In employment discrimination case Brewer v. Leprino Foods Company, Inc., No CV-1:16-1091-SMM (E.D. Cal. Jan. 29, 2019), the Eastern District of California granted Defendant’s motion for sanctions under Fed. R. Civ. P. 37(e)(2), finding that Plaintiff “acted with the intent to deprive” Defendant of certain relevant ESI.
The sanction motion followed a non-party deposition in which a witness revealed that he had communicated with the Plaintiff through text messages regarding matters at issue in the case. Plaintiff had never produced those messages. After discovery closed, Defendant moved ex parte to reopen discovery and the court subsequently ordered the Plaintiff to produce all remaining relevant text messages.
In addition to reopening discovery, the Court granted Defendant the right to re-depose the Plaintiff about her preservation efforts and her efforts to search for responsive documents. Specifically, the Defendant questioned the Plaintiff about text messages from 2014 describing an affair between her supervisor and another employee and discussing the policy violation she committed that led to the Plaintiff’s termination.
The Plaintiff responded that while she was an employee of Defendant’s, she texted with over 20 employees about both the affair and her policy violation that led to termination. However, Plaintiff surprisingly could not remember a single name of a person she texted with. In response to questions about her preservation efforts, Plaintiff testified that she lost the phone when placed it on the hood of her car and drove away. Further, Plaintiff testified that she could not recall the phone’s number or the name of the wireless carrier for the phone.
In ruling on the Defendant’s motions for sanctions under Fed. R. Civ. P. 37(e)(2), the Court held that sanctions are appropriate because Plaintiff “acted with the intent to deprive [Defendant] of the information’s use in litigation.” While acknowledging that the possibility of losing one’s phone on the hood of the car, the Court states that “the overwhelming objective evidence, and her lack of corroboration, suggests otherwise. [Plaintiff] failed to take any measures to preserve the text messages prior to October 2014 despite her duty to do so; [Plaintiff] provided no independent record of the phone; and [Plaintiff] refused to identify the individuals with whom she communicated, essentially depriving [Defendant] of any possibility of resurrecting the messages or coming to a meaningful understanding of the messages’ content. Thus, [Plaintiff’s] pattern of conduct suggest intentional spoliation.”