Simms, Gina L., United States Magistrate Judge
v.
MVM, INC. Defendant
Counsel
David John Staudt, Debra Michele Lawrence, US Equal Employment Opportunity Commission, Baltimore, MD, Maria Salacuse, US Equal Employment Opportunity Commission Office of General Counsel, Washington, DC, for Plaintiff.Alison N. Davis, Kimberly Jeanice Duplechain, Pro Hac Vice, Littler Mendelson PC, Washington, DC, Joon Hwang, Pro Hac Vice, Littler Mendelson PC, Tysons Corner, VA, for Defendant.
ORDER
On December 3, 2019, the U.S. Equal Employment Opportunity Commission (“EEOC” or “Plaintiff”) filed a “Motion for Sanctions Due to Spoliation of Videotape and Card Reader Data.” (ECF No. 98). Plaintiff avers that Defendant MVM, Inc. (“MVM”) failed to preserve surveillance videos and records from card readers, which it contends “would have been direct evidence supporting or contradicting [Defendant's] version of events.” (ECF 98, p. 2). Relying on Fed.R.Civ.P. 37(e)(1), (2), Plaintiff alleges prejudice, and also that Defendant MVM, Inc., acted with intent to deprive it of the information's use in the instant litigation. Thus, Plaintiff requested that the appropriate sanctions would be preclusion of the following: (1) introduction into evidence of an excerpt of video footage; (2) any testimony from Defendant's witness related to the video footage and card reader data; and (3) introduction into evidence of the memorandum prepared by Defendant's former general counsel. In addition, Plaintiff seeks to “present evidence concerning the ESI that was not preserved, and what it could have shown.” (ECF 98-1, p. 31). Alternatively, Plaintiff requests that the issue of MVM's “intent to deprive” be submitted to the jury, and that there be a jury instruction related to the same. (ECF 98-1).
On December 24, 2019, Defendant filed its response in opposition to Plaintiff's motion. Defendant counters that: (1) it did not “have the legal right, authority, or practical ability to obtain, preserve or produce SSA's ESI;” (2) No duty to preserve arose until 12/2016, which is when MVM received notice of Wilson's EEOC charge; (3) MVM did not have the legal duty to notify SSA to preserve ESI; (4) EEOC has failed to demonstrate prejudice; (5) There is no evidence that MMV intended to deprive EEOC or any adverse party of relevant ESI. (ECF No. 100). Plaintiff filed its reply on January 6, 2020. (ECF No 102).
On January 28, 2020, this Court held a telephonic discovery hearing related to Plaintiff's motion. This Court continued the hearing to February 25, 2020. Upon consideration of the parties’ pleadings, arguments, and for the reasons articulated on the record on February 25, 2020, Plaintiff's Motion, ECF No. 98, is GRANTED IN PART AND DENIED IN PART:
(1) The evidence at issue was not the property of MVM.(2) MVM's duty to notify the third party to preserve evidence related to Video Camera 1, Video Camera 3, and Card Reader 1 arose on or about June 29, 2016. The Court did not find a duty to notify regarding Video Camera 2 or Card Reader 2.(3) MVM failed to notify the EEOC, the opposing party, of the existence of any videotape evidence until December 2016.(4) MVM did not notify the EEOC, the opposing party, of the existence of any card reader data at any point before or after June 29, 2016.(5) The EEOC has suffered prejudice, but MVM did not act with intent to deprive it of the information for use in the instant litigation.
Furthermore, as a preliminary matter, the Court finds that the evidence that Plaintiff seeks to preclude at trial likely has foundational admissibility issues, which puts it at odds with the Federal Rules of Evidence. Ultimately, it is more appropriate for the trial judge to make those admissibility determinations. This Court imposes the following sanctions, which it believes are consistent with Fed.R.Civ.P. 37(e)(1):
(1) Video excerpt: ECF No. 98-41 (filed under seal) - assuming that it passes evidentiary muster, it should be excluded. Alternatively, if the trial judge decides that preclusion of the video is not an appropriate sanction, and that it is admissible, then this Court recommends that the Plaintiff be permitted to present evidence to a jury surrounding the loss of the video footage and card reader data (Video Camera 1, Video Camera 3, Card Reader 1 only), and that the jury be allowed to consider the circumstances of the loss.(2) Plaintiff shall be awarded reasonable attorney's fees incurred in connection with drafting its spoliation motion, reviewing the opposition, and drafting the Reply brief. Plaintiff shall submit a petition seeking reasonable attorney's fees. The briefing schedule is as follows: