The opinion of the court was delivered by: Goldberg, J.
This case involves injuries sustained by Plaintiff, Yogesh Patel, when he fell from a balcony/loft-type structure at a Bucks County, Pennsylvania bar and restaurant.
Presently before the Court are cross motions for sanctions related to a series of alleged discovery violations. Plaintiff alleges spoliation of evidence, failure to produce initial disclosures in compliance with FED. R. CIV. P. 26 and "unethical conduct" by Defendants' attorneys regarding scheduling and conducting depositions. Defendants counter that Plaintiff, his family and Plaintiff's counsel have engaged in a sanctionable pattern of discovery abuse, including spoliation of evidence, failure to produce initial disclosures and omission of evidence in the production of documents. Defendants urge that Plaintiff's discovery violations have been so egregious that dismissal of Plaintiff's entire case is warranted.
From our perspective, the discovery process in this case and the exchange of information leading up to the filing of these motions has been disorganized and confusing. For instance, Plaintiff's sister-in-law solicited and apparently received witness statements that now cannot be located. Additionally, Plaintiff's production of other witness statements was undertaken in a piecemeal fashion, such that depositions occurred without the deposing attorney having possession of documents, which in the normal course, should have been available well before depositions were even scheduled.
Defendants have also played a part in disrupting the exchange of information. Despite a three week opportunity to preserve evidence, Defendants allowed video surveillance footage of the night in question to be recorded over and erased.
On September 8, 2007, Plaintiff, Yogesh Patel, attended an engagement party at the Havana Bar & Restaurant ("Havana"), where he fell from a second floor balcony/loft, severely injuring himself. Plaintiff initiated suit in the United States District Court for the District of New Jersey on September 4, 2009. The case was transferred to this District on March 29, 2010.
Plaintiff's complaint raises a variety of negligence claims, including: failure to properly maintain the premises and supervise Plaintiff (Count I); and failure to warn Plaintiff of hazardous conditions and rectify those conditions (Counts II and III). What is unclear from the complaint is whether Plaintiff is alleging that: (1) his fall was the result of some hazardous condition at the bar, (2) his fall was due to Havana's staff continuing to serve him alcohol, knowing he was intoxicated; or (3) both of these theories.*fn1 Our review of the evidence gathered thus far, particularly statements made by Plaintiff's sister-in-law, Sruti Patel, seems to reflect that initially Plaintiff was claiming, at least in part, that his fall was due to hazardous conditions on the premises. However, as the case has progressed, it appears that Plaintiff has shifted course and now seems to be alleging that Havana's staff continued to serve him alcohol while he was visibly intoxicated, which led to his fall. (Compl. ¶¶ 13, 14, 17, 21; Pl.'s Opp'n to Defs.' Mot. for Sanctions & Pl.'s Cross-Mot. for Sanctions 4.) As explained in greater detail, infra, these differing theories of liability directly relate to the discovery disputes before the Court.
In the early hours of September 9, 2007, Havana's owner, Mark Stevens, watched video surveillance footage recorded near the time of Plaintiff's fall. At the time, Havana had three video surveillance cameras on the second floor. These cameras operated continuously and recorded to a computerized video recording system. Because the video and inventory systems were connected, the video also captured every drink order by superimposing sales data onto the video. The system was programmed to automatically record over existing footage every three weeks. (Stevens Aff. 1, 2; Pl.'s Supplement to Pl.'s Cross-Mot. for Sanctions 3, 4.)
At his deposition, Stevens testified that when he reviewed the footage, he observed Plaintiff standing at the railing, but because of a delay in the recording, he was unable to observe how the fall occurred. Stevens explained that he attempted to copy the video shortly after the incident, but was unable to do so given the unavailability of appropriate equipment, and despite a service call to the system's provider. Stevens also stated that the system had the capability to print still images of recordings, but he never printed any images. Thus, no footage of the night in question was preserved prior to the system's automatic erasure of the recording. (Stevens Dep., Feb. 16, 2011 31:2-19; Stevens Aff. 2; Pl.'s Supplement to Pl.'s Cross-Mot. for Sanctions 13; see Defs.' Resp. in Opp'n to Pl.'s Cross-Mot. for Sanctions 3.)
On September 5, 2008, one year after the incident, Plaintiff's sister-in-law, Sruti Patel, sent a Facebook message to persons who attended the engagement party at Havana, requesting that the recipients compose a statement recounting their recollection of the incident and generally describing Plaintiff. In this message, Sruti Patel challenged the accuracy of the police report in that it described Plaintiff as being intoxicated. The message implied, if not directly requested, that the statements confirm that Plaintiff was not intoxicated. The message stated:
. . . Yog and my Dad had a sit down with the lawyer yesterday . . . . The lawyer is pretty positive about the case, but now he needs a little help from all of us. He has basically asked for a list of names and contact info from each of Yog's friends that were present that night and that would be willing to testify on his behalf. Before having to testify he is asking that each of you provide a brief statement on your account of the night and a little bit more info on the Yogi that you all know.
He's basically saying that the police report doesn't really paint a wonderful picture considering the police interviewed no one that was with us or around us the whole night. As we all know, or most of us at least, the reports that were taken all basically said that Yog was practically wasted and was doing acrobatics when he fell, which we all know is complete BS!
Anyway the lawyer would like for us to gather statements that paint a more realistic picture of who Yog is and how he always acts at parties whether he's drunk or not because at the end of the day we all know Yog. He's an entertainer, a hyper guy who acts all wild and crazy without being drunk cause that's just the type of guy he is, which we all know is completely true! So I'm just trying to get everyone to write up something talking about what little or lot they did see that night and then make mention of the fact that yes Yog may have been running around acting crazy and to a stranger he may have seemed drunk, which is the people interviewed by the police made those statements, but people who know him know that he's just a crazy kind of guy and the way he was acting was no reflection of him being wasted that night.
We're not asking for anyone to lie or give false accounts of the night or Yog in general. We're just asking that everyone give accurate accounts of the night because we all know he drank, but we all also know he did not drink enough to be wasted by that point and we all know that the kid is always acting crazy even when he's sober because he just loves being the life of the party.
Anyway, pass this along to whomever I didn't include on this email and within the next two-three weeks get back to me with your statement and contact information so that if and when the lawyer must contact you he has a means to do so.
The lawyer is also going to be placing this case into motion with the court within 8 weeks so we should have all the info we need by then and keep those fingers crossed!"
Facebook Message from Sruti Patel (Sept. 5, 2008) (available in Defs.' Mot. for Sanctions Ex. P) (emphasis added).
Approximately two years later, on August 21, 2010, Sruti Patel sent another message to the guests of the engagement party. Contrary to the request made in her September 2008 message, which sought descriptions that Plaintiff was not intoxicated, Sruti Patel made a new request of persons who may have witnessed the events on the night in question. This message stated:
There is one slight change in direction in terms of how the lawyer is approaching the case. We are now trying to collect statements that would indicate that Yog had too much to drink in order to shed some light on the fact that the bartender recklessly continued to serve him drinks despite the fact that he was visibly intoxicated. All statements that accuse him of jumping will not be included in this collection of statements because that claim is edging on the side of being outlandish so if that's what you think happened please don't send your statements along.
In your statements please include any info you have in terms of what time we reached the club . . . [and] how much Yog had to drink . . . .
At this point there's about 5 statements collected by the police that night that claim Yog jumped and the lawyer stressed the importance of us collecting at least 10-12 statements from our friends that say he DID NOT jump, but he FELL OVER the railing.
If you still have the statements that you emailed to me almost a year or two ago please edit according to the new direction we're going in and re-send those if you can.
. . . The lawyer has already told us that without these statements our case doesn't stand much of ...