KATHRYNN PALS, as personal representative of the Estate of Jamison B. Pals and personal representative of the Estate of Ezra A. Pals; and GORDON ENGEL, as personal representative of the Estate of Kathryne L. Pals, personal representative of the Estate of Violet J. Pals, and personal representative of the Estate of Calvin B. Pals; Plaintiffs, v. TONY WEEKLYJR., BOHREN LOGISTICS, INC., INTERSTATE HIGHWAY CONSTRUCTION, INC., and D.P. SAWYER, INC., Defendants. JUAN PAUBLO VELEZ, MARTINIANA VELEZ, and PAOLA VELEZ, Plaintiffs, v. BOHREN LOGISTICS, INC., TONY WEEKLYJR., INTERSTATE HIGHWAY CONSTRUCTION INC, and D.P. SAWYER INC, Defendants 8:17CV27, 8:17CV175 United States District Court, D. Nebraska Filed June 28, 2019 Bazis, Susan M., United States Magistrate Judge ORDER *1 This matter is before the Court on Kathrynn Pals and Gordon Engel’s (“Plaintiffs”) Motion for Dispositive Sanctions or, in the alternative, for Sanctions and to Compel Discovery against Defendant Interstate Highway Construction, Inc. (“IHC”). (Case No. 8:17CV27, Filing No. 256.) For the reasons explained below, Plaintiffs’ motion will be granted, in part. BACKGROUND This action arises out of an automobile accident which occurred on July 31, 2016. The accident occurred in a construction zone (the “Project”) for which IHC was the general contractor. IHC and its subcontractor, Defendant D.P. Sawyer, Inc. (“DPS”), were purportedly responsible for monitoring the traffic control devices and signage used to route and signal traffic for the Project. Plaintiffs contend that IHC and DPS are liable because they failed to exercise reasonable care in implementing, monitoring, and evaluating the traffic control plan. Unfortunately, there have been numerous discovery disputes in this case. The Court held a telephone conference with counsel on November 6, 2017 to discuss one such dispute. During the conference, there was discussion regarding the lack of internal correspondence produced by IHC. IHC’s counsel represented that all external and internal emails had been produced and that no other responsive documents had been located. The Court stated that it could not order IHC to produce documents that did not exist but cautioned that if it was determined that IHC was withholding documents, it would be subject to sanctions. Immediately following the telephone conference, the Court ordered, in part, that: (1) Plaintiffs could conduct a Federal Rule of Civil Procedure 30(b)(6) deposition regarding document production and preservation issues; (2) IHC correspond with employees who worked on the Project to determine whether the employees had any pictures or writings relevant to the Project or accident at issue in this litigation, and that if employees had such information, that it be produced; and (3) Plaintiffs specify any items Plaintiffs believe IHC had not produced. On November 17, 2017, Plaintiffs’ counsel noticed a Rule 30(b)(6) deposition regarding document preservation and collection. The deposition was scheduled for December 20, 2017. On December 15, 2017, IHC’s counsel disclosed that IHC had discovered thousands of pages of responsive documents while preparing for the Rule 30(b)(6) deposition. The categories of documents located included those that IHC had previously represented had been fully produced. Counsel agreed to continue the Rule 30(b)(6) depositions due to these new documents. On December 18, 2017, Plaintiffs’ counsel contacted the Court to provide an update regarding document production. The Court authorized Plaintiffs to file a formal motion to compel. Plaintiffs filed a motion to compel and for sanctions on December 22, 2017. On May 17, 2018, the Court granted Plaintiffs’ motion, in part, finding that IHC had disregarded its discovery obligations by failing to timely produce certain documents. The Court ordered IHC to pay Plaintiffs’ reasonable expenses incurred in preparing the motion to compel, as well as to bear the costs associated with the Rule 30(b)(6) deposition pertaining to document collection and preservation. *2 Another discovery dispute arose in June, 2018. Plaintiffs filed a motion for dispositive sanctions and to compel discovery, arguing that IHC failed to preserve and/or destroyed discoverable evidence. Plaintiffs argued that IHC failed to preserve and/or destroyed weekly safety meeting checklists, as well as project safety inspection checklists for certain periods of time and a project safety analysis. Plaintiffs requested that the Court sanction IHC by (1) entering default judgment against IHC; (2) allowing Plaintiffs to present evidence to the jury regarding IHC’s failure to preserve evidence; (3) ordering that IHC may not present evidence at trial that may have been disputed or contradicted by the missing evidence; (4) ordering an adverse inference instruction; and/or (5) awarding monetary sanctions. On January 31, 2019, the Court entered an order granting Plaintiffs’ motion for sanctions, in part. The Court concluded that IHC’s duty to preserve evidence was triggered on January 23, 2017, when it received a preservation letter from Plaintiffs’ counsel. The Court further found that the missing documents were relevant and that given the nature of the safety meeting checklists, project safety analysis, and project safety inspection checklists, their loss was prejudicial to Plaintiffs. However, because it was not apparent to the Court that these items were intentionally destroyed, the Court ordered that the parties present evidence to the jury regarding this issue. The Court found that the jury would decide whether this evidence was lost and/or destroyed with the intent to deny Plaintiffs the use of the information. The Court also ordered IHC to supplement certain discovery responses. On February 25, 2019, twenty-five days following entry of the order on the motion for sanctions, IHC located a backup copy of its server that included a copy of the project folder. The copied server contained ninety-five pages of weekly safety meeting checklists that occurred between June 10, 2015 and August 15, 2016. DISCUSSION Plaintiffs’ most recent motion for sanctions requests that default judgment be entered against IHC for spoliation of evidence. “Spoliation is the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Coral Group, Inc. v. Shell Oil Co., 286 F.R.D. 426, 440 (W.D. Mo. 2012) (internal quotation omitted). “The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.” E*Trade Sec. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005). “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D. N.Y. 2003). Federal Rule of Civil Procedure 37(e) sets forth sanctions for a party’s failure to preserve electronically stored information (“ESI”). The Rule states: If 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, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon a finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. *3 Fed. R. Civ. P. 37(e). Rule 37(e) does not apply when the evidence lost or destroyed is not ESI. In those situations, a court must determine the sanctions available under its inherent authority. Bagley v. Yale Univ., 318 F.R.D. 234, 237 (D. Conn. 2016) (noting that Rule 37 does not seem to apply to “old-fashioned documentary evidence”). “A court’s inherent power includes the discretionary ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012) (quotation omitted). Federal courts may impose a variety of sanctions when a party abuses the judicial process by destroying evidence, including imposing an “adverse inference” jury instruction. Stevenson v. Union Pac. R.R., 354 F.3d 739, 745-46 (8th Cir. 2004). To impose an adverse-inference instruction, a district court is required to find (1) there was an intentional destruction indicating a desire to suppress the truth and (2) prejudice to the opposing party. Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 460 (8th Cir. 2013). Plaintiffs’ current motion is largely a reassertion of arguments they made in support of their last motion for sanctions—that IHC has engaged in spoliation of evidence. This new motion for sanctions stems from the recent discovery of the safety meeting checklists. Plaintiffs maintain that this discovery conclusively shows that IHC has hidden and destroyed evidence and, therefore, additional sanctions are warranted. The Court previously ordered that the issue of spoliation may be presented to the jury at the time of trial. The Court sees no need to alter its conclusion in this regard. However, the discovery of documents that have been repeatedly said not to exist shortly following the entry of a sanctions order, as well as the discovery of a back-up server, leads the Court to conclude that additional sanctions are appropriate. The Court will not enter a default judgment as requested by Plaintiffs, as this is an extreme and largely disfavored sanction. However, the Court will (1) grant Plaintiffs leave to supplement the summary judgment record with the safety checklists; (2) grant Plaintiffs leave to depose IHC’s IT Support Manager Peri Miranowski; and (3) order IHC to bear the reasonable costs of an independent forensic examination of its servers and electronic data. IHC will also be ordered to produce the entirety of the project file contained on its back-up server. Accordingly, IT IS ORDERED: 1. Plaintiffs’ Motion for Dispositive Sanctions or, in the alternative, for Sanctions and to Compel Discovery (Case No. 8:17CV27, Filing No. 256) is granted, in part, as set out above. IHC shall supplement its discovery and provide the missing information within seven days of this Order. 2. The issue of whether the safety meeting checklists, project safety analysis, and project safety inspection checklists were intentionally destroyed may be determined by the jury at the time of trial in accordance with the direction, procedure, and limits imposed by Senior United States District Court Judge Laurie Smith Camp. *4 Dated this 28th day of June, 2019.