United States District Court, E.D. Pennsylvania
RICHARD GIULIANI, SR., and RICHARD GIULIANI, JR.
SPRINGFIELD TOWNSHIP, et al.
Now before me is a motion for spoliation sanctions by plaintiffs Richard Giuliani, Sr. and Richard Giuliani, Jr. in which they ask that the Court preclude defendant Springfield Township and the other defendants “from denying either (i) that the individual Defendants had the requisite intent for Plaintiffs’ claims; or (ii) that the Defendants gave disparate treatment to Plaintiffs. Dkt. No. 60 at ECF p. 1. Defendants have filed a response, Dkt. No. 61, plaintiffs have filed a reply, Dkt. No. 62, and defendants have filed a surreply. Dkt. No. 63. For the reasons that follow, I will deny plaintiffs’ motion.
Plaintiffs are the owners of a property at 50 Oreland Mill Road in Springfield Township, Montgomery County, Pennsylvania. They claim that defendants including Springfield Township “are responsible for engaging in an unremitting campaign of harassment and discrimination, spanning the better part of fifteen years, aimed at divesting Plaintiffs of every economically viable use of their property.” Dkt. No. 1 (Compl.) ¶ 1. Plaintiffs allege that since in or around 1997, defendants “have interfered with every attempt by Plaintiffs to lease the Property to tenants, a use permitted and actively engaged in prior to Plaintiffs’ purchase of the Property.” Id. at ¶ 2. They contend that “Defendants have required Plaintiffs to jump through every hoop imaginable, including requiring Plaintiffs to continually submit and resubmit unnecessary and burdensome land development plans at Plaintiffs’ sole expense to no avail.” Id. Plaintiffs assert claims against defendants under 42 U.S.C. § 1983 for alleged violations of their rights under the Fifth and Fourteenth Amendments of the U.S. Constitution, under 42 U.S.C. § 1985(3) for an alleged conspiracy to violate the Fifth and Fourteenth Amendments, and under the laws of Pennsylvania for tortious interference with actual and prospective contractual relations. See Id. at ¶¶ 118-133. Plaintiffs served their complaint on defendants on January 7, 2011.
Relevant here, defendants contend that in June 2009, approximately 18 months before plaintiffs filed this action,
the Township withdrew its opposition to Plaintiffs’ application to use the [relevant] property as a bus terminus. In that month, the Township Zoning Hearing Board granted Plaintiffs’ zoning appeal, reversing the Township Zoning Officer’s decision that the proposed use of the property was not a permitted use in an I-Industrial District. . . . Shortly thereafter, the Township also withdrew its prosecution of the Giulianis for violation of the zoning ordinance, the Municipalities Planning Code . . . and the March 22, 2006 Court Order which required the Plaintiffs to apply for and secure land development approval before leasing their property to multiple tenants. At that time, Plaintiffs advised the Township that there would only be one tenant, First Student, which would occupy the entire property for its bus storage and depot operation. . . . With the property being leased in its entirety to one tenant, the Township withdrew its opposition and believed that all disputes with the Giulianis had come to an end.
Dkt. No. 61 at ECF p. 14.
After what plaintiffs characterize as a “protracted discovery process, ” Dkt. No. 60 at ECF p. 3, they now contend that “Defendants have made no substantial or reasonable effort to identify and retain relevant documents” and further, that defendants “concededly have destroyed important documents that were required to be retained pursuant to the terms of Defendants’ own document retention policy.” Dkt. No. 60 at ECF p. 3. Specifically, plaintiffs claim that defendants have spoliated three categories of evidence: internal e-mail correspondence, Dkt. No. 60 at ECF p. 5, certain files related to commercial land development applications for properties in the township other than their own, id. at ECF p. 6-7, and certain Planning Commission Board minutes. Id. at ECF p. 19.
With respect to emails, plaintiffs argue that “Defendants’ internal communications would provide the most direct evidence of the state of mind of the individual Defendants.” Dkt. No. 60 at ECF p. 4. Plaintiffs contend that defendants’ production has been deficient because defendants “provided a miniscule number [of emails] in response to Plaintiffs’ [discovery] request[s] – just 24 emails spanning a seventeen-year period of near-constant controversy.” Dkt. No. 60 at ECF p. 5. In response, defendants contend that they provided plaintiffs with “a comprehensive Revised Privilege Log that identifies an additional forty-one (41) relevant, but privileged emails” and that “some of those emails . . . were produced by agreement of counsel . . . .” Dkt. No. 61 at ECF p. 16.
Defendants further argue that “[p]laintiffs simply cannot imagine into existence emails that do not, and never did exist.” Dkt. No. 63 at 6. They explain that during the time period relevant to this case the Township did not generate large volumes of email. Dkt. No. 61 at ECF p. 10. At his deposition, the Township Manager, Donald Berger was asked: “prior to the time when e-mail started, what was the primary means at that time of how employees communicated internally within the Township?” Dkt. No. 60-3 (Pl.’s Ex. M.) at 86:3-8. He answered “Paper memos and letters. In-house it was all memos and they are all typed.” Id. at 86:9-11. Asked then to explain whether “in 2013, [he was] able to estimate what percentage of that internal communication takes place via email now rather than through formal memo, ” Berger responded,
You know, . . . it’s . . . pretty significant, it’s still done in the old-fashioned paper memos or letters. Uhm, the e-mails are more short-term, brief communications, not so much the – that you would document – use more for communications than really for function. Old fashioned memos we use for directives and . . . asking people to perform different things or giving us background, you know, responses on requests to do different projects or programs.
Id. at 86:11-87:3. Defendants also cite the Township’s document retention policy which states, in relevant part, “e-mail messages and attachments that do not meet the definition of records and are not subject to litigation and other legal proceedings should be deleted immediately after they are read.” Dkt. No. 60-4 (Pl.’s Ex. N.) at ECF p. 12.
Asked about the efforts undertaken by the township to enforce the document retention policy for ...