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Stovall v. Brooklyn Legends, LLC

United States District Court, D. Kansas

February 7, 2019

GLADYS M. STOVALL, Plaintiff,
v.
BRYKAN LEGENDS, LLC, Defendant.

          ORDER

          JAMES P. O'HARA U.S. MAGISTRATE JUDGE.

         In this employment-discrimination case, plaintiff has filed a motion for sanctions based on defendant's alleged spoliation of evidence (ECF No. 59). The motion centers on a surveillance video that shows an altercation between plaintiff and her supervisor. No. one disputes the video exists-or existed at one point-but defendant is unable to locate it. Plaintiff asks the court to sanction defendant for spoliation by either entering default judgment in her favor or by giving the jury an adverse-inference instruction. Because plaintiff has failed to meet the requirements of Fed.R.Civ.P. 37(e)(2), the motion is denied.

         I. Background

         Plaintiff's complaint alleges that while she was employed at defendant's restaurant, her direct supervisor, Vincent Martin, made ongoing sexually harassing comments and advances toward her. On May 15, 2016, plaintiff was injured in a physical confrontation with Martin. Plaintiff asserts Martin became jealous when she gave her telephone number to a male customer, and reacted by assaulting her. The confrontation was recorded on one of defendant's surveillance cameras. Shortly thereafter, on May 31, 2016, plaintiff filed a claim for workers' compensation based on her alleged injuries.

         On about October 11, 2016, plaintiff filed a discrimination charge with the Kansas Human Rights Commission (“KHRC”). The charge mentioned, in part, the May 15, 2016 altercation. The KHRC sent defendant a letter dated October 11, 2016, which advised defendant that the destruction of records related to the charge was forbidden by law.[1]

         Plaintiff's workers' compensation claim was settled on January 23, 2017.

         About one week later, on February 1, 2017, plaintiff's current counsel sent defendant a letter, stating plaintiff had retained them to represent her in connection with employment discrimination claims and advising defendant of its obligation to preserve records, videos, and files pertaining to plaintiff's employment and discharge.[2] Plaintiff filed this suit on July 13, 2017.

         On July 3, 2018, plaintiff tendered a document request for, among other things, “surveillance footage, recordings or other video . . . that refer or relate to any events alleged in Plaintiff's Complaint.”[3] Defendant responded that there “was a surveillance tape that depicted the altercation between the Plaintiff and Vincent Martin” but that defendant “is unable to locate the tape.”[4] The response also advised that a “copy or link” of the video was provided to the attorney representing defendant in the workers' compensation matter, but that “the link has expired.”[5] Defendant's representative, Gerald Rauschelbach, testified at his deposition that after the incident, he maintained a copy of the surveillance video in his desk drawer, but that he can no longer find it, despite “desperately looking.”[6] He is unsure when it became lost.[7] Rauschelbach further stated he sent a copy of the video to defendant's workers' compensation insurance carrier sometime between May 15, 2016, and January 23, 2017;[8] defendant represents in its response brief that the copy was sent prior to October 11, 2016, when defendant was first given notice of plaintiff's potential discrimination claims and the preservation requirement.[9] To date, defendant has not produced either copy of the surveillance video.

         II. Analysis

         During the pretrial conference held on January 18, 2019, the parties agreed the surveillance video is a form of electronically stored information (“ESI”) subject to the preservation requirements of Rule 37(e). The rule reads,

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.[10]

         The sanctions requested in plaintiff's motion-entry of default judgment or the giving of an adverse-inference ...


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