Flores v. AT&T Corp.
Flores v. AT&T Corp.
2019 WL 2746774 (W.D. Tex. 2019)
March 27, 2019
Berton, Anne T., United States Magistrate Judge
Summary
The Court found that AT&T had violated Federal Rule of Civil Procedure 26(a)(1)(A)(i) and 26(e)(1)(A) by failing to disclose the identities of the Field Sales Automation team and not supplementing its discovery response with the raw data maintained within Agent regarding Flores in its native form. The Court granted the motion for sanctions and prohibited AT&T from using the Scorecards and Spreadsheets to supply evidence, but denied the request for sanctions based on the spoliation of ESI.
Additional Decisions
EFRAIM FLORES, Plaintiff,
v.
AT&T CORP., Defendant
v.
AT&T CORP., Defendant
No. EP-17-CV-00318-DB
United States District Court, W.D. Texas, El Paso Division
Signed March 27, 2019
Counsel
Enrique Chavez, Jr., Michael Robert Anderson, Chavez Law Firm, El Paso, TX, for Plaintiff.Courtney Barksdale Perez, E. Leon Carter, Stacey Cho Hernandez, Carter Arnett PLLC, Dallas, TX, Joseph L. Hood, Jr., Windle Hood Alley Norton Brittain & Jay, LLP, El Paso, TX, for Defendant.
Berton, Anne T., United States Magistrate Judge
MEMORANDUM ORDER
*1 On this day, the Court considered “Plaintiff's Motion for Sanctions for Spoliation of Evidence and Fabrication of Evidence” (“Motion”) (ECF No. 67) filed by Efraim Flores (“Flores”), AT&T Corporation's (“AT&T”) “Defendant's Response to Plaintiffs Motion for Sanctions for Spoliation and Fabrication of Evidence” (“Response”) (ECF No. 69), and Flores's “Plaintiff's Reply to Defendant's Response to Plaintiff's Motion for Sanctions for Spoliation and Fabrication of Evidence” (“Reply”) (ECF No. 71). The matter was referred to this Court in accordance with 28 U.S.C. § 636(b)(1)(A) and Rule 1(c) of Appendix C of the Local Court Rules for determination on December 14, 2018, by Senior United States District Judge David Briones. (ECF No. 68).
For the reasons set forth below, IT IS HEREBY ORDERED that Flores's Motion for Sanctions for Spoliation of Evidence and Fabrication of Evidence is GRANTED IN PART AND DENIED IN PART as set forth herein.
I. BACKGROUND[1]
On December 14, 2018, Flores filed the instant Motion seeking sanctions for alleged discovery violations committed by AT&T. (ECF No. 67). Subsequently, the Court held a hearing (“Hearing”) on Flores's Motion on February 1, 2019, which was attended by Enrique Chavez on behalf of Flores and by Joseph Hood on behalf of AT&T.
This case was removed to federal court based on federal question jurisdiction on October 19, 2017. (ECF No. 1). Flores's complaint alleges that, even though he was taking statutorily protected leave under the Family and Medical Leave Act (“FMLA”) throughout 2015 and 2016, AT&T terminated his employment in violation of the FMLA. (ECF No. 1-2). AT&T contends that Flores's employment was terminated “after he consistently failed to meet [the] performance standards in his Scorecards.” (ECF No. 69, p. 2).
During the discovery period, Flores filed a Motion to Compel, seeking among other items, “all of Defendant's files and subfiles, documents and electronic information which are kept and maintained on Efraim Flores (“Plaintiff”) in native electronic file formats and as kept in the usual course of business, as follows: ... Plaintiffs [sic] employee evaluations and disciplinary files ... [and] Plaintiff's complete employee file with subfiles regardless of what Defendant calls them.” (ECF No. 21-1, p. 9-10). See (ECF No. 21, p. 7) (“Request for Production 1 ... Complete Employee File of Plaintiff, in Both Its Native Electronic Format and Hard Copy Form”). After “Defendant agree[d] to produce the documents sought in Plaintiff's Motion to Compel...,” Flores withdrew his Motion to Compel. (ECF No. 28). All discovery was completed by September 18, 2018. (ECF No. 26).
A Declaration from AT&T employee Colleen Jackson (“Jackson”), dated November 5, 2018 (“Second Declaration”), filed in support of AT&T's Motion for Summary Judgment, explained that the “Scorecards were prepared by the Field Sales Automation team...”(ECF No. 39-18, p. 2). “The Field Sales Automation team gathered and recorded various types of data to calculate each Account Representative's performance ...” (Id.). The data gathered by the Field Sales Automation team was then “uploaded into the Agent system... to calculate the performance scores ... in the My Scorecards.”[2] (Id. at 5). Jackson further disclosed that the Scorecards are prepared by AT&T through its internal “Agent system” (“Agent”), using data kept within Agent. (Id. at 2). Finally, AT&T explains in its Response that the data contained within Agent is recorded “manually or by automated action ....” (ECF No. 69, p. 5).
*2 In a subsequent declaration dated December 14, 2018, filed in support of AT&T's Response (“Third Declaration”), Jackson explained that she “looked up Flores's performance data by his employee I.D. number and downloaded all of the data regarding Flores's performance for 2015-2016 as a Microsoft Excel file which resulted in the Spreadsheet.” (ECF No. 69-1, p. 6) (emphasis added). Thus, the resulting Spreadsheet (“Spreadsheet”) “is a summary of the raw data underlying Flores's Scorecards for 2015-2016.” (Id. at 7) (emphasis added). The Spreadsheet AT&T produced contains “[t]he underlying data and weighted calculations used to prepare Flores's monthly Scorecards ....” (Id. at 6). Furthermore, at the Hearing, Hood clarified the Spreadsheet “doesn't reflect everything in the database because it would be too big.” (Hr'g at 9:18:40).
Jackson further explained that no document “exists that will reflect the formula for each adjustment... because the process for calculating and creating the Scorecards, including adjusting objectives/targets, is an automated computer-generated protocol.” (Id. at 8).
II. LEGAL STANDARD
Federal Rule of Civil Procedure 26(a)(1)(A)(i) requires a party to disclose, without waiting for a discovery request, “the name and, if known, the address and telephone number of each individual likely to have discoverable information—along with the subjects of that information—that the disclosing party may use to support its claims or defenses, unless the use would be solely for impeachment.” Fed. R. Civ. P. 26(a)(1)(A)(i). Further, Rule 26(e)(1)(A)mandates, in pertinent part, that:
[a] party who has made a disclosure under Rule 26(a) ... must supplement or correct its disclosure or response in a timely manner if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing ....”
Fed. R. Civ. P. 26(e)(1)(A).
Pursuant to Federal Rule of Civil Procedure 37(c)(1), “[i]f a party fails to provide information or identify a witness as required by Rule 26(a) or (e), the party is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). A party is “not allowed to use ... information or [a] witness to supply evidence on a motion, at a hearing, or at a trial” where that party ‘fails to provide information or identify a witness [in its initial disclosures] as required by Rule 26(a) or (e).’ ” Bitterroot Holdings, L.L.C. v. MTGLQ Inv'rs, L.P., 648 F. App'x 414, 419 (5th Cir. 2016) (quoting Fed. R. Civ. P. 37(c)(1)) (alterations in original). However, the non-disclosing party is permitted to use the information when “ ‘the failure was substantially justified or is harmless.’ ” Joe Hand Promotions, Inc. v. Chios, Inc., 544 F. App'x 444, 446 (5th Cir. 2013) (quoting Fed. R. Civ. P. 37(c)(1).
Moreover, the party facing sanctions under Rule 37(c) has the burden of demonstrating that a violation of Rule 26was substantially justified or is harmless. See, e.g., Maguregui v. ADP, LLC, No. EP-16-CV-121-PRM, 2017 WL 5473484 at *2 (W.D. Tex. Apr. 10, 2017) (excluding witnesses because of “Defendant's violation of Rule 26(a) and its failure to demonstrate that the violation was harmless or substantially justified.”) (citing R.C. Olmstead, Inc., CU Interface, LLC, 606 F.3d 262, 271–72 (6th Cir. 2010)); Brown v. AT&T Serv. Inc., 236 F. Supp. 3d 1000, 1005 (S.D. Tex. 2017) (“No response was filed asserting there was substantial justification for the non-disclosure during discovery or that this failure was harmless. Therefore, under Rule 37(c)(1), [plaintiff] is prohibited from using [the emails not produced in discovery] to support his opposition to the motion for summary judgment.”); see also Honey-Love v. United States, 664 F. App'x 358, 362 (5th Cir. 2016) (affirming exclusion of expert testimony when the District Court found that the sanctioned party “did not provide any justification for the deficiencies in [the expert witness's] report.”).
*3 A substantial justification for failing to comply with Rule 26 is “ ‘justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure [obligation].’ ” Olivarez v. GEO Grp., Inc., 844 F.3d 200, 205 (5th Cir. 2016) (quoting Grider v. Keystone Health Plan Cent., Inc., 580 F.3d 119, 140 n.23 (3d Cir. 2009).
“When evaluating whether a violation of Rule 26 is harmless, the Court looks to four factors: (1) the explanation for the failure to identify the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Torres v. City of San Antonio, No. SA:14-CV-555-DAE, 2014 WL 7339122, at *1 (W.D. Tex. Dec. 23, 2014) (citing Hamburger v. State Farm Mut. Auto. Ins. Co., 361 F.3d 875, 883 (5th Cir. 2004)).
Further, Federal Rule of Civil Procedure 37(e) controls the findings required and the sanctions a court may impose when a party fails to preserve electronically stored information. As amended, effective December 1, 2015, when considering lost or destroyed electronically stored information, a court must determine, in relevant part, “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery ....” Fed. R. Civ. P. 37(e).
III. ANALYSIS
Flores's Motion requests sanctions, including the striking of “Defendant's defensive pleadings, its answer, and affirmative defenses” (ECF No. 67, p. 15), and alleges that AT&T violated both Rule 26(a) and Rule 26(e). AT&T did not address these issues in its written response.
a. The Identities of the Field Sales Automation Team
Flores seeks the imposition of discovery sanctions for AT&T's alleged failure to disclose the identities of the members of the Field Sales Automation team responsible for the creation of Flores's Scorecards. In his Motion, Flores alleges that “AT&T never identifie[d], or disclose[d] the identity of, th[e] ‘Field Sales Automation team’ ” and that therefore, AT&T “cannot now use the alleged work product of this undisclosed Field Sales Automation team as evidence ....” (ECF No. 67, p. 4). AT&T's filings confirm that the “Scorecards were prepared by the Field Sales Automation team.” (ECF No. 39-18, p. 2). Further, AT&T's filings demonstrate that “[t]he Field Sales Automation team gathered and recorded various types of data to calculate each Account Representative's performance ...” (Id.). Based on this alleged failure to properly disclose the identities of the Field Sales Automation team, Flores seeks to bar AT&T from using “the alleged work product of [the] undisclosed ‘Field Sales Automation team’...” (ECF No. 67, p. 4).
1. Failure to Disclose
In its Response, AT&T did not respond in any way to Flores's allegation that it violated Rule 26(a)(1)(A)(i) when it failed to disclose the identities of the Field Sales Automation team. See (ECF No. 69). In addition to not addressing the allegation in its written Response, when asked by the Court at the Hearing why AT&T failed to respond to its alleged violation of Rule 26(a)(1)(A)(i), AT&T's Counsel Joseph Hood (“Hood”) stated “I couldn't tell you Judge. I did not prepare the pleading, I reviewed it before it was filed by my co-Counsel. I thought we had addressed it.” (Hr'g at 9:00:49).
*4 During the Hearing, AT&T made clear through its Counsel that it had not disclosed the identities of all of the employees working with the data in Agent. Specifically, when the Court asked if AT&T disclosed who was inputting the daily information into Agent, Hood responded “No, I mean Your Honor for us to do that, we would have to disclose literally thousands of employees ....” (Hr'g at 9:01:38). When asked directly by the Court why AT&T had not disclosed the identities of the Field Sales Automation team, Hood responded “[t]here are hundreds of those employees ... we are talking about a team that works nationwide.” (Hr'g at 9:02:25).
In what appeared to be an attempt by Hood to justify the selective disclosure of AT&T employee Jackson but not the identities of the Field Sales Automation team, Hood stated “[y]ou could bring any one of those clerks in and they would just tell you essentially the same thing that Ms. Jackson is telling you. She is telling you however from a higher level because she understands what they do and how that information gets into the database.” (Hr'g at 8:57:41). However, the Court notes that, by her own Second Declaration, Jackson stated that while she “provided labor operational feedback for the Scorecard project team” (ECF No. 39-18, p. 2), the “My Scorecards were prepared by the Field Sales Automation Team.” (ECF No. 39-18, p. 2) (emphasis added).
Additionally, during the Hearing, Hood failed to address whether or not AT&T was obligated to disclose the identities of the Field Sales Automation team responsible for preparing Flores's Scorecards.
In sum, AT&T was required to disclose the identities of the Field Sales Automation team in accordance with Rule 26 because of AT&T's reliance on the Scorecards prepared by the Field Sales Automation team to support its claims or defenses. See El Paso Area Teachers Fed. Credit Union v. Cumis Ins. Soc'y, Inc., No. EP-16-CV-00205-DCG, 2017 WL 5171857 at *3 (W.D. Tex. Mar. 8, 2017) (where “Defendant waited about three to four months without disclosing any further information regarding its claims or defenses, and then filed a dispositive motion .... Such failure to provide the requested documents when the initial disclosures were due was a violation of Rule 26(a)(1)(A)(ii) and no discovery request was required to obtain them.”); Brown v. AT & T Servs. Inc., 236 F. Supp. 3d 1000, 1005 (S.D. Tex. 2017) (plaintiff “was required to disclose the emails during discovery under Rule 26(a)because he used the emails to support his claim.”). AT&T has made repeated use of the Scorecards throughout this litigation in defending against Flores's allegation of violations of the FMLA by AT&T. Further, AT&T has consistently maintained throughout this litigation that the Scorecards are the basis for assessing performance standards and were the basis for terminating Flores. See (ECF No. 31) (AT&T's Response in Opposition to Plaintiff's First Motion for Sanctions); (ECF No. 39) (AT&T's Motion for Summary Judgment); (ECF No. 42) (Response in Opposition to Plaintiff's Motion for Summary Judgment); (ECF No. 54) (AT&T's Reply to Plaintiff's Response to AT&T's Motion for Summary Judgment); (ECF No. 69) (AT&T's Response in Opposition to Plaintiff's Motion).
Therefore, because AT&T repeatedly used the Scorecards to support its claims or defenses and AT&T's filings and supporting declarations state that the members of the Field Sales Automation team prepared Flores's Scorecards, the Court finds that AT&T was obligated to disclose the identities of the Field Sales Automation team in accordance with Rule 26(a)(1)(A)(i).
2. Failure to Supplement
Under Rule 26(e), AT&T was obligated to supplement its initial Rule 26(a)(1) disclosures in a timely manner when it learned that those disclosures were incomplete and where the “corrective information has not otherwise been made known to the other parties during the discovery process ....” See Harris v. Tunica Cty., Mississippi, No. 3:14-CV-00218-MPM-RP, 2017 WL 4098448 at *3 (N.D. Miss. Jan. 11, 2017) (“Despite expiration of the discovery period, Plaintiff supplemented his initial disclosures ....”).
*5 AT&T has consistently maintained throughout this litigation that the Field Sales Automation team prepared the Scorecards and was responsible for gathering and recording the information used in creating the Scorecards. See(ECF No. 31-5, p. 2); (ECF No. 38-19, p. 2-5). AT&T contends that it “did in fact adjust [Flores's] performance objectives in his Scorecards and therefore did not penalize him for taking FMLA leave.” (ECF No. 69, p. 1). In support of this position, AT&T argues that the Spreadsheet reflects “Flores's adjusted performance objective.” (Id.at 2). Based on her Second Declaration, while Jackson “provided labor operational feedback for the Scorecard project team” (ECF No. 39-18, p. 2), it was the members of the Field Sales Automation that were actually responsible for gathering the data and creating the documents reflecting Flores's performance metrics and the adjustments to those metrics. (Id.). In fact, based on the information provided to the Court, it appears that AT&T was aware of the importance of the work product of the Field Sales Automation team at the very latest with AT&T's Third Supplemental Disclosures, dated September 19, 2018. (ECF No. 50-20). In its Third Supplemental Disclosures, AT&T disclosed Jackson as a person who “may have knowledge regarding Flores's performance metrics and scoring and the adjustments made to Flores's performance metrics and scoring to account for certain leave time including but not limited to leave taken under the Family Medical Leave Act.” (Id. at 5). Moreover, had AT&T disclosed the identities of the members of the Field Sales Automation team responsible for preparing Flores's Scorecards, it would have been unnecessary for Hood to attempt to justify the lack of disclosure by arguing that “[t]here are hundreds of those employees ...” (Hr'g at 9:02:25).
Accordingly, having previously not disclosed the identities of the members of the Field Sales Automation team responsible for preparing Flores's Scorecards and for gathering and recording the data used to prepare the Scorecards in accordance with Rule 26(a), the Court finds that AT&T was obligated to supplement its disclosures to include those members of the Field Sales Automation team.
b. Production of Data Maintained Within Agent in its Native Form
Flores seeks the imposition of sanctions based on AT&T's alleged failure to provide the raw data maintained on him and contained within Agent in its native form. On June 29, 2018, Flores filed a Motion to Compel seeking among other items, his complete employee file in its native electronic file format. (ECF No. 21-1, p. 9-10). Flores subsequently withdrew the Motion to Compel after AT&T agreed to produce the documents sought by the Motion to Compel. (ECF No. 28). Even so, under Rule 26(e)(1), a party is obligated to supplement its response to discovery production requests in a timely manner when it learns that the response is incomplete or incorrect in some material respect and the information has not otherwise been made available. See Harris, 2017 WL 4098448 at *3.
AT&T affirmatively acknowledged that the data maintained on Flores within Agent was not made available to Flores in its native electronic file format. In its Response, filed long after the Motion to Compel was withdrawn, AT&T argues that if Flores had “wanted to see the data in its raw format as it is stored in the Agent System, he should have requested to inspect it during the discovery period when the Spreadsheet was produced. He did not and the time to do so has passed.” (ECF No. 69, p. 8). Presumably, AT&T did not recall the contents of Flores's discovery requests in the Motion to Compel and the attached exhibits.
Moreover, AT&T acknowledged to the Court that it could have made the raw data available to Flores in its native form but did not do so. When asked by the Court how AT&T could have made the raw information available to Flores, Hood stated “I would have taken [Flores's Counsel] out to the AT&T call center or downtown here where I could have access to the Agent system and would show [Flores's Counsel] through the Agent system where everything is, how it's kept, etc.” (Hr'g at 9:29:09). In attempting to justify why AT&T had not made the raw data available in its native form to Flores, Hood stated: “how is [Flores's Counsel] going to look at Agent? Do we have to give him the proprietary software and violate our copyright?” (Hr'g at 9:21:40). AT&T's concern as identified appears to be unfounded given that the Honorable David Briones gave AT&T the means to protect itself when he signed the Confidentiality and Protective Order dated February 6, 2018. (ECF No. 15).
Accordingly, the Court finds that in accordance with Rule 26(e), AT&T was required to supplement its discovery response and produce the raw data in its native form to Flores but failed to do so.
c. Rule 37(c) Sanctions
*6 AT&T did not to address its failure to comply with Rule 26(a) and Rule 26(e) in its written Response and it also failed to show that its nondisclosure and lack of supplementations were substantially justified or harmless. The only explanation provided by AT&T for these failures was given at the Hearing, on multiple occasions, when Hood stated that the disclosure of the identities of Field Sales Automation team and the production of the information maintained regarding Flores in Agent in its native format would be too onerous.[3] The Court construes this argument as an attempt to invoke Rule 26(b)(1) through an assertion by AT&T that “the burden or expense of the proposed discovery outweighs its likely benefits.” Fed. R. Civ. P. 26(b)(1).
1. Harmlessness
In determining whether to impose sanctions for AT&T's failure to disclose the identities of the members of the Field Sales Automation team, the Court will consider the following factors enumerated by the Fifth Circuit: “(1) the explanation for the failure to identity the witness; (2) the importance of the testimony; (3) potential prejudice in allowing the testimony; and (4) the availability of a continuance to cure such prejudice.” Torres, 2014 WL 7339122 at *1 (citing Hamburger v. 361 F.3d at 883 (5th Cir. 2004)). The Court will also consider an alternative formulation of the four factors enumerated by the Fifth Circuit that substitutes the importance of the testimony with a consideration of “any other relevant circumstance[ ].” Garza, 448 F.3d 294, 299-300 (citing United States v. Garrett, 238 F.3d 293, 298 (5th Cir. 2000)); see Bennet v. GEO Group, Nos. 12–60017, 12–60348, 2013 WL 5916765 at *4 (5th Cir. 2013) (stating that the Fifth Circuit has “given the following guidance to district courts regarding sanctions for discovery violations ...” and then quoting and applying the Garza factors to plaintiff's violations of the Rule 26initial disclosure requirements);
(a) Explanation for AT&T's Failure to Disclose
Hood's explanation for the lack of disclosures or supplementation of the disclosures does not support a finding of harmlessness under the first factor. Torres, 2014 WL 7339122, at *1; see Garza, 448 F.3d at 299-300 (“a district court should consider ... the reasons why the disclosure was not made”). The Court finds AT&T's argument that the burden or expense of the proposed discovery outweighs its benefits to be unpersuasive. First, this argument was made for the first time at the Hearing and, since AT&T chose not to present this argument at any time prior to the Hearing, including in its Response or when the Motion to Compel was filed, the argument was not specifically raised or developed in any way. See Gondola v. USMD PPM, LLC, 223 F. Supp. 3d 575, 580 (N.D. Tex. 2016) (“a party seeking to resist discovery on these grounds still bears the burden of making a specific objection and showing that the discovery fails the proportionality calculation mandated by Rule 26(b) by coming forward with specific information ....”). Second, if the disclosure of the identities of the Field Sales Automation team was in fact too burdensome, the Federal Rules of Civil Procedure provide multiple opportunities for parties to relieve themselves or modify their disclosure obligations, both with and without intervention from the Court. See Fed. R. Civ. P. 26(a)(1)(A); Fed. R. Civ. P. (a)(1)(C); Fed. R. Civ. P. 26(f)(3)(A); Fed. R. Civ. P. 26(f)(3)(E); see also Hall v. Rent-A-Ctr., Inc., No. 4:16CV978, 2017 WL 6398740 at *1 (E.D. Tex. Oct. 26, 2017) (“Although Fed. R. Civ. P[ ]. 26(a)(1)(C) provides initial disclosures are due fourteen days after the Rule 26(f) conference between the parties, the Court can modify that requirement.”); Diversified Servs., LLC v. Nat'l Cas. Co., No. 2:14-CV-00033, 2015 WL 164088 at *2 (S.D.W. Va. Jan. 13, 2015) (pursuant to local rule “an agreement by counsel to modify a disclosure date must be made in writing and filed with the Court.”); Fed. R. Civ. P. 29(b). Third, had AT&T believed that providing the information regarding Flores contained within Agent in its native form was too burdensome, it should have raised this argument in response to Flores's Motion to Compel instead of agreeing to produce the information sought in the Motion to Compel and then not doing so. (ECF No. 28). Fourth, as addressed above and based on the information provided to the Court, it appears that AT&T has never disclosed the identities of the members of the Field Sales Automation team who were actually responsible for creating Flores's Scorecards and for gathering and recording the data used to create Flores's Scorecards and contained in the Spreadsheet. Having waited until the last possible moment to attempt to provide a justification for its failure to comply with Rule 26 (a) and Rule 26(e), the Court finds that AT&T's justifications are advanced through conclusory statements without providing any supporting documentation or precedential authority, and without affording Flores the opportunity to address AT&T's conclusory statements. As such, the Court finds that the first factor weighs in favor of imposing sanctions.
(b) The Importance of the Evidence
*7 The second factor to consider is the importance of the evidence. See Torres, 2014 WL 7339122, at *1. Based on AT&T's repeated use of Flores's Scorecards and the Spreadsheet throughout this litigation, as addressed above, this information is clearly of some importance. However, the Court is hindered in adequately assessing just how important this information is because AT&T did not provide any argument relating to this factor or the underlying discovery violations in its Response. While the Court is mindful that “the importance of the evidence is not the only factor to be considered,” JMC Constr. LP v. Modular Space Corp., No. 3:07-CV-01925-B, 2008 WL 11425650, at *4 (N.D. Tex. Oct. 28, 2008), the Court finds that this factor weighs against imposing sanctions.
(c) Prejudice
The next factor to consider is the potential prejudice caused by the failure to comply with Rule 26(a) or Rule 26(e). See Torres, 2014 WL 7339122, at *2; Garza, 448 F.3d at 300 (“a district court should consider ... the amount of prejudice to the opposing party”). As addressed above, AT&T did not disclose the identities of the people responsible for the creation of Flores's Scorecards. Further AT&T alleges that the Scorecards were adjusted to avoid penalizing Flores for taking protected leave and were the basis for Flores's termination. (ECF No. 69, p. 1-2). Based on the information available to the Court, the first mention of the Field Sales Automation team was made in AT&T's response to Flores's first motion for sanctions (ECF No. 31) and Jackson's declaration (“First Declaration”) attached in support of AT&T's response (ECF No. 31-5). This response was filed twenty-four days after discovery was completed. (ECF Nos. 26, 31). Further, AT&T's Response appears to be the first time it acknowledged that it had not complied with its agreement to produce the data maintained within Agent in its native form (ECF No. 69, p. 8) and the Response was filed almost three months after discovery was completed. (ECF Nos. 26, 69). Because these filings were made after discovery was completed, and without any argument or information provided to the contrary, Flores appears to have been prejudiced by AT&T's failure to disclose or supplement its disclosures with the identities of the Field Sales Automation team and the information in Agent in its native form. Without these disclosures, Flores's ability to probe the basis and supporting documentation provided by AT&T for Flores's termination appears to have been hindered. Therefore, the Court finds this factor weighs in favor of imposing sanctions. See Law Funder, LLC v. Munoz, No. 7:14-CV-00981, 2016 WL 8461423, at *3 (S.D. Tex. Dec. 9, 2016)(finding that the consideration of prejudice weighed “in favor of imposing sanctions because Defendants' violation directly prolongs litigation, increases litigation-related expenses, and prevents Plaintiff from effectively prosecuting its case.”).
(d) Possibility of Cure Through Continuance
The fourth factor to consider is “the availability of a continuance to cure such prejudice.” Torres, 2014 WL 7339122, at *1; see Garza, 448 F.3d at 300 (“a district court should consider ... the feasibility of curing such prejudice with a continuance of the trial”). First, the Court notes that the Honorable David Briones previously extended the discovery deadline from July 1, 2018 to September 18, 2018. (ECF Nos. 8, 26). Despite this extension, AT&T failed to use the additional time to rectify its discovery errors. Second, Senior Judge Briones also reset the trial date twice, from November 13, 2018 to February 11, 2019, and then to July 16, 2019. (ECF Nos. 8, 26, 66). Finally, AT&T has not sought to reopen the discovery period to allow it to correct its discovery errors. Accordingly, the Court finds that this factor weighs in favor of imposing sanctions.
(e) Other Relevant Circumstances
*8 An alternative formulation of the factors used by the Fifth Circuit in determining harmlessness replaces the “importance of the information” with a consideration of “any other relevant circumstance[ ].” Garza, 448 F.3d at 300; see Bennet 2013 WL 5916765 at *4. As discussed above, AT&T agreed to disclose the information maintained within Agent regarding Flores in its native form. (ECF No. 28). Subsequently, AT&T then incorrectly argued, in its Response and at the Hearing, that Plaintiff had never requested the data in native form and that AT&T had the ability to make the information available to Flores and his Counsel, had it been requested. See ECF No. 69, p. 8; (Hr'g at 9:21:40). Further, AT&T never responded in writing to the allegation that it violated Rule 26(a) when it did not disclose the identities of the Field Sales Automation team. The only argument provided by Hood at the Hearing was conclusory and was made without any supporting documentation or legal argument. (Hr'g at 9:02:25).
Finally, the information contained within AT&T's filings and Jackson's various declarations about the role of the Field Sales Automation team in the preparation of the Scorecards and the scope of their work appears to be conflicting. In her Second Declaration, Jackson stated both that “the My Scorecards were prepared by the Field Sales Automation team ...” and that “[t]he Field Sales Automation team gathered and recorded various types of data to calculate each Account Representative's performance....” (ECF No. 39-18, p. 2) (emphasis added). In contrast, AT&T states in its Response that “[t]he process for pulling the electronic data regarding Flores's performance and calculating the monthly score in the Scorecard is automated and regularly takes place in the Agent system.” (ECF No. 69 at 5) (emphasis added). Further, the Declaration of Jackson attached to the Response as Exhibit 1 (“Third Declaration”), states that the data used to prepare the scorecards “was automatically uploaded by a computer-generated protocol into the Agent system upon which an automated query applied business rules to the data to calculate the performance scores across each performance section and thereby build the performance results for the Account Representatives, including Plaintiff Efraim Flores (“Flores”), in the Scorecards.” (ECF No. 69-1, p. 3). Essentially, Jackson's Third Declaration appears to reduce the role of the Field Sales Automation team to merely “overs[eeing] the automated Scorecard process.” (Id.) (emphasis added). This apparent reduction in the role of the Field Sales Automation team is difficult to reconcile with AT&T's statement that the data regarding Flores's performance “was recorded ... either manually or by automated action ...” (ECF No. 69, p. 5) (emphasis added) as well as Jackson's Second Declaration stating that “[t]he Field Sales Automation team gathered and recorded various types of data to calculate each Account Representative's performance ....” (ECF No. 39-18, p. 2). Accordingly, the Court finds that this factor weighs in favor of imposing sanctions.
2. Substantial Justification
AT&T's violations of Rule 26(a) and Rule 26(e) are not substantially justified. A substantial justification is “justification to a degree that could satisfy a reasonable person that parties could differ as to whether the party was required to comply with the disclosure [obligation].” Olivarez, 844 F.3d at 205. AT&T has provided no factual or legal basis for its position that the alleged burden of disclosing the identities of the members of the Field Sales Automation team or supplementing its disclosures should excuse its non-compliance with its obligations under Rule 26(a) and Rule 26(e). Without any support provided by AT&T, it is unclear how reasonable minds could differ regarding AT&T's discovery obligations, sufficient to excuse AT&T's violations as substantially justified. As addressed above, AT&T knew that the Field Sales Automation team was responsible for gathering and recording the information contained within the Spreadsheet, as well as creating the Scorecards, and that it would be using the Scorecards and information in the Spreadsheets in its defense. Despite this knowledge, it appears that the only Rule 26(a)(1)(A)(i) disclosure made by AT&T related to the creation of the Scorecards and the gathering and reordering of the underlying data was Jackson, a person not responsible for gathering and recording the information in the Spreadsheets and not responsible for creating the scorecards.[4] Further, AT&T's failure to disclose the information in Agent in its native form, after agreeing to do so, does not create the possibility that reasonable minds could differ on AT&T's responsibility of producing information that it agreed to produce. Accordingly, the Court finds that AT&T's discovery failures were not substantially justified.
3. Appropriate Sanctions in Accordance with Rule 37(c)
*9 Based on the foregoing, the Court finds that AT&T has not met its burden of showing that its failure to comply with Rule 26(a) or Rule 26(e) was substantially justified or harmless in order to avoid sanctions under Rule 37(c). “The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court.” Torres v. City of San Antonio, SA:14–CV–555–DAE, 2014 WL 7339122, at *1 (W.D. Tex. Dec. 23, 2014) (internal quotation marks omitted) (quoting David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). As addressed above, AT&T has acknowledged that it did not disclose the identities of the members of the Field Sales Automation team responsible for preparing Flores's Scorecards and did not produce the information contained in Agent about Flores in its native form. While acknowledging its lack of disclsoure, AT&T has provided no supported argument as to why its failure to comply with Rule 26(a)(1)(A)(i) and Rule 26(e)(1) was either substantially justified or harmless. Without providing the Court with a basis to conclude that its violations were substantially justified or harmless, AT&T has not met its burden to avoid sanctions under Rule 37(c)(1) for violating Rule 26(a) and Rule 26(e).
Given that the presumptive sanction under Rule 37(c) for failing to comply with Rule 26(a) or Rule 26(e) is the exclusion of the information and that AT&T's discovery failures were not substantially justified or harmless, the Court finds that AT&T should not be allowed to use the “Scorecards [that] were prepared by the Field Sales Automation team” (ECF No. 39-18, p. 2) to supply evidence because AT&T failed to disclose or supplement its disclosures with the identities of the Field Sales Automation team and the subjects of the information they possessed, in violation of Rule 26(a)(1)(A)(i) and Rule 26(e)(1). See Honey-Love, 664 F. App'x at 362; Torres, 2014 WL 7339122 at *1.
Furthermore, the Court finds that AT&T should not be allowed to use the Spreadsheet created by Jackson to supply evidence because the Spreadsheet reflects the data gathered and recorded by the undisclosed Field Sales Automation team in violation of Rule 26(a)(1)(A)(i) and Rule 26(e)(1) and because AT&T failed to supplement its disclosures with the Agent data in its native form in violation of Rule 26(e)(1).
Lastly, the Court finds that the exclusion of Flores's Scorecards and the Spreadsheet is the appropriate sanction for AT&T's violations of Rule 37(c). See Honey-Love, 664 F. App'x at 362 (the presumptive sanctions for violations of Rule 37(c) is the exclusion of the information). While not required, Rule 37(c) permits the imposition of other sanctions in addition to or instead of the exclusion of the information. Unlike other provisions of Rule 37, violations of Rule 37(c) do not have a mandatory fee award. Fed. R. Civ. P. 37(c)(1) (“In addition to or instead of this sanction, the court, on motion and after giving an opportunity to be heard ... may order payment of the reasonable expenses, including attorney's fees, caused by the failure”) (emphasis added). In the instant Motion, Flores has not argued why the presumptive sanction of the exclusion of the information is insufficient to address AT&T's discovery violations. Accordingly, the Court will not impose any of the other sanctions requested by Flores's, which are permitted but not required under Rule 37(c), including striking AT&T's pleadings or an award of attorney's fees.
d. Rule 37(e) Sanctions
Flores seeks the imposition of sanctions under Federal Rule of Civil Procedure 37(e) for the spoliation of electronically stored information. (ECF No. 67, p. 11). Rule 37(e) authorizes sanctions when “electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery ....” Fed. R. Civ. P. 37(e) (emphasis added); see (ECF No. 41, p. 8) (Order denying Plaintiff's First Motion for Sanctions); Richard v. Inland Dredging Co., LLC, No. 6:15-0654, 2016 WL 5477750, at *3 (W.D. LA Sept. 29, 2016).
*10 In the instant case, the information contained within Agent does not appear to have been lost. AT&T's Response states that “if Flores had wanted to see the data in its raw format as it is stored in the Agent System he should have requested to inspect it ....” (ECF No. 69, p. 8). Further, the loss of the information would have prevented Hood from opining that he could have taken Flores's Counsel “out to the AT&T call center or downtown here where [Hood] could have access to the Agent system and ... show[n Flores's Counsel] through the Agent system where everything is, how it's kept, etc.” (Hr'g at 9:29:09). Finally, had the electronically stored information actually been lost, Jackson would have been unable to extract information from Agent related to Flores's performance and produced the Spreadsheet. (Id. at 5). Because no information appears to have been lost, to the extent Flores's seeks sanctions based on the spoliation of electronic information, the Court finds that granting sanctions on this basis would be inappropriate.
e. Evidentiary Objections
Flores devotes a significant portion of his Motion to addressing his contention that the Scorecards and Spreadsheets contain inadmissible hearsay and violate the best evidence rule. (ECF No. 67, p. 5-11). However, “[d]iscoverable information is not limited to admissible evidence.” Coughlin v. Lee, 946 F.2d 1152, 1159 (5th Cir. 1991); See Fed. R. Civ. P. 26(b)(1) (“Information within th[e] scope of discovery need not be admissible in evidence to be discoverable.”). A request for sanctions due to discovery violations is not the appropriate place for the consideration of Flores's evidentiary objections. See King v. Akima Glob. Servs., LLC, 323 F.R.D. 403, 409 (S.D. Fla. 2017) (plaintiff “intended to say that these two individuals were not listed because their information was inadmissible and hearsay. Of course, that status would not excuse [plaintiff] from listing them in the initial disclosure or in interrogatory answers.”); See also Brown v. AT & T Servs. Inc., 236 F. Supp. 3d 1000, 1005 (S.D. Tex. 2017)(striking one challenged summary judgment exhibit for violations of Rule 37(c)); Bennet 2013 WL 5916765 at *4-5(same). Accordingly, the Court finds that it would be inappropriate to grant sanctions based on AT&T's production of allegedly inadmissible evidence.
IV. CONCLUSION
For the foregoing reasons, the Court finds that AT&T violated Federal Rule of Civil Procedure 26(a)(1)(A)(i) and Rule 26(e)(1)(A). First, the Court finds that AT&T's failed to disclose or supplement its disclosures with the identities of the members of the Field Sales Automation team. Second, the Court finds that AT&T failed to supplement its discovery response with the raw data maintained within Agent regarding Flores in its native form, some of which was produced in the Spreadsheet. Finally, the Court finds that AT&T failed to meet its burden of demonstrating that its violations of Rule 26 were substantially justified or harmless and that sanctions under Rule 37(c)(1) are appropriate. Further, the Court denies Flores's request for sanctions in accordance with Rule 37(e) or based on his evidentiary objections.
Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions for Spoliation of Evidence and Fabrication of Evidence is GRANTED IN PART AND DENIED IN PART as follows:
• IT IS HEREBY ORDERED that Flores's Motion for Sanctions is GRANTED such that AT&T shall be prohibited from using the Scorecards to supply evidence;
• IT IS FURTHER ORDERED that Flores's Motion for Sanctions is GRANTED such that AT&T shall be prohibited from using the Spreadsheet to supply evidence;
• IT IS FURTHER ORDERED that Flores's request for sanctions in accordance with Rule 37(e) is DENIED; and
• IT IS FURTHER ORDERED that Flores's request for sanctions based on his evidentiary objections is DENIED.
IT IS LASTLY ORDERED that Flores's Motion for Sanctions is DENIED IN ALL OTHER RESPECTS.
SIGNED and ENTERED this 27th day of March, 2019.
Footnotes
While recounting the factual background, the Court addresses only the facts relevant to the immediate Order.
“Scorecard” and “My Scorecard” appear to be used interchangeably by AT&T in its filings and declarations to refer to the employee evaluations created by the Field Sales Automation team using Agent. See ECF No. 39-18, p. 2; ECF No. 69, p. 2.
“No, I mean Your Honor for us to do that, we would have to disclose literally thousands of employees. ...” (Hr'g at 9:01:38); “There are hundreds of those employees ...” (Hr'g at 9:02:25); “It would be too big. You are culling this.” (Hr'g at 9:18:47); “Does Mr. Chavez want me to print out the database for him? I'll be doing that for the rest of my life.” (Hr'g at 9:21:00).
See ECF No. 39-18, p. 1 (Jackson “provided labor operational feedback for the Scorecard project team.”).