Plaintiff Not Precluded From Introducing Evidence Regarding Missing ESI
In Saulsberry v. Savannah River Remediations, LLC., No. 1:16-cv-02792-JMC(D.S.C. Sep. 19, 2019), the United States District Court for South Carolina denied Defendant’s motion in limine to bar Plaintiff from making adverse comments regarding Defendant’s failure to produce certain relevant ESI on the grounds that doing so would amount to an absolute bar to Plaintiff’s ability to elicit testimony regarding the disappearance of the relevant yet unproduced ESI.
This Title VII and § 1981 disparate treatment action was brought by Plaintiff against Defendant, her previous employer. While employed with Defendant, Plaintiff participated in 2012 workplace investigation regarding Robert Lash, a contract employee, who allegedly made inflammatory and racist remarks about President Barack Obama. Plaintiff alleges in her current complaint that as a result of participating in the Lash investigation, she was targeted by her managers and treated differently.
In the current action, Plaintiff filed a Motion to Compel the contents of the Lash investigation. However, Defendant failed to produce any contents of the Lash investigation, despite Defendant’s deposition testimony that stated that there was “documentary evidence which should be in hard copy” of the Lash investigation. Subsequently, Defendant attempted to locate the Lash file to no avail.
At the close of discovery, Defendant filed a motion in limine to bar Plaintiff from making adverse comments regarding Defendant’s failure to produce records from the Lash investigation on the grounds that Plaintiff’s participation in the Lash investigation is no longer relevant to the matters pending. In rejecting Defendant’s argument, the Court held that Plaintiff’s remaining race and retaliation claims relate to her participation in the Lash investigation and to show a temporal relationship between her protected activity and the issue of notice arising from Defendants who interviewed her for a promotion mere months after the conclusion of the investigation. As such, the Court held that it shall not prohibit Plaintiff from introducing evidence, or eliciting testimony regarding the Lash file and the circumstances surrounding its disappearance.