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Tiesha Tabon v. University of Pennsylvania Health System and Presbyterian Medical

July 20, 2012

TIESHA TABON, PLAINTIFF,
v.
UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM AND PRESBYTERIAN MEDICAL CENTER OF THE UNIVERSITY OF PENNSYLVANIA HEALTH SYSTEM, DEFENDANTS.



The opinion of the court was delivered by: Lynne A. Sitarski United States Magistrate Judge

MEMORANDUM AND ORDER

Currently pending before the Court is Plaintiff's Motion for Sanctions for Spoliation (Doc. No. 57), Opposition of Defendants University of Pennsylvania Health System and Presbyterian Medical Center of The University of Pennsylvania Health System d/b/a Penn Presbyterian Medical Center to Plaintiff's Motion for Sanctions for Spoliation (Doc. No. 71), and Plaintiff's Reply to Defendants' Memorandum Opposing an Adverse Jury Instruction for Spoliation (Doc. No. 76). Plaintiff seeks an adverse inference jury instruction as a remedy for three alleged incidents of spoliation (i.e., for Defendants' failure to produce an investigation file, original medical documents, and computer printouts of comment sections during discovery). As more fully set forth herein, Plaintiff's Motion for Sanctions is DENIED.

I. FACTS AND PROCEDURAL HISTORY

The underlying action concerns alleged employment discrimination against Plaintiff Tiesha Tabon ("Plaintiff") by her former employer, Defendants University of Pennsylvania Health System and Presbyterian Medical Center of The University of Pennsylvania d/b/a Penn Presbyterian Medical Center ("Defendants"). Plaintiff worked as a nurse at the Defendant hospital, with Ms. Chaudron Carter serving as her immediate supervisor. On September 23, 2009, Plaintiff was terminated by Defendants for falsifying documentation (as concerning patient Ms. W) and for failing to follow a doctor's order (as concerning patient Ms. McN). Defendants' decision to terminate Plaintiff was based upon an investigation conducted by Ms. Carter during which Ms. Carter interviewed employees, obtained statements, and took notes of her findings. See Carter Dep. 80-81, 83-84, Sept. 28, 2011.

Upon being terminated, Plaintiff filed an Equal Employment Opportunity Commission ("EEOC") charge on November 5, 2009. On June 10, 2010, Plaintiff initiated this lawsuit against Defendants, asserting violations of the Family Medical Leave Act, 29 U.S.C. § 2601 et seq. ("FMLA"), and Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act, 42 U.S.C. § 2000(e) et seq.

During discovery, Plaintiff requested certain pieces of evidence that are the subject of the instant motion. First, Plaintiff requested the investigation file created by Ms. Carter. Defs.' Opp'n 4. However, Defendants did not produce it. Ms. Carter testified that she disposed of her investigation notes (as was her practice), and that she turned over the statements to Ms. Kia Logan (the Human Resources Manager). See Carter Dep. 83-85. Ms. Logan testified that, although she does not recall receiving the statements, she forwarded any documents she received to Defendants' document management company before litigation had commenced. See Logan Dep. 18, 23-26, Jan. 25, 2012. Ms. Logan also stated that files are sent to the document management company weekly, where electronic copies are maintained, and original documents are destroyed after 90 days. Id. at 25-26. Ultimately, Defendants assert that they did not produce the requested investigation file in original or electronic form because it has been lost or misplaced. Defs.' Opp'n 8. Defendants also assert that they did not produce Ms. Carter's notes because Ms. Carter disposed of them in the ordinary course, and no duty to preserve existed at the time Ms. Carter disposed of them. Id. at 9.

The second piece of evidence at issue in this motion are the medical records of patient Ms. McN. Plaintiff asked to review the medical records of Ms. McN. Pl.'s Mem. Law Supp. Mot. 7. Although Defendants produced a copy of the records, Plaintiff's counsel sought to inspect the original paper medical records. Id. In a series of e-mails, Defendants agreed to allow Plaintiff to review the paper records. Id. at 7-8. However, Defendants canceled the in-person inspection because the paper records had been destroyed, in accordance with Defendants' policy.*fn1

Finally, Plaintiff alleges that she requested printouts of comment sections for two patients (Ms. McN and Ms. W) contained within Defendants' "Sunrise" computer system. Pl.'s Mem. Law. Supp. Mot. 8. In opposition, Defendants assert that they did not produce the comments because Plaintiff never identified the specific computer entries for which she sought comment sections. Defs.' Opp'n 12. Plaintiff counters that she requested all Sunrise documents for Ms. McN and Ms. W, and in fact a letter was sent to this Court requesting a conference to address Defendants' failure to produce certain discovery, including these Sunrise reports. Pl.'s Reply, Ex. A at 3.

On May 11, 2012, Plaintiff filed the instant motion for sanctions based on these three alleged incidents of spoliation. Plaintiff contends that an adverse inference jury instruction is warranted because Defendants failed to preserve the relevant documents after the EEOC charge was filed. In response, Defendants assert that any sanctions are inappropriate because their failure to produce these documents did not involve bad faith or intentional destruction. Rather, Defendants argue, the documents are not available as a result of routine document destruction policies.

This matter is now ripe for disposition.

II. LEGAL STANDARDS

"Spoliation [of evidence] occurs where: the evidence was in the party's control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party. Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012) (citing Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995)). "[A] finding of bad faith is pivotal to a spoliation determination." Id. at 79. "[T]he burden of proof on a spoliation claim lies with the party asserting that spoliation of evidence has taken place." Williams v. Klem, No. 07-1044, 2010 WL 3812350, at *2 (M.D. Pa. Sept. 22, 2010) (citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107-08 (3d Cir. 2001)). "'A party that reasonably anticipates ensuing litigation has an affirmative duty to preserve evidence that may be relevant.'" AMG Nat'l Trust Bank v. Ries, No. 06-4337, 2011 WL 3099629, at *4 (E.D. Pa. July 22, 2011) (quoting Travelers Prop. Cas. Co. v. Cooper Crouse-Hinds, LLC, No. 05-6399, 2007 WL 2571450, at *4 (E.D. Pa. Aug. 31, 2007)). In employment discrimination cases, a duty to preserve arises when the defendant receives notice of an EEOC charge. Chirdo v. Minerals Techs., Inc., No. 06-5523, 2009 WL 2195135, at *3 (E.D. Pa. July 23, 2009).

Upon a showing of spoliation, the court must determine whether sanctions are appropriate by considering:

"(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and, where the offending party is ...


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