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Mitcham v. Americold Logistics, LLC

United States District Court, D. Colorado

September 20, 2017

KIM MITCHAM, Plaintiff,


          Nina Y. Wang United States Magistrate Judge

         This 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, [1] 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 herein.


         Plaintiff 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].

         On 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].

         Plaintiff 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. [#22].

         On May 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 documents. [Id.].

         At 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].

         During 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 resolution.


         The 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(e)(1)(A)-(B).

         Rule 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 (e)).

         I. Failure to Disclose Plaintiff's Journal

         Defendant 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; ...

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