Davis v. Healthcare Servs. Grp., Inc.
Davis v. Healthcare Servs. Grp., Inc.
2019 WL 13270575 (E.D. Pa. 2019)
June 12, 2019

Surrick, Richard B.,  United States District Judge

Exclusion of Evidence
Photograph
Text Messages
Spoliation
Sanctions
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Summary
The court imposed sanctions against the plaintiff for spoliation of text message evidence related to her claims of sexual harassment and discrimination. The court clarified that the sanctions precluded the plaintiff from introducing any evidence, including testimonial evidence, regarding the content of the text messages. The court denied the plaintiff's motion to reconsider, finding that the sanctions order precluded her from presenting any evidence of the content of the messages.
Additional Decisions
Avena M. DAVIS
v.
HEALTHCARE SERVICES GROUP, INC
CIVIL ACTION NO. 16-2401
United States District Court, E.D. Pennsylvania
Filed June 12, 2019

Counsel

Marc A. Weinberg, Saffren and Weinberg, Jenkintown, PA, for Avena M. Davis.
Brandon Shaby Shemtob, Kenneth D. Kleinman, Stevens & Lee PC, Philadelphia, PA, for Healthcare Services Group, Inc.
Surrick, Richard B., United States District Judge

ORDER

*1 AND NOW, this 12th day of June, 2019, upon consideration of Plaintiff's Motion for Reconsideration Pursuant to Federal Rule of Civil Procedure 54(b) (ECF No. 34), and all documents submitted in support thereof and in opposition thereto, it is ORDERED that the Motion is DENIED.[1]
*2 IT IS SO ORDERED.

Footnotes

This Motion involves sanctions imposed against Plaintiff pursuant to Rule 37(e)(1) for the spoliation of text message evidence related to her claims of sexual harassment and discrimination, hostile work environment, and retaliation by her former employer, Defendant Healthcare Services Group, Inc. (“HSGI”) and her supervisor at HSGI. The initial Sanctions Order, issued by the Hon. Legrome D. Davis, precluded Plaintiff from “introducing into evidence the photographs taken of Plaintiff's former cell phone,” which depicted—apparently selectively—alleged text exchanges between Plaintiff and her former supervisor. (Sanctions Order, ECF No. 27.) The Sanctions Order noted that it did not preclude Plaintiff from presenting any evidence in support of her claims, and expressly stated that “Plaintiff can still present evidence of, among other allegations, [her supervisor's] comments toward Plaintiff at work, [his] inappropriate physical behavior towards Plaintiff, and the contemporaneous reporting of [his] actions to Plaintiff's union representative.” (Id. at 10.)
Defendant filed a motion to clarify that the Sanctions Order precludes Plaintiff from introducing any evidence, including testimonial evidence, regarding the text messages excluded by the Sanctions Order. (Def.’s Mot. for Clarif., ECF No. 28.) On November 30, 2018, we issued an Order clarifying that the Sanctions Order precludes Plaintiff “from offering at trial any evidence, whether photographic, testimonial, or otherwise, depicting or specifying the content of text messages that Plaintiff allegedly received from, or exchanged with, her former supervisor.” (November 30 Order ¶ 1, ECF No. 33 (emphasis added).) The November 30 Order further provides that “Plaintiff will be permitted to testify that she received from, or exchanged with, her former supervisor text messages that she perceived as sexually explicit and/or harassing,” and that “[i]f Plaintiff so testifies, Defendant will be permitted to present evidence and argument concerning Plaintiff's failure to preserve the text messages....” (Id. ¶ 2.)
Plaintiff now seeks reconsideration of the November 30 Order, asking that it be vacated or, alternatively, that Plaintiff be permitted to offer testimonial evidence specifying the content of the text messages. (Mot. for Recons. 1 (ECF numbering).) Plaintiff contends that the November 30 Order “unjustly expands” and “is inconsistent with” the Sanctions Order and, as such, is contrary to the law of the case doctrine. (Id. at 7-9.) According to Plaintiff's interpretation, the Sanctions Order “does not preclude the Plaintiff from offering testimonial, or other evidence of the content of the text messages, but rather, only prevents the Plaintiff from introducing the photographs of [Plaintiff's] former cell phone.” (Id. at 4 (emphasis in original).) We disagree.
Plaintiff's narrow interpretation of the Sanctions Order ignores the context provided in the Court's findings regarding the circumstances and prejudicial effect of Plaintiff's spoliation. For example, Judge Davis noted the facts supporting “the reasonable assumption that Plaintiff deleted some texts” before selectively photographing the exchanges. (Sanctions Order 8; see also id. at 3.) He further observed that “[s]electively taken photographs of the text messages [do] not serve as a sufficient substitute for the electronically stored information that was on Plaintiff's old phone.” (Id. at 6.) Considering the appropriate remedy under Rule 37(e), Judge Davis also noted that:
In this case, the lost electronically stored text messages are quite significant to the litigation as they potentially support Plaintiff's assertion that [her supervisor] harassed her in one of two ways alleged—remotely via text and in-person at work. As it relates to the remote harassment, the loss of the [electronically stored texts] prejudices Defendant's ability to both fully investigate the allegations and to potentially raise a complete defense based on that full investigation.
(Id. at 9.) Ultimately, the Court concluded that “the properly calibrated cure for the prejudicial effects caused by Plaintiff's loss of the [electronically stored texts] is to exclude Plaintiff's admission into evidence the photographs of the cell phone.” (Id.)
Viewed in context, it is clear that the Sanctions Order precludes Plaintiff from presenting any evidence of the content of the alleged—and selectively photographed—remote harassment. Plaintiff's interpretation of the Order—that it precludes only the photographs, but not the messages depicted therein—is not reasonable. In fact, the Sanctions Order's “cure” for the prejudicial effects of Plaintiff's spoliation would be nullified if Plaintiff were permitted to simply specify or recite the content of the messages. Finally, we note that in listing the evidence not precluded, the Sanctions Order stated: “Plaintiff can still present evidence of, among other allegations, [the supervisor's] comments toward Plaintiff at work, [his] inappropriate physical behavior towards Plaintiff, and the contemporaneous reporting of [his] actions to Plantiff's union representative.” (Id. at 10.) Significantly, the Court did not include in that list testimonial or other evidence of the alleged remote harassment by text. Expressio unius est exclusio alterius.
The clarification provided in the November 30 Order is entirely consistent with and does not expand the Sanctions Order. As such, there is no basis under Rule 54(b) or the law of the case doctrine to vacate or modify the November 30 Order. See Pub. Interest Research Grp. of N.J., Inc. v. Magnesium Elektron, Inc., 123 F.3d 111, 116 (3d Cir. 1997) (“Law of the case rules have developed to maintain consistency and avoid reconsideration of matters once decided during the course of a single continuing lawsuit.”)(citation and quotation marks omitted); Qazizadeh v. Pinnacle Health Sys., 214 F. Supp. 3d 292, 295-96 (M.D. Pa. 2016) (noting that motions for reconsideration are not to be used to reargue matters already disposed of or as an attempt to relitigate a point of disagreement with the court).