*1 Before the Court is the above-named Defendants' Motion for Spoliation Sanctions against Plaintiffs Reid and Sanders; the Motion was filed on April 3, 2020. (ECF No. 97.) Plaintiffs filed a response in opposition on April 28, 2020 and Defendants filed a reply on May 13, 2020. (ECF Nos. 106 & 119.) The Motion focuses on journal entries that were purportedly written by Plaintiff Sanders but have not been produced by Plaintiffs' counsel. For the following reasons, Defendants' Motion should be DENIED.

On April 18, 2019 the Defendants learned, through initial disclosures, that Plaintiffs had “contemporaneous documentation” that would support their claims. (ECF No. 97:2.) On July 29, 2019, in response to the Defendants' request to produce such documentation, Plaintiffs produced journal entries written by Plaintiff Sanders during her tenth and eleventh grade years at Central High School. (ECF Nos. 26, 97:4, & 106:2.) During an injunctive relief hearing, which the Court held on January 3, 2020, Plaintiff Sanders indicated that she had written journals documenting events and time periods that had not been turned over to the Defendants. (ECF No. 97:4) (citing Transcript of Hearing (ECF No. 67, 67:15-74:16.)). After learning about the existence of other journals, the Defendants requested that Plaintiffs produce “copies of all diaries/journals/records kept by [Plaintiff Sanders].” (ECF No. 97-2.) The Defendants restated this request in their notice of deposition for Plaintiff Sanders. (ECF No. 60.) On January 24, 2020, Plaintiffs' counsel produced journals written by Plaintiff Sanders during the first semester of her twelfth-grade year. (ECF Nos. 72 & 97:9.) At that point in time, Plaintiffs acknowledge that the Defendants had received “only 2-3 journals” in total. (ECF No. 106:7 n2.)

During her February 12, 2020 deposition, Plaintiff Reid testified that Plaintiff Sanders had been keeping a personal journal detailing her day-to-day experience at school ever since she was a middle school student at Snowden. (ECF No. 97-4, 37:18-46:2.) Plaintiff Reid explained that “[a]fter certain incidents started occurring” when Plaintiff Sanders was a student at Snowden, she “instructed” Plaintiff Sanders to keep a personal journal “because of the different events and different things that were transpiring at school” (Id. at 43:11-14 & 44:13-16.) Plaintiff Reid testified that between her years at Snowden and Central, there were possibly eight or nine total notebooks that Plaintiff Sanders had used for her personal journals, all of which had been turned over to their attorneys. (Id. at 44:17-24, 45:1.) At the close of the deposition, Defense counsel notified Plaintiffs' counsel that the Defendants had only received two of these journals. (Id. at 194:9-10.) Plaintiffs' counsel stated: “Everything that Ms. Reid has given us, we have scanned and produced to you.” (Id. at 194:14-15.)

On February 13, 2020, Plaintiffs' counsel discovered six additional journals belonging to Plaintiff Sanders that were in the firm's possession but had been inadvertently misfiled, and as a result, had not been produced for the Defendants. (ECF No. 106:10.) Plaintiffs notified the Defendants of their discovery the next day and produced copies of the journals on February 19, 2020. (Id. ¶ 11.)

*2 Plaintiff Sanders was deposed on February 27, 2020. See Sanders Deposition Transcript (ECF No. 97-8.) Throughout the deposition, Plaintiff Sanders testified that she had kept a daily journal for five years from eighth grade until the present, that the journals contain non-personal details about every school day, and that they had all been turned over to Plaintiffs' counsel. See e.g. (Id. at 166:23-177:14; 184:13-21; & 202:23-203:19.) However, her testimony regarding the whereabouts of all the journals, particularly those from eighth and ninth grade, was inconsistent. For example, at the start of the deposition, Defense counsel presented two binders containing all the journal entries they had received from Plaintiffs' counsel. Plaintiff Sanders initially confirmed that every journal entry she had made while in high school, except for the journal she was currently writing in, had been turned over to her attorneys and appeared in those two binders. (Id. at 7:7-11.) After further questioning about her eighth and ninth grade journals, Plaintiff Sanders requested a break and then returned to the deposition and stated that she did not know if all her journals had been turned over to counsel. (Id. at 12:17-13:1.) Later, Plaintiff Sanders testified that her journals from eighth and ninth grade were also included in the binders. (215:1-21, & 217:17-23.) When asked about the origin of these journals, Plaintiff Sanders explained that she began keeping a journal when she was an eighth grade student at Snowden “[j]ust to keep track of – of what's been going on at – with my schooling ever since this schooling situation began and lawsuit situation began.” (Id. at 7:20-8:5.) At the close of the deposition, Plaintiff's counsel acknowledged, in reference to the journals, “that there are missing big chunks of time [sic].” (Id. at 219:3-4.)

On February 28, 2020, Defense counsel e-mailed Plaintiffs the following list, documenting the journals and journal pages that were still missing:

(ECF No. 101.) To date, it is the Court's understanding that Plaintiffs have not produced the missing journals identified by the Defendants, nor provided new information regarding the same.

The Defendants urge the Court to impose sanctions on Plaintiffs for failing to produce the missing journal entries or explain why they cannot be produced, despite Plaintiff Reid and Plaintiff Sanders' testimonies that the journals exist and have been turned over to counsel, and Plaintiffs' counsel's assertion that all journals provided by Plaintiffs have been turned over to the defense. (ECF No. 97.) Specifically, the Defendants request that the Court impose “any and all” of seven suggested sanctions against Plaintiffs.[1] In response, Plaintiff Sanders asserts that this request lacks merit. (ECF No. 106.)

Under Federal Rule of Civil Procedure 26(a)(1)(A)(ii), a party must disclose “all documents, electronically stored information, and tangible things” that are “in its possession, custody, or control and [it] may use to support its claims or defenses.” A party who has made a Rule 26 disclosure is obligated to supplement or correct such disclosure if the party learns that it was incomplete or incorrect in some material respect that has otherwise not been made known through discovery. Fed. R. Civ. P. 26(e). A party who fails to provide information or identify a witness, as required by Rule 26(a) and (e), “is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). Although exclusion of evidence is the “usual remedy for noncompliance with Rule 26(a) or (e),” courts are permitted, upon motion and after giving an opportunity to be heard, to impose sanctions in addition to or instead of the exclusion sanction enumerated in Rule 37(c)(1). Howe v. City of Akron, 801 F.3d 718, 747 (6th Cir. 2015) (citing Fed. R. Civ. P. 37(c)(1)).

*3 Here, Defendants do not request that that the missing journal entries be excluded, pursuant to a Rule 37(c)(1) sanction, nor do they discuss the merits of doing so. Instead, Defendants are explicitly seeking spoliation[2] sanctions dismissing the case, excluding all of Plaintiff Sanders' journals, imposing an adverse inference on the jury, and/or awarding attorney's fees. (ECF No. 97, 14.) District courts have the authority to impose any of these extra sanctions, but this Court does not find that they are appropriate at this stage in litigation. Automated Sols. Corp. v. Paragon Data Sys., Inc., 756 F.3d 504, 513 (6th Cir. 2014) (quoting Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 554 (6th Cir. 2010)).

A sanction of dismissal should be used as a “last resort,” it must be supported by facts, and requires a finding that the non-moving party's failure to cooperate with discovery was “willful, in bad faith, or due to its own fault.” Clark, 229 F.R.D. at 138 (quoting Beil v. Lakewood Engineering & Mfg. Co., 15 F.3d 546, 552 (6th Cir.1994)). The Court does not find that Defendants have provided enough facts to establish that the journals are missing because of Plaintiffs' willfulness, bad faith, fault, or in Defendants' words, “abusive discovery tactics.” (ECF No. 97, 13.) The Motion, therefore, does not support sanctions dismissing any of Plaintiffs' claims.

The Court will address Defendants' other requested spoliation sanctions together because they are governed by the same standard. A party seeking spoliation sanctions must establish:

Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010). This standard applies to evidence that is either destroyed or lost. Id. (quoting Hodge v. Wal–Mart Stores, Inc., 360 F.3d 446, 450 (4th Cir.2004) (holding that spoliation sanctions are appropriate if the party “knew the evidence was relevant to some issue at trial and ... [their culpable] conduct resulted in its loss or destruction”). The “culpable state of mind” factor encompasses both intentional and negligent conduct. Id. (citing Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 2002)).

Since the advent of this case, Plaintiffs have turned over personal journal entries belonging to Plaintiff Sanders on three separate occasions. As they acknowledge, Plaintiffs' counsel committed an ‘administrative error’ by misplacing six of Plaintiff Sander's journals for over six months of litigation. (ECF No. 106.) However, Plaintiffs quickly supplemented their disclosure when the mistake was discovered and have since produced the six additional journals for opposing counsel as required by Federal Rule of Civil Procedure 26(e). The impact of this mistake on Defendants' case was minimal, which Plaintiff highlights in her response. But as Defendants point out, their request for sanctions “is not about ‘a shelving mistake’ ” as characterized by Plaintiffs. (ECF No. 119, 2.) The focus of the Motion is the journals that remain missing after almost twelve months of discovery.

*4 As Defendants summarize, Plaintiffs Reid and Sanders individually testified that Sanders kept a personal journal from eighth grade until the end of high school. This amounted to five years of daily journals that both Plaintiffs testified chronicle everything that happened to Sanders during each school day. Further, whether Plaintiff Reid directed Plaintiff Sanders to keep the journal, as she testified, or if Sanders kept the journal on her own accord, it is clear from both Plaintiffs' testimonies that maintaining the journal was motivated by Plaintiffs' beliefs that they were being mistreated by Defendants. As Defense counsel explained in their February 2020 e-mail, and Plaintiffs' counsel acknowledged at the close of Plaintiff Sanders' deposition, there are still large portions of journals missing from the five year chronology: Plaintiff Sanders' eighth and ninth grade years, a three-month period during her tenth-grade fall semester, and her twelfth-grade spring semester. (ECF No. 101.) The Court notes that this amounts to well over forty percent of the journals, which both Plaintiffs claim exist and claim to have turned over to Defense counsel. Plaintiffs' counsel contends that the missing journals are no longer in Plaintiffs Reid or Sanders' possession and that all the journals they did have, have been produced for Defendants. (ECF No. 106, 9.)

The Court finds that spoliation sanctions are not warranted here based on the Sixth Circuit's three-factor test in Beaven. The first factor is whether the party controlling the evidence had an obligation to preserve it at the time it was lost or destroyed. Beaven, 622 F.3d at 553. Plaintiffs' Rule 26 initial disclosure indicated that they possessed “contemporaneous documentation” that would support their claims (ECF No. 97:2), and the record is clear that five years' worth of journal did at some time exist, but Defendants have not provided evidence demonstrating that Plaintiffs had control of the entire collection of journals at a time when they were obligated to preserve it—i.e. when litigation was “pending or reasonably foreseeable.” Clark, 229 F.R.D. at 136. Thus, the first factor weighs against issuing sanctions.

Second, even if the entire collection existed, the Court does not find evidence that the missing journals were lost or destroyed through Plaintiffs' culpability or negligence. Beaven, 622 F.3d at 553. Although Plaintiffs consistently testified that five years of journals were recorded, they were inconsistent about whether the missing journals still exist and whether they have been turned over to Defense counsel. Plaintiff Sanders testified that all her journals, including those from eighth grade, had been turned over to her attorneys, but she also confirmed that they were in the deposition binders provided by Defense counsel, which Defendants later determined was not accurate. According to the parties, the journals that have been turned over comprise hundreds of pages, which would be tedious for anyone to review. However, Plaintiff Sanders' testimony demonstrates an unfamiliarity with her own journals and a lack of knowledge about which ones existed at the beginning of this suit, which ones have been turned over, and thus, whether any are missing. Plaintiff Reid, on the other hand, testified that she believed eight or nine journals exist and had been turned over. By the Court's count, after Plaintiffs' counsel discovered the six missing journals and turned them over, the Defendants should now have eight or nine, which is consistent with Plaintiff Reid's testimony. Based on the record before it, the Court does not find that the missing journals were negligently lost or destroyed by Plaintiffs or their counsel after their obligation to preserve the evidence began. Thus, factor two of the Beaven test weighs in favor of Plaintiffs and against imposing sanctions.

Lastly, the Court finds, through the eyes of a reasonable trier of fact, that the journals are relevant to Plaintiffs' claims[3] and to the Defendants' defense, particularly because both Plaintiffs' testified that they were kept as a way of documenting Defendants' alleged wrongdoing. Although factor three weighs in favor of sanctions, the first two factors do not. Therefore, the Court does not find the imposition of spoliation sanctions or the Defendants' request for attorney's fees well taken at this time and the Motion should be denied.

*5 For the foregoing reasons Defendants' Motion for Spoliation Sanctions is DENIED.

IT IS SO ORDERED this 15th day of July 2020.

Defendants suggest the following sanctions:

“Spoliation is ‘the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.’ ” Clark Const. Grp., Inc. v. City of Memphis, 229 F.R.D. 131, 136 (W.D. Tenn. 2005) (quoting Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003)).

The Defendants' reliance on Ohio Cas. Ins. Co. v. Cox, No. 5:11-CV-334-HRW-REW, 2014 U.S. Dist. LEXIS 136570 (E.D. Ky. June 20, 2014) is instructive for the Court's finding that the journals are relevant, but Cox does not otherwise persuade the Court to impose sanctions in this case.