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Neely v. The Boeing Co.

United States District Court, W.D. Washington, Seattle

April 23, 2019

THE BOEING COMPANY, a Delaware corporation, Defendant.



         This 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.

         I. BACKGROUND

         The Court has previously set forth the underlying facts of this case and will not repeat them here. (See Dkt. No. 83.)

         On 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.)

         In 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.)

         Plaintiff moves for sanctions against Defendant based on its handling of the box of materials and production of the .PST file. (Dkt. No. 111.)[1] 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.)


         A. Legal Standard

         If a 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.” Fed.R.Civ.P. 37(e)(2)(C).

         District 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, including:

(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 ...

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