Pletcher v. Giant Eagle, Inc.
Pletcher v. Giant Eagle, Inc.
2021 WL 6061729 (W.D. Pa. 2021)
September 3, 2021
Fischer, Nora B., Senior United States District Judge
Summary
The court found that Plaintiff Vidovich wrongfully withheld her notes and video recordings, and recommended that Defendants' Motion for Sanctions be granted to the extent they seek an award of costs and fees related to additional discovery efforts. The court also found that Plaintiff Zytnick did not deny ever wearing a mask at a Giant Eagle, and recommended that he be compelled to conduct a reasonable search of his text messages and emails for any communications in his possession that relate to his ability to wear a mask or Giant Eagle's mask policy. The court also recommended sanctions against both Plaintiffs in the form of an award of reasonable attorneys' fees and costs.
Additional Decisions
KIMBERLY PLETCHER, et al., Consolidated Plaintiffs,
v.
Giant Eagle, Inc., et al., Defendants
v.
Giant Eagle, Inc., et al., Defendants
Civil Action No. 2:20-cv-754
United States District Court, W.D. Pennsylvania
Filed September 03, 2021
Counsel
Thomas B. Anderson, Thomson, Rhodes & Cowie, P.C., Pittsburgh, PA, for Consolidated Plaintiffs Kimberly Pletcher, Josiah Kostek, Nicholas Conley, Sharon Burton, Debbie Vidovich, Paul Shepherd, Gerald Thomchick, Connie Winner, John Durso, Tracy O'Connor, Douglas Janaszek, Owen Burk, Ben Zytnick, Gregory Mandich, John Blackstone, Kathleen Cunningham, Jamie Marks-Borichevsky, Polly Quintiliani, Carolyn L. Stewart, Tommy Wynkoop, Tammie Aiken, Steven Parsons, Jefrey Coulson, Katherine Duckstein, Nathanael Dollar, Thomas Bensor, Vicki Parker, Stephen Mcrae, Kristie Harnish, Molly Shirk, Michael Hammers, Rebecca Struchen, Clyde Piovesan, Theodore Frick, Theresa Faust, Christine Pierro, Leann Mismas, Bob Haggerty, Kerry Palladino, Tammy Marshall, Carol Stevanus, Drew Mangus, Crystal McGinnis, Jordan Rhoat, Cindy Lennex, Michele Whitcroft, Timothy Bair, Robert Dearmitt, Amy Ulery, Robert Ree, Teresa Davis, Margaret Dunn, Kevin Gembarosky, Paula Soost, Lisa Brannigan, Steve Roberts, Genevieve Mellott, Rita Gorzock, Holly Pulling.Jeremy D. Engle, Jonathan D. Marcus, Marcus & Shapira LLP, Pittsburgh, PA, for Defendants.
Fischer, Nora B., Senior United States District Judge
REPORT AND RECOMMENDATIONS OF DISCOVERY SPECIAL MASTER RE: DEFENDANTS’ MOTION FOR SANCTIONS
I. Brief Introduction
*1 The Discovery Special Master incorporates herein by reference as if the same were set forth fully and at length her Report and Recommendations regarding Defendants’ Motion to Compel. See Report and Recommendations regarding ECF 88-89.
In conjunction with their Motion to Compel, Defendants’ filed a Motion for Sanctions. See ECF 90-91. Plaintiffs’ filed a response in opposition. See ECF 94. Additionally, the Discovery Special Master granted Defendants leave to file a supplement to their Motion for Sanctions related to Plaintiff Zytnick on August 27, 2021. Defendants thereafter timely filed their Motion for Leave to File Supplement to Motion for Sanctions. See ECF 95. Plaintiffs timely filed their response in opposition to Defendants’ supplemental submission on August 31, 2021, and the supplemental motion has been referred to the Discovery Special Master for consideration. See ECF 96-97. The matter now being ripe for decision, the Discovery Special Master addresses the merits of the parties’ respective submissions.
II. Defendants’ Motion for Sanctions and Legal Analysis Regarding the Same
Defendants originally moved for sanctions pursuant to Federal Rule of Civil Procedure 37 for an order sanctioning eight (8) Plaintiffs. See ECF 90. Defendants claim that eight (8) Plaintiffs have “repeatedly withheld relevant documents, spoliated evidence, and provided evasive or false discovery responses, all in defiance of the Court's orders.” Id. Additionally, Defendants supplement their original motion by seeking sanctions against Plaintiff Zytnick. In sum, Defendants request the following sanctions against a total of nine (9) Plaintiffs:
• The dismissal of Plaintiff Vidovich's claims and ordering her to pay Giant Eagle's reasonable attorneys’ fees related to seeking discovery she should have produced in the first instance;
• The dismissal of Doug Janaszek's claims and ordering him to pay Giant Eagle's reasonable attorneys’ fees for taking his deposition;
• The dismissal of Nicholas Conley's claims;
• The dismissal of Paul Shepherd's claims;
• The dismissal of Holly Pulling's claims;
• The dismissal of Josiah Kostek's claims;
• The dismissal of Clyde Piovesan's claims;
• The dismissal of Tommy Wynkoop's claims; and
• The dismissal of Plaintiff Zytnick's claims plus an award of attorneys’ fees for taking his deposition.
See ECF 90; ECF95.
Plaintiffs’ counter that Defendants’ Motion for Sanctions is “without merit” because “Defendants have not established in any way that they have been prejudiced by Plaintiffs’ discovery responses or that they were harmed in any way by any bad faith destruction of any documents or ESI.” See ECF 94. Plaintiffs also call out Defendants’ purported hypocrisy in that “they do not point out the blatantly false representations made to the court in prior motions and pleadings which eviscerate their purported affirmative defenses.” Id. at pg. 1.
Given the serious nature of a motion for sanctions, the Discovery Special Master evaluates the parties’ submissions with a close eye for any inaccuracies or misrepresentations.
*2 Federal Rule of Civil Procedure 37 states:
If the [motion to compel] is granted in part and denied in part, the court may issue any protective order authorized under Rule 26(c) and may, after giving an opportunity to be heard, apportion the reasonable expenses for the motion.
FRCP 37(a)(5)(C) (emphasis added). Furthermore, “If a party ... fails to obey an order to provide or permit discovery ... the court where the action is pending may issue further just orders. They may include the following:”
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims;
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;
(iii) striking pleadings in whole or in part;
(iv) staying further proceedings until the order is obeyed;
(v) dismissing the action or proceeding in whole or in part;
(vi) rendering a default judgment against the disobedient party; or
(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.
FRCP 37(b)(2)(A)(i)-(vii). “Instead of or in addition to the orders above, the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Id. at 37(b)(C) (emphasis added).
Further, “If a party fails to provide information ... as required by Rule 26[(e) (related to supplementing discovery responses)], the party is not allowed to use that information ... to supply evidence on a motion ... or at trial, unless the failure was substantially justified or is harmless.” Id. at 37(c)(1). “In addition to or instead of this sanction, the court, on motion ... may order payment of the reasonable ... attorney's fees, caused by the failure; may inform the jury of the parties’ failure; and may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).” Id. at 37(c)(1)(A)-(C).
Finally:
If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
FRCP 37(e)(1)-(2).
This Honorable Court has previously explained:
As the moving party, the burden is on [d]efendants to show that spoliation occurred and what sanctions are appropriate.
*3
* * *
To demonstrate spoliation, defendants must show: (1) certain ESI should have been preserved in anticipation or conduct of litigation; (2) that evidence was lost; (3) the ESI was lost because plaintiff failed to take reasonable steps to preserve it; and (4) that it cannot be restored or replaced.
If these elements are established, to determine the appropriate sanctions to be imposed, the Court must find either prejudice to defendants or that plaintiff acted with the intent to deprive defendants of the ESI's use in the litigation.
To make a determination of bad faith, the court must find that the spoliating party intended to impair the ability of the potential defendant to defend itself.
* * *
The related question of prejudice turns largely on whether a spoliating party destroyed evidence in bad faith.... A finding of prejudice requires a party to come forward with plausible, concrete suggestions as to what the lost evidence might have been and a showing that its loss materially affected the substantial rights of the adverse party and is prejudicial to the presentation of the case.
... When determining the appropriate sanction, the Court considers: (1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and deter such conduct by others in the future.... an evaluation of prejudice from the loss of information necessarily includes an evaluation of the information's importance in the litigation, and a court is not required ... to adopt any of the measures listed in subdivision (e)(2) if lesser measures such as those specified in subdivision (e)(1) would be sufficient to redress the loss.... The Court is tasked with determining the weight to be given to the evidence presented by the parties and evaluating the credibility of same.
Fuhs v. McLachlan Drilling Co., 2018 WL 5312760, at *13 (W.D. Pa. Oct. 26, 2018) (Judge Fischer) (internal quotations and citations omitted) (emphasis added).
District courts apply the following test to determine whether a dismissal of claims is warranted as a sanction:
(1) the extent of the party's personal responsibility; (2) the prejudice to the adversary caused by the failure to meet scheduling orders and respond to discovery; (3) a history of dilatoriness; (4) whether the conduct of the party or the attorney was willful or in bad faith; (5) the effectiveness of sanctions other than dismissal, which entails an analysis of alternative sanctions; and (6) the meritoriousness of the claim or defense.
Poulis v. State Farm Fire & Cas. Co., 747 F.2d 863, 868 (3d Cir. 1984).
Finally, the Discovery Special Master reminds the parties that the Court entered an Order permitting “limited discovery on the issues Defendants have identified, i.e., (a) Giant Eagle's face covering policy and whether it allows customers to shop in its stores wearing face shields or other face coverings; and (b) the abilities of the consolidated Plaintiffs to wear a face shield or other face covering, prior to Defendants bringing their summary judgment motion[.]” See ECF 60 (emphasis added). Therefore, to the extent that any documents or electronically stored information (“ESI”) are unrelated to the scope of permissible discovery and were lost or deleted, the Discovery Special Master finds that no prejudice to Defendants has occurred at this time.
*4 With the foregoing framework in mind, the Discovery Special Master addresses Defendants’ arguments against each of the nine (9) Plaintiffs in turn:
(a) Debbie Vidovich
Defendants point to comments from Plaintiff Vidovich on the Facebook page Stop Giant Eagle Now (“SGEN”) for purportedly stating, “Everyone, Tom [Anderson] also sa[i]d not to talk about [the case] online!!! I'm going to de[let]e anything along those lines.” See ECF 91 at pg. 4. The Discovery Special Master is compelled to point out that Plaintiff Vidovich's SGEN post actually states:
Everyone Tom also sa[i]d not to talk about it online!!! I'm going to deter anything along those lines. Pm each other. Although I'm not sure that's safe and don't post along those lines. Pm each other. Although I'm not sure that's safe and don't post any more details about any of it. No specifics. You will undercut tired of per Tom.
Id. at 91-1, pp. 8-9 of 14 (emphasis added). Deterring certain posts on SGEN and deleting posts on SGEN are two entirely different actions according to the plain, every day and unambiguous meaning of the terms deter and delete.
The Discovery Special Master found that Plaintiff Vidovich wrongfully withheld her notes regarding phone calls with Giant Eagle executives and various agencies in addition to her video recordings of her trips to Giant Eagle stores. See Report and Recommendations regarding ECF 88-89 (i.e., Defendants’ Motion to Compel). Consequently, Defendants have now incurred the time and expense of preparing for and participating in two conferences with the Discovery Special Master, as well as preparing a Motion to Compel and Motion for Sanctions (in part) to obtain documents that should have been produced in the first instance by Plaintiff Vidovich. Therefore, it is the considered recommendation of the Discovery Special Master that Defendants’ Motion for Sanctions be granted to the extent Defendants seek an award of costs and fees related to additional discovery efforts directed to Plaintiff Vidovich and the preparation of both the Motion to Compel and Motion for Sanctions. The Discovery Special Master further recommends that Defendants file an appropriate fee/cost petition related to Plaintiff Vidovich's dilatory conduct.
The Discovery Special Master further reviews Defendants’ Motion for Sanctions to the extent it seeks the dismissal of Plaintiff Vidovich's claims. First, Defendants complain that Plaintiff Vidovich “hid SGEN posts and communications harmful to Plaintiffs’ case and advised others to do the same.” See ECF 91 at pg. 4. Plaintiffs have given Defendants access to SGEN so that this information could be reviewed as part of Plaintiffs’ supplemental discovery responses. “Hiding” a post on a public Facebook page is not synonymous with destroying or deleting same.
The parties agree that while the production was delayed, Plaintiff Vidovich did produce “hundreds of unquestionably responsive private Facebook messages with others” on or about July 8, 2021 prior to Defendants submitting their discovery motions. See ECF 89 at pp. 4, 5 and ECF 89-5. Indeed, Plaintiffs’ counsel advised Defendants on July 7, 2021 that, “In one last attempt to make sure we provide any messages that Ms. Vidovich might have, I am sending one of my more tech savvy paralegals to her house tomorrow to go over her Facebook messages with her personally and if there is anything else to produce from her we will do so.” Id. at 89-5, pg. 2. Again, while not timely, Defendants were also given access to SGEN prior to filing their discovery motions. Id. at 89-5, pg. 3.
*5 Defendants mischaracterize the context of another one of Plaintiff Vidovich's SGEN posts. Compare ECF 91-1 at pg. 10 of 14 with ECF 91 at pg. 4, n. 4. Plaintiff Vidovich's SGEN post actually states:
Hi everyone. This sight has accomplished a lot in the last few months. It allowed me to organize many people who have experienced discrimination and abhorrent treatment by GE and other companies. It allowed me to get a great attorney to help us. It built a community of People who could share their stories of abuse.
The last few weeks we've had a lot of troll activity. We've had a lot of posts that are angry, insulting, political, not supportive of the exemption goal. Those of us who are clients of Tom's, have gone radio silent by and large as that's best for our legal suits[.]
Because this is my sight and I have a legal suit, I can't allow people to get on and post things that will threaten my case or the cases of others.
Due to the work load involved in policing this sight I've decided to close it to future members. I kept it open in case others needed a lawyer. We're in the news now so anyone who needs it can call Tom directly.
If people continue to post anti mask, political or just nasty posts that require my time to delete, I will close this sight entirely.
We have always been solely about getting someone to help us obtain the exemption at all stores ... that the govt/CDC clearly allows us. And we've succeeded.
So our need for this sight is less. Let's keep it legit and support each other[.] [W]e'll see how it goes the next week. Otherwise I'll just close it.
Thank you all and good luck with your suits.
Id. (emphasis added).
A reasonable reading of the SGEN post set forth above indicates that Plaintiff Vidovich did not claim to be deleting SGEN posts related to a Plaintiffs’ ability to wear a mask. To the contrary, Plaintiff Vidovich's above post related to removing non-responsive political banter or ad hominem attacks against SGEN participants. See e.g., Vidovich D.T. at pg. 101:19-23 (“I deleted a lot of – there was ... swearing and stuff and people calling us names, fighting with us. We had to kick a lot of people out, that kind of, like, administrative stuff is what it was.”). Plaintiff Vidovich explained that she did not delete entire threads; rather, specific posts were deleted for nasty comments such as “you're a bitch or something like that”. Id. at pg. 102:6-12.
Defendants characterization of the above post to suggest that, “In yet another post, Ms. Vidovich commented that she cannot allow members to ‘post things that will threaten my case or the cases of others’ and ‘that require my time to delete” is not accurate. See ECF 91 at pg. 4, n. 4.
Defendants next assert that one of its employees joined the SGEN group while it was public and took a screen shot of a few posts which were purportedly deleted by Plaintiff Vidovich. See ECF 91 at pg. 4, n.5. Defendants allege, “In that now deleted post, Vidovich instructed others to list their purported medical conditions on ‘fake letter head’ and go to the McKees Rocks Giant Eagle and ask for an ‘exemption’ from the Policy.” Id. at pp. 4-5. The Discovery Special Master finds Plaintiff Vidovich's instruction to use “fake letter head” disgraceful. See ECF 91-1 at pg. 13 of 14. However, the Discovery Special Master notes that Plaintiff Vidovich's full instruction states, “you can make a fake letter head but put your real med issue in it”. Id. (emphasis added).
*6 Setting Plaintiff Vidovich's own deception aside for the moment, the Discovery Special Master finds that this deleted post is not probative of any Plaintiff's ability to wear a mask while shopping in a Giant Eagle store. To the contrary, this post states, “put your real med issue in it”, which is suggestive of Plaintiffs’ inability to wear a mask in a Giant Eagle Store.
Moreover, the Discovery Special Master searched the Third Amended Complaint for any claims filed against Defendants related to an incident at the McKees Rocks store. The Discovery Special Master notes that only Plaintiff Jeffrey Coulson alleges an incident took place at the Mckees Rocks Giant Eagle. See ECF 51 ¶¶180-182. Plaintiff Coulson does not allege that he was refused entry to shop at this store after presenting a medical letter or certification as described in Plaintiff Vidovich's deleted post. Id. Rather, Plaintiff Coulson alleges that he: “attempted to shop without a mask.... Coulson responded that he cannot wear a mask because of his anxiety and allergies.... The manager ... told Coulson ... you cannot enter the store without a mask. Coulson then left the store....” Id.
Accordingly, the deletion of the referenced post (even if it had been lost for good, which it was not) would not have caused any prejudice to Defendants’ ability to present their case. Based on the claims alleged, the post is not relevant to Plaintiff Coulson's or any other Plaintiffs’ claims in this lawsuit, absent any allegation that Plaintiff Coulson was denied entry to the McKees Rocks Giant Eagle after presenting a purported medical certification on “fake” letter head. No such allegation has been asserted.
Defendants next argument is, in part, a non sequitur. See ECF 91 at pg. 5. Defendants argue that Plaintiff Vidovich deleted private messages, texts and emails, because she failed to produce documents known to exist that were produced by another Plaintiff (i.e., Wynkoop). Id. A failure to produce documents does not equate to spoliation of documents. Furthermore, Defendants have suffered no prejudice from this alleged failure to produce, because Plaintiff Wynkoop produced the documents in issue.
Moreover, Plaintiff Vidovich is one out of a group of Plaintiffs that the Discovery Special Master recommends make a further supplemental production with assistance from Plaintiffs’ counsel's paralegal. See Report and Recommendations regarding ECF 88-89. Plaintiff Vidovich's testimony regarding her lack of sophistication dealing with technology coupled with her failure to produce all documents counsels in favor of this recommendation. See Vidovich D.T. at pg. 156:19-20 (“But I'm not computer literate enough to get some of this stuff off of my Facebook ...”). This failure to timely produce does not, however, constitute grounds for dismissing Plaintiff Vidovich's claims. See FRCP 37(e)(1)-(2).
In remaining part, Defendants assert that Plaintiff Vidovich deleted responsive text messages. Id. Plaintiff Vidovich testified that she reviewed her text messages, “but those threads – I mean, it was just like social conversation. There was nobody involved in this case or anything, or there was nothing different that I hadn't already expressed on my Facebook page.” See Vidovich D.T. at pg. 156:5-9. When further pressed about whether any of her texts related to her experience about Giant Eagle, Plaintiff Vidovich responded, “I mean, maybe, yeah. Like, but I don't have – those are deleted. I don't know --.” Id. at pg. 156:10-13.
*7 When specifically asked if she deletes her text messages, Plaintiff Vidovich stated, “Yeah ... but those were all social friends.... I didn't think there was anything there that would be pertinent to this case.” Id. at pg. 157:7-14. Plaintiff Vidovich was asked if she texted about “mask wearing” and she responded, “Yeah, like with my cousin ... yeah, I told everybody what I was going through, everybody.” Id. at pg. 157:19-25. Plaintiff Vidovich further testified, “I do know that I would – there was nothing I removed from there that I felt wasn't already discussed in more detail on my Facebook page. So if that was a mistake to do that, it was inadvertent, because I didn't think I was doing anything wrong. Because they were, like, just – they weren't even important conversations, it was just like – you know what I'm saying? Social conversation.” Id. at pg. 158:6-14.
When asked to define the substance of the deleted text messages because she thought it was inconsequential, Plaintiff Vidovich stated, “[I]f I said, oh, hey, Jeremy, yeah, I'm having an issue with Giant Eagle, you know, that kind of thing. I'm suing them, you know what I'm saying? Found an attorney, these kinds of things, I did not think were the things that yinz would want because there was nothing substantial in it.” Id. at pg. 162:9-19. “... I didn't know to save all that. I really didn't get it.” Id. at pg. 163:2-3.
From the foregoing colloquy, the Discovery Special Master cannot find that Plaintiff Vidovich intentionally deleted any text messages to deprive Defendants of information needed to present their case. Consequently, the absence of bad faith counsels against dismissing Plaintiff Vidovich's claims. See FRCP 37(e)(2).
The Discovery Special Master addressed Defendants’ final two arguments (i.e., related to Vidovich's July 7 document production and her stipulation, interrogatory responses and deposition testimony regarding her inability to wear a mask) in her related Report and Recommendations on Defendants’ Motion to Compel. Compare ECF 91 at pp. 5-6 with Report and Recommendations regarding ECF 88-89. The same will not be readdressed here other than to say that the Discovery Special Master recommends granting Defendants’ Motion for Sanctions as it relates to Plaintiff Vidovich's delay in producing documents.
For all of the foregoing reasons, the Discovery Special Master recommends that Defendants’ Motion for Sanctions be granted in part against Plaintiff Vidovich for her failure to timely produce responsive social media posts, videos of her encounters at Giant Eagle and her notes of conversations with Giant Eagle officials.
(b) Doug Janaszek
Defendants allege that Plaintiff Janaszek “has repeated the same falsehood over and over again – alleging that he has not and cannot shop at Giant Eagle wearing a face covering.” See ECF 91 at pg. 8. More specifically, Defendants assert that Plaintiff Janaszek failed in his written discovery responses to admit “to shopping at Giant Eagle for a full list of groceries while wearing a face covering on a dozen occasions” thereby forcing Defendants to depose him to “learn the truth.” Id. Defendants take issue with Plaintiff Janaszek's purported failure to provide a “straightforward” discovery response. Id.
As detailed in the Discovery Special Master's related Report and Recommendation on Defendants’ Motion to Compel, Plaintiff Janaszek's stipulation regarding his inability to wear a mask or half face shield for any extended period of time is arguably consistent with his deposition testimony and interrogatory responses regarding the same.
Plaintiff Janaszek explained in his written discovery responses and at his deposition that he can only wear a mask or half face shield for a limited period of time before he begins to “gag” and “eventually vomit” forcing him to either pull his mask off to the side or completely remove it. Plaintiff Janaszek does not equate being forced to repeatedly remove his mask due to a gagging reaction as the equivalent of being able to shop at a Giant Eagle store while wearing a mask. Accordingly, in context, the Discovery Special Master cannot conclude that Plaintiff Janaszek's written discovery responses were completed in bad faith.
*8 The Discovery Special Master cannot make a credibility determination which would be required in order to dismiss Plaintiff Janaszek's claim. The Discovery Special Master is not the finder of fact. Therefore, it is the recommendation of the Discovery Special Master that Defendants’ Motion for Sanctions be denied as against Plaintiff Janaszek.
(c) Nicholas Conley
Defendants accuse Plaintiff Conley of purposefully and repeatedly withholding responsive documents in his possession. See ECF 91 at pg. 9. In their Motion to Compel for example, Defendants cite to a couple of Conley's posts on the Facebook group Stop Giant Eagle Now (“SGEN”) as stating, “I did email you ... I definitely emailed you” to Plaintiff Shepherd and stating to Plaintiff Vidovich that he “received the stories about Giant Eagle she sent him via private message”. See ECF 89 at pg. 5, n. 7.
A closer review of the purportedly withheld documents suggests that these communications may pertain to a sharing of public news stories reported by the Tribune Review, WPXI and/or NBC news. See ECF 89-7 at pg. 9 of 21; and ECF 89-7 at pp. 4-5 of 21. It is not clear whether the references to the sharing of these “stories” contain any information relative to Plaintiff Conley's ability to wear a mask.
However, there is also evidence that Plaintiff Conley may have communicated with Plaintiff Vidovich via private messaging on Facebook regarding “stories” of individual experiences at Giant Eagle in relationship to the mask policy. See Vidovich D.T. at pp. 47:10 – 48:18; see also ECF 89-7 at pg. 2 of 21 (Plaintiff Vidovich states, “Morning everyone please pm me with your stories of abuse at Giant Eagle”).
In response to Interrogatory 8, Plaintiff Conley states, he “has produced all responsive material he has been able to locate after reasonable investigation. Facebook and youtube ... I posted on Stop Giant Eagle Now Facebook page but I do not have access to that.” (emphasis added). Accordingly, the Discovery Special Master finds that Plaintiff Conley may have lacked the sophistication to conduct a proper search or simply could not recover any relevant materials from SGEN due to a lack of access. Furthermore, the Discovery Special Master notes that Plaintiff Vidovich did produce “hundreds of unquestionably responsive private Facebook messages with others[.]” See ECF 89 at pg. 4.
In light of the foregoing, the Discovery Special Master recommends in her related Report and Recommendations on Defendants’ Motion to Compel that Plaintiff Conley make a supplemental production of any responsive emails, texts, and private messages on social media (that may exist and relate to either Giant Eagle's mask policy or Plaintiff Conley's ability to wear a mask) with the assistance of Plaintiffs’ counsel's paralegal.
Defendants have not met their burden of proof in demonstrating that any intentional withholding of documents occurred by Plaintiff Conley that would justify the sanction of a dismissal of his claims.
Therefore, it is the recommendation of the Discovery Special Master that Defendants Motion for Sanctions as against Plaintiff Conley be denied.
(d) Paul Sheperd
In her related Report and Recommendations, the Discovery Special Master recommends that Plaintiff Sheperd conduct a further review (with the assistance of Plaintiffs’ counsel's paralegal) of his text messages, emails, and private Facebook messages. It appears to the Discovery Special Master that Plaintiff Sheperd needs assistance from someone with more technical skills to conduct a proper search of his electronic records. See Sheperd Response to Interrogatory 8 (stating “he has produced all responsive material he has been able to locate”, that his phones had crashed and that his computer drive was completely wiped clean to reinstall everything on my hard drive after a computer crash).
*9 The Discovery Special Master finds that Defendants have not met their burden of proof related to an intentional spoliation of information to justify a dismissal of Plaintiff Shepherd's claims. See FRCP 37(e)(2); see also Fuhs v. McLachlan Drilling Co., 2018 WL 5312760, at *13 (W.D. Pa. Oct. 26, 2018). No evidence has been presented for the Discovery Special Master's consideration related to what caused Plaintiff Sheperd's devices to crash, nor is there any evidence presented that his devices were wiped intentionally to withhold relevant information from Defendants. Accordingly, a dismissal of Plaintiff Sheperd's claims under Rule 37(e)(2) is not warranted.
Therefore, the Discovery Special Master recommends denying Defendants’ Motion for Sanctions as against Plaintiff Sheperd.
(e) Clyde Piovesan
As detailed in the Discovery Special Master's related Report and Recommendation on Defendants’ Motion to Compel, Plaintiff Piovesan's written discovery responses, stipulation, allegations in the Third Amended Complaint, and medical certification from his surgeon all paint a consistent picture that, on or about June 5, 2020 (i.e., the date of the alleged discrimination), Plaintiff Piovesan was unable to wear a mask. However, as of August 2020, Plaintiff Piovesan's lip had healed from surgery sufficiently so that he could wear a mask again. Based on the discovery responses provided and related record evidence, there is no basis to sanction Plaintiff Piovesan with the dismissal of his claims.
Therefore, the Discovery Special Master recommends denying Defendants’ Motion for Sanctions as against Plaintiff Piovesan.
(f) Holly Pulling
As detailed in the Discovery Special Master's related Report and Recommendation on Defendants’ Motion to Compel, Plaintiff Pulling made a good faith effort to provide a supplemental stipulation regarding her ability to wear a mask consistent with her deposition testimony. Therefore, the Discovery Special Master finds that Plaintiff Pulling complied with the parties’ June 3, 2021 agreement to provide a supplemental stipulation.
Defendants’ argument related to deletion of text messages is not sufficient to warrant dismissal of Plaintiff Pulling's claims. See ECF 91 at pg. 12. Plaintiff Pulling was asked if she deleted “any text messages on” her phone “since June of 2020” regardless of their subject matter. See Pulling D.T. at pg. 61:11-12. Plaintiff Pulling's response, “I'm sure I have” is not proof that she deleted text messages responsive to Defendants’ discovery requests without further context. Id. at pg. 61:13.
Therefore, the Discovery Special Master recommends that Defendants’ Motion for Sanctions be denied as against Plaintiff Pulling.
(g) Josiah Kostek
Defendants claim that “Kostek's discovery responses are evasive, and he has spoliated evidence.” See ECF 91 at pg. 13. In particular, Defendants take issue with Kostek's decision to not provide a stipulation regarding an ability to wear a mask while shopping, because Plaintiff Kostek posted on Facebook that he “doesn't mind wearing a mask if someone asks me polite. I'm in excellent health ...” Id. On the other hand, the Discovery Special Master understands that Plaintiff Kostek's counselor provided a certification (after Kostek's motion for a preliminary injunction was denied) explaining the reasons why he cannot wear a face covering and that Plaintiff Kostek testified at his deposition about the reasons why he cannot wear a face covering. See ECF 94 at pg.14. Plaintiff Kostek also produced his medical records. Id. at pg. 15.
It appears that Defendants want Plaintiff Kostek's claims dismissed, in part, because there is conflicting evidence of record regarding Kostek's ability to wear a face mask. The Discovery Special Master finds that it will be up to the finder of fact to determine whether Plaintiff Kostek's medical records, counselor's certification and Kostek's sworn testimony are more credible than his Facebook post. Regardless, Plaintiff Kostek has sufficiently answered Defendants’ written discovery requests per the June 3, 2021 agreement of the parties.
*10 Regarding spoliation of evidence, Defendants assert that Plaintiff Kostek “deleted all of his texts since the lawsuit was filed, including texts about Giant Eagle, his ability to wear face coverings, and the lawsuit.” See ECF 91 at pg. 13. The Discovery Special Master finds that this argument presents a much closer question.
Plaintiff Kostek was questioned and answered in relevant part at his deposition:
Q: How often do you text?
A: Every day, frequently.
Q: How many times a day?
A: I couldn't say. A hundred plus, round number, guess.
* * *
Q: And do you delete texts or do you keep them?
A: I delete them. They're empty. As soon as I no longer need them, I delete them.
* * *
Q: Have you ever texted anybody about your inability to wear a mask or other face covering?
A: I may have.
Q: Have you ever texted ... anybody about Giant Eagle and your experiences there?
A: I may have sent text messages concerning what was taking place.
Q: But you deleted those texts?
A: Yes.
Q: Did you ever text anybody about this lawsuit?
A: I may have, yes.
Q: And you deleted those texts also?
A: Yes.
Q: Do you understand, Mr. Kosteck, that you were required to preserve all documents that might be relevant to this lawsuit?
* * *
A: I didn't recall ever being told that I need to save any text messages or emails. If I was told so, I didn't recall.
Q: Well, if you were told that, you would have saved the texts, right?
A: If I had recalled. It's not very often I talk about it.
See Kostek D.T. at pp. 47:8 – 49:3.
The Discovery Special Master finds from the foregoing colloquy that Plaintiff Kostek likely deleted text messages related to this lawsuit and possibly his ability or inability to wear a mask while shopping, although the same cannot be stated with absolute certainty. The Discovery Special Master further finds that Plaintiff Kostek regularly deletes his text messages out of habit and, therefore, his conduct does not demonstrate an intention to deprive Defendants of the information's use in this lawsuit. To the contrary, the fact that Plaintiff Kostek did not delete his Facebook post stating he does not “mind wearing a mask” and that he's in “excellent health” supports a finding that there was no intent to deprive Defendants of relevant information needed to defend this lawsuit.
Finding an absence of bad faith, the Discovery Special Master must recommend denying Defendants’ request for a dismissal of Plaintiff Kostek's claims. See FRCP 37(e)(2) (“the court ... only upon a finding that the party acted with the intent to deprive another party of the information's use in the litigation may: ... dismiss the action ...”).
Therefore, it is the recommendation of the Discovery Special Master that Defendants’ Motion for Sanctions as against Plaintiff Kostek be denied.
(h) Tommy Wynkoop
The Discovery Special Master has recommended in her related Report and Recommendations on Defendants’ Motion to Compel that Plaintiff Wynkoop meet with Plaintiffs’ counsel's paralegal to conduct a further review of his responsive emails, social media posts and text messages to the extent they exist. Therefore, to the extent that any prejudice has been caused by the lack of a sufficient search for documents, the effect of this recommendation will be to cure any outstanding deficiencies in Plaintiff Wynkoop's document production.
Plaintiff Wynkoop's supplemental response to Interrogatory 8 states he “has produced all responsive material he has been able to locate after reasonable investigation. He has no text messages and emails....” (emphasis added). This statement does not constitute an outright denial that no “other responsive private messages existed” as Defense counsel contends. See ECF 91 at pg. 14.
*11 Furthermore, Plaintiff Wynkoop made multiple supplemental document productions prior to Defendants filing their Motion to Compel and Motion for Sanctions on August 4, 2021. Id. (Defendants asserted that Plaintiff Wynkoop made supplemental productions on July 9, 2011 and July 14, 2021). It appears that Plaintiff Wynkoop's issue with producing documents is a lack of sophistication in conducting a search for relevant materials and not an intention to withhold documents from Defendants. This lack of sophistication is no excuse, but it does not constitute grounds for a sanction of dismissal of Plaintiff Wynkoop's claims.
Therefore, it is the recommendation of the Discovery Special Master that Defendants’ Motion for Sanctions as against Plaintiff Wynkoop be denied.
(i) Ben Zytnick
Plaintiff Zytnick alleges that “the events complained of occurred at the Squirrell Hill Giant Eagle on May 9, 2020” when he was informed by two Giant Eagle employees that he could not shop in the store without wearing a mask. See ECF 51 ¶¶259-261. Plaintiff Zytnick further alleges that he “informed the employee[s] that he could not wear a mask due to his medical condition.” Id. ¶¶260-261. Plaintiff Zytnick claims that he was compelled to leave the store without being able to purchase groceries on May 9, 2020, despite having “pneumonia and related respiratory issues”. Id. ¶¶259-261.
Plaintiff Zytnick advised Defendants in response to Interrogatory 4, “I have worn masks on occasion but cannot recall the dates or times but my usage was brief and caused by news reports of individuals being attacked in public if not wearing face coverings.” See Zytnick Supp. Interrogatory Responses (dated July 6, 2021). Plaintiff Zytnick also submitted a stipulation dated January 28, 2021 stating, “I, Ben Zytnick, can wear a face shield. I was never given the option to wear a face shield nor it was [sic] never mentioned that face shields were an acceptable alternative to masks. I was told that I had to wear a mask to shop at the store or leave.” See ECF 95-1 at Exhibit “3”.
Taken together, the Discovery Special Master finds that Plaintiff Zytnick has represented he can wear a face shield with no temporal limitations and he can wear a mask for a “brief” period of time. As explained in the Discovery Special Master's related Report and Recommendations on Defendants’ Motion to Compel, Plaintiff Zytnick should be compelled to define what a “brief” period of time means “as an average or approximate time in either seconds, minutes or other applicable unit of time.”
This approximation of temporal limitations was agreed to be provided by Plaintiffs on or before July 6, 2021. See ECF 80 ¶9. Accordingly, Plaintiff Zytnick should have provided this information either through a supplemental stipulation or his supplemental responses to interrogatories by July 6, 2021 consistent with the parties’ June 3, 2021 agreement, see id., and the Court's January 4, 2021 Order. See ECF 61-62. Defendants should not have been forced to seek such information through Plaintiff Zytnick's deposition taken on August 26, 2021. Therefore, the Discovery Special Master reviews Plaintiff Zytnick's unofficial deposition transcript further to determine what, if any, sanctions are warranted for Plaintiff Zytnick's failure to provide this temporal qualification to his ability to wear a mask in the first instance.
Defendants seek sanctions against Plaintiff Zytnick in the nature of a dismissal of his claims and monetary sanctions related to attorneys’ fees incurred for taking his deposition. See generally ECF 95-1. Specifically, Defendants assert that, “Mr. Zytnick acknowledged that certain of his written discovery responses were false, he admitted to shopping at Giant Eagle on about ten occasions while wearing a face mask, and his testimony showed a total disregard for his obligation to provide a Court-ordered stipulation about his ability to wear any kind of face covering.” Id. at pg. 1.
*12 Before addressing the merits of Defendants’ assertions, the Discovery Special Master must note that Defendants incorrectly represent that, “Mr. Zytnick has never provided responses to Giant Eagle's Requests for Admission.” See ECF 95-1 at pg. 3. Plaintiff Zytnick did respond to Defendants’ Requests for Admission. In particular, the Discovery Special Master notes that Plaintiff Zytnick admitted to wearing a “face mask, plastic face shield, or other face covering” for “some period of time since April 1, 2020.” See Zytnick Response to RFA No. 2. Defendants rightfully point out, however, that Plaintiff Zytnick failed to provide any temporal limitations on his ability to wear a mask or other face covering either in response to Defendants’ interrogatories or in his stipulation.
The Discovery Special Master addresses Defendants remaining arguments in turn. Defendants assert that Plaintiff Zytnick “admitted that he has shopped for groceries at Giant Eagle wearing a mask on about 10 occasions (for 20-30 minutes at a time) .... This admission contradicts his written discovery answers....” See ECF 95-1 at pg. 1 (citing Plaintiff Zytnik's responses to Interrogatories 4 and 5). A review of Plaintiff Zytnick's discovery responses reveals that Plaintiff Zytnick did not state he could not recall the occasions when he “brief[ly]” wore a mask in his interrogatory responses. See Zytnick Supp. Interrogatory Responses at No. 4. To the contrary, Plaintiff Zytnick did recall occasions where he wore a mask stating his “usage was brief” but could not “recall the dates or times” on which these incidents occurred. Id. Not having a precise ability to recall dates and times is different from having no recollection whatsoever of occasions where Plaintiff Zytnick wore a mask. Accordingly, the Discovery Special Master finds that Plaintiff Zytnick's written responses and his deposition testimony are not inconsistent.
Defendants next assert Plaintiff Zytnick admitted at his deposition that “these” discovery responses were “outright false.” See ECF 95-1 at pg. 2 (citing Zytnick D.T. at pg. 23:2-15). Plaintiff Zytnick was questioned and answered in relevant part:
Q: And if I were to ask you those questions and you would testify I never worn a face covering at Giant Eagle, that would have been a false statement, right?
A: I don't believe I said that, but, yes, it would have been.
Q: The same: Have you ever worn a face covering or a mask in Giant Eagle and you said I have no idea. I mean you would agree with me that would have been false?
A: Again, I don't believe I made that statement, but based on what I've told you there have been occasions I have used a mask at a Giant Eagle.
Q: That would be a false statement I have no recollection?
A: Yeah.
See Zytnick D.T. at pg. 23:2-15 (emphasis added).
Plaintiff Zytnick is correct – he did not deny ever wearing a mask at a Giant Eagle. Compare Zytnick Supp. Interrogatory Response No 3 (responding “I never tried to enter a Giant Eagle store wearing a face shield or [other] face covering” when asked to describe “each and every instance in which you claim that Giant Eagle prohibited you ... from shopping in its stores wearing a full face shield or other face covering in lieu of a face mask”) (emphasis added), with Zytnick Supp. Interrogatory Response No 4 (admitting to wearing “masks on occasion” for “brief” periods of time) and Zytnick Response to RFA No. 2 (admitted to wearing a “face mask, plastic face shield, or other face covering” for “some period of time since April 1, 2020”).
Defendants’ interpretation of Plaintiff Zytnick's response to Interrogatory 3, which asks Plaintiffs to identify instances in which they were denied access to shop at Giant Eagle when attempting to wear a full face shield or “other face covering in lieu of a face mask”, as a firm denial of ever having worn a face mask at a Giant Eagle is a tortured interpretation. See ECF 95-1 at pg. 1 (mistakenly citing to the response to Interrogatory 5 but quoting Plaintiff Zytnick's response to Interrogatory 3 as stating “never tried to enter a Giant Eagle store wearing a face shield or face covering”).
*13 Defendants next assert Plaintiff Zytnick “admitted” at his deposition that, “he can probably wear any type of face covering he wants”. See ECF 95-1 at pg. 2 (quoting Plaintiff Zytnick as stating “as far as I know, you know, I could use a bed sheet”). The Discovery Special Master finds that Plaintiff Zytnick's testimony in this regard is not a definitive statement of an ability to wear other types of face coverings and, therefore, Plaintiff Zytnick did not fail to comply with the Court's Order regarding stipulating to an ability to wear a face covering in this respect. See ECF 62.
Plaintiff Zytnick's testimony in substance stood for the proposition that he never tried to wear a number of different types of face coverings and, therefore, he could not definitively state whether he could wear the same. See Zytnick D.T. at pp. 30:14 – 31:13. The Discovery Special Master does not find Plaintiff Zytnick's stipulation to be deficient in this regard, because he has no experiential knowledge as to whether he can safely wear a “bandana”, “neck gaitor”, or other type of face covering as questioned by Defense counsel. Id. Plaintiffs “who can” wear a particular type of face mask or other face covering were ordered to provide a stipulation – not Plaintiffs who suspect or guess or could probably wear a face covering. See ECF 62.
Finally, Defendants take issue with Plaintiff Zytnick for “never” looking for responsive “texts or emails, never provided any documents to his lawyers, and routinely deleted texts”. See ECF 95-1 at pg. 2 (citing Zytnick D.T. at pp. 32:8 – 34:23, 40:17 – 41:5). Plaintiff Zytnick stated he “[v]ery rarely” texts and that some texts he keeps on his phone and “some are deleted” regardless of their substance. Id. at pg. 32:8-16. Plaintiff Zytnick further explained that, “I really can't tell you I made any communications via text or any other form of messaging regarding this [lawsuit].” Id. at pg. 32:23-25. Accordingly, there is no record evidence that Plaintiff Zytnick intentionally deleted any text messages that are responsive to Defendants’ discovery requests.
Plaintiff Zytnick further explained when questioned about whether he looked for such communications (i.e., texts or emails): “Well, I can tell you that there were none. I told you I'm a private person I don't broadcast everything. I don't have a Face Book account. I don't go on U Tube. My business is my business.” Id. at pg. 33:3-7. When pressed further about whether he possessed any communications regarding his ability to wear a mask or Giant Eagle's mask policy, Plaintiff Zytnick stated, “There were none. I don't have to look.... It wasn't ... my topic of conversation. The only emails that I have pertaining to Giant Eagle are with my attorney.” Id. at pg. 33:8-16. “I know that I didn't make any communications about it.” Id. at pg. 33:21-22.
When pressed about whether he shared documents with his attorney, Plaintiff Zytnick stated, “There are none to provide and some of the stuff on my office computer is not your business. There is privileged stuff that, communications between myself and my clients but there was no correspondence regarding this lawsuit.” Id. at pg. 34:19-23.
The Discovery Special Master cannot determine the sincerity of Plaintiff Zytnik's belief that no responsive documents exist. However, the law requires that at least a “reasonable search” be performed as opposed to no search at all. Accordingly, the Discovery Special Master recommends that Plaintiff Zytnik be compelled to conduct a reasonable search of his text messages and emails for any communications in his possession that relate to his ability to wear a mask or Giant Eagle's mask policy with the assistance of Plaintiffs’ counsel's paralegal. This recommendation is made a part of and recorded in the Discovery Special Master's related Report and Recommendations on Defendants’ Motion to Compel.
*14 In sum, the Discovery Special Master recommends denying Plaintiffs’ Motion for Sanctions to the extent it seeks the dismissal of Plaintiff Zytnick's claims as the same is a draconian sanction given the nature of Plaintiff's Zytnick's deficient discovery responses. The Discovery Special Master also recommends granting Defendants’ Motion for Sanctions against Plaintiff Zytnick to the extent it seeks monetary sanctions for his failure to timely search for and produce responsive documents.
III. Conclusion and Recommendations
It is the recommendation of the Discovery Special Master that Defendants’ Motion for Sanctions be granted in part and denied in part.
The Discovery Special Master recommends sanctions against Plaintiff Vidovich and Plaintiff Zytrick in the form of an award of reasonable attorneys’ fees and costs incurred in preparing for and participating in two (2) conferences with the Discovery Special Master, the preparation of the Motion to Compel, and the preparation of the Motion for Sanctions as a result of their respective failures to timely produce documents. The Discovery Special Master further recommends that Defendants’ counsel file an appropriate fee/cost petition for consideration.
BURNS WHITE LLC
By: Mary-Jo Rebelo, Esq.
Mary-Jo Rebelo, Esq.
PA I.D. No. 53539
48 26th Street
Burns White Center
Pittsburgh, PA 15222
412/995-3347
mjrebelo@burnswhite.com