United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
ROBERT J. BRYAN, District Judge.
THIS MATTER comes before the Court on Lori Scott's ("Ms. Scott's") motion for sanctions for spoliation of evidence. The Court has reviewed Ms. Scott's motion (Dkt. 57), the responsive briefing (Dkt. 59, 63), and the remainder of the file therein.
a. The EEOC case
In the underlying case, Ms. Scott alleges that defendant, U.S. Department of Energy, through Bonneville Power Association ("BPA"), discriminated against Ms. Scott, subjecting her to a hostile work environment and unlawfully terminating her due to sex discrimination and retaliation on April 29, 2011. Dkt. 10. At the time of her termination, Ms. Scott was employed by federal contractor, Ciber, Inc. ("Ciber"). She initiated an Equal Employment Opportunity counseling process with EEO Counselor, Anthony Jackson, on May 24, 2011. Dkt. 58-1. Mr. Jackson investigated Ms. Scott's claims against BPA and Ciber, obtaining internal correspondences ( see, e.g., Dkt. 58-2) and issuing a "document identification, retention, and preservation notice" ("the Preservation Notice") to BPA on August 2, 2011. See Dkt. 58-3, at 3, 4. The Preservation Notice required:
ret[ention] and preserv[ation of] all recorded information... related to this informal complaint of discrimination until further notice [from the EEOC]. This request overrides any document or email schedules that are currently in place. All relevant recorded information must be preserved until this Notice is expressly rescinded in writing. Id.
Ms. Scott filed her EEO claim against BPA on August 17, 2011 naming Steve Moffat and Rodney Leetch as the "person[s] [she] believe[d] discriminated against [her]." Dkt. 58-4, at 1. It appears that Ms. Scott also names Debra Paullin, Ciber Supervisor, as the person who wrongfully terminated her. Dkt. 58-4, at 6, 7. BPA acknowledged receipt of Ms. Scott's EEO claim and outlined the required procedure for appealing BPA's Final Agency Decision if applicable. Dkt. 60-1, at 4 ("you may appeal... to the EEOC... within 30 calendar days of the receiving the Final Decision"). BPA issued its Final Agency Decision dismissing her claim on December 7, 2011. Dkt. 60-3. Ms. Scott timely appealed the dismissal to the EEOC during December 2011. Dkt. 60-4, at 1. See EEOC Case No. DOE 11-0081-BPA. In a handwritten note dated January 10, 2012, it appears that BPA's EEO Specialist thought Ms. Scott had not filed an appeal. Dkt. 60-5 (Certified Mail receipt of Final Agency Decision to Ms. Scott: "No Appeal Jan. 10, 2012").
On June 25, 2013, the EEOC informed BPA that the EEOC was still waiting for the claim file from BPA to complete its decision on Ms. Scott's appeal. Dkt. 60-4, at 2. BPA responded to the EEOC request by denying that it was aware of Ms. Scott's appeal and filing an appeal objection on August 3, 2013. Dkt. 10, at 14. See Dkt. 60-4.
On September 12, 2013, the EEOC issued a decision that affirmed one claim in BPA's dismissal but remanded Ms. Scott's sexual harassment claim to BPA for further investigation by the EEO. Dkt. 60-6, see Dkt. 58-7, at 1. BPA issued an internal memorandum dated October 8, 2013 and addressed to employees Steve Moffat and Rodney Leetch that requested preservation and retention of relevant documents in response to the EEOC investigation. Id., at 1-3. The EEOC issued its Notice of Final Agency Decision and right-to-sue letter on July 8, 2014. EEOC Case No. DOE 11-0081-BPA. Ms. Scott filed her Complaint in this Court within 90 days, on August 29, 2014. Dkt. 58-4.
b. Discovery in this case
Along with the Complaint, Ms. Scott served on BPA a request for production of documents (the "RFP"), seeking "all documents relating to or reflecting communication between or among plaintiff and defendant or any... contractor, or employee of defendant[, ]" and "all documents and communications relating to or reflecting plaintiff's employment or termination with defendant[.] Dkt. 58-5, at 8. BPA responded on February 9, 2015, as follows:
BPA has almost finished compiling the data and will provide this information as soon as possible. Unfortunately, there were technical issues with BPA's archives which caused this delay. See also the ROI for documents turned over by Defendant during the investigative phase of this case.
In further clarification, Defendant has no accounts, and therefore, no documents for the following people: Cynthia Frank retired from BPA on February 1, 2013. There was no litigation hold at that time and her accounts were deleted according to standard policy procedures; Debra Paullin -Ciber employee;.... Lisa Smith - supply technician-resigned May 20, 2013-no litigation hold at the time of her resignation so her accounts were deleted according to standard policy and procedure[.]" Dkt. 58-5, at 8 (emphasis added).
Following BPA's response to the RFP, Ms. Scott served an interrogatory asking BPA to "describe in detail the circumstances surrounding the deletion or destruction of any records referring to... [Cynthia Frank, Debra Paullin, and Lisa Smith]." Dkt. 58-6, at 10, 11. BPA fell back on its email retention policies: emails not saved by BPA employees are deleted without employee action after 90 days, and emails are deleted 90 days after employees' departure from BPA. Id., at 12. BPA also stated that regarding Ms. Scott's claims, "the agency personnel relevant to this case, provided relevant documents and emails to the EEO office during the ...