Opinion
BCD-CIV-2021-00008
02-02-2022
JENNIFER OWEN, Plaintiff, v. TOWN AND COUNTRY FEDERAL CREDIT UNION, Defendant.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS AND FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
MICHAEL A. DUDDY, JUDGE
INTRODUCTION
In this action brought by a consumer against a credit union, the defendant moves the Court to dismiss the case with prejudice and to sanction the plaintiff for her spoliation of evidence and failure to comply with discovery obligations. The Court heard oral arguments on January 18, 2022 in which both parties appeared through counsel. For the reasons discussed below, the Court GRANTS the Motion in Part and DENIES the Motion in part. The Court declines to dismiss the case, but otherwise imposes sanctions in the form of attorney fees and an adverse inference instruction.
BACKGROUND
Plaintiff Jennifer Owen is a former employee of Defendant Town and Country Federal Credit Union ("Town and Country"). On or about October 24, 2018, Town and Country terminated Owen's employment. Owen alleges that the reason for this termination was disability discrimination and retaliation related to Owen's bout with cancer, even though she had been diagnosed in early 2012 and had finished treatment on by the end of 2013.
On or about December 17, 2018, Owen's attorney, Guy Loranger, sent a personnel file request and demand letter (the "demand letter") to Town and Country, indicating Owen would pursue litigation against Town and Country if the credit union did not settle her claims. Town and Country declined. On or about May 10, 2019, Owen submitted a Charge of Discrimination to the Maine Human Rights Commission. The Charge of Discrimination was notarized by Owen's friend and former colleague at Town and Country, Jessica Dunton Walker ("Walker"), who brought a claim against Town and Country in a separate matter and was also represented by Loranger. On or about January 7, 2020 the MHRC issued Owen a Right to Sue letter.
On or about August 31, 2020, Owen filed the instant suit. On November 9, 2020 Town and Country served written discovery requests on Owen, seeking, inter alia, any and all written and digital communications sent to or by Owen relating or referring to Sara Thiel, Nicole Sears, Jessica Dunton Walker, Courtney McNulty, or Leanne Duley (or any other Town and Country Employee) from January 1, 2016 through the present regarding her employment with or termination from Town and Country ("Request No. 5"). Town and Country also sought any texts or emails sent to or by Owen from October 24 through October 31, 2018 regarding her employment with or termination from Town and Country ("Request No. 6"). Town and Country also instructed Own that its requests were to be deemed continuing under M.R. Civ. P. 26(e) and that should any requested document have been lost or destroyed to submit a written statement detailing its contents and time and reasons of loss or destruction, and naming individuals with relevant knowledge.
On or about December 23, 2020 Owen responded she had no documents responsive to Request No. 5 and that she would produce documents responsive to Request No. 6. She also stated in her answers to Town and Country's interrogatories that several other individuals have knowledge of the facts and issues of the instant suit, naming several other persons, each of whom is or has been represented by Loranger in separate suits against Town and Country. Owen did not produce any written or recorded conversations or identify any documents as destroyed or lost.
On or about January 29, 2021, Town and Country served Walker a deposition and document subpoena with the same instructions regarding lost or destroyed documents. On March 1, 2021 Town and Country deposed Walker, who testified she had no responsive documents and had never texted Owen about Town and Country. Walker nevertheless testified that she had referred Owen to Loranger, that she talked with Loranger and Owen about the deposition, and that she had never seen the Charge of Discrimination despite having notarized it. On or about March 3, 2021 Town and Country deposed Owen, who testified she spoke to Walker regularly by phone and text but had never discussed the suit with her. She testified she had not deleted or destroyed any relevant emails or texts.
On or about April 6, 2021 Town and Country served a second document request on Owen, again seeking texts and other written conversations ("Request No. 1") and copies of her phone records ("Request No. 2"). Owen objected to Request No. 1 and stated she had no documents responsive to Request No. 2. On or about April 28, 2021 Walker stated she had no documents responsive to a second subpoena which Town and Country had served on her but did not indicate she had lost or destroyed any.
The Court, by request of Town and Country, on June 3, 2021 ordered Owen to turn over her phone to Town and Country for review by June 18, 2021. Owen failed to comply, and Town and Country filed a request for sanctions on July 21, 2021, which is renewed in the instant motion. On July 22, 2021 Owen provided Town and Country her phone. Town and Country extracted hundreds of texts between Walker and Owen but there were no texts dated before January 11, 2020. Several texts included discussions of Owen's lawsuit and of Town and Country. Town and Country deposed Owen on September 20, 2021. Owen testified she regularly deletes her voicemails and that she had imported all the data from her previous phone to her current one. She also stated she had texted Walker prior to January 11, 2020 but had deleted or lost all those texts when she purchased her current phone, though her phone bills showed she had obtained her new phone six months prior, in June 2019.
On or about October 26, 2021, after the close of discovery, Owen produced phone records from 2020 and 2021 to Town and Country in response to the second request for documents, which had sought records from 2016 through present. The records revealed Owen had spoken to Walker for twenty-six minutes the night before Walker's deposition and for twelve minutes immediately following the deposition. They showed Owen spoke to Walker for eight minutes during lunch on the day of Owen's first deposition and for a total of twenty-three minutes across four calls that evening. They also showed Owen called Walker the morning of Owen's second deposition and then again in the evening after the deposition was over.
DISCUSSION
The Law Court has not yet addressed spoliation of evidence and related sanctions, but Maine courts generally follow federal doctrine from the District of Maine and the United States Court of Appeals for the First Circuit. Morin v. Harley-Davidson Motor Co. Group, 2013 Me. Super. LEXIS 174, at *6 (Aug. 6, 2013).
"The two goals of the spoliation doctrine are to rectify the prejudice suffered by the loss of evidence and to deter future conduct leading to a loss of evidence." Driggin v. Am. Sec. Alarm Co., 141 F.Supp.2d 113, 120 (D. Me. 2000). The court must therefore consider: (1) "prejudice to the non-offending party" and (2) "the degree of fault of the offending party." Id. Because sanctions for spoliation are primarily remedial in nature, prejudice to the non-offending party is accorded more weight, absent a showing of willful destruction of evidence. Id. Though bad faith is not required, "some degree of fault on the part of the offending party makes imposing a sanction more appropriate." York Ins. Co. v. Snow Flake Holdings, 2015 Me. Super. LEXIS 51, *3-4 (Mar. 15, 2015).
I. Owen's Failure to Comply with Discovery Obligations Prejudiced Town and Country
Parties involved in litigation or who know they are likely to be involved in litigation have a duty to preserve evidence relevant to the action. See Fletcher v. Dorchester Mut. Ins. Co., 437 Mass. 544, 549-50, 773 N.E.2d 420 (2002). No letter requesting preservation from the other party is necessary for this duty to be triggered. This is especially true where, as here, it is the Plaintiff's conduct which is the subject of the spoliation dispute.
As least as far back as December 17, 2018, and probably earlier, there can be no dispute that Owen, as plaintiff, knew she was likely to be involved in litigation. She retained Loranger as counsel, sent a demand letter to Town and Country, clearly signaled her intent to litigate unless Town and Country settled her demand, and filed a Charge with the MHRC prior to filing her claim. From at least December 17, 2018, forward, Owen had a duty to preserve texts, emails, and other documents related to her claims, and to not destroy such evidence (or allow it to be destroyed). Town and Country, as defendant, was not required to specifically request any such material to be preserved. A reasonable person, especially a party represented by counsel, would understand texts and voicemails about the opposing party and subject matter of that person's planned lawsuit are relevant to said suit.
Owen and Walker are close friends and former colleagues at Town and Country. Both retained Loranger in their separate claims against Town and Country. Owen and Walker text and email each other frequently. Deposition testimony and phone records strongly support the inference they discussed information relative to this case, including Owen's decision not to settle and the depositions given to Town and Country. The record supports this Court's inference that prior to January 11, 2020, Owen and Walker communicated via text and email about Owen's claim. Owen's text and email communications with Walker about Town and Country were relevant to the litigation. However, Owen deleted all messages between her and Walker (and possibly other Town and Country employees), including those sent after Owen retained Loranger as counsel, from Owen's phone as of as of January 11, 2020, just four days after Owen received her right to sue letter from the MHRC. The Court concludes that Owen intentionally deleted those communications in order to make them unavailable to Town and Country. In so doing, Owen violated her duty to preserve relevant evidence and prejudiced Town and Country's ability to defend against her lawsuit.
Moreover, Town and Country properly requested relevant communications and documentation during discovery, but Owen failed to provide responsive evidence. Instead, she led Town and Country Owen on an intentionally misleading, time consuming, and costly wild goose chase. She did not disclose the deletion of the texts and emails despite Town and Country's specific request to identify relevant documents which had been lost or destroyed. Only Town and Country's own investigation of Owen's phone, itself requiring a court order for Owen to comply, revealed the absence of this information. Owen also failed to provide the requested phone records, producing only records from 2020 and 2021 after the close of discovery despite Town and Country's timely request for records dating from 2016. Town and Country expended thousands of dollars in attorney fees pursuing evidence which Owen had a duty to disclose or describe in the case of destruction, only to learn that Owen had already destroyed much of that evidence. Even in the absence of bad faith, this prejudice merits sanctions against Owen.
II. Owen's Conduct Was in Bad Faith and Merits Appropriate Sanctions
Courts have inherent power to impose sanctions on parties who have spoliated evidence. Chambers v. NASCO, Inc., 501 U.S. 32, 43-45, 111 S.Ct. 2123 (1991). Where a party is aware of circumstances which are likely to give rise to future litigation but destroys relevant documentation without a particularized inquiry, this Court "may reasonably infer that they party probably did so because the records would harm [her] case." Blinzler v. Marriott Int'l, Inc., 81 F.3d 1148, 1159 (1st Cir. 1996). The Court nevertheless views dismissal with prejudice as a harsh sanction and counter to a strong policy of disposing of cases on the merits. Collazo-Santiago v. Toyota Motor Corp., 149 F.3d 23, 28 (1st Cir. 1998) (quoting Benjamin v. Aroostook Med. Ctr., Inc., 57 F.3d 101, 107 (1st Cir. 1995) (dismissing case for failure to prosecute)). Dismissal of a case may be warranted where, as here, a party has "maliciously destroyed relevant evidence with the sole purpose of precluding an adversary from examining that relevant evidence." Northern Assurance Co. v. Ware, 145 F.R.D. 281, 282 n.2 (D. Me. 1993) (Gene Carter, C.J.) However, the sanction of dismissal should be reserved for cases where the evidence destroyed is central to the dispute, and no other evidence is available to establish or defend against the claim. See Mayes v. Black &Decker (U.S.), Inc., 931 F.Supp. 80, 84 (D.N.H. 1996). In this case the destroyed evidence is important, but not central to the dispute, and Town and Country has other evidence with which to defend itself. Accordingly, the Court declines to dismiss Owen's action outright.
Should a court decline to dismiss a case, it must still address whether and which evidentiary sanctions should be levied by applying a five-factor test: "(1) Whether the defendant was prejudiced as a result of [the destruction of the evidence]; (2) whether the prejudice can be cured; (3) the practical importance of the evidence; (4) whether the plaintiff was in good faith or bad faith; and (5) the potential for abuse if the evidence is not excluded." Northland Roofing, Inc. v. Maine Potato Growers, Inc., 1997 Me. Super. LEXIS 92 at *6-*7 (citing Mayes, 931 F.Supp. at 83). This is not a rigid test, and the degree of culpability and the degree of prejudice generally carry the most weight. Vazquez Corales v. Sea-Land Serv., 172 F.R.D. 10, 14 (D.P.R. 1997). The deterrent effect is relevant, but the primary purpose of sanctions is to remediate prejudice. Sacramona v. Bridgestone/Firestone, Inc., 106 F.3d 444, 446 (1st Cir. 1997).
Here, some form of sanctions (short of dismissal) is clearly warranted. Owen acted in bad faith, the evidence destroyed was important to Town and Country's defense, and Town and Country has been prejudiced by Owen's actions. However, the prejudice can be remediated, Owen's culpability addressed, and deterrence achieved, through the two forms of sanctions discussed below: attorney fees and an adverse inference instruction.
Attorney fees are warranted both as a remedial measure, and as a sanction designed to address Owen's conduct. In Linnen v. A.H. Robins Co., a defendant company was not cooperative in producing email records and other documents on backup tapes, denying the existence of certain records before eventually finding them in storage. 1999 Mass. Super. LEXIS 240 at *22-*23. The plaintiffs' counsel "devoted a great deal of time and energy" to the issue of this documentation "which would have been unnecessary if the tapes had been produced in a timely fashion." Id. The court ordered the defendant company to bear the costs and fees associated with this discovery issue, including the costs of related depositions and those associated with the motion for sanctions. Id. at *23. The instant case parallels the facts in Linnen. Owen needlessly drew out the time and expense of discovery, and as with Linnen, it is thus appropriate to award attorney fees and costs as a remedial measure.
Accordingly, Plaintiff Owen shall reimburse Defendant Town and Country for its reasonable attorney fees and costs (including any IT personnel costs) incurred in (i) filing and arguing this Motion and attendant briefs, (ii) pursuing discovery of Owen's text messages, electronic devices, and telephone records, and (iii) pursuing similar discovery with respect to Jessica Dunton Walker. Within 30 days of the date of this Order, Defendant Town and Country shall submit to this Court a fee application and affidavit setting forth the fees and costs requested. Owen shall have ten days to object to the reasonableness of the fees and costs requested, and Town and Country shall have seven days to reply. Owen shall make payment within thirty days of the Court's order approving the amount of attorney fees and costs.
An award of attorney fees, however, is not by itself a sufficient sanction in this case. In order to cure the prejudice caused by Owen's conduct, at trial the Court will permit Town and Country to introduce evidence of the facts and circumstances relating to Owen's destruction of evidence. See Northland Roofing, 1997 Me. Super. LEXIS 92 at *7-*10; Blinzler, 81 F.3d at 115859; Mayes, 931 F.Supp. at 85. Provided Town and Country establishes a sufficient foundational showing, the Court will give the jury an adverse inference instruction. See id. The Court is confident that any prejudice can be remediated with the introduction of spoliation evidence followed by an adverse inference instruction. See Northland Roofing, 1997 Me. Super. LEXIS 92 at *7.
CONCLUSION
Based on the foregoing, the entry will be:
The Court Grants in Part and Denies in Part Defendant Town and Country's Motion. The Court declines to dismiss Owen's case, and to that extent the Motion is denied. However, as discussed above, the Court imposes sanctions in the form of attorney fees and an adverse inference instruction. To that extent the Motion is granted.
SO ORDERED.
The Clerk is requested to enter this Order on the Docket, incorporating it by reference pursuant to M.R. Civ. P. 79(a).