Ernest FLAGG, as Next Friend of Jonathan Bond, Plaintiff, v. CITY OF DETROIT, et.al., Defendants No. 05–74253 United States District Court, E.D. Michigan, Southern Division August 03, 2011 Counsel Ashley A. Coneff, Howard Y. Lederman, Birmingham, MI, Kirkland W. Garey, Norman A. Yatooma, Norman Yatooma Assoc., Bloomfield Hills, for Plaintiffs. John A. Schapka, Krystal A. Crittendon, Detroit City Law Department, James C. Thomas, Plunkett Cooney, Michael C. Naughton, James C. Thomas, P.C., Detroit, MI, Jeffrey B. Morganroth, Morganroth & Morganroth, Birmingham, MI, for Defendants. Whalen, R. Steven, United States Magistrate Judge REPORT AND RECOMMENDATION *1 Before the Court is Plaintiffs' Request for Entry of Default and Other Sanctions Based Upon Spoliation of Evidence [Doc. # 488]. Because the request for default is a dispositive motion, I will proceed by Report and Recommendation pursuant to 28 U.S.C. § 636(b) (1)(B). For the reasons discussed below, I recommend that the Plaintiffs' motion for default judgment be DENIED, but that the request for the lesser sanction of an adverse inference instruction against the City of Detroit be GRANTED. I further recommend that the City of Detroit and former Corporation Counsel John Johnson be ordered to pay Plaintiffs' reasonable attorneys' fees and costs in bringing this motion. I. FACTUAL AND PROCEDURAL BACKGROUND The Plaintiffs' motion for default or other sanctions, based on spoliation of evidence, has its roots in an 11th hour discovery request. On July 30, 2010, one day before the close of discovery, Plaintiffs served Requests for Production of Documents on Defendant City of Detroit. Plaintiffs' Request to Produce # 11 requested the following documents: “All incoming and outgoing emails for Kwame Kilpatrick, Ella Bully–Cummings, Christine Beatty, Ruth Carter, Mike Martin, and Loronzo Jones for all City of Detroit e-mail addresses in use for City employees for the time period of August 1, 2002 through June 30, 2003.” Unsatisfied with the City's response, Plaintiffs filed a motion to compel on September 9, 2010 [Doc. # 443]. The City, through attorney John A. Schapka, filed a response [Doc. # 477] which contained the following assertion: “The City stands by its response. Further, upon their resignations during February of 2008, Beatty and Kilpatrick's email accounts and collected emails, whether in-coming or out going, were deleted and purged from the electronic storage system. As to Beatty and Kilpatrick, the City has no matters which are responsive to the request corresponding hereto.” City's Response, at 6. At the hearing on the Plaintiffs' motion to compel on October 26, 2010, Mr. Schapka informed the Court that Mr. Kilpatrick's and Ms. Beatty's emails were “electronically shredded.” I found these responses disconcerting, because on February 1, 2008, the Plaintiffs filed a motion for preservation of evidence [Doc. # 43]. On February 7, 2008, Chief Judge Gerald E. Rosen entered an order for the Defendants to show cause why the Court should not enter an order to preserve evidence identified in Plaintiffs' motion [Doc. # 44], and on March 5, 2008, Judge Rosen entered an order granting the Plaintiffs' motion to preserve evidence [Doc. # 58]. That order specifically directed the Defendants, “as well as their agents, attorneys, employees, and any other persons acting on their behalf” to “take all necessary and appropriate steps to preserve the materials identified at pages 7–10, paragraph 29(A)-(M) on Plaintiff's motion....” As set forth in that section of the motion to preserve [Doc. # 43], the materials included the emails at issue in the present motion.[1] *2 Because it appeared that the City may have destroyed evidence after having been put on notice that the Plaintiffs sought preservation, and after Judge Rosen entered his orders, I ordered additional briefing on the issue of spoliation of evidence. See Doc. # 482 and # 484. The Plaintiffs then filed a Memorandum of Law in Support of Plaintiff's Request for Entry of Default and Other Sanctions Based Upon Spoliation of Evidence [Doc. # 488]. Defendant Kwame Kilpatrick filed a response on November 22, 2010 [Doc. # 526], and the City filed its response on November 24, 2010 [Doc. # 528]. An evidentiary hearing on the issue of spoliation commenced on December 1, 2010. Owing to scheduling and other issues, the hearing was continued over a period of time, and concluded on May 4, 2011. The following witnesses testified: Terrance Sims, Director of the City's IT Department; Kwame Kilpatrick; Ruth Carter, former Corporation Counsel for the City; Ella Bully–Cummings, former Chief of Police; John Johnson, Corporation Counsel at the time of Judge Rosen's orders of February and March, 2008; Christine Beatty; Patricia Peoples; Krystal Crittendon, current Corporation Counsel; Mike Martin; Loronzo Jones; and Scott Bailey, Plaintiffs' computer expert. Terrance Sims Terrance Sims, the Technical Services Manager of the City's IT Department, testified that in 2002 and 2003 (and currently), the City used an email system known as Groupwise, which he described as a server-based software package (Tr. 12–1–10, 8–9). In this type of system, emails are stored on servers, and could be accessed by “clients.” By “clients,” Mr. Sims meant devices such as desktop computers, laptop computers, smart-phones and i-Pads. These devices are windows or gateways to the servers—in other words, they communicate with the servers-but do not themselves store the information contained in emails. Rather, the information is stored on the servers. Id. 9–12, 35, 37–38. Thus, access to emails does not depend on which computer or device is used to view them, because everything is on the servers, and the servers can be accessed by any device, as long as the user has the correct log-in I.D. and password. Id. 21–22. Therefore, Mr. Sims testified, if the attorneys had possession of Mr. Kilpatrick's computers, they would be useless to retrieve emails, unless the emails had been archived. Id. 50.[2] Mr. Sims testified that if a user “deletes” an email from his client device, e.g., his desktop computer, it is moved into a “trash” folder. Id. 14. This “trash” receptacle resides on the server, however, not on the client device. When an email is placed in the trash, the system is programmed to automatically delete it after seven days. This is done to clean up space; otherwise, given the volume of emails, the system could be overwhelmed. Id. 17–18. Once the email is deleted and purged from the server, it cannot be retrieved. The City does not back up the emails or the servers. Id. 26. However, if a user does not delete an email or move it into trash, it remains on the server indefinitely. Id. 15. Thus, for example, if Mr. Kilpatrick's emails were not deleted, they could be retrieved from the server (but again, not his computer). Id. 37–38. *3 Emails could, however, be manually saved to an individual device by cutting and pasting it into a text document, or by “archiving” it. Id. 22–23. Mr. Sims testified that during the relevant time period, most users did not know how to archive, and most still do not. Id. 55–57. Moreover, in 2002 and 2003, the network administrator could not archive emails from the server itself. Id . 61–62. Mr. Sims examined Mr. Kilpatrick's file server, and found no indication that he had archived any emails. Id. 113. Mr. Sims testified that he had no knowledge of emails being deleted or purged in 2008. Id. 109–110. period. Kwame Kilpatrick Mr. Kilpatrick testified that as mayor, he had three City-issued computers: two desktops and one laptop. He never used the laptop. He had one desktop in his office, and one at his residence in the Manoogian Mansion. Tr. 3–7–11, 30–31. He sent and received emails from his office computer, which he left in his office when he resigned in September, 2008. Id. 36–37. In 2002 and 2003, most of his emails were to City workers and appointees. At one point, he testified that he deleted some emails, but he would simply leave most of them in the in-box. Later, he said that he deleted most of his emails by hitting the “delete” button. Id. 63, 115–16. However, he did not recall if he deleted all of his emails from 2002 and 2003. Id. 57. While he indicated that he would delete most of his emails after reading them (i.e., emails in his in-box), he did not recall deleting any emails from his sent-box. Id. 56, 63. Mr. Kilpatrick testified that while he deleted some emails and kept others, he had no idea how many emails were in his in-box when he left office-it could have been anywhere from one to one thousand. Id. 119. He did not, however, archive any emails, as he did not know how to do so. Id. 49–50, 52, 55, 139, 185). Mr. Kilpatrick testified that he never sent or received any emails concerning Tamara Greene, the Greene homicide investigation, or the Flagg lawsuit. Id. 140, 143–45. Mr. Kilpatrick testified that he did not recall hearing about an order to preserve emails, and did not know that he had a duty to do so. Id. 64. In fact, he said that the day of his testimony was the first time he had seen the March 5, 2003 order to preserve evidence, and that he did not recall counsel ever advising him of that order. Id. 122–124. Nevertheless, he said that he himself did not delete any emails after the March, 2008 preservation order. Id. 141. Ruth Carter Ruth Carter, now a 36th District Court Judge, was the City's Corporation Counsel from January of 2002 to January of 2006. Id. 152. She testified that she rarely communicated by email, and that in 2002 and 2003 she may have sent perhaps 10 emails per week, but not as many as 100. Id. 154–56. She said that she probably deleted every email that she received. Id. 157–58. However, she probably never looked in her sent-box, so it appears that she did not delete emails that she sent to other people. Id. 159–60, 162. Judge Carter said that she did not recall receiving any emails from Mr. Kilpatrick or Ms. Beatty, id. 165–66, and that she did not send or receive any emails regarding Tamara Greene or the Tamara Greene homicide investigation. Id. 184–85. She did not know how to manually save or archive emails. Id. 185. John Johnson *4 Mr. Johnson was the City's Corporation Counsel from January 2006 to September, 2008, and was thus in charge of the City's Law Department when Judge Rosen entered his show cause order and preservation order in February and March of 2008, respectively. He testified that John Schapka and Krystal Crittendon were the attorneys assigned to the Flagg case, with Mr. Schapka being lead counsel. Id. 201. He said that although he may have communicated with Mr. Kilpatrick about the case, he did not discuss the Plaintiffs' motion to preserve evidence, the show cause order, or the order to preserve. Id. 204. He further testified that he never communicated with outside counsel (i.e., the Morganroth firm) about the motion to preserve or the resulting orders, and that he believed any communication with City officials, including Mr. Kilpatrick and Ms. Beatty, would have been by the Morganroth firm Id. 205, 207. Mr. Johnson testified that he may have seen the March 5, 2008 preservation order “somewhere along the way,” but if he had, his directive would have been for either Mr. Schapka or Ms. Crittendon to handle the matter. Id. 209. He said that the Law Department did not assume any responsibility to make sure that Mr. Kilpatrick complied with the order, and he did not know what the City did in response to the order. Id. 21–212. Later, when asked why he did not instruct the relevant City officials about the preservation order, he said that the entire matter was the responsibility of Mr. Schapka and Ms. Crittendon, adding, “The matter was handled by Schapka and Crittendon, so they had the obligation. They were attorneys of record.” Id. 224–25. Finally, Mr. Johnson testified that Patricia Peoples told him that all of the Kilpatrick administration's electronic files (including emails) were destroyed at the end of Mr. Kilpatrick's first term. Id. 226–27, 230. Ella Bully–Cummings Ms. Bully–Cummings was appointed the City's Chief of Police on November 3, 2003 (Tr. 3–9–11, 6). Prior to that time, from August 1, 2002 until June 30, 2003, she was the Assistant Chief over the Administrative Portfolio. Id. 64. She described that position as dealing “strictly with business functions of the Police Department,” and as such, she had no responsibility for litigation. Id. 81. She testified that in 2002 and 2003, she did not receive or send any emails relating to Tamara Greene, the Greene homicide investigation, or anything concerning this lawsuit. Id. 81–83. Although she did not recall seeing an order to preserve emails, id. 40, she testified that she never destroyed any of her emails either before or after that order was issued in 2008. Id. 84–85. She said that she never archived or manually saved any emails, because she did not know how to do so, and that she never deleted emails from her sent-box. Id., 83–84, 92. Lorenzo Jones and Michael Martin Both were Detroit Police Officers, assigned to the Mayor's Executive Protection Unit (“EPU”). They both testified that they spent the majority of their time “in the field,” and rarely if ever communicated by email. Rather, they communicated mainly by telephone and text message (Tr. 3–24–11, 95–96, 100, 105–106, 109–110). Officer Martin said that they were in the field, without access to a shared EPU computer, “probably 99 percent of the time.” Id.109. Patricia Peoples *5 Patricia Peoples was Mr. Kilpatrick's Deputy Chief of Staff from 2001 to 2005, and Deputy Director of the City's Human Resources Department from 2006 until September of 2008. She was also Mr. Kilpatrick's cousin. (Tr. 5–4–11, 12–13). It was she to whom John Johnson attributed the information that the Kilpatrick administration's electronic files (including emails) were destroyed at the end of Mr. Kilpatrick's first term. However, Ms. Peoples testified that she never made that statement to Mr. Johnson. Id. 22. Rather, she told Mr. Johnson that a list of text message telephone numbers, contained in a Microsoft Word file, were discarded, as was the usual practice whenever that list was updated. Id. 28–29. She added that “if John Johnson doesn't know the difference between a Word document and an email, shame on him, id 29, and offered that she “[had] a couple choice words for John Johnson, but I don't think you want to hear those.” Id. 140.[3] Christine Beatty Ms. Beatty resigned her position as the Mayor's Chief of Staff effective February 28, 2008, although she tendered her letter of resignation on January 24th or 25th. (Tr. 3–23–10, 5–6). Her last day of work in the City–County Building was around January 25, 2008. Id. 7. She said that she had no access to her computer after that date. Id.49. During her tenure, Ms. Beatty sent and received emails, including email communications with Mr. Kilpatrick. Id. 14–15. She testified that she did not generally delete her emails. Rather, most of them would remain in her in-box. Nor did she recall deleting emails from her sent box. Id. 18–19. She testified that in 2002 and 2003, she did not send or receive any emails related to Tamara Greene or the Greene homicide investigation. Id . 45–46. Ms. Beatty testified that she never saved her emails on any external devices. Id. 47. She said that she had no idea why her emails from August of 2002 through June of 2003 were not available. Id. 19. Ms. Beatty testified that she believed she was made aware of the Plaintiffs' motion to preserve evidence sometime in 2008, by her attorneys from the Morganroth firm. The Morganroths did not represent her until after her resignation on February 8, 2008. Id . 36–38. Krystal Crittendon Ms. Crittendon is the City's current Corporation Counsel (Tr. 5–4–11, 67). Prior to that, she was a staff attorney. Id.67. She testified that if there were an order to preserve evidence, the City attorney assigned to the case was to advise the client department of that order and what was required. Id. 68–69. She described the policy as follows: “[I]f there is a specific order to preserve the evidence, you are to communicate that order to the client department....” Id. 74. Ms. Crittendon testified that John Schapka was assigned to this case when it was filed in November of 2005, and that when the preservation order was issued in March of 2008, the City was represented jointly by Mr. Schapka and the Morganroth firm. Id. 70. She said that she first became aware of this case in February or March of 2008, when John Johnson, who was then the Corporation Counsel, asked her to “assist” Mr. Schapka. Id. 79. She stated: *6 “At the point when [Mr. Johnson] asked me to work on the case, the City of Detroit was being represented jointly by both Attorneys Morganroth and Mr. Schapka, and the City of Detroit representation was coming back into the law department, and Mr. Johnson said he thought it would be too much work for Mr. Schapka to handle by himself.” Id. 80. Ms. Crittendon filed an appearance of counsel on March 31, 2008, but over a month before, on February 20, 2008, she filed an answer to the Plaintiff's amended complaint. Id. 78–79, 82. She said that she would not have had any responsibility for disseminating court orders to City Departments until after she filed her appearance. Up to that point, she said, Mr. Schapka and the Morganroths were responsible for making sure the City complied with court orders. Upon filing her appearance, however, she would have shared joint responsibility, i.e., neither “more nor less” responsibility, with Mr. Schapka and the Morganroths. Id. 82–83. In any event, Ms. Crittendon admitted that she did absolutely nothing to disseminate the March, 2008 preservation order, even after she received it, claiming that was the responsibility of Mr. Schapka and the Morganroths. Id. 98. Nor did she order or instruct anyone regarding the preservation of Mr. Kilpatrick's computers. Id. 114. Scott Bailey Plaintiffs offered the testimony of Mr. Bailey, an IT expert. Mr. Bailey agreed with Mr. Sims' testimony that an email that was not deleted by a user would remain on the City's server indefinitely. (Tr. 5–16–11, 144). He testified that he examined an external disk onto which some of Ella Bully–Cummings emails had been extracted, but did not examine any other emails. Id. 170. Ms. Bully–Cummings emails were extracted from the server, id. 163, and of the 831 emails that were examined, the earliest was dated August of 2008. Id. 189, 197. John Schapka In lieu of testifying, Mr. Schapka placed a statement on the record concerning why he, as counsel of record in 2008 and currently, did not see that Judge Rosen's show cause order or preservation order were provided to the relevant City Departments. Given the significance of Mr. Schapka' revelations to the spoliation issue, and to the question of John Johnson's credibility, it is appropriate to set forth his statement in its entirety: THE COURT: Okay. Good afternoon. The record should reflect that we had a discussion in chambers concerning the question of whether, who, when, where, et cetera the—Judge Rosen's order to show cause in February, 2008, as well as in his order to preserve evidence March, 2008, was provided to the appropriate respondents in the City of Detroit. We've had testimony thus far that indicates that those individuals who testified, I believe Mr. Johnson, who was then the corporation counsel and the present corporation counsel, Miss Crittendon, testified this morning that they did not do so. Mr. Schapka, as I've indicated on several occasions, I am always cautious about having a counsel who represents a party in a case testify. I think we tread on dangerous grounds when we do that, and I'm always concerned about not only the—obviously the attorney-client privilege but the—you know, impact on the defense and your representation of your client. However, pursuant to our discussion off the record, you are prepared at this time as counsel, present counsel of record, and as an officer of this court, to put a statement on the record as to the operative facts concerning what did or didn't happen back in January, February, March of 2008. Is that correct? *7 MR. SCHAPKA: That's right, Your Honor. THE COURT: Could you step up to the lectern, please. MR. SCHAPKA: Yes, sir. Yes, sir. This matter was originally filed in November of 2005. I filed the Defendants' Answer to the Complaint, so I am the original attorney on this case. The Defendants at that time—I'm afraid I don't have a copy of the caption block—but did include Kwame Kilpatrick, I believe the City, and there are a couple of others. The claim in the initial Complaint failed to state a claim recognized by law. My response was actually a motion in lieu of answer to dismiss. That motion was eventually granted. At the same time Plaintiff was afforded the opportunity to file an Amended Complaint. They did so, and the Amended Complaint brought the claim that we currently face, but at the same time the Amended Complaint deleted Kilpatrick and Beatty and several others as Defendants, including the City, as I recall. THE COURT: Now, at that particular time, Mr. Yatooma's firm was not counsel of record; is that correct? MR. SCHAPKA: That is correct. He had not yet appeared as counsel of record for Plaintiff. As I recall, the motion hearing was in July of ′09 Plaintiff filed their Amended Complaint giving us the current claim and deleting the City, Kilpatrick, Beatty, a couple of others, was filed later that summer. In December of 2008— MR. YATOOMA: Your Honor, I'm sorry to interrupt. I don't want Mr. Schapka to misstate the date on the record. I believe he said July of ′09. MR. SCHAPKA: I'm sorry, ′06. THE COURT: ′06. Thank you. MR. SCHAPKA: In December of 2008 Mr. Yatooma filed an appearance and also a motion to amend the Complaint yet again. That amendment brought Kilpatrick, I believe, the City and Beatty and maybe some others back into the case as Defendants. In January of 2009, as I recall, and I don't have the exact dates in front of me, in January— THE COURT: Are we talking about January, 2008, or 2009? MR. SCHAPKA: December of 2007— THE COURT: Right. MR. SCHAPKA:—Mr. Yatooma made the appearance. THE COURT: And now we're moving in the January, 2008. MR. SCHAPKA: 2008. THE COURT: Okay. MR. SCHAPKA: Shortly thereafter, within a few weeks thereafter. John Johnson, who was then the corporation counsel for the City of Detroit Law Department, met with me, summoned me to his office. He was very displeased that Kilpatrick was back in the case. His words were loud, high speed, high volume. I was given very little chance to talk. Later that day I was called in by my direct supervisor, a man named Frank Barbee, who related that per John Johnson's directive I was to be relieved of any responsibilities in this matter. The exact words communicated to me by Barbee were that I was fired off the case. THE COURT: And this was in—when in January? MR. SCHAPKA: January of ′08. I can't vouch for whether those are the exact words from Johnson to Barbee, but those were the words from Barbee to me. I was ordered to surrender the file, which I did. It was made fairly clear to me— *8 THE COURT: Surrender the file to whom? MR. SCHAPKA: To Mr. Barbee or Krystal Crittendon. At that time the file was a very slender red rope because there was almost no action in the case up to that point. I did so. It was made very clear to me that a failure to do so may lead to a serious adverse employment action. I remained completely uninvolved. I was not going to disobey the direction or order and risk some adverse employment action until March of ′08 when I was reintroduced to the case under very strange circumstances. There was never an announcement. There was never a direction to get back involved. It was just go to this conference with Miss Crittendon, and that was in front of Judge Rosen, and I believe the docket sheet will show that date was March 14th of 2008. THE COURT: I see. MR. SCHAPKA: I showed up at the conference, kept my mouth shut. At that time there was a variety of outside counsel appointed to represent different individuals, different groups of people because of conflicts of interest. Ken Lewis from Plunkett Cooney was involved on behalf of Bully–Cummings, Mr. Thomas involved on behalf of Mr. Kilpatrick, the firm Morganroth and Morganroth on behalf of at that point Beatty and Crittendon, and I were to keep the City and three retired police commanders. During that interim period, when I was off the case and before I was reintroduced to the case, the entire group of Defendants were represented by the firm Morganroth and Morganroth. When the other individuals were split off and sent to other outside counsel during that period, I have no idea because I was literally staying out of it. I was not involved in conferences, meetings, telephone calls or even whispers in the hallway. I just know that at that first status conference in which I did appear there was this host of outside counsel that I was introduced to. THE COURT: During the period of, say, January, 2008, up to the point that you had this meeting on March—this conference in March of 2008 and, very specifically, during the month of February, 2008, up through March 8th of 2008, Morganroth and Morganroth were counsel for the City, correct? MR. SCHAPKA: And as far as I know for all of the Defendants. THE COURT: But also during that time period the city attorney's office, corporation counsel's office, I should say, was still counsel of record? MR. SCHAPKA: Still counsel of record, yes. THE COURT: Although you had received—and during that time Mr. Johnson was the corporation counsel. MR. SCHAPKA: Yes. THE COURT: And he had involvement in the case at least to the extent of removing you from participation during the relevant time period? MR. SCHAPKA: Yes. THE COURT: Okay. Thank you, Mr. Schapka. MR. SCHAPKA: You're welcome, sir. THE COURT: Oh, I'm sorry. I did have one other question. MR. SCHAPKA: Yes, sir. THE COURT: You said that Miss Crittendon had advised you to be at this conference in I think it was March 14th. *9 MR. SCHAPKA: Yes. THE COURT: It was around that time I believe that Miss Crittendon indicated that she filed a form appearance of counsel. MR. SCHAPKA: I think the docket sheet shows her formal appearance was at the end of that month, like the 30th or 31st of March. THE COURT: But during—well, at the time that Mr. Yatooma's firm filed the Amended Complaint, I believe Miss Crittendon's testimony was that it was she that filed the Answer to that. MR. SCHAPKA: By that point I was out of the case. THE COURT: You were out of the case. MR. SCHAPKA: Yeah. THE COURT: All right. MR. SCHAPKA: I was—because I was still counsel of record as far as the Court was concerned and receiving the ECF notices. I don't know if you've ever seen those coming across e-mails. They're letters and digits and can actually sort of recognize the Judge's initials which are embedded. I've seen those, and I wouldn't even open and read them because I was ordered to have no— THE COURT: Now, in terms of the original question that brought us all to this point, and that is who, if anyone, disseminated Judge Rosen's orders, order to show cause and his order to preserve evidence, whoever did or didn't do that, you didn't personally; is that correct? MR. SCHAPKA: Correct. I know who did, and under what circumstances, as far as the police department only, have no idea as to any other defendant or any other portion of the City. THE COURT: Okay. And were you actually—whatever was on ECF or whatever was on there, were you actually personally aware of those orders at any time prior to, say March 14th? MR. SCHAPKA: I was aware that there was an order. As I said, I never opened or read it because I was complying with directions. THE COURT: Okay. Thank you. (Tr. 5–4–11, 123–130) (emphasis added). The Morganroth Affidavit Given the discrepancies between Mr. Schapka's statement and Mr. Johnson's testimony, I directed the City to request an affidavit from the Morganroth firm setting forth what they did in response to Judge Rosen's show cause order and order to preserve evidence. Attorney Mayer Morganroth's affidavit, filed on May 16, 2011 [Doc. # 581], contains the following pertinent facts. -The Morganroth firm “was retained to serve as co-counsel with Schapka of the City Law Department” on behalf of the City of Detroit and then-Mayor Kwame Kilpatrick. Affidavit, ¶ 4. -“When the Morganroth Law Firm was retained, we were instructed to report to and have primary contact with Corporation Counsel, John E. Johnson (“Johnson”), and General Counsel to the Mayor, Sharon McPhail (“McPhail”), on behalf of the Defendants that our firm was representing as co-counsel with Schapka regarding the Flagg Case. In addition, we were to and did coordinate and communicate with Schapka as co-counsel.” Id. ¶ 6. -“When [Christine] Beatty resigned her position as Chief of Staff in late January 2008 ... the Morganroth Law Firm continued to report to and have primary contact with Johnson and McPhail regarding the representation of the City of Detroit ... and Kilpatrick as co-counsel with Schapka.” Id. ¶ 7. *10 -“On February 1, 2009, Plaintiff filed a motion to preserve evidence ... which was served through the Court's ECF system upon all counsel in the Flagg Case.” Id. ¶ 8. -“The Morganroth Law Firm reviewed the Motion to Preserve Evidence shortly after receipt, and specifically discussed its form and substance with Johnson and McPhail shortly thereafter.” Id. ¶ 9 -“On February 7, 2008, the Court issued an Order to Show Cause ... why the Court should not issue an order for preservation of certain categories of materials identified in the Plaintiffs' February 1, 2008 Motion to Preserve Evidence....” Id. ¶ 10. -“The Order to Show Cause was served through the Court's ECF system upon all counsel in the Flagg Case. The Morganroth Law Firm reviewed the Order to Show Cause shortly after receipt, and specifically discussed its form and substance with Johnson and McPhail shortly thereafter.” Id. ¶ 11. -“On March 5, 2008, the Court issued an Order to Preserve ... which was served through the Court's ECF system upon all counsel in the Flagg Case....” Id. ¶ 12. -“The Morganroth Law Firm reviewed the Order to Preserve shortly after receipt and specifically discussed its form and substance with Johnson and McPhail shortly thereafter. The Morganroth Law Firm also provided them with a copy of the Order to Preserve.” Id. ¶ 13. -“The Order to Preserve was further discussed with Johnson, McPhail, Schapka and Crittendon before the March 14, 2008 Status Conference at the Court, and with Schapka and Crittendon on March 14th at the courthouse in connection with the March 14, 2008 Status Conference which was attended by Schapka, Crittendon and Jeffrey B. Morganroth from the Morganroth Law Firm.” Id. ¶ 15. II. LEGAL PRINCIPLES A. Default Judgments In general, Fed.R.Civ.P. 37 provides for sanctions for failure to make disclosures or cooperate in discovery. Rule 37(b) provides for sanctions where a party fails to comply with a court order regarding discovery, including, under Rule 37(b)(2)(A)(vi), entry of default judgment where it is the defendant who has been disobedient. A motion for sanctions under this Rule is addressed to the Court's discretion. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 643, 96 S.Ct. 2778, 49 L.Ed.2d 747 (1976); Regional Refuse Systems, Inc. v. Inland Reclamation Co. ., 842 F.2d 150, 154 (6th cir.1988). However, entry of a default judgment against a party “for failure to cooperate in discovery is a sanction of last resort,” and may not be imposed unless noncompliance was due to “willfulness, bad faith, or fault.” Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990)(citations omitted). See also Grange Mut. Cas. Co. v. Mack, 270 Fed. Appx. 372, 376 (6th Cir.2008) (explaining that default judgment is the court's most severe discovery sanction). The Court's discretion is informed by the four-part test described in Harmon v. CSX Transportation, Inc., 110 F.3d 364, 366–67 (6th Cir.1997):(1) whether the party's failure is due to willfulness, bad faith, or fault; (2) whether the adversary was prejudiced by the dismissed party's conduct; (3) whether the dismissed or defaulted party was warned that failure to cooperate could lead to dismissal or entry of default judgment; and (4) whether less drastic sanctions were imposed or considered before dismissal or default judgment was ordered. See also Bank One of Cleveland, N.A. v. Abbe, 916 F.2d 1067, 1073 (6th Cir.1990). *11 In deciding whether to impose “the draconian sanction” of default judgment, the first factor—the party's willfulness or bad faith in failing to comply with a discovery order—looms large. Intercept Security Corp. v.Code–Alarm, Inc., 169 F.R.D. 318, 321–22 (E.D.Mich.1996), citing Societe Internationale Pour Participations Industrielles et Commerciales, S.A. v. Rogers, 357 U.S. 197, 212, 78 S.Ct. 1087, 2 L.Ed.2d 1255 (1958). However, a prior warning that failure to comply with a discovery order will result in dismissal is pivotal both to the determination of willfulness and to the ultimate decision to dismiss. See Harris v. Callwood, 844 F.2d 1254, 1256 (6th Cir.1988). B. Spoliation / Adverse Inference Instruction “[I]t is within a district court's inherent power to exercise broad discretion in imposing sanctions based on spoliated evidence.” Adkins v. Wolever, 554 F.3d 650, 653 (6th Cir.2009). In Adkins, the Sixth Circuit held that spoliation sanctions are governed by federal law, and serve both a punitive and a fairness purpose: “As our sister circuits have recognized, a proper spoliation sanction should serve both fairness and punitive functions. See Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995) (observing that a proper sanction will serve the ‘purpose[s] of leveling the evidentiary playing field and ... sanctioning the improper conduct’). Because failures to produce relevant evidence fall ‘along a continuum of fault-ranging from innocence through the degrees of negligence to intentionality,’ Welsh, 844 F.2d at 1246, the severity of a sanction may, depending on the circumstances of the case, correspond to the party's fault. Thus, a district court could impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence. Vodusek, 71 F.3d at 156.” Id. at 652–53. The party “seeking an adverse inference instruction based on the destruction of evidence must establish (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that 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 the claim or defense.” Residential Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002), quoted in Forest Laboratories, Inc. v. Caraco Pharmaceutical Laboratories, Ltd., 2009 WL 998402 (E.D.Mich.2009). III. ANALYSIS The Plaintiffs requested emails sent and received by certain individuals, including Kwame Kilpatrick and Christine Beatty, for the period August 1, 2002 through June 30, 2003. With the exception of Mike Martin and Loronzo Jones, all of the individuals generated and received emails during that period. The testimony is clear that not all of the emails from that period were deleted; therefore, under the Groupwise email system described by Terrance Sims, those emails should have remained on the City's servers. They did not, and the City has not produced any emails from that period. Mr. Schapka, the City's attorney, informed the Court, both in writing and orally on the record, that Mr. Kilpatrick's and Ms. Beatty's “email accounts and collected emails” were “deleted and purged from the electronic storage system” upon their resignations in 2008. *12 The inescapable conclusion is that the City, which had possession and control of the emails that were on its servers, caused those emails to be deleted, depriving the Plaintiffs of the discovery they requested. However, there was no evidence produced showing that Mr. Kilpatrick himself destroyed any emails or that he ordered their destruction. By the City's admission, the emails were purged after Mr. Kilpatrick's and Ms. Beatty's resignations, and there has been no evidence that Mr. Kilpatrick exercised any control over the City's servers from February of 2008 onward, or that he himself participated in what Mr. Schapka described as the purging and deleting of his electronic files. Therefore, Defendant City of Detroit, not Mr. Kilpatrick, should be sanctioned. The question is what sanctions are appropriate. A. Default Judgment Again, a default judgment is the Court's most drastic discovery sanction. A fair application of the four Harmonfactors, discussed individually below, persuades me that while the City's conduct in this case—and particularly the conduct of its attorneys—is deeply troubling, entry of a default judgment is not warranted. To borrow a concept from criminal sentencing law, a sanction should be “sufficient, but not greater than necessary” to accomplish its purpose.[4] 1. Willfulness, Bad Faith or Fault It would be a gross understatement to say that the City acted in bad faith and was at fault in causing the destruction of evidence.[5] After exhaustive evidentiary hearings and briefing, we are left with these essential facts: 1. Kwame Kilpatrick, Christine Beatty, Ruth Carter and Ella Bully–Cummings sent and received emails during the relevant period, and did not delete all of those emails, including those in their sent boxes. Those emails should therefore be on the City's servers. They are not. 2. This lawsuit was filed in 2005, triggering a duty to preserve potentially relevant evidence. 3. The Plaintiffs filed a motion to preserve evidence, specifically including emails from the relevant period, on February 1, 2008, followed by Judge Rosen's show cause order on February 7th and his order to preserve evidence on March 5th. The City therefore had an even clearer duty to preserve the requested emails as of February, 2008. 4. The City was represented by the Corporation Counsel, and specifically by attorney John Schapka, as well as by the Morganroth firm. However, in January of 2008, John Johnson, the Corporation Counsel, unceremoniously removed Mr. Schapka from the case in an apparent fit of anger. 5. At no time did either Mr. Johnson, Mr. Schapka or Ms. Crittendon take any action whatsoever to ensure that any City Departments, including the IT Department, were aware of the show cause or preservation orders, or to ensure that evidence was not destroyed, even though the Corporation Counsel was counsel of record, and even though the Morganroth firm specifically discussed the orders with Mr. Johnson, as they had been instructed to do. *13 6. In February of 2008, notwithstanding a motion to preserve evidence and a show cause order, Mr. Kilpatrick's and Ms. Beatty's email accounts and collected emails were intentionally purged from the system, and, because the City does not back up its servers, they are lost forever. Most disturbing is the testimony of John Johnson, testimony that I find to have been dishonest and misleading. On one hand, he testified that any communication with Mr. Kilpatrick or Ms. Beatty about the preservation issue would have been through the Morganroth firm. Yet, he repeatedly said that the responsibility for informing these Defendants rested with Mr. Schapka and Ms. Crittendon, who had that obligation as attorneys of record.[6] Of course, he neglected to mention that he “fired” Mr. Schapka from the case in January of 2008, sending word that Mr. Schapka was to surrender the file and have no involvement in the case, on penalty of a “serious adverse employment action.” Thus, the person that Mr. Johnson now claims had responsibility to ensure compliance with the show cause and preservation orders is the person whom he essentially threatened to fire if he in fact undertook that responsibility. As to Mr. Johnson's current claim that Ms. Crittendon shared responsibility with Mr. Schapka in February and early March of 2008, she did not file an appearance until the end of March. This fact led to Ms. Crittendon's claim, completely contrary to Mr. Johnson's testimony, that she herself had no responsibility at all to disseminate the Court's orders.[7] And as to the Morganroths, Mr. Johnson's testimony that he never communicated with outside counsel, or that the Morganroths were responsible for informing City Departments of Court orders, is demonstrably false, as shown by the Mayer Morganroth's affidavit. The Morganroths were instructed at the outset to “report and have primary contact” with Mr. Johnson and Ms. McPhail, and pursuant to that directive, they directly discussed the motion to preserve and the resulting orders with Mr. Johnson. Were private attorneys to walk into the IT Department, or other City Departments, and give instruction to City employees? No. That was the responsibility of the Corporation Counsel's Office, the lead attorneys in this case. The Morganroths were specifically told to report not to the City's civil service workers, but to Mr. Johnson himself. In a word, Mr. Johnson's actions in 2008 and his testimony at the evidentiary hearing were outrageous. However much he attempts to point fingers and shift blame to others, he was in charge. He not only failed to disseminate the Court's orders, but took actions that would virtually guarantee that those orders were not complied with. He was utterly delinquent in his duty to see that his clients complied with Judge Rosen's orders, and in his obligation to give honest and candid testimony before this Court. The emails that were explicitly ordered preserved were instead destroyed under his watch. *14 With respect to the first Harmon factor, the City clearly acted culpably and in bad faith. 2. Prejudice “Even the negligent destruction of evidence is prejudicial to an opposing party, and undermines the litigation process.” Easton Sports, Inc. v. Warrior LaCrosse, Inc., 2006 WL 2811261, *5 (E.D.Mich.2006). Here, we have the bad faith destruction of evidence. While, as discussed in the following section, the emails are presumed to be relevant for purpose of a permissive adverse inference instruction, the weight of the adverse inference might not be particularly strong in view of the totality of the evidence in this case. Moreover, the emails from 2002 and 2003 cannot be said to be the lynchpin of the Plaintiffs' case. Therefore, while the Plaintiffs have suffered prejudice, this factor does not compel the extreme sanction of a default judgment. See Easton Sports (finding that a default judgment was not appropriate even where the destruction of evidence was willful). 3. Whether the City was Warned Regrettably, the City has demonstrated a consistent lack of diligence in this case in timely complying with its discovery obligations. In an order granting the Plaintiffs' motion to compel discovery, filed on January 15, 2010 [Doc. # 278], Judge Rosen stated as follows: “Finally, in light of the disturbing trend evidenced by Plaintiffs' several motions to compel—namely, that at least certain of the Defendants appear to be consistently failing to provide timely responses to discovery requests, despite the evident efforts of Plaintiffs' counsel to resolve these matters cooperatively—the Court cautions the parties and their counsel that any further failures to provide timely and appropriate responses to discovery requests will be met with escalating rounds of sanctions, up to and including dismissal of claims or the entry of judgment against recalcitrant parties.” However, this warning to all parties came almost two years after the City's destruction of the emails. Prior to the 2008 fiasco, no such warnings had been given. Moreover, Judge Rosen's order cautioned that there would be escalating discovery sanctions, that is, that less severe sanctions would be imposed before entry of default judgment. In Peltz v. Moretti, 292 Fed.Appx. 475, *5 (6th Cir.2008), the Sixth Circuit stated: “Clear notice is required, and this court has previously held that ‘routine language in a standard order, warning counsel of possible dismissal as a sanction for failure to comply ... is not necessarily sufficient prior notice to immediately warrant the extreme sanction of dismissal.’ “ (quoting Freeland v. Amigo,103 F.3d 1271, 1279 (6th Cir.1997)). This third factor, then, weighs against entering a default judgment as a discovery sanction. 4. Whether Lesser Sanctions were Imposed In Mulbah v. Detroit Board of Educ., 261 F.3d 586, 594 (6th Cir.2001), the Court stated that “the sanction of dismissal is appropriate only if ... no alternative sanction would protect the integrity of the pretrial process” (quoting Carter v. City of Memphis, 636 F.2d 159, 161 (6th Cir.1980) (emphasis in Mulbah ). Here, as in Peltz, supra, there is nothing on the record to suggest that any lesser sanctions were considered or imposed. *15 As Magistrate Judge Scheer stated in Easton Sports, supra, “Justice requires that any sanction imposed be proportionate to the circumstances.” Because of the bad faith exhibited by the City's attorneys, the City must be sanctioned. Notwithstanding that bad faith, however, and in view of all the Harmon factors, entry of a default judgment would be excessive, and would give the Plaintiffs an undeserved windfall. Lesser sanctions, as discussed below, are more appropriate. B. Adverse Inference Instruction The three factors set forth in Residential Funding Corp., supra, weigh heavily in favor of giving the Plaintiffs the benefit of an adverse inference instruction as to the spoliated emails of Kwame Kilpatrick, Christine Beatty, Ruth Carter and Ella BullyCummings. 1. Duty to Preserve As shown by the testimony of the City's own IT Director, Terrance Sims, the City clearly had control of the emails in question, as they were stored on the City's servers. As Judge Rosen pointed out in his show cause order, the duty to preserve potentially relevant evidence arose at least as early as the filing of this lawsuit in December of 2005. And certainly by February 1, 2008, when Plaintiffs filed their motion to preserve, through February 7, 2008, when Judge Rosen entered his order to show cause, and continuing through March 5, 2005, when he entered the order to preserve, the City was on notice that it had a duty to preserve to emails in question. 2. Culpable State of Mind In Thompson v. U.S. Dept. of Housing and Urban Development, 219 F.R.D. 93, 101 (D.Md.2003), the court, citing Residential Funding as well as Judge Friedman's opinion in Forest Laboratories, stated that “there were three possible states of mind that would satisfy the culpability requirement: bad faith/knowing destruction; gross negligence, and ordinary negligence .” However, “a court need not find bad faith or intentional misconduct before sanctioning a spoliator.” Klezmer ex rel. Desyatnik v. Buynak, 227 F.R.D. 43, 50 (E.D.N.Y.2005). See also Reilly v. Natwest Markets Group Inc., 181 F.3d 253, 268 (2nd Cir.1999) (“[W]e hold that a finding of bad faith or intentional misconduct is not a sine qua non to sanctioning a spoliator with an adverse inference instruction”); Doe v. Norwalk Cmty. Coll., 248 F.R.D. 372, 379 (D.Conn.2007) (“a culpable state of mind is established by ordinary negligence”). In Forest Laboratories, supra, at *5, the Court, citing Residential Funding, Doe and Zubalake v. UBS Warburg LLC,220 F.R.D. 212 (S.D.N.Y.2003), held that “[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence.” Forest Laboratories went on to state: “Plaintiffs argue that there is no evidence that they spoliated evidence in bad faith or intentionally and that Defendants therefore cannot meet their burden of demonstrating a ‘culpable state of mind.’ (See Pls.' Resp. at 17–18.) Plaintiffs' argument, however, is flawed because Plaintiffs have not considered that ‘a culpable state of mind is established by ordinary negligence,’ see Doe, 248 F.R.D. at 379, and that ‘[o]nce the duty to preserve attaches, any destruction of [evidence] is, at a minimum, negligent,’ Zubulake, 220 F.R.D. at 220.” *16 I recognize that in In re Global Technovations, Inc., 431 B.R. 739, 782 (Bkrtcy.E.D.Mich.2010), the Bankruptcy Court rejected the reasoning of Forest Laboratories, instead relying on a recent unpublished district court case, In re Nat'l Century Fin. Enters., Inc. Fin. Inv. Litig., 2009 WL 2169174, at *3 (S.D.Ohio 2009), and an unpublished Sixth Circuit case, Chrysler Realty Co., LLC, v. Design Forum Architects, Inc., 341 Fed.Appx. 93, 95 (6th Cir.2009)[8], to hold that an adverse inference instruction is inappropriate unless the spoliator acted in bad faith: “The Court concludes that it is bound by Sixth Circuit case law to require bad faith on the part of a spoliator, rather than mere negligence, before imposing an adverse inference. The Court therefore declines to follow the standard for imposing an adverse inference set forth in Forest Laboratories, a recent district court case from this district. In Forest Laboratories, the court held, based in part on Residential Funding, that under some circumstances, ordinary negligence is sufficient culpability to impose an adverse inference, and that intentional or bad faith destruction of evidence is not necessary. Forest Labs., 2009 WL 998402, at *5–6.” Notwithstanding Global Technovations, I am inclined to view Forest Laboratories as more consistent with the flexible approach taken by the Sixth Circuit in Adkins, which stated: “Because failures to produce relevant evidence fall ‘along a continuum of fault-ranging from innocence through the degrees of negligence to intentionality,’ Welsh, 844 F.2d at 1246, the severity of a sanction may, depending on the circumstances of the case, correspond to the party's fault. Thus, a district court could impose many different kinds of sanctions for spoliated evidence, including dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based on lost or destroyed evidence.” Id. 652–53 (internal citations omitted). In thus endorsing the “broad discretion” given to district courts[9], Adkins also cited with approval Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995), which held: “As a general proposition, the trial court has broad discretion to permit a jury to draw adverse inferences from a party's failure to present evidence, the loss of evidence, or the destruction of evidence. While a finding of bad faith suffices to permit such an inference, it is not always necessary.” And although Global Technovations relies on those portions of Welsh v. United States, 844 F.2d 1239 (6th Cir.1988), that Adkins left intact, the Sixth Circuit in Welsh in fact recognized that mere negligent destruction of evidence could support an adverse inference instruction, with the strength of the inference to be determined on a case-by-case basis: “In the facts of this case, potential evidence was discarded by parties who were at least negligent and possibly grossly negligent in doing so. Judge Patel, in dealing with the destroyed VA radiation documents, correctly said that ‘where one party wrongfully denies another the evidence necessary to establish a fact in dispute, the court should draw the strongest allowable inferences in favor of the aggrieved party.’ The strength of the inference allowable obviously will vary according to the facts and evidentiary posture of a given case. Whether the defendant's actions may result or must result in an inference that the missing evidence would be unfavorable to the spoliator, or result merely in a burden-shifting presumption, will depend upon a case by case analysis.” 844 F.2d at 1247 (internal citations omitted). *17 In the present case, however, the “culpable state of mind” factor has been met even under the reasoning of Global Technovations because, as discussed previously, the City clearly and inexcusably acted in bad faith in intentionally “deleting and purging” Mr. Kilpatrick's and Ms. Beatty's emails from the system, after having been put on clear notice of their relevance, and after Judge Rosen entered the show cause order and, quite probably, the order to preserve. 3. Relevance “The more culpable the state of mind, the easier it is for the party seeking a spoliation adverse inference instruction to demonstrate the third element-relevance.” Thompson, supra, 219 F.R.D. at 101. As the Second Circuit noted in Residential Funding, 306 F.3d at 109: “Courts must take care not to ‘hold[ ] the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed 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.’ “ (Internal citations omitted). Moreover, “[w]hen evidence is destroyed in bad faith (i.e. intentionally or willfully), that fact alone is sufficient to demonstrate relevance.” Forest Laboratories, at *7, quoting Zubalake, 220 F.R.D. at 220. See also Thompson, 219 F.R.D. 93. The testimony establishes that neither Mr. Kilpatrick, Ms. Beatty, Judge Carter nor Ms. Bully–Cummings deleted all of their emails, and that those emails should have remained on the City's servers indefinitely. Mr. Schapka stated affirmatively that Mr. Kilpatrick's and Ms. Beatty's “collected emails” were deleted and purged after their resignations. “Deleted” and “purged” are active verbs, and the ineluctable inference is that whatever the motivation in doing so,[10] the emails were destroyed intentionally. The emails were also destroyed willfully. That the terms “willful” and “intentional” are used disjunctively in the above cases suggests that they are not synonymous. In Safeco Ins. Co. of Am. v. Burr, 551 U.S. 47, 57, 127 S.Ct. 2201, 167 L.Ed.2d 1045 (2007), the Supreme Court, addressing the term “willful” in the context of the Fair Credit Reporting Act (“FCRA”), noted, “ ‘willfully’ is a ‘word of many meanings whose construction is often dependent on the context in which it appears' “ (quoting Bryan v. United States, 524 U.S. 184, 191, 118 S.Ct. 1939, 1944–45, 141 L.Ed.2d 197 (1998)). In Safeco, the Supreme Court applied the common law civil liability meaning of willful as used in the FCRA, holding that “where willfulness is a statutory condition of civil liability, we have generally taken it to cover not only knowing violations of a standard, but reckless ones as well.” Id. at 57. Relying on Safeco, Judge Borman in Lorillard Tobacco Co. v. Yazan's Service Plaza, Inc., 2007 WL 1834714, *5 (E.D.Mich.2007), a trademark infringement case, found that “willful” conduct included “reckless” conduct under the Lanham Act: *18 “In Safeco, the Court applied the common law civil liability meaning of willful to § 1681n(a) of the Fair Credit Reporting Act. In doing so, the Court stated that “the general rule that a common law term in a statute comes with a common law meaning, absent anything pointing another way.” Id. at 2209. “Thus, under Safeco, absent anything from the statute which points this Court in another direction, the common law construction of willful applies. The Court does not find anything in the statute to point it in another direction, a fortiori, the common law construction applies here to willful in 15 U.S.C. § 1117(c), and treats actions that are in reckless disregard of the law as willful violations.” See also Lorillard Tobacco Co. v. Amana Oil, Inc. 2011 WL 2669466, *3 (E.D.Mich.) (Duggan, J.) (“As the statute provides no contrary indication, the Court interprets the term “willful” according to its common law meaning. The Court therefore concludes that the statute allows an enhanced award where infringement was intentional or reckless”). Likewise here, there is no reason that the common law definition of “willful” should not be applied to the propriety of an adverse inference instruction, so as to include reckless destruction of evidence. While the parties might quibble about whether the emails were destroyed “intentionally,” see fn.9, supra, the City would be hard-pressed to argue that its conduct—and especially the conduct of its attorney, Mr. Johnson—was not reckless, especially in view of the Safeco Court's definition of the term: “While the term recklessness is not self-defining, the common law has generally understood it in the sphere of civil liability as conduct violating an objective standard: action entailing an unjustifiably high risk of harm that is either known or so obvious that it should be known. Safeco, 551 U.S. at 68(citations and quotations omitted). Finally, in PML North America, LLC v. Hartford Underwriters Ins. Co., 2006 WL 3759914, *5 (E.D.Mich.2006), Judge Cleland found that the defendant intentionally tampered with evidence, and imposed the more extreme sanction of a default judgment. Apropos to this case, however, he found that such a sanction would be appropriate even without an express finding of intentionality: “The court does not accept ACG's clumsy attempt to appear ignorant and therefore less culpable. Even if the court did adopt a more benign view, as ACG pleads, there is a point beyond which bumbling and blindness to a party's discovery obligations sufficiently resemble the sort of willful, intentional and malicious conduct that calls for the heavy sanction of judgment by default.” (Emphasis added). Based on the record before this Court, I find that the City destroyed the emails in bad faith, that is, intentionally, willfully and recklessly. Therefore, under Forest Laboratories, Zubalake and Thompson, their relevance is presumed, and Plaintiffs are entitled to an adverse inference instruction. 4. Rebuttable or Non–Rebuttable Presumtion *19 As the Court held in Adkins, spoliation sanctions serve both a punitive and a fairness purpose, that is, “a proper sanction will serve the ‘purpose[s] of leveling the evidentiary playing field and ... sanctioning the improper conduct.’ “ Id. 554 F.3d at 652–53. The district court is given discretion to choose sanctions according to the unique facts before it. Id. “A district court's discretion to fashion discovery orders is broad.... The same breadth applies to a district court's decision to impose sanctions less severe than the outermost limits of discretion would allow....” Jackson v. Harvard University, 900 F.2d 464, 469 (1st Cir.1990). Given the severity of the City's malfeasance in this case, an argument could be made for a non-rebuttable adverse inference to vindicate the punitive aspect of the instruction. However, this would give the Plaintiffs an undeserved evidentiary windfall that would tend to tilt the playing field in their direction, in derogation of the fairness aspect of the sanction. For example, all of the witnesses testified that they neither sent nor received emails concerning the Tamara Greene homicide investigation. While I do not find that testimony controlling for purposes of the adverse inference analysis, the jury might or might not accept it as true. After all, this Court had the opportunity to review over 626,000 text messages from the relevant period, from the same cast of characters, and found that only 36—less than six one-thousands of one percent-were arguably relevant to the Plaintiffs' claims. See Second Opinion and Order Regarding Discovery of Text Messages [Doc. # 224]. The sheer volume could also tend to corroborate the testimony that texting, not email, was the preferred mode of communication. While the City must be sanctioned for destroying evidence, fairness dictates that it should be left to the jury to determine what weight to give the adverse inference. See Welsh, 844 F.2d at 1248 (“When ... a plaintiff is unable to prove an essential element of her case due to the negligent loss or destruction of evidence by an opposing party, ... it is proper for the trial court to create a rebuttable presumption that establishes the missing elements of the plaintiff's case that could only have been proved by the availability of the missing evidence”); Rogers v. T .J. Samson Cmty. Hosp., 276 F.3d 228, 232 (6th Cir.2002) (same); Beaven v. U.S. Dept. of Justice, 622 F.3d 540, 555 (6th Cir.2010) (“[A]n adverse inference is usually only permissive for the factfinder, not mandatory”); Blinzler v. Marriott Intern., Inc., 81 F.3d 1148, 1158–1159 (1st Cir.1996) (“When a document relevant to an issue in a case is destroyed, the trier of fact sometimes may infer that the party who obliterated it did so out of a realization that the contents were unfavorable.... Even then, the adverse inference is permissive, not mandatory”) (emphasis added). *20 A permissive adverse inference instruction should be given as to the emails of Mr. Kilpatrick, Ms. Beatty, Judge Carter and Ms. Bully–Cummings, but not as to Police Officers Martin and Jones. Martin and Jones were officers who worked out of the office 99% of the time, and who had a shared computer at the office in any event. As opposed to Kilpatrick, Beatty, Carter and Bully–Cummings, who all had emails from 2002 and 2003 that they did not delete, the inference that Martin and Jones had any relevant emails from that time period—or for that matter, any emails at all—is simply too tenuous to support an adverse inference instruction. Again, the City's bad faith destruction of evidence entitles Plaintiffs to a fair and proportional sanction, but not to an evidentiary windfall. In summary, then, a rebuttable adverse inference instruction should be given against Defendant City of Detroit regarding emails sent or received by Mr. Kilpatrick, Ms. Beatty, Judge Carter and Ms. Bully–Cummings during the period from August 1, 2002 through June 30, 2003. C. Costs and Attorney Fees The City's and its attorneys' bad faith disregard of their discovery obligations and the orders of this Court has not only led to the destruction of evidence, but has created an unnecessary consumption of time and expense on the part of the Plaintiffs, not to mention the strain it has put on this Court's resources. Fed.R.Civ.P. 37(b)(2)(C) provides that in addition to any other sanctions that may be imposed, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” See also PML North America, 2006 WL 3759914, *6, and cases cited therein, discussing district court's power to impose monetary sanctions under its inherent authority as well as Rule 37. The City should be sanctioned under this section, as should Mr. Johnson, who was completely derelict in his obligation to inform all pertinent City Departments of Judge Rosen's orders. I therefore recommend that Plaintiffs be directed to submit a bill of costs detailing attorney time and fees, along with costs, and that they be awarded reasonable attorney fees and costs, to be divided equally between the City and Mr. Johnson. IV. CONCLUSION For these reasons, I recommend as follows: (1) That Plaintiffs' motion for default judgment be DENIED. (2) That Plaintiffs' request for an adverse inference instruction be GRANTED, and that the jury be given a rebuttable adverse inference instruction as to the emails of Kwame Kilpatrick, Christine Beatty, Ruth Carter and Ella Bully–Cummings, such instruction to be directed at Defendant City of Detroit only. (3) That Plaintiffs be directed to submit a bill of costs detailing attorney time and fees, along with costs, and that they be awarded reasonable attorney fees and costs, to be divided equally between the City and former Corporation Counsel John Johnson. *21 Any objections to this Report and Recommendation must be filed within fourteen (14) days of service of a copy hereof as provided for in 28 U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2). Failure to file specific objections constitutes a waiver of any further right of appeal. Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); Howard v. Secretary of HHS, 932 F.2d 505 (6th Cir.1991); United States v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of objections which raise some issues but fail to raise others with specificity will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sullivan, 931 F.2d 390, 401 (6th Cir.1991); Smith v. Detroit Fed'n of Teachers Local 231, 829 F.2d 1370, 1373 (6th Cir.1987). Pursuant to E.D. Mich. LR 72.1(d)(2), a copy of any objections is to be served upon this Magistrate Judge. Within fourteen (14) days of service of any objecting party's timely filed objections, the opposing party may file a response. The response shall be not more than twenty (20) pages in length unless by motion and order such page limit is extended by the court. The response shall address specifically, and in the same order raised, each issue contained within the objections. Footnotes [1] With one exception: Paragraph 29(D) of the motion to preserve sets forth a time frame beginning on September 1, 2002, while the present motion is directed at emails beginning August 1, 2002. However, Judge Rosen's order to show cause [Doc. # 44] notes that “Defendants have an obligation to preserve evidence within their custody or control upon ‘notice that the evidence is relevant to litigation,’ “ and that “these duties exist even in the absence of a court order.” Id. at 2 (internal citation omitted). [2] On December 1, 2010, the first day of the evidentiary hearings, I conducted an inchambers conference at which it was revealed for the first time that, at the request of then-Mayor Kenneth Cockrel, four external hard drives were used to store files that were downloaded from Kilpatrick Administration computers, and that those hard drives were stored on the 5th floor of the Coleman A. Young Municipal Center. Two of those hard drives were labelled “Mayor's backup.” In addition, an IT specialist for the City provided a CD containing files from Mr. Kilpatrick's office computer to a City attorney not involved in the present case. However, the hard drive from Mr. Kilpatrick's office computer was missing. At this conference, I also learned that contrary to my previous order, the City had not yet searched its servers for the emails of Bully–Cummings, Beatty, Carter, Martin and Jones. As a result this information (which the City should have provided much earlier), I entered an order on December 6, 2010 [Doc. # 535] directing as follows: “IT IS THEREFORE ORDERED that within 14 days of the date of this Order, the City shall produce the following documents to Plaintiff's counsel: 1. The contents of the two external hard drives labeled “Mayor's backup,” copied by the City's ITS Department from a computer labeled “Kwame Kilpatrick's home computer; 2. The contents of the CD or CDs containing files that a former IT specialist for the City downloaded from Kwame Kilpatrick's office computer (the hard drive of which is now missing), that was given to a City attorney; 3. The results of a search of the City's server for incoming and outgoing emails of Ella Bully–Cummings, Christine Beatty, Ruth Carter, Mike Martin and Loronzo Jones, for the time period of August 1, 2002 through June 30 2003.” Ultimately, the material that was produced contained no emails from the relevant While the City's failure to disclose this information earlier underscores its almost unfathomable lack of diligence in meeting its discovery obligations, Mr. Sims' unrebutted testimony that any undeleted emails would reside on the servers, not on individual computers, in fact demonstrates that these hard drives and CDs would have no value in determining whether and when the emails were, as Mr. Schapka put it, “electronically shredded” from the servers. [3] In an apparent effort to undermine Ms. Peoples' credibility, Plaintiffs' counsel questioned her as to a process server's affidavit indicating that when she was served with the subpoena to appear at the evidentiary hearing, she tore it up. Id. 47–48. Ms. Peoples said that she did no such thing, that the process server was lying, and that she had the original subpoena in her car. Id. 47–48, 51. Following a break in the proceedings, Ms. Peoples retrieved the subpoena, which was admitted into evidence as Defendants' Exhibit B. There was no damage to the subpoena, and it showed no signs of having been torn, glued or taped together. Id. 60, 65. She reiterated that she did not tear the subpoena, and that the process server's affidavit (Defendants' Exhibit A) appeared to be a false document. Id. 65. The Plaintiffs declined to re-examine Ms. Peoples, and the issue, which appeared to the Court to have been somewhat of a sideshow in the first place, died a natural death. [4] See United States v. Presley, 547 F.3d 625, 630–631 (6th Cir.2008) (“[T]he district court's task is to ‘impose a sentence sufficient, but not greater than necessary, to comply with the purposes' of the statutory sentencing scheme. 18 U.S.C. § 3553(a)”). [5] The concept of “willfulness” will be discussed in the next section, dealing with the adverse inference instruction. [6] Ms. Crittendon also testified that as a general matter, the City attorney assigned to the case was responsible for informing the client City Department of any court orders, and that she herself would have had that responsibility after she filed her appearance in late March, 2008. [7] Taking Ms. Crittendon's testimony at face value, it appears that Mr. Johnson was not completely honest with her either, telling her that he wanted her to “assist” Mr. Schapka because of the expanded scope of the case, but failing to tell her that he in fact removed Mr. Schapka from the case. Of course, Ms. Crittendon's claim that she bore no responsibility whatsoever for the case until she filed an appearance at the end of March has an air of implausibility, given that she filed an answer to the amended complaint on behalf of the City on February 20, 2008, and that the Morganroths specifically discussed the preservation order with both her and Mr. Schapka before and during the March 14, 2008 status conference. See Affidavit of Mayer Morganroth [Doc. # 581], ¶ 15. Moreover, even if the emails were purged in February, as Mr. Schapka stated, Ms. Crittendon surely had an obligation to at least follow up on the preservation order after she became counsel of record on March 31, 2008, as did Mr. Schapka, who resumed responsibility as counsel after the March 14th conference. [8] Global Technovations also relied on language in Beck v. Haik, 377 F.3d 624, 641 (6th Cir.2004), overruled on other grounds by Adkins, 554 F.3d at 652, which characterized “spoliation” as “the intentional destruction of evidence that is presumed to be unfavorable to the party responsible for its destruction.” [9] “We hold that it is within a district court's inherent power to exercise broad discretion in imposing sanctions based on spoliated evidence.” Adkins at 653. [10] While the destruction of the emails was intentional, it is less clear whether the City's motivation was to deprive the Plaintiffs of evidence in this case, to conceal unrelated chicanery on the part of the Kilpatrick administration, or for some other nefarious reason.