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Court Amends Previous Discovery Order to Include Plaintiff’s Phone and Access to Non-Party Witness, Denies Defendant’s Motion for Sanctions

Posted on November 3rd, 2017

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Follow our blog for updates on eDiscoveryIn Zamora v. Stellar Mgmt. Grp., (W.D. Mo. Apr. 11, 2017), the United States District Court, W.D. Missouri, Southwestern Division denied Defendant’s motion for sanctions.

Before the Court is Defendants Stellar Management Group, Inc. d/b/a Quality Service Integrity and Stellar Management Group III, Inc. (“QSI Defendants”)’s Motion for Sanctions for Failure to Preserve Electronically Stored Information (“ESI”). Plaintiff brings this diversity action against QSI Defendants for wrongful retaliation and discharge for reporting wrongdoing.

QSI Defendants’ requested Plaintiff produce for inspection any cell phone used to contact any current or former employee and request that Plaintiff execute a cell phone authorization. On January 6, 2017, the Court ordered Plaintiff to i) produce her personal cell phones for copying to preserve a mirror image, ii) to request a call/text log from her cell phone provider, and iii) identify any numbers she knows to belong to any current or former employee of QSI Defendants. Plaintiff then filed a motion to clarify this order, stating among other things, that she primarily uses the phone for business work purposes, that the phone contains non-public information regarding her employer, and that she does not recall any communication on the phone that is related to this lawsuit. The Court granted Plaintiff’s motion and clarified that the January 6, 2017 Order did not extend to the work cell phone given to Plaintiff by her current employer (“Simmons phone”).

QSI Defendants’ motion to reconsider seeks the production of the Simmons phone to determine if she has used the phone to contact individuals for reasons related to this lawsuit. Defendant claimed Plaintiff deleted Facebook messages and destroyed past cell phones containing discoverable information while the lawsuit was already in progress.

Plaintiff denies she intentionally deleted messages, and states that the deletion of the messages did not prejudice Defendant. While the Court did note the destruction of discoverable information, the Court said it was not able to draw a conclusion of prejudice. The deleted messages are available by other means of discovery, and therefore a finding of prejudice was considered premature.

The Court said it did not need to determine the issue of intent—whether the conduct was the result of bad intent or accidental oversight. While the Court is sympathetic to a lay witness in contrast to a corporation subject to a formal litigation hold, the Court notes that the record might permit a reasonable inference that Plaintiff was aware of the importance of preserving evidence when she reset her company phone belonging to QSI Defendants and deleted the Facebook message. The Court finds Plaintiff cannot be relied on to disclose all relevant communications. However, QSI Defendants’ request for dismissal, or a jury instruction directing for the presumption that the information was unfavorable to Plaintiff, are premature. The Court finds additional discovery is warranted. QSI Defendants’ motion for sanctions for failure to preserve electronically-stored information is denied. The Court amends its earlier order and grants QSI Defendants’ motion to access Plaintiff’s husband’s phone. QSI Defendants’ motion to reconsider production of the Simmons phone is granted. To protect confidential information, the Court will appoint a Special Master to oversee the Simmons Phone and relevant evidence. The cost of the Special Master will be split between the Plaintiff and Defendants.

ILS–Plaintiff ESI Discovery Experts

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