Siggers v. Campbell
Siggers v. Campbell
2014 WL 4978648 (E.D. Mich. 2014)
March 25, 2014

Grand, David R.,  United States Magistrate Judge

Failure to Preserve
Sanctions
Spoliation
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Summary
The court denied the plaintiff's motion for spoliation sanctions against the defendant, Ellen Campbell, finding that the plaintiff had not met his burden of proving that Campbell had knowledge of the threatened litigation before the plaintiff filed his complaint. The court also noted that the defendant's duty to preserve any ESI did not commence until the plaintiff filed his complaint.
Darrell SIGGERS, Plaintiff,
v.
Ellen M. CAMPBELL, et al., Defendants
Civil Action No. 07–12495.
United States District Court, E.D. Michigan, Southern Division
Signed March 25, 2014

Counsel

Darrell Siggers, Muskegon, MI, pro se.
John L. Thurber, MI Dept of Atty Gen, Lansing, MI, for Defendants.
Grand, David R., United States Magistrate Judge

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SPOLIATION SANCTIONS AGAINST ELLEN CAMPBELL [164]

*1 Before the Court is pro se Plaintiff Darrell Siggers' Motion for Spoliation Sanctions Against Defendant Campbell, filed on October 24, 2013. (Doc. # 164). Campbell filed a response to this motion on November 27, 2013 (Doc. # 176), and Siggers filed a reply on December 12, 2013 (Doc. # 179). An Order of Reference for General Case Management was entered on January 5, 2012, referring all pretrial matters to the undersigned pursuant to 28 U.S.C. § 636(b). (Doc. # 109).
Generally, the Court will not hold a hearing on a motion in a civil case in which a party is in custody. See E.D. Mich. L.R. 7.1(f). Here, the Court finds that the facts and legal issues are adequately presented in the briefs and on the record and declines to order a hearing at this time.
A. Background
Plaintiff Darrell Siggers is currently confined at Muskegon Correctional Facility in Muskegon, Michigan. On June 11, 2007, Siggers filed a pro se prisoner civil rights complaint against MDOC Defendants Patricia Caruso, Andrew Jackson, Ellen Campbell, and Norman Minton. (Doc. # 1). Presently, Siggers' sole remaining claim is for First Amendment retaliation against Campbell, arising out of her rejection of his legal mail on September 12, 2006.
In the instant motion, Siggers seeks spoliation sanctions against Campbell, alleging that she either willfully destroyed or culpably failed to preserve documents responsive to his discovery requests. According to Siggers, he served discovery requests on Campbell on September 17, 2007, which, in relevant part, sought production of “any e-mails, memo's or any other correspondence written by you, or to you concerning Plaintiff Siggers mail, or his status as a prisoner, while at the Mound Correctional Facility.” (Doc. # 16 at Ex. 5). Defendants moved to stay discovery on October 17, 2007 (Doc. # 16), and that motion was granted on August 26, 2008 (Doc. # 30). On December 15, 2008, however, the then-presiding magistrate judge entered an order vacating the discovery stay and establishing a discovery deadline of March 16, 2009. (Doc. # 47). Still, Campbell failed to provide responses to Siggers' discovery requests, and on August 26, 2009, the magistrate judge issued a report and recommendation granting Defendants' motion for summary judgment (Doc. # 66), which the district court adopted. (Doc. # 71).
On July 27, 2011, however, the Sixth Circuit issued an opinion affirming the district court's dismissal of all claims against Caruso, Andrew Jackson, and Minton, but reversing the grant of summary judgment in favor of Campbell and remanding for further proceedings. See Siggers v. Campbell, 652 F.3d 681 (6th Cir.2011). The Sixth Circuit specifically found that Campbell's summary judgment motion should have been denied because Siggers had not yet received discovery materials he had requested from Campbell that had “obvious relevance” to his claim against her. Id. at 697 (internal citations omitted).
*2 It was not until August 23, 2011—more than four years after Siggers filed his complaint in this matter—that a litigation hold was first put in place. (Doc. # 176 at 4, 6). And, as of December 2, 2011, Campbell still had not produced documents responsive to Siggers' discovery requests. Accordingly, this Court ordered her to do so by January 6, 2012. (Doc. # 105). On December 27, 2011, Campbell stated—in a response to yet another motion to compel filed by Siggers—that she had “provided Siggers with all of the emails in her possession.” (Doc. # 108 at 4). On June 12, 2012, this Court granted in part Siggers' motion for appointment of counsel. (Doc. # 122). The Court specified that counsel would be appointed to represent Siggers for the limited purpose of assisting him in obtaining the discovery that had been requested (specifically, certain e-mails that he had requested but which had not been adequately searched for or produced by Campbell). (Id. at 17–18). Appointed counsel vigorously and effectively assisted Siggers in those efforts (Doc. # 155), which ultimately led to Campbell producing only one document responsive to Siggers' discovery request—an e-mail, dated September 28, 2011, that she had sent to Deputy Warden Shane Jackson. (Doc. # 164 at 12).
B. The Pending Motion
Siggers filed the instant motion on October 27, 2013, arguing that spoliation sanctions are warranted against Campbell because of her failure to timely preserve documents responsive to his 2007 discovery requests. (Doc. # 164). According to Siggers, “When this lawsuit was filed in 2007, neither Defendant nor the State Agencies (MDOC & DTMB) took any steps to preserve any e-mails relevant to Plaintiff's allegations.” (Id. at 10) (emphasis in original). As a result, by the time Campbell actually undertook actions to preserve e-mails responsive to Siggers' discovery request, only one e-mail (from September 2011) was captured.
In response, Campbell argues that this case “can be divided up into three distinct phases”: the time period prior to the filing of Siggers' complaint; the time period between the filing of the complaint and implementation of the litigation hold; and the time period following the litigation hold. (Doc. # 176 at 5). Campbell argues that the only relevant time period is the period after the filing of Siggers' complaint (on June 11, 2007) and before implementation of the litigation hold (on August 23, 2011). (Id. at 5–8). But, while Campbell acknowledges that no e-mails were preserved during this period of time, she argues that spoliation sanctions are nevertheless inappropriate because Siggers has not established that specific documents existed at one point in time that no longer exist. (Id. at 6–7). In other words, Campbell asserts that “a spoliation sanction is inappropriate because Siggers cannot show that Campbell ever created any emails about him between June 11, 2007, and August 23, 2011.” (Id. at 8).
C. Analysis
*3 “ ‘Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.’ “ Barrette Outdoor Living, Inc. v. Michigan Resin Representatives, 2013 WL 3983230, at *9 (E.D.Mich. Aug.1, 2013) (quoting Forest Labs., Inc. v. Caraco Pharm. Labs., Ltd., 2009 WL 998402, at *1 (E.D.Mich. Apr.14, 2009)). In the Sixth Circuit, a party seeking sanctions for the destruction of evidence must show three things: (1) the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a “culpable state of mind”; and (3) 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. See Adkins v. Wolever, 692 F.3d 499, 503–04 (6th Cir.2012) (quoting Beaven v. United States Dept. of Justice, 622 F.3d 540, 553–54 (6th Cir.2010)).
With respect to the first factor, Siggers must show that Campbell “had an obligation to preserve [the allegedly spoliated evidence] at the time it was destroyed.” Forest Labs., Inc., 2009 WL 998402, at *2 (internal quotations omitted). “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Id. Thus, “the first step in the analysis is to determine the ‘trigger date,’ or ‘the date a party is put on notice that it has a duty to preserve evidence.’ ” Id. (quoting Clark Constr. Group, Inc. v. City of Memphis, 229 F.R.D. 131, 136 (W.D.Tenn.2005)).
In this case, it is clear that Campbell had an obligation to preserve relevant documents at least as of June 11, 2007, when Siggers filed his complaint in this case (indeed, Campbell concedes as much). (Doc. # 176 at 6–7). See Barrette Outdoor Living, 2013 WL 3983230, at *9 (“In most cases, the duty to preserve evidence is triggered by the filing of a lawsuit.”).
Campbell argues though that, prior to that date, she had no obligation to preserve evidence, because she did not know that it might be relevant to future litigation. (Doc. # 176 at 6–7). The Court agrees. Campbell acknowledges that Siggers made “some rumblings” about filing a lawsuit against her in his Step II grievance appeal, dated October 24, 2006.[1] (Id.). However, Siggers has not established that Campbell saw that document (or was otherwise made aware of threatened litigation) before June of 2007, and he bears the burden of doing so.[2] See Forest Labs., Inc., 2009 WL 998402, at *2 (“The burden is on the party seeking to use the evidence to show the existence of each criterion.”). Thus, the Court concludes that Campbell's obligation to preserve evidence began when Siggers filed his complaint in this matter, June 11, 2007.
*4 With respect to the second factor, Siggers must show that the evidence was destroyed with a “culpable state of mind.” Adkins, 692 F.3d at 504. This court has recognized that “failures to produce relevant evidence fall ‘along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality ....‘ “ Forest Labs., Inc., 2009 WL 998402, at *5 (quoting Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir.2009)). And, “ ‘[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum, negligent.’ “ Id. (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y.2003)). “Thus, ‘a court need not find bad faith or intentional misconduct before sanctioning a spoliator.” Id. (quoting Klezmer ex rel. Desyatnik v. Buynak, 227 F.R.D. 43, 50 (E.D.N.Y.2005)). Here, the Court finds that Campbell's culpability lies somewhere in the middle of the “continuum of fault.” Campbell offers no good explanation for her failure to place a litigation hold over potentially relevant evidence when she became aware of Siggers' instant lawsuit, and her failure to proactively engage in discovery following the Sixth Circuit's 2011 remand reflects negatively on her in this regard. At the same time, as discussed in more detail below, Siggers has not shown that Campbell deleted any documents or evidence in this case. Thus, while Siggers has shown Campbell is not in the “innocence” range of culpability, nor has he shown that she acted with an intent to conceal or destroy evidence.
Lastly, Siggers must “produce ‘some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.’ ” Forest Labs., Inc., 2009 WL 998402, at *6(quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 108 (2d Cir.2001)). However, courts are cautioned to “take care not to ‘hold[ ] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence,’ because doing so ‘would subvert the ... purposes of the adverse inference, and would allow parties who have ... destroyed evidence to profit from that destruction.’ ” Id. at 6–7 (quoting Kronisch v. United States, 150 F.3d 112, 128 (2d Cir.1998)). Courts have also held that when evidence is destroyed in bad faith (i.e., intentionally or willfully), that fact alone is sufficient to demonstrate relevance. See Forest Labs., Inc., 2009 WL 998402, at *7 (citing Zubulake, 220 F.R.D. at 220)).
With respect to the relevance prong, Campbell argues that this case is different than most spoliation cases, where “one party identifies that a document existed at some point in time and that it no longer exists.” (Doc. # 176 at 7). Campbell claims that, here, “Siggers has no proof that Campbell ever created emails about him [before] June 11, 2007”; rather, he merely speculates that “Campbell must have created emails about him and turned around and destroyed them.” (Id.). In other words, then, Campbell argues that Siggers has not established that relevant documents ever even existed, let alone were destroyed.
*5 Siggers, however, asserts that Campbell testified falsely at her deposition when asked about the existence of e-mails responsive to his September 2007 discovery requests, and that this false testimony compels a conclusion that such e-mails previously existed but were not properly preserved. (Doc. # 164 at 12). Specifically, Siggers cites Campbell's testimony that she did not exchange e-mails with six different MDOC employees because there was no need to do so, as they communicated with her on a daily basis when they came in to pick up their mail. (Doc. # 164 at 12–13 (citing 114–2 at 15–17)). According to Siggers, the same would be true for Deputy Warden Shane Jackson (i.e., Campbell had no need to communicate with him by e-mail because she saw him on a daily basis). (Id.). Nonetheless, Campbell eventually produced an e-mail that she sent to Shane Jackson on September 28, 2011. (Id.). Thus, Siggers argues, an inference can be drawn that Campbell's testimony about her purported lack of communication with individuals other than Shane Jackson is not entirely truthful.
This situation presents a closer call than either party is willing to recognize, but one which, after weighing all of the relevant considerations, favors denying Siggers' instant motion. It is undisputed that Siggers has presented no actual evidence that Campbell routinely exchanged e-mail correspondence about him with others or that she actually deleted any document. On the other hand, where a litigation hold was put into place so belatedly, documents that once existed might no longer be available. Thus, the Court will not place dispositive weight on Siggers' lack of direct evidence and instead looks to other factors to guide its decision. See Forest Labs., Inc.,2009 WL 998402, at *6. To that end, the Court notes that Siggers' complaint raises a narrow claim, based on an isolated (in both time and scope)[3] set of facts, and he has not shown that those facts resulted (or were even likely to result) in much discussion between Campbell and others.[4] The Court also notes that the vigorous work of Siggers' appointed counsel led to only one responsive e-mail being produced.
Although Campbell's discovery failures reflect negatively on her in regards to Siggers' motion, they do not, when weighed against the above considerations, merit the imposition of sanctions. Rather, Siggers can obtain appropriate redress by questioning Campbell at trial about her failure to timely impose a litigation hold and about the other matters related to his assertion that she must have had relevant e-mail communications that no longer exist.[5] The jury can then decide how to factor Campbell's testimony into its decision.
D. Conclusion
For the reasons set forth above, IT IS ORDERED that Plaintiff's Motion for Spoliation Sanctions Against Defendant Ellen Campbell [164] is DENIED.

Footnotes

Siggers stated in writing: “I clearly informed Respondent that I would be filing a lawsuit on the herein matter if clerk Campbell continued to violate the prisoner legal mail policy....” (Doc. # 176 at Ex. A). Even this statement, which conditionally threatened litigation based on future events, does not necessarily support Siggers' argument; Campbell's position is that she did not “continue[ ] to violate the prisoner legal mail policy ...,” and this civil action concerns only the initial alleged unlawful inspection of Siggers' mail.
In his reply brief, Siggers offers a few reasons why he believes Campbell would have seen his October 24, 2006 Step 2 grievance appeal. (Doc. # 179 at 4). Siggers asserts that Campbell attached this document to her motion to dismiss, and that she was provided with a copy of his 2007 discovery requests. (Id.). However, neither of these facts establishes that Campbell was aware of threatened litigation before Siggers filed his complaint. Siggers also asserts that Campbell admitted in her interrogatory responses that she communicated with “grievance coordinator Burgess Whitfield” and “mailroom supervisor, Don Gouveia.” (Id.). Even assuming these facts to be true, however, they do not establish that Campbell saw a copy of Siggers' Step 2 grievance appeal. And, finally, Siggers asserts that Campbell admitted that she read her supervisor's response to this grievance. (Id.). Again, though, even if true, this fact does not establish that Campbell read Siggers' Step II grievance appeal, which contained the threat of litigation. Thus, Siggers has not met his burden.
Again, the Court notes that Campbell's duty to preserve did not commence until June 11, 2007, when Siggers filed his complaint. Supra at 5. However, even if the Court's finding on that issue is found to be incorrect, it would reach the same overall resolution of Siggers' instant motion for the other reasons discussed herein.
Contrary to Siggers' argument, the existence of one lone e-mail from Campbell to Jackson on September 28, 2011, many years after the time most relevant here, does not establish that Campbell's testimony that she did not communicate with certain other colleagues via e-mail about Siggers was untruthful. Supra at 7.
While this Court is not passing on the appropriateness of any particular question Siggers may ask Campbell (or others) at trial, it notes Campbell's general agreement with such a remedy. (Doc. # 176 at 8) (“The appropriate remedy is to allow Siggers to cross examine Campbell at trial (if there is one). Siggers can challenge Campbell at trial about whether she created any emails.”).