United States District Court, D. Colorado
MEMORANDUM OPINION AND ORDER
Y. Wang United States Magistrate Judge
matter is before the court on Defendant Americold Logistics,
LLC's (“Defendant” or
“Americold”) Motion For Sanctions For Failure To
Timely Produce Documents And For Spoliation Of Evidence And
Memorandum In Support (the “Motion”). [#36,
filed Aug. 17, 2017]. The undersigned considers the Motion
pursuant to 28 U.S.C. § 636(b), the Order Referring Case
dated April 3, 2017 [#7], and the Memorandum dated August 18,
2017 [#38]. Oral argument will not materially assist this
court in the resolution of the Motion. Accordingly, upon
careful review of the Motion and associated briefing, the
applicable case law, and the entire docket, this court GRANTS
IN PART and DENIES IN PART the Motion for the reasons stated
Kim Mitcham (“Plaintiff” or “Ms.
Mitcham”) began working for Americold as a Human
Resource Manager on or about October 12, 2015. [#22 at ¶
12]. She alleges that Defendant has an “Open Door
policy” whereby Defendant promised not to retaliate
against its employees for lobbying complaints or concerns
against upper management. [Id. at ¶ 20].
Pursuant to this policy, Plaintiff brought a complaint
against Wendell Deboskie, the Director of Human Resources and
Plaintiff's supervisor. [Id. at ¶¶ 33,
36]. Plaintiff complained that Mr. Deboskie mistreated her
because she was a woman, as he did not treat her male
colleagues in a similar manner. [Id. at ¶¶
36-37]. Because of Mr. Deboskie's mistreatment, Plaintiff
struggled to perform her job duties, and was encouraged to
file a formal complaint with the
“MySafeWorkplace” hotline. [Id. at
¶ 38]. Plaintiff waited to file a formal complaint in
hopes that the situation with Mr. Deboskie would improve;
however, upon informing the corporate director of Human
Resources of Mr. Deboskie's behavior, Plaintiff alleges
that Mr. Deboskie became even more hostile towards her.
See [id. at ¶¶ 40-42].
October 3, 2016, Plaintiff filed a formal complaint against
Mr. Deboskie with the “MySafeWorkplace” hotline.
[Id. at ¶ 44]. Not soon after, an Americold
representative emailed its Human Resource staff that
Plaintiff was no longer employed with Americold.
[Id. at ¶ 49]. Plaintiff alleges that she did
not resign, despite Defendant's contention to the
contrary, but was “involuntarily terminated.”
Plaintiff alleges that she did not receive any explanation
for her firing, but alleges that it came on the heels of her
“MySafeWorkplace” complaint. [Id. at
¶¶ 52- 54]. Following her termination, Plaintiff
sought compensation for her unused vacation and her
“extra shift bonuses.” [Id. at
¶¶ 32-34]. Defendant denied Plaintiff's
requests. Plaintiff alleges, however, that her male
colleagues received their “extra shift bonuses.”
[Id. at ¶¶ 30-34].
then initiated this action by filing her Complaint in the
Denver County District Court on March 7, 2017. [#1]. Ms.
Mitcham's Complaint asserted claims against Americold for
(1) negligent and intentional misrepresentation; (2) breach
of contract, implied contract, and/or quasi-contract; and (3)
violations of the Colorado Wage Act, Colo. Rev. Stat. §
8-4-101 et seq. [#3]. Americold removed this action
on March 31, 2017, invoking this court's diversity
jurisdiction under 28 U.S.C. § 1332. [#1]. Following
removal, Plaintiff filed her First Amended Complaint [#9] and
then Second Amended Complaint (“SAC”) [#22], the
operative complaint in this matter. Pursuant to the SAC, the
operative claims in this matter include: (1) sex
discrimination and retaliation in violation of Title VII of
the Civil Rights Act, 42 U.S.C. § 2000e et
seq.; (2) sex discrimination and retaliation in
violation of Colorado's Anti-Discrimination Act
(“CADA”), Colo. Rev. Stat. § 24-34-401
et seq.; (3) negligent and intentional
misrepresentation; (4) breach of contract, implied contract,
and/or quasi-contract; and (5) violations of the Colorado
Wage Act, Colo. Rev. Stat. § 8-4-101 et seq.
8, 2017, the undersigned held a Scheduling Conference,
setting a pre-trial discovery schedule in this matter. [#15].
This included a discovery deadline of September 29, 2017.
[#16]. Since the Scheduling Conference, the Parties have
appeared before this court for several informal discovery
dispute conferences. See [#29; #34; #39]. At the
August 11, 2017 informal discovery dispute conference, the
Parties discussed reopening Plaintiff's deposition given
the recent production of a scanned copy of Plaintiff's
journal-it is undisputed that Plaintiff destroyed the
original. [#39]. Defendant explained that Plaintiff did not
produce her journal with her initial disclosures sent on May
1, 2017. See [#37 at ¶ 4]. Further, that
Americold requested any “handwritten note, recorded
communications, calendars, journals, diaries, logs, and the
like” that related to this matter, but that Plaintiff
responded that she had produced all such documents.
See [#36-1 at 16]. Defendant then followed up with
Plaintiff's counsel to ensure that any “notes or
diary” regarding her allegations in this matter had
been produced, especially in light of her detailed chronology
of events provided in response to Interrogatory No. 9. [#36-2
at 2]. Plaintiff's counsel again responded that Plaintiff
had produced all documents, and suggested that
Defendant's Denver counsel may have misplaced certain
Plaintiff's deposition on July 13, 2017, Plaintiff
disclosed that she kept a “journal” to document
all conversations she has had regarding this matter so that
she could recall those conversations in the future should the
need present itself. [#36-4 at 100:9-14]. Ms. Mitcham also
testified that she scanned the original copy of the journal
and submitted it to her attorney, and then she shredded the
original copy. See [id. at 101:9-14,
102:6-10, 102:15-20]; but see [#40-3 at 289:8-25].
Further, when presented with her produced documents,
Plaintiff testified that her journal was not among those
documents. [Id. at 148:14-18]. Plaintiff then
produced a scanned copy of the journal on July 15, 2017,
after the completion of her deposition. [#37 at ¶ 9].
the August 11 informal discovery dispute conference,
Plaintiff indicated that she agreed to “resume”
her deposition specifically to discuss her notebook. [#39].
Defendant indicated that it would seek sanctions for
Plaintiff's failure to produce the notebook.
[Id.]. Pursuant to this court's direction,
Defendant filed the instant Motion on August 18, 2017.
See [#36]. Defendant seeks fees and expenses
incurred by having to re-depose Plaintiff and for filing the
instant Motion, as well as an adverse inference instruction
under Rules 37(a) and (c) of the Federal Rules of Civil
Procedure. [Id.]. Plaintiff filed a Response and
Defendant a Reply. [#40; #41]. The Motion is ripe for
Federal Rules of Civil Procedure provide for discovery
procedures that seek to further the interests of justice by
minimizing surprise at trial and ensuring wide-ranging
discovery of information. Cache La Poudre Feeds, LLC v.
Land O'Lakes, Inc., 244 F.R.D. 614, 619 (D. Colo.
2007) (citation omitted). To accomplish these objectives,
Rule 26(a)(1) requires parties to disclose certain
information without awaiting a formal discovery request to
(1) accelerate the exchange of basic information, and (2)
“provide an opposing party with information essential
to the proper litigation of all relevant facts[.]”
Poitra v. Sch. Dist. No. 1 in the Cty. of Denver,
311 F.R.D. 659, 663 (D. Colo. 2015). Rule 26(e)(1) provides
that a party must supplement its disclosure(s) and
response(s) in a timely manner if the party learns that the
response(s) or disclosure(s) are incomplete or incorrect in
some material respect, or by court order. Fed.R.Civ.P.
26(b)(1) defines the scope of permissible discovery,
permitting discovery regarding any nonprivileged matter that
is relevant to any party's claim or defense and
proportional to the needs of the case. See Fed. R.
Civ. P. 26(b)(1). To protect each party's ability to
participate in meaningful discovery, putative litigants have
a duty to preserve documents that may be relevant to pending
or imminent litigation. See Cache La Poudre Feeds,
244 F.R.D. at 620. Rule 37 provides sanctions for the
destruction or loss of evidence. E.E.O.C. v. Dillon Cos.,
Inc., 839 F.Supp.2d 1141, 1144 (D. Colo. 2011)
(“Dillon”). “As a general rule,
the trial court acts with discretion in imposing sanctions
for abuse of discovery under Rule 37, [but] the court [also]
has inherent power to impose sanctions for the destruction or
loss of evidence.” Zbylski v. Douglas Cty. Sch.
Dist., 154 F.Supp.3d 1146, 1158-59 (D. Colo. 2015)
(internal citations omitted); Fed.R.Civ.P. 37(c)(1)
(providing for sanctions for a party's failure to provide
information or witnesses as required under Rules 26(a) or
Failure to Disclose Plaintiff's Journal
first moves for sanctions because Plaintiff failed to
disclose her journal with her May 1 initial disclosures or in
response to Defendant's first Rule 34 request for
production of documents. [#36 at 6; #41 at 2]. Further, both
Plaintiff and her counsel certified under Rule 26(g) that
Plaintiff's initial disclosures and responses were
complete and accurate; however, a “minimal
inquiry” by Plaintiff's counsel would have revealed
the existence of the journal and required its production.
[#36 at 6-7]. But because of Plaintiff's and her
counsel's shortcomings, Defendant was without the journal
during Plaintiff's deposition. According to Defendant,
Plaintiff should thus bear the costs of reopening her
deposition as well as Defendant's fees and expenses in
taking the deposition and filing the instant Motion.
[Id. at 7-8; ...