Plaintiffs’ Motion for Spoliation Granted After Court Found Defendants’ Failure to Preserve Relevant Electronically Stored Information

15 Apr 2022

In CONSTANCE COLLINS, ET AL. v. TRI-STATE ZOOLOGICAL PARK OF MARYLAND, INC., ET AL., Civil Case No. 1:20-cv-01225-PX (D. Md. Nov. 19, 2021), before the Court was Plaintiff’s Motion for Sanctions for Spoliation.

Plaintiffs’ Complaint alleged that Defendants maintained a public nuisance through the neglect and continued mistreatment of animals that resided at Defendants’ Tri-State Zoological Park of Western Maryland.

During discovery, Plaintiffs sought information about the animals’ health, care and treatment, and about their conditions of confinement. The Court found that given the allegations in the Complaint, the information sought by Plaintiffs would be within the scope of relevant discovery as required by Rule 26(b).

Among the areas of alleged spoliation were those relating to ESI. Plaintiffs alleged that Defendants not only failed to issue a litigation hold once litigation was reasonably anticipated, but also that Defendants destroyed or altered evidence once the lawsuit commenced. Specifically, Plaintiffs alleged that Defendants spoliated digital photographs, text messages, and emails after litigation was underway. Defendants’ principal, Robert Candy, confirmed at his deposition that he did not take steps to preserve electronic data, nor did he advise any employees or volunteers to do so. He testified that he did look through “paperwork” for responsive documents and believed he searched his email, but that he did not keep any documents.

He further testified that he deleted his emails as it was received because of the limited storage on his phone, and that he did not preserve email, text messages, or other electronic data during the pendency of the case. He did not provide any responsive emails or text messages to counsel because he “either deleted them or never had them.”

While Candy contended that none of the electronic data was relevant, he nonetheless confirmed that he had texted and emailed with an outside veterinarian, Dr. Goldman, during the pendency of the case. He did not produce those texts either because he deleted them or because he got a new phone. He also did not produce texts from his conversations with the USDA during the pendency of the case.

Further calling Defendants’ lack of production of any electronic evidence into question, Plaintiffs obtained, by way of third-party discovery and Freedom of Information Act (FOIA) requests, emails between Candy and the USDA. The emails discussed inspections of the facility, as well as texts between Candy and veterinarian Keith Gold with photos of facility animals, during the pendency of the litigation.

The Court noted that the emails, texts, and photos would be expected to have been in the possession of the sender, Candy, who asserted he “never had them” or that he “probably deleted” them from his phone. This all occurred despite Defendants’ responding to Plaintiffs’ discovery requests, the scope of which was never objected to by Defendants.

Defendants conceded that Mr. Candy “may have deleted some small number of text messages,” but argued that there had been no showing that such texts were relevant or that Plaintiffs were prejudiced given that Plaintiffs recovered the messages via third-party discovery. In an affidavit, Candy indicated that he changed his data habits to limit his texting and photographs given “the invasive nature of PETA’s requests in the last litigation,” which suggested that the emails, texts, and digital photos Plaintiffs obtained through third-party discovery constituted the universe of relevant ESI such that there had been no prejudice.

Defendants also reiterated arguments from their previously denied motion to dismiss, in which they contended that because Plaintiffs did not state a valid claim for public nuisance, the discovery sought was not relevant.

The Magistrate Judge disagreed and found that the discovery sought was within the scope of the appropriate discovery for the claim outlined in the Court’s prior opinion. Additionally, even were that not the case, given Defendants’ lack of objection to the discovery request themselves, any objections regarding scope were waived at this late stage.

In the absence of any effort to preserve or gather responsive electronic information, as well as affirmative evidence that at least some relevant electronic evidence was destroyed, the Magistrate Judge found that some sanction was appropriate. Although some of the electronic evidence was recovered through Plaintiffs’ third-party efforts, and through production in previous litigation between the parties, such circumstances suggested the likelihood that Plaintiffs had been deprived of at least some electronic evidence.

Rule 37(e) of the Federal Rules of Civil Procedure provides that “when a party fails to take reasonable steps to preserve evidence that cannot be restored or replaced, and it causes prejudice to the opposing party, the court may order sanctions no greater than necessary to cure the prejudice.”

The Magistrate Judge had no difficulty concluding that Defendants failed to take such responsible steps on the record before it and were grossly negligent in their preservation efforts. Conversely, it was difficult to assess prejudice and fashion a proportional cure without knowing the nature and extent of the evidence that was likely lost in this matter. Nor could the Magistrate Judge conclude that a presumption or inference of the missing evidence was appropriate without an additional finding of Defendants’ “intent to deprive” Plaintiffs’ use of evidence at trial.

Since Plaintiffs were likely deprived of relevant electronic communications that took place during the pendency of the litigation, the Magistrate Judge found the most tailored remedy was to bar Defendants from relying on certain evidence or testimony. Accordingly, Defendants could not offer evidence or testimony regarding electronic communications with third parties about the health or living conditions of the animals that took place during the pendency of the litigation beyond what was produced, including any photographs taken during that time that had not otherwise been produced.