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Keith M. Culler v. Eric K. Shinseki

August 26, 2011

KEITH M. CULLER, PLAINTIFF
v.
ERIC K. SHINSEKI, SECRETARY OF
THE UNITED STATES VETERANS AFFAIRS, DEFENDANT



The opinion of the court was delivered by: Mannion, M.J.

MEMORANDUM AND ORDER*fn1

Pending before the court is the Plaintiff's Motion for Sanctions for Failing to Preserve Electronic Stored Information and Provide Such Information in Discovery. (Doc. No. 50). Based upon a review of the motion and related materials, the motion will be denied.

By way of relevant procedural background *fn2 , the plaintiff filed the instant action, (Doc. No. 1), on February 17, 2009, which he later amended on April 5, 2009, to include claims of age discrimination and retaliation (Count I), First Amendment violations (Count II), and a hostile work environment (Count III), in relation to his employment as an Orthotist at the Wilkes-Barre, Pennsylvania, Veterans Affairs, ("VA"), Medical Center, (Doc. No. 3).

After consideration of the defendant's initial motion for judgment on the pleadings, (Doc. No. 30), and subsequent motion for summary judgment, (Doc. No. 64), the only remaining claim in this action is whether the plaintiff was discriminated against on the basis of reprisal for prior EEO activity with regard to training when, on March 7, 2007, the decision to send him to the National Training of VA Prosthetics/Orthotists Conference from March 19-24, 2007, was rescinded*fn3 .

Since the original scheduling order in this matter, (Doc. No. 19), the court has granted a number of extensions of the discovery deadlines, (Doc. Nos. 19, 28, 32, 36), and held a number of telephone conferences, (Doc. Nos. 20, 29, 34, 37), as a result of the parties' ongoing discovery disputes mainly related to electronically stored information, ("ESI").

On July 12, 2011, the plaintiff filed the instant Motion for Sanctions for Failing to Preserve Electronic Stored Information and Provide Such Information in Discovery, in which he argues that the defendant failed to properly preserve, search and produce ESI responsive to his claims. As a result of these failures, the plaintiff argues that he has suffered real prejudice which requires the court to consider an adverse inference that such materials, had they been provided, would have proven the assertions made in his pleadings*fn4 . In addition, the plaintiff is seeking an order for the defendant to pay all costs, including but not limited to attorney's and expert fees, associated with his attempts at securing proper and complete discovery of ESI. (Doc. No. 50). A brief in support of the plaintiff's motion was filed on July 27, 2011. (Doc. No. 54). The defendant filed a brief in opposition to the motion on August 11, 2011. (Doc. No. 65).

In opposing the plaintiff's motion, the defendant initially argues that any request for sanctions should focus only on discovery sought at the federal level and relating to the remaining claim. The defendant argues that the only discovery conducted by the plaintiff on the federal level in this matter was that of interrogatories served upon the defendant on March 24, 2011, asking about the defendant's ESI preservation efforts. Because the plaintiff has not served discovery requests seeking ESI in the instant action, the defendant argues that the court should not now consider his motion for sanctions.

With respect to this argument, the court notes that since the inception of this matter, the plaintiff has been raising the issue of whether there has been adequate preservation and production of ESI. The plaintiff first raised the issue in the parties' initial joint case management plan filed with the court in December of 2009*fn5 , and the issue has been the subject of much debate among the parties since that time. The plaintiff has specifically sought ESI through the defendant's initial disclosure obligations under Fed.R.Civ.P. 26(a)(1), which requires that parties make certain initial disclosures "without awaiting a discovery request." Among these required initial disclosures is the requirement that each party disclose: a copy-or a description by category and location-of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment;

Fed.R.Civ.P. 26(a)(1)(A)(ii).

Because the record makes clear that the plaintiff has been seeking both information relating to the preservation, as well as the production, of ESI since early in this matter, the court finds it appropriate to consider the plaintiff's presently pending motion for sanctions. However, as noted above, the court agrees with the defendant that consideration of the plaintiff's motion should be limited in context to the remaining claim of whether the plaintiff was retaliated against when the approval for his March 2007 training was rescinded.

The defendant next argues that the plaintiff has not presented a complete picture of the discovery that was actually produced and additional communications between the parties relating to ESI. The defendant argues that the plaintiff has failed to acknowledge that, besides the materials that were produced during the administrative proceedings (which the defendant indicates consumes the better part of two boxes worth of materials), the defendant has produced documents relating to ESI in this matter, which are primarily emails. The defendant argues that on February 22, 2010, as per this court's direction, it produced over 230 pages of materials from Ms. GermainTudgay, the plaintiff's supervisor at the Wilkes-Barre VA Medical Center, plus a privilege log as to discovery for which there were objections. In addition, on August 19, 2010, the defendant argues that it sent an additional 190 pages of ESI to the plaintiff. Finally, after the plaintiff was concerned that not all ESI had been produced as to the training claim, which is relevant for present purposes, ESI materials were searched again and the plaintiff was sent an additional fifty-plus pages which included some duplications of emails previously produced.

Concerning the above, the court, through refereeing the parties' ongoing discovery disputes, is well aware of the attempts made by the defendant to disclose existing ESI discovery to the plaintiff. However, for purposes of the instant motion, the focal claim raised by the plaintiff is that the defendant failed to properly preserve documents, the failure of which now prevents their production and has prejudiced the plaintiff. While present counsel has certainly made a concerted effort to produce those documents which have been preserved, the main issue here is whether there previously existed documents relevant to the plaintiff's remaining claim which were not preserved and cannot now be produced such that the plaintiff is prejudiced in bringing his claim.

This leads the court into the heart of the instant motion, i.e., whether the defendant failed to properly preserve and/or produce ESI causing prejudice to the plaintiff such that he is entitled to sanctions in the form of an adverse inference and costs and/or fees.

Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." Ogin v. Ahmed, 563 F.Supp.2d. 539, 542 (M.D.Pa. 2008) (citing Mosaid Techs., Inc. v. Samsung ...


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