Rudolph v. Beacon Indep. Living, LLC
Rudolph v. Beacon Indep. Living, LLC
2012 WL 2804114 (W.D.N.C. 2012)
July 10, 2012
Cayer, David S., United States Magistrate Judge
Summary
The Court granted in part Plaintiffs' Motion to Compel and for Sanctions for Spoliation of Evidence, ordering Meldrich and Bleiman to preserve ESI and to submit computers for forensic examination to recover any deleted emails related to the facility. This ensures that all relevant evidence is preserved and available for the Court's consideration.
Mary B. RUDOLPH, et. al., Plaintiffs,
v.
BEACON INDEPENDENT LIVING, LLC, et. al., Defendants
v.
BEACON INDEPENDENT LIVING, LLC, et. al., Defendants
Civil Action No. 3:11–CV–617–FDW–DSC
July 10, 2012
Counsel
Rebecca Karen Cheney, Charlotte, NC, Adam Louis Horner, Hamilton Moon Stephens Steele & Martin, PLLC, Charlotte, NC, for Plaintiffs.John C. Snyder, III, Thurman, Wilson & Boutwell, P.A., Charlotte, NC, Wesley Lane Deaton, Pendleton, Pendleton & Deaton, PA, Denver, NC, for Defendants.
Cayer, David S., United States Magistrate Judge
MEMORANDUM AND ORDER
*1 THIS MATTER is before the Court on “Plaintiffs' Motion to Compel and for Sanctions for Spoliation of Evidence” (document # 119), and the parties' associated briefs and exhibits. See documents119–1 through 119–4, 120, 122 and 123).
This Motion has been referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636, and is now ripe for the Court's consideration.
On June 26, 2012, Defendant Bleiman met with non-party witness Joseph M. Meldrich whom Plaintiffs had served with a subpoena duces tecum. Meldrich's deposition was scheduled for June 27, 2012. Plaintiff alleges and Defendant Bleiman does not dispute that Bleiman instructed Meldrich to delete between twenty and forty emails that Meldrich stored on his computer. Meldrich complied.
At his deposition the next day, Meldrich admitted to deleting the emails and further testified that all of them were responsive to the subpoena.
On June 28, 2012, Plaintiffs filed the subject Motion requesting that the Court:
1. Order that Meldrich and Bleiman not delete, alter, amend, or in any way modify any email, documents, program, or system in any of their computers until further order of the Court.
2. Order Meldrich to submit his computer for a forensic examination, utilizing an forensic examiner of Plaintiffs' choice. The scope of the examination shall be to recover any and all emails deleted from the Beacon subfolder on June 26, 2012, and to gather electronic, native format versions of all records produced by Meldrich in response to the subpoena duces tecum, which files were produced as fixed images; and
3. Order Bleiman to produce a list of all computers he has used from April 2011 to the present and to submit all such computers for a forensic examination, utilizing an forensic examiner of Plaintiffs' choice. The scope of the examination shall be to recover any and all deleted emails related to the facility, and to gather electronic, native format versions of all records produced by Bleiman in response to the subpoena duces tecum and notice of deposition issued to him in this action;
4. Order Bleiman to pay the cost of the forensic examinations;
5. Further sanction Bleiman by striking Defendants' counterclaim against Mary Rudolph and Defendants' Third–Party Claim against Robert O. Rudolph; and
6. Further sanction Bleiman by awarding Plaintiffs their attorneys' fees incurred in preparing this Motion and the related brief and those fees incurred in responding to Bleiman's request to move his deposition from June 28, 2012.
7. Enter an order shortening the time for Defendants to respond to this Motion as the discovery deadline is currently July 2, 2012 and the deadline for dispositive motions is July 8, 2012.
8. Consider this Motion and its exhibits for purposes of Plaintiffs' Motion for Contempt (for witness tampering); and
9. For such other relief as this Court deems just and proper.
In his response brief, Defendant Bleiman asserts that all deleted data was recovered on June 27, 2012 and that it will be produced to Plaintiffs. Defendant concedes that he should bear the cost of “recovering the data from Joseph Meldrich.” Document # 122 at 4.
*2 On June 28, 2012, Defendant Bleiman appeared for his deposition.
After carefully considering the record, the applicable authority and the parties' arguments, the Court will grant in part Plaintiffs' Motion. For the reasons stated in Section I of Plaintiffs' Reply (document # 123), the Court will grant Plaintiffs the relief they seek in items 1, 2, 3, and 4 stated above.[1] The Court will also order Defendant Bleiman to pay Plaintiffs' attorneys' fees incurred in preparing this Motion and the related briefs.
NOW THEREFORE, IT IS ORDERED:
1. “Plaintiffs' Motion to Compel and for Sanctions for Spoliation of Evidence” (document # 119) is GRANTED IN PART and DENIED IN PART as follows:
a. The Court ORDERS Joseph M. Meldrich and Defendant Bleiman not to delete, alter, amend, or in any way modify any email, documents, program, or system in any computer they have access to until further order of the Court.
b. The Court ORDERS Joseph M. Meldrich to submit his computer for a forensic examination utilizing an forensic examiner of Plaintiffs' choice. The scope of the examination shall be to recover any and all emails deleted from the Beacon subfolder on June 26, 2012, and to gather electronic, native format versions of all records produced by Meldrich in response to the subpoena duces tecum, which files were produced as fixed images; and
c. The Court ORDERS Defendant Bleiman to produce a list of all computers he has used from April 2011 to the present and to submit all such computers for a forensic examination, utilizing an forensic examiner of Plaintiffs' choice. The scope of the examination shall be to recover any and all deleted emails related to the facility, and to gather electronic, native format versions of all records produced by Defendant Bleiman in response to the subpoena duces tecum and notice of deposition issued to him in this action;
d. The Court ORDERS Defendant Bleiman to pay the cost of the forensic examinations ordered above.
e. The Court ORDERS Defendant Bleiman to pay Plaintiffs their reasonable attorneys' fees incurred in preparing this Motion and the related briefs. Plaintiffs' counsel shall promptly submit to the Court a detailed statement of the attorneys' fees they have incurred in preparing this Motion and the related briefs. After reviewing that statement, the Court will AWARD Plaintiffs their reasonable attorneys' fees.
2. In all other respects, “Plaintiffs' Motion to Compel and for Sanctions for Spoliation of Evidence” (document # 119) is DENIED WITHOUT PREJUDICE to Plaintiffs' right to renew their Motion should Defendant fail to comply with this Memorandum and Order.
3. The Clerk is directed to send copies of this Memorandum and Order to counsel for the parties; and to the Honorable Frank D. Whitney.
SO ORDERED.