                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA




JOSEPH JONES et al.,

               Plaintiffs,

               v.                                   Civil Action No. 07-855 (HHK/JMF)

KIP HAWLEY et al.,

               Defendants.




                                 MEMORANDUM OPINION

       This case is before me for resolution of Defendants= Motion for Preclusion of

Evidence Not Disclosed During Discovery (ADefs. Mot.@) [#19]. For the reasons stated

herein, defendants= motion will be granted.

                                    INTRODUCTION

       Plaintiffs are four individual transportation security officers who work for the

Transportation Security Administration (ATSA@). Class Action Complaint at 4-5.

Plaintiffs claim that Kip Hawley, Administrator of the TSA, and others failed to

safeguard their personnel records, in violation of the Aviation and Transportation

Security Act and the Privacy Act of 1974. Id. at 2. Specifically, plaintiffs claim that the

TSA lost a hard drive that contained information such as their names, social security

numbers, dates of birth, payroll information, financial allotments, and bank account and

routing information. Id. at 7.

                                      DISCUSSION

       Plaintiffs do not deny that, as defendants charge, they:
       1.        Failed to preserve and produce documents relevant to their claim,

although they admitted that they had such documents in their possession.

       2.        Indicated that they had no responsive documents in their response to the

defendants’ Request to Produce Documents, although their other responses to discovery

indicated that they did.

       3.        Never searched for documents that the defendants demanded, except for

one plaintiff, who limited his search to what he described as information that was

Areasonably accessible.@ Defs. Mot. at 5-6 (quoting deposition of plaintiff Soulia at 105).

       4.        Indicated that they would supplement their responses to the interrogatories

but never did.

       Plaintiffs resist the imposition of any sanctions for these derelictions on the

grounds that, while they concede that they did not maintain and produce documents that

would corroborate their claim of being damaged, defendants have no suffered any harm

because Athe Defendants are not hampered in any way from presenting their case by the

lack of these barely relevant documents.@ Plaintiff=s Opposition to Defendants= Motion

for Preclusion of Evidence Not Disclosed During Discovery at 6.

       That argument misapprehends that a fundamental purpose of discovery is to

secure information that will impeach or contradict an opponent=s case. Plaintiffs cannot

be seriously arguing that such information does not meet the discovery standard of Rule

26(b)(1) of the Federal Rules of Civil Procedure of being relevant or likely to lead to

relevant evidence. It certainly does. See Kerr v. United States District Court, 511 F.2d

192, 196-97 (9th Cir. 1975) (AIn addition to discovering information pertaining to a

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party's case in chief, it is entirely proper to obtain information for other purposes such as

cross-examination of adverse witnesses.@). Since the plaintiffs have lost information that

they were unquestionably required to preserve and produce, the question becomes what

remedy is appropriate for the Court to impose.

       The Federal Rules of Civil Procedure do not contain a provision specifying a

remedy for the failure to preserve evidence but, as I noted in a previous opinion, A[i]t is

settled beyond all question that at common law the destruction, alteration, or failure to

preserve evidence in pending or reasonably foreseeable litigation warrants the finder of

fact inferring that the destroyed evidence would have been favorable to the opposing

party.@ Ashford v. E. Coast Express Eviction, No. 06-CV-1561, 2008 WL 4517177, at *2

(D.D.C. Oct. 8, 2008) (citing United Med. Supply Co., Inc. v. United States, 77 Fed. Cl.

257, 263 (2007)). See also Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1481 (D. C. Cir.

1995) (holding that each party has A>an obligation to preserve and also not to alter

documents it knew or reasonably should have known were relevant . . . if it knew the

destruction or alteration of those documents would prejudice [its opponent].=@) (internal

quotations omitted). A[A] court may employ an adverse inference due to a party's >failure

to preserve evidence,= even if deliberate or reckless conduct is not present.@ More v.

Snow, 480 F. Supp. 2d 257, 275 (D.D.C. 2007) (citations omitted); Miller v. Holzmann,

No. 95-CV-1231, 2007 WL 172327, at *3 (D.D.C. Jan. 17, 2007) (AIt is the law of this

Circuit that a party has an obligation to preserve evidence it knew or reasonably should

have known was relevant to the litigation and the destruction of which would prejudice

the other party to that litigation.@). Before allowing an adverse inference however, Athe

court should consider the >degree of negligence or bad faith involved, the importance of

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the evidence involved, the importance of the evidence lost to the issues at hand, and the

availability of other proof enabling the party deprived of the evidence to make the same

point.=@ Id.

           Moreover, the efficacy of the drawing of such an inference in this case has to be a

function of its present status. The defendants have moved for summary judgment

arguing, inter alia, that the statute under which plaintiffs proceed, the Privacy Act, 5

U.S.C. ' 522 (a)(g)(1)(D), 1 requires that they establish that the defendants= failure to

comply with the Act caused an adverse effect, but only to the extent of the actual damage

they sustained. Defendants= Motion for Summary Judgment at 24. Defendants then argue

that the granting of the motion that is the subject of this Opinion should lead to the

preclusion of plaintiffs= presenting any evidence of damages and without any proof of

damages, defendants= motion must be granted. Id. at 25-26. Defendants also argue that

plaintiffs’ claims are conclusory. Id. at 27-28.

           Plaintiffs oppose the relief sought by the defendants in the motion before me by

asserting that Athey incurred >actual damages= although not financial loss.” Plaintiffs=

Opposition to Defendants= Motion for Summary Judgment (“Plains. Opp. SJ”) at 11.

They claim to have experienced concern and worry about their potential liability for

fraudulent debts due to the disclosure of the information on the hard drive and about any

future financial harm they may incur. Id.

           In reply, citing inter alia, Rice v. United States, 245 F.R.D. 3, 6-7 (D.D.C. 2007),

defendants argue that the plaintiffs= concerns about what may happen to them are


1
    All references to the United States Code are to the version that appears in Westlaw or Lexis.


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insufficient as a matter of law to satisfy the requirement of showing actual damage under

the Privacy Act. Reply in Support of Defendants= Motion for Summary Judgment at 12.

       Given the briefing relating to defendants’ motion for summary judgment, the

government=s request for sanctions may be unnecessary. If Judge Kennedy construes the

evidence in the light most favorable to the plaintiffs, who are opposing the motion for

summary judgment, but still finds their allegations of harm insufficient on their face to

establish actual damages, the case will be dismissed whether or not plaintiffs are

sanctioned. There is, however, one aspect of this matter that, in my view, requires the

imposition of sanctions.

        In support of their contention that plaintiffs experienced Aaggravation, worry or

concern@ because of the loss of the hard drive, plaintiffs reference AAttachment 1 and 2.@

Plains. Opp. SJ at 11. Attachment 1 contains the interrogatory responses of plaintiffs

Nagel, Soulia and Thomas while Attachment 2 is the interrogatory response of Jones.

Those responses contain allegations of more specific harm than the general concern to

which plaintiffs refer in their opposition to the motion for summary judgment. The

following chart indicates the specific harm of which each plaintiff complains as well as

the plaintiffs’ admissions that while they once had the relevant documents, they no longer

do and therefore never produced them during discovery:

 Plaintiff     Allegations of Specific Harm           Admission


 Thomas        Because he was president of            Admitted that he once had
               American Federation of                 documents, including e-mails,
               Government Employees local,            related to securing bank and credit
               fellow members called him with         accounts. Reply in Support of
               questions about the consequence of     Defendants= Motion for Preclusion
               the loss of the hard drive. He had     of Evidence Not Disclosed During

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                to tell his wife that she could not     Discovery (“Defs. Reply”) at 6
                use their debit card for a few days.    (citing Thomas Deposition at 240).
 Nagel          She was forced to quit her job          Admitted that she once had
                because she felt that the TSA           documents pertaining to her efforts
                broke its faith with her. Her           to secure other employment. Defs.
                account was frozen at the credit        Reply at 6 (quoting Nagel
                union causing the teller to say that    Deposition at 87).
                she was trying to access her
                account illegally. Although the
                teller over-rode the freeze, she was
                embarrassed by the reaction of
                other persons and inconvenienced
                because accessing her account took
                more time than normal.
 Soulia         Application for car loan almost did     Admitted that she once had a loan
                not go through and she was              pre-approval letter, an e-mail
                required to spend more time             request to a car dealer, and
                processing the loan than normal.        voicemail messages relating to
                To get the apartment in San Diego       securing a car loan on which her
                she wanted, she had to cancel the       damages claim for personal time is
                identity theft protection and all the   based. Defs. Reply at 6 (citing
                alerts on her bank account and          Soulia Deposition at 121).
                credit cards.

         Plaintiffs= failing to preserve these documents has deprived the defendants of

fundamental information that could have been used to investigate the bona fides of

plaintiffs’ claims. Their negligence is inexcusable. The documents go to the very heart

of their claims for damages, and there is no substitute for them which the defendants

could use or find. I therefore conclude that defendants are entitled to the adverse

inference they seek and I therefore will order that, as to the allegations made in what

plaintiffs call Attachments 1 and 2, i.e., their interrogatory responses, the inference will

be drawn that, had the plaintiffs kept and produced the documents at issue, their contents

would be adverse to their allegations.




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       Finally, I note that, as I emphasized above, whether sanctions should be imposed

is a function of the status of the case. I believe that the government should be able to

renew its motion that all evidence of actual damages be precluded at trial, if plaintiffs=

case should survive summary judgment.

       An Order accompanies this Memorandum Opinion.



                                                          /S/
                                               JOHN M. FACCIOLA
                                               UNITED STATES MAGISTRATE JUDGE
Dated: January 12, 2009




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