Opinion
Case No. 1:17-cv-03032-RMG-MGB
09-01-2020
Garcia Wilson, Plaintiff, v. South Carolina Department of Corrections, et al., Defendants.
REPORT AND RECOMMENDATION
This case has been filed pursuant to 42 U.S.C. § 1983 and the South Carolina Tort Claims Act ("SCTCA"), S.C. Code Ann. §§ 15-78-10 et seq. On December 12, 2019, Plaintiff filed an Amended Motion for Sanctions ("sanctions motion") in this case, and included 15 other cases in the docket heading of the motion. (Dkt. No. 85.) On April 7, 2020, the undersigned issued an omnibus Order and Report and Recommendation ("R&R), which resolved the sanctions motion in every case in which it had been filed. (Dkt. No. 99.)
On June 15, 2020, the District Judge issued an Order in this action and in Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB, remanding to the undersigned certain matters pertaining to the undersigned's April 7, 2020 Order and R&R. (Dkt. No. 111.) Specifically, the District Judge adopted "the portion of the R&R setting forth the legal standards and the discussion relating to the attorneys' fees sanction as the order of the Court" and remanded "the matter to the Magistrate Judge to set a reasonable attorneys' fee as a sanction based upon attorney hours and expenses resulting from SCDC's discovery rule violations." (Id. at 4.) The District Judge further "held in abeyance the Magistrate Judge's recommendations regarding sanctions associated with allegedly lost ESI" (electronically stored information) and remanded this specific matter for further consideration. (Id. at 5.) In short, the undersigned now has two separate tasks: (1) assess reasonable attorneys' fees as a sanction as ordered in the underlying April 7, 2020 Order and R&R; and (2) make further recommendations to the District Judge concerning the sanctions related to the ESI matter. Because the assessment of reasonable attorneys' fees will not require further review from the District Judge, the undersigned has resolved that issue in a separate order.
The attorneys' fees sanction ordered in the April 7, 2020 Order is not dependent on the recommendations made with respect to the ESI matter.
Accordingly, the instant R&R pertains only to the consideration of sanctions related to the ESI matter. Specific to this issue, the District Judge has instructed the undersigned to: (1) Review the list of allegedly missing documents provided by Plaintiffs and make findings concerning whether such documents have been produced or whether SCDC failed to preserve or otherwise failed to produce such documents; (2) Make a finding of any specific prejudice that Plaintiffs have suffered, if any, if the ESI has been lost; and (3) Recommend any sanctions, if appropriate, based upon those findings. (Id.)
For the reasons stated below, the undersigned recommends that Plaintiff has not established prejudice sufficient to award any sanctions based on the alleged loss of ESI.
DISCUSSION
In the underlying sanctions motion at issue, Plaintiff asserts that sanctions are warranted pursuant to Rule 37(e) based on SCDC's alleged failure to preserve certain emails containing documents that Tom Roth reviewed in drafting the Roth Report. (Dkt. No. 85 at 27.) Before a court may impose sanctions pursuant to Rule 37(e), four threshold requirements must be established: (1) ESI should have been preserved; (2) ESI was lost; (3) the loss was due to a party's failure to take reasonable steps to preserve the ESI; and (4) the ESI cannot be restored or replaced through additional discovery. In re: Ethicon, Inc., No. 2:12-cv-00497, 2016 WL 5869448, at *3 (S.D.W. Va. Oct. 6, 2016). After these threshold elements are satisfied, "Rule 37(e) next establishes two different avenues parties can take to demonstrate that sanctions are warranted . . . ." Id. "The first avenue, Rule 37(e)(1), requires a court to make a finding of prejudice before sanctions may be warranted. The second avenue, Rule 37(e)(2), requires a court to make a finding that a party acted with the intent to deprive the opposing party" of the ESI prior to imposing sanctions. Id.
The April 7, 2020 Order and R&R discusses the Roth Report in detail. The undersigned incorporates that discussion here. (Dkt. No. 99 at 14.)
A. Preliminary Issues
The undersigned first considers what ESI is actually at issue and when the duty to preserve this ESI first arose. Here, some background is helpful. The record shows that Plaintiff served Mr. Roth with a deposition subpoena in this action on August 26, 2019, seeking the Roth Report. and documents from Mr. Roth that he used to prepare the Roth Report, including copies of correspondence with any SCDC counsel or employees. (Dkt. No. 95-1 at 8-11.) Mr. Roth had a flash drive responsive to this subpoena, which was ultimately produced in this action. (Dkt. No. 74.) The flash drive contained approximately 305 emails and 1,788 pages of attachments. (Dkt. No. 101 at 15.)
The record indicates this is the only time Plaintiff has requested the Roth Report in this action, albeit from a third party. (Dkt. Nos. 95; 95-1.) Plaintiff's counsel has brought another civil action on Plaintiff's behalf arising from separate instances of assault Plaintiff allegedly suffered while incarcerated at SCDC. See Wilson v. Eagleton et al, Case No. 1:18-cv-00050-RMG-MGB. The Roth Report was directly responsive to a discovery request served on the defendants in that action. Plaintiff asserts that "[f]or all purposes of discovery these cases were intertwined and discovery was shared." (Dkt. No. 108 at 3.) However, there is nothing in the record reflecting that discovery was considered consolidated in the two cases. Indeed, the Court expressly denied Plaintiff's motion to consolidate the two actions on August 6, 2019 in Wilson, No. 1:18-cv-00050-RMG-MGB, Dkt. No. 138.) There is no basis to find that any discovery requests served in Wilson, No. 1:18-cv-00050-RMG-MGB are applicable for purposes of the sanctions issues in this case.
Notably, when Plaintiff filed his opposition to Defendants' Motion for Summary Judgment on January 6, 2020, Plaintiff did not reference the Roth Report. or Mr. Roth's deposition testimony in his brief. (See Dkt. Nos. 88; 92 at 34 n.7.)
It appears Plaintiff now has the Roth Report in this action, presumably through the aforementioned subpoena served upon Mr. Roth.
1. ESI at Issue
In the underlying sanctions motion, Plaintiff states that
when the communications [on the flash drive] were produced it became apparent that Mr. Roth was supplied with hundreds of documents from SCDC via email. After quickly reviewing these documents Plaintiffs' counsel learned that SCDC shared a large volume of information with Mr. Roth and a simple search on their email servers or accounts to the email address related to Tom Roth should produce a variety of emails. To date nothing more has been produced. The underlying documents provided to Tom Roth were not produced because SCDC claimed that they could not be identified. We now know that to be misleading and false.(Dkt. No. 85 at 24.)
Plaintiff further states, "one of the most troubling aspects related to this production was SCDC's use of two email systems: (1) Barracuda Networks; and (2) Safely Send. [sic] The documents submitted on these systems were never produced and SCDC takes the position that these records were destroyed." (Id. at 25.) According to Plaintiff,
The use of both of these networks should have easily allowed SCDC to find what was sent. Safely Send [sic] allows a user to locate the files which were sent and SCDC could easily look for the file name which was sent, or maybe even look for a unique identifier related to the document, otherwise known as a hash value. However, SCDC made no attempts to produce these documents and purposely setup a system whereby documents could be transmitted in an effort to avoid detection and discovery.(Id. at 27.)
Defendants responds that there are "eight emails in question," and that "the time sensitive secure links were sent September 14, 2017, October 19, 2017, and October 25, 2017, November 3, 2017, and January 9, 2018." (Dkt. No. 101 at 20, 25.) According to Defendants,
SCDC no longer has access to the secure messages. The face of the barracuda secure emails states " The secure message will expire in 30 days." Defendants have previously produced an affidavit of Trevis Shealy in these cases stating that Send Safely messages are, by default, deleted 15 days after they are sent.(Dkt. Nos. 125 at 9; 128.) Despite the fact that SCDC cannot access the links at issue, Defendants contend that "no information has been lost, and whatever was contained in the secure link is still discoverable by other means, and is, therefore, not unique. . . . The only thing that has changed is that a secure link directing a user to the information has expired." (Dkt. No. 101 at 20, 22.) Defendants further argue that the information at issue is not "unique for the purposes of imposing sanctions" because "no information has been lost, Plaintiffs have a copy of the Roth Report, and [they] have deposed Tom Roth." (Id.)
The undersigned has reviewed the emails and links highlighted by Defendants. They reveal as follows: (1) two encrypted links separately emailed to Mr. Roth on September 14, 2017 though the "Barracuda Email Encryption Service" that states "[t]he secure message will expire in 30 days"; (2) one encrypted link emailed to Mr. Roth on October 19, 2017 through "Send Safely"; (3) one encrypted link emailed to Mr. Roth on October 25, 2017 through "Send Safely"; (4) one encrypted link emailed to Mr. Roth on November 3, 2017 through "Send Safely"; and (5) one encrypted link emailed to Mr. Roth on January 9, 2018 through "Send Safely" that Mr. Roth indicates concerns "updated staffing levels." (Dkt. Nos. 121-1.)
There are two additional emails dated September 19, 2017, which forward to Mr. Roth the encrypted links originally emailed on September 14, 2019. (Dkt. No. 101-1 at 5.)
Notably, Defendants have not identified the documents underlying the links at issue, and the record indicates it would be impossible for Defendants to provide this information because the links have expired. Moreover, Defendants have not kept any record of what information was provided by SCDC to Mr. Roth, beyond what is contained on the flash drive. Accordingly, Defendants cannot recreate a list of what documents Mr. Roth reviewed to prepare the Report. While Defendants appear to believe the documents provided in the links at issue are still in their database, they have no ability to determine what documents Mr. Roth actually reviewed. They cannot know whether the documents at issue can be, or have been, produced by SCDC through other means. Accordingly, these documents are considered lost for purposes of the Court's analysis under Rule 37(e), and it is impossible to know whether they can be restored or replaced through additional discovery. See Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., No. SAG-18-3403, 2020 WL 1809191, at *5 (D. Md. Apr. 9, 2020) (noting that Rule 37(e) does not distinguish "between lost and destroyed ESI" and stating that "lost refers to information that cannot be found elsewhere and is no longer available, whether due to negligence or intentional destruction." (internal quotations and citations omitted)). Further, this loss appears due to SCDC's failure to take reasonable steps to preserve the information recorded in the links at issue.
2. Duty to Preserve
To impose sanctions under Rule 37(e), it must be established that the ESI at issue should have been preserved. It is well established that the duty [to preserve evidence] is triggered, at the latest, when the defendant is served with the complaint." In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 512 (S.D. W. Va. 2014) (citing Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010)). Here, SCDC was served the complaint "on or about October 23, 2017." (Dkt. No. 1.) While three expired links were sent prior to this date, the evidence indicates that the link sent in the October 19, 2017 email through Send Safely would automatically expire after 15 days. (Dkt. Nos. 125 at 9; 128.) Thus, this link would have been accessible to SCDC on October 23, 2017, and therefore should have been preserved along with the links contained in the October 25, 2017, November 3, 2017, and January 9, 2018 emails. However, because it is unclear what documents were provided in any of the links at issue, limiting the duty of preservation to four links, instead of six, is not particularly helpful to the Court's analysis.
B. Findings of Specific Prejudice
Critically, awarding sanctions under Rule 37(e)(1) requires a showing of prejudice. See Fed. R. Civ. P. 37(e)(1).
The rule does not place a burden of proving or disproving prejudice on one party or the other. Determining the content of lost information may be a difficult task in some cases, and placing the burden of proving prejudice on the party that did not lose the information may be unfair. In other situations, however, the content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information may appear sufficient to meet the needs of all parties. Requiring the party seeking curative measures to prove prejudice may be reasonable in such situations. The rule leaves judges with discretion to determine how best to assess prejudice in particular cases.Fed. R. Civ. P. 37(e) advisory committee's note, 2015 Amendment.
Spoliation "causes no prejudice [if] the evidence destroyed was not relevant, or was merely cumulative to readily available evidence, or [if] the same evidence could be obtained from other sources." Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 526 (D. Md. 2010). Likewise, "prejudice is less acute when 'there are sources from which at least some of the allegedly spoliated evidence can be obtained . . . [and] when the party seeking discovery can obtain extrinsic evidence of the content of at least some of the deleted information from other documents, deposition testimony, or circumstantial evidence.'" In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 523 (S.D.W. Va. 2014) (quoting Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 616 (S.D. Tex. 2010)).
In arguing prejudice, Plaintiff generally asserts that "[a]ll missing/lost/destroyed documents go to each of the Plaintiff's allegations of understaffing; violence with contraband weapons; pattern, practice, custom of policy violations; and repeated disregard for security concerns." (Dkt. No. 108 at 14.) He further states, "[t]he outstanding documents could also not be used to gather further evidence to support Plaintiffs' claims, could not be used in depositions, could not be used to refute Summary Judgement, nor could Plaintiff's expert fully opine on them." (Id.) Plaintiff contends he "has lost his ability to question Mr. Roth regarding each of the missing documents and his ability to fully back up the Roth Report for authenticity and admissibility purposes." (Id.)
As an initial matter, Plaintiff did not reference the Roth Report or Mr. Roth's deposition testimony when opposing Defendants' Motion for Summary Judgment. (Dkt. Nos. 88; 92 at 34 n.7.) This undermines Plaintiff's assertion that the documents underlying the Roth Report are important to his claims in this action. Further, SCDC has stated on the record that it does not intend to object to the admissibility of the Roth Report or contest the accuracy of Mr. Roth's data or conclusions, beyond objections previously made and ruled upon by this Court. The District Judge has expressly found that this "representation by SCDC to the Court is binding and eliminates the need to impose any sanction preventing SCDC from contesting the contents of the Roth Report." (Dkt. No. 111 at 5.) Further, Plaintiff deposed Mr. Roth after receiving the contents of his flash drive, which contained documents he relied on to draft the Report. Prior to Mr. Roth's deposition, the Court ordered that "with respect to Mr. Roth's deposition on September 30, 2019, . . . the parties are permitted to question Mr. Roth fully about matters potentially relevant to their claims and defenses. Any testimony given by Mr. Roth is covered by the Confidentiality Order in this case, including his report, his conclusions, any data collected, and any witnesses interviewed." (Dkt. No. 74-1 at 12.)
Given that SCDC has represented it will not contest the contents of the Roth Report and that Plaintiff was able to depose Mr. Roth about "his report, his conclusions, any data collected, and any witnesses interviewed," the undersigned cannot discern any specific prejudice Plaintiff has suffered from the loss of the allegedly missing documents. It appears that, through Plaintiff's access to the Roth Report, his access to Mr. Roth's flash drive, and his deposition of Mr. Roth, Plaintiff has had the opportunity to obtain sufficient evidentiary support for his claims. See Knight v. Boehringer Ingelheim Pharma., Inc., 323 F. Supp. 3d 837, 845 (S.D. W. Va. 2018) (noting that courts typically find prejudice under Rule 37(e) "when spoliation compromises [another] party's ability to present its case," particularly where the "party 'cannot present evidence essential to its underlying claim.'" (quoting Victor Stanley, 269 F.R.D. at 532)).
C. Allegedly Missing Documents
Here, the undersigned recognizes that the District Judge has asked for findings "concerning whether the allegedly missing documents have been produced or whether SCDC failed to preserve or otherwise failed to produce such documents." (Dkt. No. 111 at 5.) In summarizing the missing documents, Plaintiff points to categories of documents that the Roth Report states were "requested and reviewed" in preparation of the Report. (Dkt. No. 108 at 2, 8-12.) Specifically, Plaintiff asserts that documents are still missing which would fall under the following categories, as outlined in the Roth Report: (1) "Applicable Policies that identified staff related requirements, conditions of employment, coverage, and responsibilities"; (2) "Post Orders describing the expected staff responsibilities for specific post assignments"; (3) "Security Staff overtime usage reports"; (4) "Completed daily shift rosters from each institution and each operating shift"; (5) "Post Charts identifying the department recognized security staffing requirements for each institution"; (6) "Inmate Profile demographics"; (7) "Established Mission and profile of each institution"; (8) "Security staff use of benefit-time and training data"; (9) "Mental Health Settlement Agreement"; (10) "Number of lockdown days due to staffing levels"; and (11) "Assault and contraband related incidents by institution." (Dkt. No. 108 at 8-12.) Plaintiff also cites several vague references in the Roth Report as evidence of missing documents, including (1) "staff deployment patterns"; (2) a "memorandum from Division of Security" regarding "post coverage"; and (3) "data provided by personnel assigned to the Research and Information Management Division (RIM)" regarding the "an updated shift relief factor" at Lieber. (Dkt. No. 108 at 12.)
Here, the undersigned only mentions those categories of documents that Plaintiff maintains are "deficient." Plaintiff also mentions other categories of documents in his briefing, which he expressly states he does not believe are deficient. (Dkt. No. 108 at 8-12.) Plaintiff's assertion of what categories of documents are missing differs a bit from representations he has made in Bartlett et al. v. SCDC et al., 2:17-cv-3031 RMG-MGB, Dkt. No. 156 at 7-15.
It appears the documents referenced herein pertain to Lieber Correctional Institution, which is not the relevant SCDC institution in the instant action. Plaintiff's claims arise from his incarceration at Evans Correctional Institution. (Dkt. No. 1-1.)
Critically, the above categories of documents and references cited by Plaintiff lack enough specificity that SCDC could determine what documents are being referenced here. Moreover, as discussed above, SCDC has not kept any record of what information was provided by SCDC to Mr. Roth, and therefore cannot recreate a list of what documents Mr. Roth reviewed to prepare the Report. For these reasons, it is impossible to know whether the documents implicated in those categories and references highlighted above by Plaintiff have been produced or whether SCDC failed to preserve or otherwise failed to produce such documents. However, because Plaintiff has not suffered any prejudice due to the loss of these allegedly missing documents, such findings are not necessary to resolving this sanctions matter.
CONCLUSION
Based on the foregoing, the undersigned recommends Plaintiff has not established prejudice sufficient to award any sanctions under Rule 37(e)(1). See Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 110 (E.D. Va. 2018) (denying sanctions under Rule 37(e)(1) where, inter alia, the party seeking sanctions "has amassed considerable evidence" to support its claims). Likewise, sanctions are not appropriate under Rule 37(e)(2) because the stringent intent requirement under this Rule has not been satisfied. See Fed. R. Civ. P. 37(e)(2) (reserving the harshest discovery sanctions, such as adverse inference instructions, dismissals, or default judgments, only for cases in which the court can "fin[d] that the [spoilating] party acted with the intent to deprive another party of the information's use in the litigation").
Accordingly, the undersigned recommends the Court DENY the portion of Plaintiff's underlying Amended Motion for Sanctions (Dkt. No. 85) seeking sanctions on the basis of loss of ESI.
IT IS SO RECOMMENDED. September 1, 2020 Charleston, South Carolina
/s/_________
MARY GORDON BAKER
UNITED STATES MAGISTRATE JUDGE
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
Post Office Box 835
Charleston, South Carolina 29402
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).