United States District Court, D. Montana, Great Falls Division
FINDINGS AND RECOMMENDATION
Johnston United States Magistrate Judge.
September 10, 2014, Plaintiff David Brewer (“Mr.
Brewer”) filed a Complaint alleging that Defendant BNSF
Railway Company (“BNSF”) wrongfully terminated
his employment on or about December 17, 2012, in retaliation
for his engaging in a protected activity, in violation of 49
U.S.C. § 20109, and that BNSF hindered or interfered
with Mr. Brewer's record supporting termination, in
violation of Mont. Code Ann. § 39-2-703. (Doc. 1). The
parties in this action have undergone extensive motions
practice, mostly related to the discovery of BNSF's
electronically stored information (“ESI”). On
February 14, 2018, the District Court ordered that Mr.
Brewer's most recent Amended and Renewed Motion to Permit
Discovery and Compel Production of Noncustodial ESI be
denied. (Doc. 280).
January 12, 2018, Mr. Brewer filed the instant Motion for
Discovery Sanctions Pursuant to Fed.R.Civ.P. 37. (Doc. 261).
The motion argues in sum that BNSF intentionally and
purposefully destroyed or otherwise spoliated evidence
related to Mr. Brewer's claims, and requests that the
Court enter judgment in his favor as a sanction for
BNSF's conduct. On January 26, 2018, BNSF filed its Brief
in Opposition to Plaintiff's Motion for Discovery
Sanctions. (Doc. 265). Mr. Brewer filed his Reply brief on
February 9, 2018. (Doc. 274). The motion has been fully
briefed and is ripe for adjudication.
to Federal Rule of Civil Procedure 37(e), a court may
sanction a party who fails to preserve ESI:
electronically stored information is lost because a party
failed to take reasonable steps to preserve stored
information that should have been preserved in the
anticipation or conduct of litigation rve it, and it cannot
be restored or replaced through additional discovery, the
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information's use in the
(A) presume that the lost information was unfavorable to the
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
party may destroy evidence in the ordinary course of business
based on its document retention policies, such destruction is
prohibited if the party is “on notice” of
potential litigation. United States v. Kitsap Physicians
Serv., 314 P.3d 995, 1001 (9th Cir. 2002).
three types of sanctions exist for the spoliation of
evidence: (1) judgment against the party who is responsible
for the spoliation; (2) the exclusion of evidence or witness
testimony corresponding to the evidence destroyed; or (3) an
adverse jury instruction. Kopitar v. Nationwide Mut. Ins.
Co., 266 F.R.D. 493, 499-500 (E.D. Cal. 2010) (citing
various opinions by the Ninth Circuit, Seventh Circuit, and
United States Supreme Court). Sanctions may only be imposed
if “a party knew, or reasonably should have known, that
the spoliated evidence was potentially relevant to a
claim.” Peschel v. City of Missoula, 664
F.Supp.2d 1137, 1141 (D. Mont. 2009) (citing Glover v.
BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993)).
the most drastic sanction of default judgment requires a
court to find “willfulness, fault, or bad faith”
on the part of the party who destroyed the evidence. Leon
v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006)
(citing Anheuser-Busch, Inc. v. Natural Beverage
Distributors, 69 F.3d 337, 348 (9th Cir.
Judgment in favor of the non-spoliating party may also be
appropriate if the destruction of the evidence “relates
to the matters in controversy in such a way as to interfere
with the rightful decision of the case.” United
States v. Natl. Med. Enterprises, Inc., 792 F.2d 906,
912 (9th Cir. 1986) (citations omitted). In determining
whether a dispositive sanction is appropriate under Rule 37,
a court should consider the factors set out by the Ninth
(1) the public's interest in expeditious resolution of
(2) the court's need to manage its dockets;
(3) the risk of prejudice to the party seeking ...