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Brewer v. BNSF Railway Co.

United States District Court, D. Montana, Great Falls Division

February 27, 2018

DAVID BREWER, Plaintiff,
v.
BNSF RAILWAY COMPANY, a Delaware Corporation, Defendant.

          FINDINGS AND RECOMMENDATION

          John Johnston United States Magistrate Judge.

         I. BACKGROUND

         On 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).

         On 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.

         II. LEGAL STANDARD

         According to Federal Rule of Civil Procedure 37(e), a court may sanction a party who fails to preserve ESI:

         If 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 court:

(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 litigation may:
(A) presume that the lost information was unfavorable to the party;
(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.

         While a 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).

         Generally, 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)).

         Importantly, 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.

         1995). 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 Circuit:

(1) the public's interest in expeditious resolution of litigation;
(2) the court's need to manage its dockets;
(3) the risk of prejudice to the party seeking ...

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