United States District Court, D. Montana, Great Falls Division
Morris United States District Court Judge
David Brewer filed a Motion for Discovery Sanctions pursuant
to Federal Rule of Civil Procedure 37 on January 12, 2018.
(Doc. 261.) United States Magistrate Judge John T. Johnston
issued Findings and Recommendations in this matter on
February 27, 2018. (Doc. 285.) Judge Johnston recommended
that the Court deny Brewer's request. Id. at 15.
party makes no objections, the Court need not review de
novo the proposed Findings and Recommendations.
Thomas v. Arn, 474 U.S. 140, 149-52 (1986). This
Court will review Judge Lynch's Findings and
Recommendations, however, for clear error. McDonnell
Douglas Corp. v. Commodore Bus. Mach., Inc., 656 F.2d
1309, 1313 (9th Cir. 1981).
Rule of Civil Procedure 37(e) governs when a court may
sanction a party who fails to preserve electronically stored
information (“ESI”). A party may destroy evidence
in the ordinary course of business based on its document
retention policies, but a party may not destroy documents if
the party has “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 remains 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).
sanction of default judgment requires a court to find
“willfulness, fault, or bad faith” by the party
that destroyed the evidence. Leon v. IDX Systems
Corp., 464 F.3d 951, 958 (9th Cir. 2006). The Ninth
Circuit has determined that a court must consider the
following factors before issuing a dispositive sanction: (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 sanctions; (4)
the public policy favoring disposition of cases on their
merits; and (5) the availability of less drastic sanctions.
contends that BNSF had a duty to preserve relevant ESI and
failed to do so. BNSF failed to “migrate” its
emails from one server to another, and did not retain
specific devices from current and former employees, which may
have had non-duplicative ESI saved on the device itself.
Brewer argues that BNSF had its own process of designating
computers subject to re-formatting and preserving them, but
failed to follow that process in this matter. Brewer further
argues that this failure prevents him from proving his claims
or disputing BNSF's asserted defenses.
37(e) requires a court to inquire whether the ESI should have
been preserved in anticipation of litigation and whether the
ESI can be restored or replaced through additional discovery.
Brewer argues that BNSF received notice of litigation when he
filed his complaint with OSHA on February 19, 2013. Brewer
officially filed his Complaint against BNSF on September 10,
2014. BNSF does not dispute Brewer's contentions. Judge
Johnston determined, and this Court agrees, that Brewer
fulfilled the notice element of a Rule 37(e) motion. (Doc.
285 at 6.) BNSF needed to preserve relevant ESI in
anticipation of litigation as of February 2013.
must next inquire into whether the party seeking sanctions
can show that it suffered prejudice from the loss of
information. Fed.R.Civ.P. 37(e)(1). Upon a finding of
prejudice, a court “may order measures no greater than
necessary to cure the prejudice.” Id. Judge
Johnston determined that the alleged spoliation in this case
does not warrant a default sanction. (Doc. 285 at 8.) The
Court agrees. Brewer fails to specify what information he
believes has been wrongfully withheld or not preserved.
Id. Judge Johnston determined that without
specificity of relevant documents that are missing or being
withheld, the Court cannot determine actual prejudice.
Id. at 9.
points to the deposition of BNSF's trainmaster, Connan
Moler, as a specific example of BNSF's failure to
preserve ESI. Judge Johnston determined, and the Court
agrees, that Brewer has not shown how the ESI he presumes to
be missing will prevent him from going to trial or threaten
to interfere with the rightful outcome of the case.
Id. Judge Johnston further determined that any
claims of prejudice related to Moler are ineffective because
the Court previously ruled that Moler's devices are
beyond the scope of discovery. Id. at 10. Brewer has
not shown that he suffered prejudice so great as to amount to
a default sanction.