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Wolff v. United Airlines, Inc.

United States District Court, D. Colorado

September 17, 2019

ERIC WOLFF, Plaintiff,



         This Discovery Order addresses a matter taken under advisement by this Court at the conclusion of a discovery hearing held on July 10, 2019. [#94.][1] Counsel for the Parties contacted chambers (consistent with this Court's civil practice standards) to alert the Court to various discovery disputes between them. They subsequently filed discovery briefs on July 8, 2019. [#92 (Defendant), and #93 (Plaintiff).] The Court then held oral argument on July 10, 2019. The Court understands the only remaining issues to be both party's spoliation claims that the Court took under advisement at the July 10 hearing.[2][#94.]

         In addition to taking the spoliation issues under advisement, the Court ordered Defendant to submit an affidavit from appropriate IT personnel to address three issues: (1) how Plaintiff's emails and text messages are stored by Defendant; (2) whether Defendant utilizes a cloud or servers to store emails; and (3) what it would take for Defendant to retrieve the emails and text messages at issue. [Id.] Defendant timely submitted two declarations on July 17, 2019. [#96.] After reviewing those declarations, the Court ordered Defendant to submit a supplemental declaration (1) describing its retention policy in place during 2017, and (2) stating when Plaintiff's company emails were removed from the server based on that retention policy. [#118.] Defendant timely submitted a supplemental declaration on September 11, 2019.[3] [#121.]

         The Court has considered the Parties' briefs, oral argument, and declarations submitted by Defendant pursuant to the Court's orders. The Court has also reviewed applicable case law and other entries from the docket. The Court construes the matters under dispute as an oral Motion for Spoliation Sanctions by Plaintiff, and an oral Motion for Spoliation Sanctions by Defendant. The Court issues this Order to resolve these discovery disputes, as follows:


         The most salient facts to the spoliation issues are these: Defendant employed Plaintiff as an Airport Operations/Customer Service Supervisor at Denver International Airport for about 17 years. It terminated his employment on June 23, 2017 claiming he “repeatedly arrived late to work and left before his shift was over and failed to be a dependable and reliable employee.” For example, Defendant alleges Plaintiff arrived late for work 12 times and left early 27 times between March 1 and June 7, 2017, alone.

         Plaintiff sued alleging a discriminatory discharge in violation of Title VII of the Civil Rights Act of 1964, among other claims. [#70.] He claims that Defendant treated similarly situated female supervisors differently than him in connection with reporting to work and leaving early. According to Plaintiff, evidence critical to his claims no longer exists, to include: (1) his company cell phone which contained relevant emails and text messages; (2) his company (and perhaps other) computer from which he communicated by email during the workday; and, (3) handwritten notes and notebooks he kept of comparators (female employees not disciplined for lateness or early departures) in his desk or at his workstation.

         Plaintiff cries “spoliation” because Defendant failed to preserve this evidence. He seeks “the sanction of judgment against the Defendant Corporation Pursuant to Fed.R.Civ.P. 37 and inherent authority of the Court for the Company's intentional spoliation of pivotal evidence.” [#93 at p.1.] He argues that “judgment against the Defendant is appropriate because it destroyed pivotal evidence going to the heart of the case, erasing Plaintiff's company cell phone and company computers, and destroying critically important notes and notebooks.” [Id.] Not to be outdone, Defendant likewise cries “spoliation” because Plaintiff failed to preserve his personal cell phone.

         B. ANALYSIS

         To obtain sanctions for spoliation of evidence, a party must first show that “(1) a party ha[d] a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). “In determining whether a party's duty to preserve has been triggered, courts evaluate facts such as the likelihood that a certain kind of incident will result in litigation; the knowledge of certain employees about threatened litigation based on their participation in the dispute; or notification received from a potential adversary.” Zbylski v. Douglas Cty. Sch. Dist., 154 F.Supp.3d 1146, 1163 (D. Colo. 2015). Ultimately, “a party's duty to preserve arises when it has notice that the [evidence] might be relevant to a reasonably-defined future litigation.” Id.; cf. Fed. R. Civ. P. 37(e) advisory committee notes, 2015 amendment (preservation obligation does not apply when information or evidence is lost before a duty to preserve attaches).

         Even if a party establishes duty and prejudice, if it “seeks an adverse inference to remedy the spoliation, it must also prove bad faith. Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case. Without a showing of bad faith, a district court may only impose lesser sanctions.” Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (citations and quotation omitted). The Tenth Circuit has found that this bad-faith requirement “finds strong support in an explanation by the Advisory Committee to the Federal Rules of Civil Procedure for the same requirement in [the] virtually identical context” of Fed.R.Civ.P. 37(e) (governing sanctions for the failure to take reasonable steps to preserve electronically stored information). EEOC v. Jetstream Ground Serv., Inc., 878 F.3d 960, 965 (10th Cir. 2017). The 2015 Adivisory Committee notes to Rule 37(e) provide a “commonsense explanation” for the bad faith requirement, as follows:

Adverse-inference instructions were developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to the party responsible for loss or destruction of the evidence. Negligent or even grossly negligent behavior does not logically support that inference. Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have.

Id. at 966 (citing Fed.R.Civ.P. 37 Advisory Committee Note to Subdivision (e)(2), 2015 Amendment).

         The moving party has the burden of proving, by a preponderance of the evidence, that the opposing party failed to preserve evidence or ...

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