*1 In a fully briefed Motion for Sanctions (ECF No. 42) Plaintiff Joann Wright Haysbert (“Haysbert” or “Plaintiff”) seeks an adverse inference as a result of her inability to obtain video images from security cameras in the Outback Steakhouse where she experienced a fall. She argues that the Defendants Bloomin' Brands, Inc. and Outback Steakhouse of Florida, LLC (collectively “Defendants”) were on notice that the footage was relevant to the case and had a duty to preserve it since the date of her fall and follow-up communications. Pl.'s First Mot. for Sanctions (ECF No. 42). Separately, Haysbert moved for spoliation sanctions due to her inability to retrieve meta-data lost when two cellphone photos taken after her fall were transmitted to Outback claims investigators. Pl.'s Second Mot. for Sanctions (ECF No. 98).

Defendants argue that sanctions for spoliation are unwarranted because no video footage of the Plaintiff's fall ever existed and, even if it did exist, the footage was overwritten by the ordinary operation of its system before any duty to preserve it arose. Defs.' Mem. Opp'n (ECF No. 48, at 2-3). Defendants also observe that the meta-data from the cellphone photos is irrelevant to issues underlying this action as witness testimony credibly supplies the date, approximate time, and location of the photos and Plaintiff has produced no evidence materially contesting the accuracy of those facts. Defs.' Second Mem. Opp'n (ECF No. 111, at 3-6).

After considering the parties' briefing, sworn declarations, exhibits, and oral argument during two hearings, I find that Haysbert has failed to demonstrate by clear and convincing evidence that any video footage of Plaintiff's fall existed, much less that any Defendant acted with intent to deprive her of its use in the litigation. Likewise, the meta-data from the photos' native format is only minimally relevant and Plaintiff has not shown it was lost as a result of any intent to deprive her of its use at trial. As a result, both Motions for an Adverse Inference or Alternative Sanction under Rule 37 are denied.

This matter arises from a slip-and-fall that occurred on May 23, 2018, at an Outback Steakhouse in Chesapeake, Virginia. Compl. ¶ 9 (ECF No. 1-1, at 3). Haysbert alleges that after entering the restaurant she asked an employee of the restaurant for directions to the ladies' room and then “took two steps before slipping on the floor, hitting her head and entire left side of her body on the ground.” Id. ¶¶ 10-11. Following this fall, Lisa Crosby (“Crosby”), then-a managing partner for the steakhouse, asked Haysbert if she required an ambulance, which Haysbert declined. Haysbert also alleges that Crosby told her she would call her with a claim number. Id. ¶¶ 14-15 (ECF No. 1-1, at 4).

Haysbert's counsel alleges that within two to seven days of this incident he spoke by telephone with Norman “Chip” Chase, Jr. (“Chase”), also then a managing partner, who “confirmed the existence of working surveillance cameras within the restaurant.” Pl.'s Supp. Br. (ECF No. 66, at 6); see also Nazareth M. Haysbert's Supp. Decl. ¶ 3 (ECF No. 42-1, at 2) (“I spoke by phone with the General Manager or an agent or employee of the Outback Steakhouse who confirmed the existence of working surveillance cameras within the restaurant.”). Plaintiff's counsel later sent letters regarding the preservation of evidence to both Chase and Michael Bellomo, Director of Risk Management for Bloomin' Brands, Inc. The letters, which were transmitted by email, were dated June 22, 2018–thirty days after the alleged incident giving rise to this litigation. Nazareth M. Haysbert's Supp. Decl. ¶ 2 (ECF No. 42-1, at 1-2), Exs. E1-E3 (ECF No. 42-2, at 4-11). Defendants assert their video system is “only able to save video footage for approximately 20-30 days,” and that when the system's hard drive is full the stored footage is automatically overridden to create space for new footage. Defs.' Mem. Opp'n (ECF No. 48, at 2). Furthermore, the restaurant's hard drive was replaced in October 2020. Id. at 3. Thus, there is no dispute that whatever camera footage existed on May 23, 2018 was not preserved and is no longer available.

*2 On August 16, 2018, Plaintiff's counsel also visited the Outback Steakhouse at the center of this litigation and took photographs of an interior surveillance camera above the hostess stand near where Plaintiff fell. Pl.'s Supp. Br. (ECF No. 66, at 8); Nazareth M. Haysbert's Supp. Decl. ¶ 3 (ECF No. 42-1, at 2). Defense counsel asserts that “the camera depicted in plaintiff's photos is aimed away from the dining room area and does not record the area where plaintiff states she fell.” Defs.' Supp. Mem. Opp'n (ECF No. 60, at 2)[1]

After the video evidence dispute arose, Plaintiff deposed Lisa Crosby, who was the manager on duty on the day Plaintiff fell. Crosby testified that she was present at the time of the incident and was in front of Haysbert directing her toward the restroom when she fell. Crosby Dep. 139:14-17 (ECF No. 109-1, at 3). Crosby stated that Plaintiff told her “the floors were slick,” but that she (Crosby) did not see anything on the floor. Id. at 139:3-4. As part of her investigation, Crosby took a photograph of the floor with her personal cell phone “immediately once [Plaintiff] was in a chair.” Id. at 134:3-20 (ECF No. 109-1, at 1).

Later, when Plaintiff's counsel asked her a second time in depositions, Crosby stated she believed she took the cellphone picture after preparing the incident report which she said would have taken her about six minutes. Id. at 142;15 - 143:5 (ECF No. 109-1, at 4-5). When Plaintiff exited the building to return to her car, Crosby also took a photograph of her shoes, because she testified “a shoe can be a factor in the fall.” Id. at 143:6-23 (ECF No. 109-1, at 5). Crosby transmitted both photos to a claims representative by taking a “screen-shot” and emailing the screen-shot photo as an attachment. Both color photos have been produced in discovery.

In addition to her testimony regarding the photos, Crosby also was familiar with the surveillance cameras as she had reviewed footage from the cameras on other occasions unrelated to Plaintiff' fall. From that review, Crosby (who no longer works for Outback) testified that the cameras installed at the time did not capture the area where Plaintiff fell. Crosby Dep. 163:712(ECF No. 85-1, at 163). Crosby did not review any footage which may have been captured by the cameras that were present on May 23, 2018. Id.

In addition to Crosby, Plaintiff deposed former Outback manager Chip Chase, to whom Haysbert's counsel had previously directed a preservation letter. Chase stated that he did not recall receiving the letter mailed to him on June 22, 2018. Chase Dep. at 110:8-111:10 (ECF No. 119-2, at 15-16). He did, however, acknowledge that the email copy he was shown appeared to be addressed to him at an Outback email address. Id. at 111:14-19 (ECF No. 119-2, at 16). He could not provide any reason why he would not have received it had it been sent as represented. Id. at 110:3-113:2 (explaining that the only thing he could think of was someone else opened the email).

*3 Defendants allege that throughout the litigation they have repeatedly informed Plaintiff that no video footage of the incident exists. For example, they state Plaintiff was informed during a call with the adjuster for Defendants' Claims Administrator, on July 31, 2018, that there was no video. Defs.' Mem. Opp'n (ECF No. 48, at 4-5). Defendants also stated in their November 10, 2020 responses to Plaintiff's request for production of documents that they did not possess any video footage of the incident. Nazareth M. Haysbert's Decl., Exs. Cl, C3 (ECF No. 41-2, at 64, 79). Likewise, having produced the cellphone photographs, Defendants have been unable to produce the native images as they were lost when Crosby replaced her private cellphone sometime after the fall.

On February 19, 2021, Plaintiff filed her first Motion for Sanctions Due to Spoliation of Evidence. See Pl.'s First Mot. for Sanctions (ECF No. 42). Defendants filed their Opposition, Defs.' Mem. Opp'n (ECF No. 48), and on March 31, 2021, the parties appeared for a videoconference to address Plaintiff's motion for sanctions, as well as other discovery and pleading related matters. At that time - before Crosby's deposition - I ordered the parties to file supplemental briefing concerning the location of the camera depicted in counsel's photograph, and took the first motion for sanctions under advisement. Mar. 31, 2021 Minute Entry (ECF No. 57). As discovery progressed, Haysbert filed additional motions for sanctions alleging she was denied relevant electronically stored information (“ESI”) due to Crosby's failure to preserve the cellphone photos in their native format.[2] Pl.'s Second Mot. For Sanctions (ECF No. 98). Both motions involve the same standard of review.

A. Spoliation

Spoliation refers to the destruction or alteration of evidence or the failure to preserve property for another's use in pending or reasonably foreseeable litigation. See Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) (citation omitted). The power of federal courts to impose sanctions for spoliation is well-established. See Hodge v. Wal-Mart Store, Inc., 360 F.3d 446, 449-50 (4th Cir. 2004). This power to sanction spoliation in this instance derives from two sources: Federal Rule of Civil Procedure 37(e) and the court's “inherent power ... to redress conduct ‘which abuses the judicial process.’ ” Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 103 (E.D. Va. 2018) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)).

*4 Federal Rule of Civil Procedure 37(e) states that a court may order measures no greater than necessary to cure resulting prejudice if lost ESI should have been preserved in anticipation of litigation, but a party failed to preserve it and the evidence cannot be obtained through further discovery. Fed. R. Civ. P. 37(e). In this case, Haysbert seeks severe sanctions, including an adverse inference or preclusion of evidence based on her spoliation allegations. But under Rule 37(e), only if the party is shown to have intentionally deprived another of the evidence may a court presume the information was unfavorable, grant an adverse inference instruction, dismiss the action, or enter default judgment. Id. Courts in the Fourth Circuit generally require proof of intent to deprive by clear and convincing evidence, especially when–as here-an adverse inference instruction is requested. See Steves & Sons, Inc., 327 F.R.D. at 104-05. Thus, an adverse inference instruction “requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.” Hodge, 360 F.3d at 450 (quoting Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995)).

Under Rule 37(e) a party must satisfy four threshold requirements before a court even reaches the question of whether a spoliation sanction is appropriate. She must establish (1) the electronic information should have been preserved; (2) it was lost; (3) the loss was due to a party's failure to take reasonable steps to preserve it; and (4) it cannot be restored or replaced through additional discovery. See Steves & Sons, Inc., 327 F.R.D. at 104 (citation omitted). If all of these requirements are met, then the court must still find prejudice to the party seeking the lost evidence to warrant any sanction. And for severe sanctions - including any adverse inference - Plaintiff here must establish the loss resulted from an intent to deprive the party of its use at trial. See id. at 109-10; Fed. R. Civ. P. 37(e)(1)-(2).

B. Plaintiff Has Not Established that Defendants Failed to Preserve Relevant ESI.

In this case, Plaintiff alleges that surveillance footage of her fall is critical to her case and that the absence of such footage entitles her to an adverse inference. But Plaintiff cannot establish that any video relevant to her fall ever existed. Similarly, the production of two cellphone photographs and the undisputed testimony regarding their creation renders the meta-data lost from their transmission irrelevant.

1. The Surveillance Footage and Cellphone Meta-Data Constitutes Lost ESI that Cannot Be Restored or Replaced.

While Defendants assert that both the video and cellphone meta-data would be irrelevant to Plaintiff's fall, the parties do not dispute that surveillance video from the day of Haysbert's fall, and the cellphone data constitute ESI nor that it was lost. Information is lost if it is irretrievable from another source. See Steves & Sons, Inc., 327 F.R.D. at 107 (citing Agility Pub. Warehousing Co. K.S.C. v. Dep't of Def., No. CV 14-1064, 2017 WL 1214424, at *2 (D.D.C. Mar. 30, 2017)).

Defendants' video system in place at the time automatically overwrote video footage after twenty to thirty days in order to make space for new footage. Defs.' Mem. Opp'n (ECF No. 48, at 2). Additionally, in October 2020, the restaurant's entire video system was upgraded, and the hard drive replaced. Id. at 3. Neither of the parties allege that the video footage itself can be restored or replaced through additional discovery. Likewise, the original cellphone images in their native format were lost due to Crosby's phone replacement and cannot be recovered. Thus, Haysbert has established that some ESI was lost and cannot be recovered.

2. Under the Facts Presented Defendants Did Not Have a Duty to Preserve the Video Footage or the Cellphone Meta-Data in Anticipation of Litigation.

Plaintiff's argument for sanctions centers on her belief that Defendants had a duty to preserve the video footage and cellphone meta-data in anticipation of litigation as a result of Haysbert's fall itself, or as a result of counsel's statement that he spoke by phone with Chip Chase a short time after the fall. In determining whether a party had a duty to preserve ESI, a court must consider two questions: (1) whether the defendants should have reasonably anticipated litigation; and (2) whether the defendants reasonably should have known that the lost ESI (the video footage and cellphone meta-data) might be relevant to that litigation. See Jenkins v. Woody, No. 3:15CV355, 2017 WL 362475, at *14 (E.D. Va. Jan. 21, 2017) (citing Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001)). “Relevance in the context of spoliation is somewhat more stringent than the standard provided by Federal Rule of Evidence 401.” Johns v. Gwinn, 503 F. Supp. 3d 452, 467 (W.D. Va. 2020) (quoting E.I. Du Pont De Nemours and Co. v. Kolon Indus., Inc., 2011 WL 1597528, at *12 (E.D. Va. Apr. 27, 2011)). Lost evidence is relevant if “a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.” Id.

*5 The filing of a lawsuit usually triggers the duty to preserve evidence. See Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 106 (E.D. Va. 2018). That duty also extends to the period before a lawsuit is filed, when a party reasonably should know that the evidence may be relevant to imminent litigation. Silvestri, 271 F.3d at 591. But the existence of a dispute does not always mean that parties should anticipate litigation. See Steves & Sons, Inc., 327 F.R.D. at 106 (quoting Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494, 510 (D. Md. 2009)). Instead, the duty begins at some point between knowledge of the dispute and threats of litigation. See id. (quoting Huggins v. Prince George's Cty., 750 F. Supp. 2d 549, 560 (D. Md. 2010)).

Courts in the Fourth Circuit have found that receipt of a demand letter, a request for evidence preservation, a threat of litigation, or a decision to pursue a claim will trigger the duty to preserve evidence. In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 512 (S.D. W. Va. 2014). However, the absence of these things “does not [remove] the ... obligation of an adverse party to preserve ... information if the party knows or should know of impending litigation.” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010) (quotations and citation omitted).

Here, Defendants do not dispute that at some point they reasonably anticipated litigation as they have objected to producing certain material on work product grounds. But they contend no duty to preserve the video footage would have been triggered before the receipt of a preservation letter. That letter arrived 30 days after Haysbert's fall and came too late to implement any special retention policy or suspend the automatic overwrite. Defs.' Mem. Opp'n (ECF No. 48, at 3); see also Pl.'s First Mot. for Sanctions (ECF No. 42, at 14); Pl.'s Supp. Br. (ECF No. 66, at 6, 16). Thus, the preservation letter - even if it modified any duty to preserve - arrived too late for either Defendant to act upon it.

At oral argument Plaintiff's counsel argued that it was inconsistent for the court to deny his motion to compel claim's adjuster notes on the basis that they were prepared in anticipation of litigation, without also sanctioning the Defendants for failing to preserve security camera video or the cell phone meta-data. Jun. 17, 2021 Hr'g Transcript. 127:6-128:3 (ECF No. 127, at 60-61). But, as set out above, anticipation of litigation is only one part of the preservation inquiry. Even after litigation is anticipated, the duty to preserve evidence only applies to evidence the party knows, or reasonably should know, to be relevant to that litigation. At the time of her fall, Haysbert was helped to a chair, declined any medical attention, and left on her own without assistance. The on-duty manager documented the condition of the floor with a photograph, recorded the name and phone number of a third-party witness, and reported the incident as required by the terms of Outback's policy. Given the undisputed evidence that the security cameras in question would not have captured the area of the fall, Plaintiff cannot establish that the foregoing facts - i.e. the happening of the Haysbert fall standing alone - would require Crosby or another Outback manager to examine security camera footage, which by the undisputed testimony did not cover the dining area where Haysbert fell. Likewise, Outback had no reason to suspect at the time of the fall that the authenticity or timing of the cellphone photographs would be meaningfully challenged - nor have they been. Thus, although the Defendants reasonably anticipated litigation following Haysbert's fall - that did not trigger a duty to preserve the lost ESI she now seeks.

*6 Once a party anticipates litigation, it must “preserve what it knows, or reasonably should know, is relevant [to] the action.” E.I. Du Pont De Nemours & Co. v. Kolon Indus., 803 F. Supp. 2d 469, 496 (E.D. Va. 2011) (quotation and citation omitted). And in this context, that requires that “a reasonable factfinder could conclude that the lost evidence would have supported [Haysbert's] claims or defenses.” E.I. Du Pont De Nemours & Co. v. Kolon Indus., No. 3:09cv58, 2011 WL 1597528, at *12 (E.D. Va. Apr. 27, 2011) (quoting Thompson v. U.S. Dep't Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003).

Plaintiff in this case makes much of the potential relevance of video footage from the front entranceway camera. She asserts that such footage:

Pl.'s First Mot. for Sanctions (ECF No. 42, at 18). But this argument ignores Crosby's testimony, and Defendants' assertion through counsel that the camera in question could not have captured this information, as it “records the interior front entrance of the restaurant.” Defs.' Supp. Mem. Opp'n (ECF No. 60, at 2). Because the camera faced the front door, it “is aimed away from the dining room area and does not record the area where plaintiff states she fell.” Id. Crosby testified that she had reviewed footage from the system for an unrelated matter and thus had firsthand knowledge that no camera captured the interior dining room space where Haysbert's fall occurred. Crosby Dep. 163:7-12 (ECF No. 85-1, at 163). Plaintiff's counsel's argument is essentially that he does not believe her testimony and that, therefore, Outback should have preserved the video so he would have proof that she was testifying truthfully. Accepting this argument would essentially eliminate the moving party's burden to demonstrate that relevant evidence was lost. Indeed, it would require preservation of everything captured by security cameras no matter how unlikely they were to have recorded relevant evidence. Instead, where the clear testimonial record creates no reason to believe any camera recorded the circumstances leading to Haysbert's fall, no duty to preserve the irrelevant footage arose.

This is a critical and dispositive difference between this case and others where lost video evidence resulted in sanctions. In those cases, the video was shown to have captured critical details. For example, in Jenkins v. Woody, a wrongful death case arising out of care provided to an inmate, the court noted that the footage had captured the last five hours of decedent's life, documenting her condition, symptoms, and complaints, all of which were relevant to a dispute about whether her condition worsened. Jenkins, No. 3:15cv355, 2017 WL 362475, at *13-18 (E.D. Va. Jan. 21, 2017) (ordering evidentiary sanction for lost video). Similarly, in Johns v. Gwinn, 503 F. Supp. 3d 452, 459, 474 (W.D. Va. 2020) the court imposed a sanction of “diminished credibility” on witnesses who viewed video evidence in a use-of-force case but failed to preserve the video because it “did not substantiate plaintiff's allegations of assault.” Although the jail officials who viewed the video claimed it contradicted important aspects of plaintiff's story, they nonetheless admitted that the video depicted the defendant near the plaintiff's jail cell with pepper spray in hand, confirming essential details of the alleged assault. As a result, the court found the evidence relevant, and its loss prejudicial to the Defendant. Id. at 467-68, 470-74.

*7 By contrast, this is not a case where relevant footage was examined by one party and destroyed or not preserved after that party's unilateral determination that it would not be helpful. Here, there is no evidence before the court that anyone viewed any security camera footage recorded at the Chesapeake Outback on May 23, 2018 before it was overwritten by the ordinary operation of the system.[3] In fact, the only evidence is that the camera at most would have documented Haysbert's entry to the restaurant through the front door. But the circumstances or timing of her entry are not plausibly in dispute nor has there been any showing that they would have been relevant to any allegation of liability against either Defendant. Thus, no duty to preserve that footage arose.

Similarly, the lost meta-data, which at most would have confirmed the exact moment when Crosby took the two photos, is cumulative of her undisputed testimony on that subject. Absent a genuine dispute about the photos' authenticity, which was known or reasonably foreseeable at the time, neither Defendant had any duty to preserve this meta-data.

Even if Haysbert could show the loss of some relevant evidence, because she seeks sanctions in the form of “at least” an adverse inference, in order to impose such sanctions under Rule 37(e) (2) the court must find that Defendants “acted with the intent to deprive another party of the information's use in the litigation.” Fed. R. Civ. P. 37(e)(2); see also Jenkins v. Woody, No. 3:15CV355, 2017 WL 362475, at *17 (E.D. Va. Jan. 21, 2017). Cases preceding the 2015 amendments to the Rule indicated that a party's conduct does not need to be in bad faith to be seen as intentional. See Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008). But the Advisory Committee Notes to the 2015 amendments recognized that the rule providing for an adverse instruction “rejects cases ... that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.” Butler v. Kroger Ltd. P'ship, No. 2:19cv673, 2020 WL 7483447, at *8 (E.D. Va. Nov. 30, 2020). After all, “ [i]nformation lost through negligence may have been favorable to either party, including the party that lost it ....” Fed. R. Civ. P. 37(e)(2).

Under this standard, even assuming that Haysbert had established a prima facie case for spoliation, she could not meet her burden to show that Defendants had the requisite intent to deprive Plaintiff of either the video surveillance footage or the cellphone meta-data necessary to justify Rule 37(e)(2) sanctions, such as an adverse inference.

First, although Plaintiff repeatedly accuses Defendants of intentionally depriving her of video evidence, see, e.g., Pl.'s Mot. for Sanctions (ECF No. 42, at 15-16) (“Defendants intentionally deleted or failed to preserve the footage.”); id. at 20 (“[T]he Court should find that the video was intentionally destroyed.”); id. at 23 (“Defendants' deletion of the video was clearly intentional.”), there is no evidence to support such a finding. Instead, Plaintiff's vehement insistence that this is a “spoliation case” is premised solely on the Defendants' actions in failing to take immediate steps to preserve the disputed ESI. And while failing to preserve data can rise to the level of intent necessary for sanctions under 37(e)(2), in this case, the evidence falls far short of the necessary standard. This is primarily because - as discussed above - there has been no evidence that the lost ESI was in any way relevant, much less that it would have been helpful, to Plaintiff's case. Though Plaintiff refuses to concede this point, her counsel offers nothing but speculation to oppose it. Importantly, Plaintiff has produced no evidence to suggest that the photograph depicting a woman wearing narrow high heels was not taken on May 23, 2018, or that it does not depict her shoes. Nor has Haysbert produced any evidence to dispute Crosby's testimony that she took the cellphone picture of the floor - within six to ten minutes after Plaintiff's fall. For that matter, no witness, including the Plaintiff and the other six witnesses already deposed, has identified any specific defect, foreign substance, or other issue with the floor where Haysbert fell, which Crosby testified appeared “bone-dry” as depicted in the contemporaneous photograph Outback produced.

*8 As a result, inaction by Outback employees in failing to preserve video of other parts of the restaurant, or failing to secure meta-data of contemporaneous photos, does not indicate Defendants acted in bad faith to deprive Plaintiff of the use of ESI in ligation. Defendants have explained that no employees of Outback watched the video, and therefore, could not have acted with the intent necessary to impose sanctions under Rule 37(e)(2). See Butler, 2020 WL 7483447, at *8 (declining to find an intent to deprive the other party of ESI where a lost video could have been beneficial to either party).

Because Haysbert has failed to demonstrate any basis for sanctions, the Court denies Plaintiff's motion to impose sanctions under Rule 37(e)(2). For the reasons stated, Plaintiff's two Motions for Sanctions Due to Spoliation of Evidence, ECF Nos. 42 and 98, are DENIED. The clerk is directed to deliver a copy of this Order to counsel for the Plaintiff and to counsel for the Defendants.

IT IS SO ORDERED.