Evans v. Mobile Cnty. Health Dept., No. CA 10-0600-WS-C, 2012 WL 206141 (S.D. Ala. Jan. 24, 2012)
In this case, the defendant sought to compel the production of additional information and sanctions for plaintiff’s destruction of her computer. Following its analysis of the facts, including plaintiff’s admission that the computer used during the time of her alleged harassment had been burned and replaced, the court granted defendant’s motions and compelled production of additional ESI as well as plaintiff’s new computer and imposed sanctions, including an adverse inference instruction.
Plaintiff sued the Mobile County Health Department alleging reverse discrimination. In the course of discovery, the defendant requested production of all documents, including ESI, related to the allegations contained in the complaint. Thereafter, the court entered a scheduling order which included specific instruction for plaintiff to preserve relevant information. Initially, plaintiff made no production, but eventually produced a small number of documents at her deposition and admitted to the existence of others, including emails. Despite the fact that plaintiff would ultimately claim that her computer had been destroyed, she did not reveal the destruction at her deposition.
Following plaintiff’s deposition, defendant revived its request that plaintiff produce ESI in her possession, including information she described at deposition, and requested that plaintiff allow defendant to inspect her personal computer. When repeated requests produced unsatisfactory results, defendant filed a motion to compel. Several days later, plaintiff’s counsel revealed the destruction of plaintiff’s computer for the first time. Subsequently, plaintiff revealed that that her 13-year-old computer had crashed sometime in June or July 2011, approximately eight months after her complaint was filed. She further alleged that after taking the computer to Best Buy’s “Geek Squad” she was advised to “just buy another computer” and thus burned her computer because of the personal information it contained and the “threat of identity theft.” She also purchased a new computer. Accordingly, defendant filed a motion for sanctions and requested dismissal of plaintiff’s case.
Addressing first defendant’s motion to compel, the court did not find plaintiff’s claims that she had produced all relevant information credible, particularly in light of her deposition testimony that additional responsive ESI existed which had not been produced. Accordingly, following the court’s discussion of plaintiff’s discovery violations and after noting the likely availability of additional relevant emails from plaintiff’s web-based email account (which would have been unaffected by plaintiff’s spoliation of her hard drive), the court ordered plaintiff to produce “all emails from her personal email account on ‘gmail.com’ that would be available through the provider regardless of when the computer was destroyed.” The court further ordered production of plaintiff’s new computer for inspection, production of a relevant notebook and that plaintiff pay defendant’s reasonable fees and expenses associated with the motion.
Turning then to defendant’s motion for sanctions, the court first identified the relevant legal standard and noted that because the Eleventh Circuit had not set forth specific guidelines for the imposition of sanctions, courts may look to state law, provided the law is consistent with federal standards that do exist—in this case, the law of Alabama. In the Eleventh Circuit, dismissal is a severe sanction only available upon a showing of bad faith. As the court explained, such a showing does not require malice, but rather, “in determining whether there is bad faith, a court should weight the degree of the spoliator’s culpability against the prejudice to the opposing party.”
According to the Alabama Supreme Court, the factors that must be applied when analyzing a request for spoliation sanctions are: the importance of the evidence destroyed, the culpability of the party, fundamental fairness, alternative sources for the information destroyed, and the possible effectiveness of sanctions less severe than dismissal. Taking those factors into account in the present case, the court determined that the plaintiff had spoliated evidence in bad faith (based on plaintiff’s “high level of culpability” combined with the prejudice to the defendant) but that dismissal was not warranted. Instead, noting that this was not a case in which the spoliation left the defendant unable to defend against plaintiff’s allegations, the court ordered an adverse inference instruction to be given at trial (provided plaintiff survived summary judgment) and that plaintiff pay the fees and costs associated with defendant’s motion for sanctions.