Summary Judgment Not Avoided By Reviving Past Discovery Disputes; Court Criticizes Plaintiff’s Overly Broad Pre-Suit Preservation Letter

Turner v. Resort Condos. Int’l, LLC, 2006 WL 1990379 (S.D. Ind. July 13, 2006)

In this opinion, the court granted defendants’ motion for summary judgment on plaintiff’s pregnancy discrimination claim, and denied plaintiff’s motion for sanctions based on alleged discovery abuses. In ruling on the motion for summary judgment, the court found that plaintiff had not come forward with any evidence that raised a reasonable dispute about the reasons behind her termination. “She has noted the use of two font sizes on a single document and metadata suggesting that one of the [Reduction in Force] lists was modified after the lawsuit was filed. However, the most recent document production and the deposition testimony of RCI’s in-house information technology witness establish that at least nine emails confirmed Turner’s inclusion in the RIF before she told anyone at RCI that she was pregnant.”

The court stated that, on the existing record, the grant of summary judgment was “inevitable.” It further criticized plaintiff’s attempt to avoid summary judgment through the revival of the parties’ past discovery disputes:

In connection with her response to the motion for summary judgment, plaintiff Turner has tried to revive some discovery disputes, which have been numerous and prolonged in this case, beginning with a pre-suit letter from plaintiff’s counsel demanding that RCI for an indefinite time not modify or delete any electronic data in any mainframe, desktop, or laptop computers, or other storage media or devices, and not upgrade or replace any equipment or software. The letter also demanded that RCI immediately copy hard drives on personal computers and save any data created after the letter was received.

Concerns about preservation of evidence, and especially electronic evidence, are legitimate and understandable, but the pre-suit letter did not accommodate the routine day-to-day needs of a business with a complex computer network and demanded actions by RCI that went well beyond its legal obligations under 29 C.F.R. § 1602.14 and under its more general duty to avoid deliberate destruction of evidence.

The court cited the pending amendments to the Federal Rules of Civil Procedure, and noted that proposed Rule 37(f) recognizes that discovery should not prevent continued routine operation of computer systems: "Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system."

The court went on to describe the various discovery disputes, and concluded that plaintiff had ample opportunity to discover evidence that would support her claims. Thus, the court declined to order any further discovery. However, in ruling on plaintiff’s motion for sanctions, the court found it “problematic” that defendant had only produced certain information after plaintiff had filed a motion to compel:

In light of all these circumstances, including the fact that RCI is entitled to a final judgment in its favor, the court might award sanctions against defendant based on belated production, followed by a sizable award of costs under Rule 54(d) against plaintiff and in favor of defendant as the prevailing party. The court finds instead that plaintiff should not recover discovery sanctions and that defendant should not recover its costs from plaintiff under Rule 54(d). In essence, both sides share some responsibility for the extraordinary and disproportionate expense and effort devoted to discovery and the attendant disputes here. It would be unjust to inflict more expense on either side, let alone to devote more litigation energy and expense to the precise allocation of costs in both directions. It is time to put this litigation to an end.

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