Alvariza v. Home DepotAlvariza v. Home Depot
ORDER CONCERNING OBJECTIONS TO MAGISTRATE JUDGE’S ORDER
This is an employment discrimination ease. This matter is before the court on Plaintiffs’ “Petition for Review of Magistrate’s [sic] Order Denying Plaintiffs’ Motion for Sanctions,” filed on March 14, 2007. Therein, Plaintiffs object to aspects of Magistrate Judge Boyd N. Boland’s March 1, 2007 order denying their “Motion for Sanctions of Adverse Inferences Under Fed. R. Civ. Pro [sic] 37(c).” (Order [filed Mar. 1, 2007] [hereinafter “Order”].)
As Plaintiffs’ motion sought resolution of a discovery dispute, the magistrate judge’s order exclusively addressed non-dis-positive pretrial matters. A district court’s review of a magistrate judge’s decision on a non-dispositive pretrial matter is governed by
At issue in Plaintiffs’ motion was Defendant’s failure to turn over complete personnel records of twenty-two current and former employees pursuant to an out-of-court discovery agreement (hereinafter, the “Agreement”). The Agreement came about after the magistrate judge ordered Defendant to permit its CEO to be deposed regarding Plaintiff Luis Alvariza’s “pretext” argument. The parties subsequently conferred and agreed that Plaintiffs would forgo deposing the CEO in exchange for Defendant’s agreement:
(a) to refrain from opposing Plaintiffs’ Motion for a [forty-nine]-day extension of the deadline for responding to the company’s summary judgment motions; (b) to respond to interrogatories which [sic] [Defendant] contended had not been served by the discovery cut-off ...; (c) to produce ... performance-related documents on comparitors from [twenty-two] additional personnel files that, arguably, had not been previously requested in discovery; (d) to produce ... computer generated*665 information concerning performance on the same [twenty-two] employees; and (e) to provide an additional 30(b)(6) witness to testify about the [twenty-two] individuals and the documents produced.
(Joint Status Report Concerning Discovery Issues Related to Pending Motions H 3 [filed Oct. 18, 2006].) Plaintiffs later filed a motion for sanctions asserting Defendant had failed to turn over “complete” personnel files for each of the twenty-two comparitors. (Mot. for Sanction of Adverse Inferences under Fed. R. Civ. Pro [sic] 37[e] [filed Nov. 6, 2006].) While Defendant asserts it “made extensive, good-faith efforts to locate [the files subject to the Agreement] and has produced each and every available document in its possession,” it admits that performance-related documents were missing from some of the twenty-two comparitors’ files. (Def.’s Resp. to Pis.’ Mot. for Sanction of Adverse Inferences under Fed. R. Civ. Pro [sic] 37[c] at 1, Ex. A 113 [Aff. of Hal Stewart], Ex. C H 5 [Decl. of Joann Compton] [filed Nov. 27, 2006] [hereinafter “Def.’s Resp.”].)
The magistrate judge found:
I am not bound by the agreements of counsel inconsistent with my discovery orders. In particular, I am not required to enforce the [Agreement] at issue here, where [Plaintiffs intentionally abandoned their right under my order compelling a deposition on a wholly unrelated topic in exchange for [Defendant’s] agreement to provide documents never sought through formal discovery.
(Order at 5 [citation omitted].) The magistrate judge then rejected Plaintiffs’ motion on two distinct grounds: (1) it failed under
1.
Plaintiffs first object to the magistrate judge’s determination that
A party that without substantial justification fails to disclose information required by Rule 26(a) or 26(e)(1), or to amend a prior response to discovery as required by Rule 26(e)(2), is not, unless such failure is harmless, permitted to use as evidence at a trial, at a hearing, or on a motion any witness or information not so disclosed.
A court has broad discretion to determine whether a
For the sake of thoroughness, I proceed to consider Plaintiffs’ tenacious, if ill-conceived, objections to underlying aspects of the magistrate judge’s sound determination concerning
As noted above,
Finally, Plaintiffs generally object to the magistrate judge’s determination that
2. Spoliation
Rather than dismiss Plaintiffs’ motion for its failure to comport with the rule under which it was brought, the magistrate judge generously construed Plaintiffs’ motion for sanctions as a spoliation motion. (Order at 6-8.) Nevertheless, the magistrate judge found that Plaintiffs had fallen short of proving entitlement to adverse inferences under the spoliation standard. (Id.) In order to understand Plaintiffs’ spoliation-related objections, it must first be understood that Plaintiffs asserted in their motion for sanctions that Defendant violated
Plaintiffs object to the magistrate judge’s determination that “some intentional misconduct is required to justify the sanction of a negative inference.... [Section] 1602.14 does not impose strict liability where a party has failed to maintain perfect record keeping.” (Order at 8; see Pis.’ Objections fH 14-17.) Plaintiffs assert that “bad faith is not required to support sanctions where documents are destroyed in violation of [section] 1602.14.” (Id. 1116.) In support of then* assertion, Plaintiffs cite to Hicks v. Gates Rubber Co.,
In Hicks, it was the employer’s practice to destroy “clock charts and daily reports.”
Because of Hicks’s silence on the question of intent, Plaintiffs reasonably argue that the mens rea standard articulated in Zimmermann is the proper standard by which to determine whether adverse inferences should be drawn when documents are destroyed in violation of
The magistrate judge specifically considered Hicks and Zimmermann and then determined that “some intentional misconduct is required to justify the sanction of a negative inference.” (See Order at 7-8.) In making this determination, the magistrate judge relied chiefly on Aramburu v. Boeing Co., the case in which the Tenth Circuit first recognized the doctrine of spoliation of evidence:
Although the parties have not directed us to precedent from this circuit on the evidentiary doctrine of spoilation and we cannot locate any such precedent, the general rule is that bad faith destruction of a document relevant to proof of an issue at trial gives rise to an inference that production of the document would have been unfavorable to the party responsible for its destruction. The adverse inference must be predicated on the bad faith of the party destroying the records. Mere negligence*668 in losing or destroying records is not enough because it does not support an inference of consciousness of a weak case.
The magistrate judge determined that Plaintiffs failed to establish that Defendant “destroyed the contents of the disputed personnel files in bad faith or that the destruction actually prejudiced [Pjlaintiffs,” emphasizing that “there is no evidence disputing [Defendant’s] contention that the missing documents were merely lost.” (Order at 6, 8.) It is possible that Plaintiffs objected to this finding when they asserted:
The Magistrate Q]udge also found that Plaintiffs had not demonstrated [Defendant’s] inability to produce material in its possession was merely lost [sic]. Respectfully, the finding is clearly erroneous. [Defendant] agreed to produce a certain sequence of documents. It is an admitted fact that after [Defendant] agreed to provide the material, the material turned up missing. An underlying question goes unanswered if one accepts the Magistrate [j]udge’s reasoning: how can one agree to produce something and then realize it does not have the thing to produce? The only answer can be that the thing has been allowed to disappear, after the thing was said to have existed.
(Pis.’ Objections 1117.) The more sensible answer to the “underlying question” Plaintiffs raise is that while one can agree to produce all the evidence in the world, one can produce only that evidence which one possesses or controls. As noted above, Defendant represented that it “made extensive, good-faith efforts to locate [the documents] and has produced each and every available document in its possession.” (Def.’s Resp. at 1.) To the extent Plaintiffs argue that Defendant’s failure to come forward with documents it agreed to produce is sufficient to overcome the magistrate judge’s determination that “there is no evidence disputing [Defendant’s] contention that the missing documents were merely lost” and thus prove that Defendant intentionally destroyed those documents, I cannot agree. Without more, the mere fact that Defendant agreed to provide certain documents, looked for such documents, and was unable to find them is insufficient to support a reasonable inference of intentional destruction under Plaintiffs reading of Hicks and Zimmerman—let alone an inference of bad faith under Aramburu. After thoroughly reviewing the record, I am left with the firm and definite conviction that the magistrate judge’s order was well-reasoned and well-supported and, thus, must stand.
Based on the foregoing it is therefore ORDERED that:
1. The magistrate judge’s order (# 97) is AFFIRMED.
Notes
. Neither the magistrate judge's order nor Plaintiffs' objections thereto concern other subsections of
. The court notes that Defendant was under no
. In relevant part, the regulation provides:
Any personnel or employment record made or kept by an employer ... shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.