exactly when the EEOC began its investigation. The investigation concluded in July 2010.
Although the EEOC's motion at times mentions ESI generally, the focus of its discovery dispute is based on New Breed's failure to preserve emails for Calhoun, Malone, and Woods. The court will therefore focus its analysis on New Breed's preservation and destruction of emails, as opposed to other forms of ESI.
It is unclear exactly when New Breed was served with the complaint. However, it is undisputed that New Breed took steps to preserve emails for certain key players shortly after the complaint was filed. Thus, it appears that New Breed received notice of the complaint sometime on or about September 23. Because the exact date is not material for purposes of deciding this motion, the court will use September 23 as the trigger date.
The EEOC has asked the court to strike New Breed's Supplemental Memorandum and Supporting Affidavit, because this “newly-discovered information is not reliable and contradicts [New Breed's] previously stated position, providing further support for the necessity of sanctions in this case.” (ECF No. 98.) The court shares the EEOC's frustration regarding New Breed's delay in providing this information. However, the court denies the request to strike the affidavit, as it appears to be reliable and clarifies the record on an important factual matter.
At the motion hearing, the court questioned the EEOC about the investigation. The EEOC was not able to provide the court with any details regarding the investigation that resulted in the filing of the complaint.
The EEOC also claims that New Breed “arguably” was under a duty to preserve the video as a “personnel record” under 29 C.F.R. § 1602.14. The EEOC has not cited to any case authority to support its interpretation of this regulation. Based on the court's reading of the plain language of the regulation, the court finds that the video does not fall within the personnel records covered by this regulation.
End of Document.