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Court Grants Defendant’s Motion for Sanctions for Spoliation of Evidence After Plaintiff Admits to Destroying a Journal Which Should Have Been Produced

Posted on January 26th, 2018

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Follow our blog for future updates on eDiscovery topicsIn Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW (D. Colo. 2017),

Plaintiff Kim Mitcham (“Plaintiff”) began working for Americold as a Human Resource

Manager in October of 2015. Plaintiff claimed she was harassed and discriminated against by her supervisor, and filed a formal complaint against him with the “MySafeWorkplace” hotline. Not soon after, an Americold representative emailed its Human Resource staff that Plaintiff was no longer employed with Americold.

At a discovery dispute conference, the Parties discussed reopening Plaintiff’s deposition given the recent production of a scanned copy of Plaintiff’s journal. It is undisputed that Plaintiff destroyed the original. Defendant explained that Plaintiff did not produce her journal with her initial disclosures. Further, that Americold requested any handwritten note, recorded communications, calendars, journals, diaries, logs, and the like that related to this matter, but that Plaintiff responded that she had produced all such documents.

At Plaintiff’s deposition on July 13, 2017, Plaintiff disclosed that she kept a journal to document all conversations she has had regarding this matter so that she could recall those conversations in the future should the need present itself.  Plaintiff also testified that she scanned the original copy of the journal and submitted it to her attorney, and then she shredded the original copy.

During the August 11 informal discovery dispute conference, Plaintiff indicated that she agreed to “resume” her deposition specifically to discuss her journal. Defendant indicated that it would seek sanctions for Plaintiff’s failure to produce the notebook. Defendant filed the instant Motion. Defendant seeks fees and expenses incurred by having to re-depose Plaintiff and for filing the instant Motion, as well as an adverse inference instruction under Rules 37(a) and (c) of the Federal Rules of Civil Procedure.

Defendant moves for sanctions because Plaintiff failed to disclose her journal. Further, both Plaintiff and her counsel certified under Rule 26(g) that Plaintiff’s initial disclosures and responses were complete and accurate; however, a “minimal inquiry” by Plaintiff’s counsel would have revealed the existence of the journal and required its production. But because of Plaintiff’s and her counsel’s shortcomings, Defendant was without the journal during Plaintiff’s deposition. According to Defendant, Plaintiff should thus bear the costs of reopening her deposition as well as Defendant’s fees and expenses in taking the deposition and filing the instant Motion.

This Court finds that Plaintiff withheld information that has hindered the progress of discovery. Spoliation sanctions are proper where a party had a duty to preserve evidence because it knew or should have known litigation was imminent. Because Plaintiff initiated this lawsuit, she knew or should have known litigation was imminent. The Court determined that the Plaintiff had a duty to preserve the evidence in question. The Defendant must show it was prejudiced by the destruction of the evidence in question. Defendant argues that Plaintiff’s destruction of the original journal prevents it from properly questioning her about its contents, and it prevents Defendants from knowing the actual contents of the journal.

The Court requires evidence of intentional destruction of evidence or bad faith for a litigant to be entitled to spoliation sanctions.

Here, it was clear that the Plaintiff intentionally destroyed the journal. However, the action does not rise to the level of bad faith required for the requested adverse inference instruction to the jury. Instead, the Court will require Plaintiff to play Defendant’s reasonable attorneys fees and costs associated with the taking of Plaintiff’s reopened deposition for an additional two hours.

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