United States District Court, E.D. Pennsylvania
March 19, 2004
Kevin K. Carton, Jr., Michael G. Trachtman, Powell Trachtman Logan Carrle, et. al., King of Prussia, PA, for Plaintiff.
Barry H. Boise, Pepper Hamilton LLP, Philadelphia, PA, Christopher Kliefoth, McDermott Will & Emery, Washington, DC, Edward W. Madeira, Jr., Karen Dorothy McDonnell, Pepper, Hamilton and Scheetz, Philadelphia, PA, for Defendants.
Wendi S. Meltzer, Hoyle, Fickler, Herschel & Mathes LLP, Philadelphia, PA, for Respondent.
*1 AND NOW, this 19th day of March, 2004, presently before the Court are four motions in limine by Plaintiff, Nutrition Management Services Company (“Nutrition Management”), (Doc. Nos.50, 51, 52, 101), and a motion by Defendants, Harborside Healthcare Corporation and Harborside Healthcare Limited (collectively “Harborside”) to quash a subpoena duces tucem. (Doc. No. 55.) Upon consideration of the motions, and all papers filed in support thereof, and in opposition thereto, it is ORDERED as follows:
1. Plaintiff contends that Defendant should not be permitted to argue that it supplied 1999 wage information to Plaintiff because Defendants have never produced documents supporting this argument. We agree with Defendant that the existence or non-existence of these documents is not established. Thus, it cannot be said that the failure to produce such documents is a result of Defendants' wrongdoing. It is inappropriate to sanction a party where there is no evidence of the party's wrongdoing in failing to produce existing evidence.
To the extent the documents do not presently exist, both parties can argue and produce oral testimony concerning what the documents did or did not say. For these reasons, Plaintiff's Motion in Limine to Preclude Defendants from Contending or Seeking to Prove That They Supplied 1999 Wage Information to Plaintiff (Doc. No. 50) is DENIED;
2. Plaintiff contends that Defendants should be precluded from arguing that Plaintiff provided improper or substandard services because Defendants' employee testified that the only reason Defendants did not pay Plaintiff money owed was because of a financial disagreement. As a result of this testimony, Plaintiff argues that any evidence of substandard care is not relevant to the dispute, and if allowed to be introduced would only serve to unfairly prejudice the finder of fact. See
FED.R.EVID. 401, 403. In the First Amended Complaint, Plaintiff made numerous representations about the quality of service provided to Defendants. (First Am. Compl. 33, 43, 56, 65, 67.) Defendants responded to these assertions with general denials. (Doc. No. 15.) Plaintiff “opened the door” for performance to be a relevant issue. For that reason, Plaintiff's Motion in Limine to Preclude Defendants from Contending or Seeking to Prove that Plaintiff Provided Improper or Substandard Services (Doc. No. 51) is DENIED;
3. Plaintiff believes that Defendants have violated the duty to preserve information that is potentially relevant to the litigation.
Plaintiff contends that during the discovery process, Defendants should have produced e-mails concerning the formation of an oral contract with Plaintiff. Defendants admit that they routinely communicated through e-mail. See e.g.
(App. Pl.'s Mot. for Partial Summ. J. Tab 1 “Dell'Anno Dep. 1,” at 41-42; Tab 3 “Raso Dep.,” at 14-20.) Plaintiff believes that since no e-mails were produced concerning these conversations, it can be inferred that Defendants improperly destroyed these e-mails. Defendants admit that they had no system to retain e-mails, but deny that they have failed to produce any relevant e-mails. (Defs.' Opp'n Ex. 1 “Dell'Anno Aff,” Ex. 2 “Raso Aff.”.)
*2 “The unexplained failure or refusal of a party to judicial proceedings to produce evidence that would tend to throw light on the issues authorizes, under certain circumstances, an inference or presumption unfavorable to such party.” Gumbs v. Int'l Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983). In the instant case, Defendants have produced sworn testimony that all e-mails discussing the relationship with Plaintiff were produced in discovery. In addition, Defendants state that the legitimate reason for erasing some e-mails, “was simply a function of cleaning the junk mail and other clutter from the computer software and disk storage space....” (Defs.' Opp'n at 3.)
Plaintiff has provided no evidence that the content of any destroyed e-mails was important or relevant. “Before drawing an adverse inference, courts typically require some showing, by circumstantial evidence or otherwise, of the content of the destroyed evidence.” Emerson v. Wetherill,
No. Civ. 92-4082, 1994 WL 249760, at *3 (E.D. Pa. June 1, 1994) (citing Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 218-19 (1st Cir.1982)). In Emerson,
defendant was not sanctioned because plaintiff had no evidence that the documents destroyed contained relevant evidence. 1994 WL 249760, at *3. The cases Plaintiff cites in which sanctions were imposed involve situations where destruction of evidence was willful or egregious, and the evidence was relevant. See
In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 614 (D.N.J.1997) (defendants violated a court order to preserve documents, and probability of loss of relevant documents was great with plaintiff class that involved 10.7 million policyholders); Saul v. Tivoli Systems, Inc.,
No. 97 Civ. 2386, 2001 U.S. Dist. Lexis 9873, at *30 (S.D.N.Y. July 17, 2001) (evidence clearly showed that failure to turn over documents was either a deliberate decision or gross carelessness in carrying out discovery obligations); Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 109 (S.D.Fla.1987) (“From the array of evidence brought before this Court, it is disturbingly apparent that [defendant], ordered the immediate destruction of documents directly pertaining to [p]laintiff's [c]omplaint....”); Capellupo v. FMC Corp., 126 F.R.D. 545, 551 (D.Minn.1989) (“The conduct of defendant's officers and employees, both in the destruction of documents and in their efforts to disguise their wrongful acts, are charitably described as “outrageous.”). There is no evidence supporting the conclusion that relevant e-mails were destroyed. As there is no evidence that any relevant documents were destroyed, it would be improper to sanction Defendants and prevent them from disputing a central issue in this case. For these reasons, Plaintiff's Motion in Limine to Preclude Defendants from Contending or Seeking to Prove That Plaintiff and Defendants Entered into an Oral Guaranty or Capitation Agreement, Because of Defendants' Failure to Preserve and Produce Internal E-Mails Respecting the Purported Agreement (Doc. No. 52) is DENIED;
*3 4. Plaintiff argues that Defendants should be precluded from disputing that they owed $2,196,096 to Plaintiff. This argument is based on the fact that at a deposition on July 24, 2003, Defendants' auditor produced a document illustrating this liability. Though Plaintiff had requested any such documentation, no documents had previously been given to Plaintiff that contained this information. Plaintiff contends that because of Defendants' failure to turn over relevant, requested documents, it is a proper sanction under Fed.R.Civ.P. 37(c) to preclude Defendants from contesting that liability. Defendants' auditor testified at this deposition that he had never seen this document before. By itself, the fact that a document was not produced is not sufficient to warrant the requested sanction. See
Kiss, 2001 WL 568974, at *8. For that reason, Plaintiff's Motion in Limine to Preclude Defendants from Denying That Defendants' Books and Records Reflect an Audited Liability Due and Owing to Plaintiff of $2,196,096 (Doc. No. 101) is DENIED;
5. On February 25, 2003, Plaintiff served a subpoena on Defendants' former employee, Brian McGowan. Discovery in this case ended on January 1, 2003. Defendants' Motion to Quash a Certain Subpoena Duces Tecum (Doc. No. 55) is GRANTED.
“The United States Court of Appeals for the Third Circuit has stated that the exclusion of critical evidence is an ‘extreme’ sanction, not normally to be imposed absent a showing of willful deception or ‘flagrant disregard” of a court order by the proponent of the evidence.” Kiss v. Kmart Corp.,
No. Civ. A. 97-7090, 2001 WL 568974, at *8 (E.D.Pa. May 22, 2001) (citing Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 719 (3d Cir.1997)) (internal quotations omitted).
In this order we only discuss Plaintiff's arguments concerning the possible “spoilation” of evidence.
Plaintiff failed to respond to this motion. If Plaintiff still wishes to take this deposition, we will consider such a request.
End of Document.