United States District Court, W.D. Washington, Seattle
C. COUGHENOUR UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff's motion for
sanctions (Dkt. No. 111). Having thoroughly considered the
parties' briefing and the relevant record, the Court
finds oral argument unnecessary and hereby DENIES the motion
for the reasons explained herein.
Court has previously set forth the underlying facts of this
case and will not repeat them here. (See Dkt. No.
September 22, 2017, Plaintiff sent his counsel W. Percy
Badham, III of the law firm Badham and Buck a termination
letter. (Dkt. No. 111-3.) Plaintiff's letter directed
Badham to “return all evidence, artifacts, documents
and other [sic] that pertain to my case in your possession
via U.S. mail . . .” and included Plaintiff's
address and the address of his new counsel (Id.) On
September 29, 2017, Badham erroneously sent a box of
materials to Plaintiff's former address in Huntsville,
Alabama. (Dkt. Nos. 111-4, 111-5.) On or around October 11,
2017, a Remax real estate agent found the box of materials.
(Dkt. No. 130 at 2.) The real estate agent delivered the box
to the home of Norman Tew, an executive of Defendant, and his
wife Kathy Tew, who is not employed by Defendant. (Dkt. Nos.
130-1 at 4, 131 at 1.) Mrs. Tew accepted the box, and saw
Defendant's logo and the word “proprietary”
when she briefly reviewed its contents. (Dkt. No. 130-1 at
4.) Because Mr. Tew was away on travel, Mrs. Tew informed him
of the box and its contents via telephone and stored the box
in the Tews' kitchen. (Id.) Mr. Tew did not open
or review the contents of the box upon his return.
(Id.) On October 12, Mr. Tew delivered the box to
one of Defendant's paralegals in Alabama who is not
involved in the present litigation, who on October 13 shipped
the box to the Washington, D.C. office of Morgan, Lewis &
Bockius LLP, counsel for Defendant. (Id.; Dkt. Nos.
130-1 at 4, 131 at 1.) Defense counsel has not reviewed the
contents of the box in case it contains materials covered by
attorney-client privilege. (Dkt. No. 130 at 2.) At the
direction of Plaintiff's (now former) counsel, defense
counsel has retained the box pending further direction from
the U.S. Postal Service. (Dkt. No. 130-2.) Plaintiff has
alleged that numerous individuals have participated in a
conspiracy to deliver the box to Defendant instead of
Plaintiff. (See Dkt. Nos. 111-6 at 5, 130-6 at 5-9.)
response to Plaintiff's discovery requests, Defendant
provided Plaintiff his Microsoft Outlook Personal Storage
Table file (the “.PST file”) for December 2014 to
March 25, 2016, which Defendant believes encompasses all of
Plaintiff's age discrimination and retaliation claims.
(Dkt. Nos. 111-8, 130 at 3, 130-3 at 2.) Plaintiff's
counsel told Defendant the .PST file was deficient because
emails prior to December 2014 were relevant and it appeared
that some emails from after December 2014 were missing. (Dkt.
No. 111-9 at 2.) After the parties met and conferred,
Defendant agreed to produce the remainder of the .PST file.
(Dkt. No. 130 at 3.) Defendant's employees retrieved all
of the email files captured on Defendant's server and
collected locally-stored .PST and .MSG files, decrypted the
files, and maintained them in a secure environment until they
were provided to Defendant's electronic data personnel.
(Id.; Dkt. No. 132 at 1-2.) Defendant's
electronic data personnel de-duplicated the files and loaded
them onto a Relativity review platform, from which the .PST
file was produced in their entirety to Plaintiff. (Dkt. Nos.
130 at 3, 132 at 2.)
moves for sanctions against Defendant based on its handling
of the box of materials and production of the .PST file.
(Dkt. No. 111.) Plaintiff seeks an entry of default
judgment against Defendant on all of Plaintiff's claims,
citing Federal Rule of Civil Procedure 37(e)(2)(C) and the
Court's inherent powers. (Id. at 10.)
party fails to take reasonable steps to preserve
electronically stored information that should have been
preserved in anticipation or conduct of litigation and the
information is lost and cannot be restored or replaced
through further discovery, “the court . . . only upon
finding that the party acted with intent to deprive another
party of the information's use in litigation may . . .
dismiss the action or enter a default judgment.”
courts also possess inherent authority to impose sanctions
against a party that prejudices its opponent through the
destruction or spoliation of relevant evidence. See
Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993).
Spoliation is the “destruction or significant
alteration of evidence, or the failure to preserve property
for another's use as evidence, in pending or future
litigation.” Kearney v. Foley & Lardner,
LLP, 590 F.3d 638, 649 (9th Cir. 2009). The party
alleging spoliation must prove:
(1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2)
that the records were destroyed with a ‘culpable state
of mind;' and (3) that the evidence was
‘relevant' to the party's claim or defense such
that a reasonable trier of fact could find that it would
support that claim or defense.
Apple Inc. v. Samsung Elecs. Co., 888 F.Supp.2d 976,
989 (N.D. Cal. 2012) (citing cases). When spoliation has
occurred, district courts may impose a variety of sanctions,
(1) exclusion of evidence, (2) admitting evidence of the
circumstances of the destruction or spoliation, instructing
the jury that it may infer that the lost evidence would have
been unfavorable to the party accused of destroying it, or
(4) entering judgment against the ...