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Brown v. West Corporation

United States District Court, Eighth Circuit

December 4, 2013

REX BROWN, Plaintiff,
v.
WEST CORPORATION, a Delaware corporation, Defendant.

MEMORANDUM AND ORDER

LYLE E. STROM, Senior District Judge.

This matter is before the Court on plaintiff's Motion for Sanctions (Filing No. 126) and Objection to Magistrate Judge's Order (Filing No. 132).

I. Background

On November 5, 2012, this Court issued an order (Filing No. 85) on plaintiff's motion to compel (Filing No. 34). One of the issues addressed in that order was the sufficiency of West's search for Electronically Stored Information. The Court held that the litigation hold memo directing its employees to search for relevant materials was itself privileged but that much of the information surrounding the memo was not. Concerned that it could not make a determination of whether plaintiff's motion to compel was valid on the information available at that time, the Court ordered the defendant to provide plaintiff with many specific pieces of information about the searches defendant had conducted. The purpose of this disclosure was to lay bare the defendant's search process and expose any deficiencies that might be a basis for plaintiff's motion to compel a more stringent search of potentially relevant ESI for preservation. On November 21, 2012, defendant sent a letter to plaintiff's counsel detailing the search process it undertook in an effort to respond to plaintiff's production request and explaining that West's system does not allow for a "global search" of all electronic information in West's possession.

The parties later submitted a joint proposal for resolution of production disputes to Magistrate Judge Thalken. That submission specifically excluded disputes over compliance with this Court's November 5, 2012, order - reserving for this Court all rulings regarding its prior order. The plaintiff now seeks sanctions per Federal Rule 37(b), alleging defendant has failed to comply with the November 5, 2012, order. In addition, plaintiff seeks to overturn the Magistrate Judge's order limiting additional discovery.

II. Sanctions

A. Legal Standard

Rule 37(b) provides a number of discretionary sanctions for failing to comply with a court's order compelling discovery. Fed.R.Civ.P. 37(b). Rule 37(b) also provides for attorney's fees and other reasonable expenses for a "disobedient party." Id. Finally, the Court has an inherent power to impose sanctions for "willful disobedience of a court order" or "when a party has acted in bad faith, vexatiously, wantonly or for oppressive reasons.'" Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991) (quoting Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 258-259 (1975)).

An adverse jury instruction, like the one requested by plaintiff, predicated on spoilation of evidence is only appropriate where the Court finds "intentional destruction indicating a desire to suppress the truth [and] prejudice to the opposing party." Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 460 (8th Cir. 2013).

B. Discussion

The Court's November 5, 2012, order recognized that plaintiff's Request No. 13 covered potentially relevant information. However, the Court did not grant plaintiff's motion to compel. Rather, the Court noted that "information relevant to the scope and depth of the preservation or the search must be disclosed in detail so that precise objections can be made and so that defendant's search can be effectively reviewed by this Court." Brown v. W. Corp., 287 F.R.D. 494, 499-500 (D. Neb. 2012). While it is true that defendant has not explicitly touched on each item in the Court's November 5, 2012, order, defendant's responses have addressed the substance of the Court's concerns by explaining the process by which West employees were directed to identify, preserve, and search potentially relevant materials.

Implicit in the order was that the defendant should produce any information touching on each enumerated category if any exist. For instance, to the extent that plaintiff complains that defendant failed to "elaborate on general categories of documents, " he fails to recognize that defendant's letter indicated a communication to potential holders of ESI that they keep "any document, in any form, regardless of where it is stored, that may be related in some way to the allegations in the complaint or Mr. Brown and his employment at West." Defendant has complied with the Court's order to supply information about their document retention practices.

Plaintiff misapprehends the meaning of the order when he suggests defendant has failed to comply because it has not informed plaintiff of which sources were searched in response to his specific discovery requests. The order was aimed at identifying sources searched for potentially relevant information at the preservation stage, not at identifying the sources for later searches of preserved documents that occurred in response to specific discovery requests. Plaintiff agreed to submit further search disputes of the preserved information to the Magistrate Judge. The November 5, 2012, order directed the defendant to provide sufficient evidence to overcome some concerns the Court had regarding its preservation and search protocols. The defendant's responses allayed those concerns. The order did not place an ongoing burden on the plaintiff to unequivocally establish the propriety of its searches. Without further evidence from the plaintiff identifying specific materials that he believes are being withheld or that remain unproduced due to a flaw in defendant's search, the Court finds no reason to require more from the defendant by way of evidence of a proper search.

Plaintiff also argues two spoilation issues. First, that defendant failed to preserve information by allowing the automatic deletion of e-mails from West's servers, and second, by erasing data from the ...


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