Hightower v. Ingerman Mgmt. Co
Hightower v. Ingerman Mgmt. Co
2021 WL 10374266 (D.N.J. 2021)
January 13, 2021

Schneider, Joel,  United States Magistrate Judge

Sanctions
Failure to Preserve
Spoliation
Dismissal
Scope of Preservation
Adverse inference
Text Messages
Failure to Produce
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Summary
The Court found that plaintiff had spoliated evidence (text messages) but denied defendants' request to dismiss the complaint. After an evidentiary hearing, the Court found that the criteria in Fed. R. Civ. P. 37(e) was met, but decided not to impose an adverse inference or any additional sanction on plaintiff due to the irrelevance of the text messages, the uncertainty of their retrieval, and the lack of prejudice to defendants.
MARSHELLE HIGHTOWER, Plaintiff,
v.
INGERMAN MANAGEMENT COMPANY, et al., Defendants
Civil No. 17-8025 (RMB/JS)
United States District Court, D. New Jersey
Filed January 13, 2021

Counsel

Laura C. Mattiacci, Console Mattiacci Law, LLC, Philadelphia, PA, Stephen G. Console, Caren Nancy Gurmankin, Console Mattiacci Law, LLC, Moorestown, NJ, for Plaintiff.
Gary Paul Lightman, Glenn A. Manochi, William Lyle Stamps, Lightman & Manochi, Plymouth Meeting, PA, Tara L. Humma, Ballard Spahr LLP, Mount Laurel, NJ, for Defendants.
Schneider, Joel, United States Magistrate Judge

ORDER

*1 This Order is a follow up to the Court's March 30, 2020 Order [Doc. No. 226] wherein the Court granted in part and denied in part defendants’ motion to dismiss. In the March 30 Order the Court found that plaintiff spoliated evidence (i.e., her text messages) but denied defendants’ request to dismiss plaintiff's complaint. The Court deferred its decision regarding the sanctions to impose, if any, for a future Order. This Order will address the sanctions issue.
By way of brief background, the Court held an evidentiary hearing regarding defendants’ motion to dismiss on October 25, 2019. See Transcript at Doc. No. 210.[1] At the hearing the Court heard testimony from Marvin Plumner (AT&T employee), plaintiff, and Kevin Myers (Ingerman's I.T. Director). Based on this testimony, and the extensive record in the case, the Court found that plaintiff spoliated text messages on her phone. This finding was based, inter alia, on the following grounds: (1) defendants produced unrebutted “expert” evidence that plaintiff's text messages were deleted; (2) the fact that it appears plaintiff's text messages were selectively deleted; and (3) plaintiff's failure to produce a credible explanation for her missing text messages. Based on the evidence before the Court, the Court found that the criteria in Fed. R. Civ. P. 37(e) (“Failure to Preserve Electronically Stored Information”) was met.
Having found that spoliation occurred, the Court's task is to decide what, if any, sanctions to impose. Apart from dismissal of the case which the Court has already denied, defendants ask for an adverse inference. As to the proper relief to award, sanctions must be tailored to address the harm identified. Montana v. City of Cape May Bd. of Freeholders, C.A. No. 09-755 (NLH/JS), 2013 WL 11233748, at *11 (D.N.J. Sept. 20, 2013) (citation omitted). Since all sanctions originate from equity, the totality of the circumstances should be evaluated to determine the appropriate sanction. Younes v. 7-Eleven, Inc., 312 F.R.D. 692, 713 (D.N.J. 2015). As this Court noted in Younes, “[appropriate] or ‘just’ sanctions may be a warm friendly discussion on the record, a hard-nosed reprimand in open court, compulsory legal education, monetary sanctions, or other measures appropriate to the circumstances.” Id.
Having evaluated the totality of the circumstances, the Court decides not to impose an adverse inference or any additional sanction on plaintiff. At first this result may seem anomalous. After all, the Court has already decided that plaintiff spoliated arguably relevant evidence. However, the Court is convinced its decision is fair and equitable given the totality of the circumstances. There are a number of reasons justifying the Court's ruling. One, the text messages at issue are not materially relevant to the core issues in dispute. The text messages concern plaintiff's discussions with a co-worker(s) either right before or after she was fired. Plaintiff's texts do not address direct communications with her employer which are at the core of plaintiff's racial and sex discrimination claims. Further, the texts are duplicative or cumulative of other available evidence. Second, it is not entirely clear whether plaintiff's texts have been retrieved. At best, only a relatively small number of marginally relevant texts were lost. Third, in the Court's view plaintiff has already paid a steep price for her actions. The Court has experienced firsthand the fact that defendants have over litigated the spoliation issue. This is aptly evidenced by the numerous unnecessary motions, applications and arguments listed on the docket that have consumed vast amounts of unnecessary time and expense. One only needs to look through the docket to see the numerous unnecessary filings, conferences and arguments that have plagued the case. Plaintiff has undoubtedly incurred substantial unnecessary time, resources and costs responding to defendants’ unnecessary filings. In the Court's view this was a steep price to pay for her actions. Last, the Court's ruling is consistent with Rule 37(e)(1). Perhaps most importantly, given the negligible importance of the text messages at issue, and the fact that the substance of whatever was lost is likely part of the record, defendants have not been materially prejudiced by plaintiff's conduct. Rule 37(e)(1) instructs the Court not to order measures greater than necessary to cure the prejudice caused by a party's spoliation. This is precisely what the Court's ruling accomplishes. Since plaintiff has already paid a steep price for her actions, no additional sanctions are necessary or appropriate.[2]
*2 Accordingly, for all the foregoing reasons, IT IS HEREBY ORDERED this 13th day of January 2021, that defendants’ request to dismiss plaintiff's complaint or for additional sanctions on account of plaintiff's spoliation is DENIED.

Footnotes

This hearing was preceded by extensive motion practice which is reflected on the docket.
Two additional points will be addressed. One, defendants ask for sanctions because of plaintiff's alleged perjury. The Court will not address this request except to note that plaintiff will be subject to cross-examination at trial. Two, this Order does not address whether plaintiff's spoliation is a proper subject for cross-examination at trial.