                        UNITED STATES DISTRICT COURT
                        FOR THE DISTRICT OF COLUMBIA



AUDREY D’ONOFRIO,

                       Plaintiff,

                v.                                   Civil Action No. 06-687 (JDB/JMF)


SFX SPORTS GROUP, INC., et al.

                       Defendants.



       MEMORANDUM OPINION and REPORT & RECOMMENDATION

       This case has been referred to me by Judge Bates for the resolution of discovery

disputes. Currently pending before the Court is Plaintiff’s Motion for Sanctions and

Spoliation Instruction/ Inference [#123]. A portion of this opinion addresses plaintiff’s

request for dispositive relief. Thus, a portion of this opinion is a report and

recommendation to Judge Bates.

I. Background

       This lawsuit involves claims by plaintiff, Audrey (Shebby) D’Onofrio, that her

employer, SFX Sports Group, Inc. (“SFX”),1 discriminated against her because she is a

woman. Plaintiff also alleges that she was subjected to a hostile work environment and

then was terminated in retaliation for her protected activities. She brings this lawsuit

under the District of Columbia Human Rights Act (“DCHRA”), the Equal Pay Act, and

the District of Columbia Family Medical Leave Act.


1
 Plaintiff also names as defendants SFX’s parent corporation, Clear Channel
Communications, Inc. (“Clear Channel”) (currently operating as Live Nation, Inc.), Dan
Rosier, former Chief Financial Officer for SFX, and Kimberly Wray, head of Human
Resources for Clear Channel.
       Discovery in this case has been fractious. An extensive discussion of the

procedural history of the discovery disputes may be found in my prior opinions in this

case. See, e.g., D’Onofrio v. SFX Sports Group, Inc., 247 F.R.D. 43, 44-45 (D.D.C.

2008) (hereinafter “D’Onofrio I”); D’Onofrio v. SFX Sports Group, Inc., 254 F.R.D. 129,

129-34 (D.D.C. 2008) (hereinafter “D’Onofrio II”); and D’Onofrio v. SFX Sports Group,

Inc., 256 F.R.D. 277, 278-79 (D.D.C. 2009) (hereinafter “D’Onofrio III”). I will provide

a brief summary.

       The parties encountered trouble in the discovery process as early as September

15, 2006, when plaintiff filed her Motion To Compel Discovery, for Sanctions and for

Enlargement of Time for Discovery [#16] (“First Motion”). D’Onofrio I, 247 F.R.D. at

44. Intervention by Judge Bates failed to resolve the disputes, and on October 26, 2006,

Judge Bates issued an order setting forth a schedule to address disputed discovery issues.

D’Onofrio I, 247 F.R.D. at 44 (citing Bates Order, 10/26/06). On November 8, 2006,

plaintiff filed her Memorandum Regarding Electronic Discovery Issues and Enlargement

of Time for Discovery [#25] (“Plaintiff’s E-Discovery Memo.”). Id. In this

memorandum, plaintiff informed the court that she wished to employ a forensic expert.2

Id. (citing Plaintiff’s E-Discovery Memo. 1-2).

       Judge Bates continued to push the parties towards a resolution of their disputes,

ordering the parties to meet and confer and submit proposed discovery schedules to the


2
  Plaintiff sought electronic documents from her former employer - items one might
expect to find on a computer or server. D’Onofrio III, 256 F.R.D. at 278. Plaintiff had
been told by defendants that no responsive documents existed, that her computer had
been thrown away, and that her file on the server was empty. Id. Later, defendants
notified plaintiff that there was a back-up e-mail server, and plaintiff wanted to enlist the
help of forensics experts to determine whether a forensic search of the “Legato” and local
servers might recover the lost data. Id. The Legato server is discussed in more detail
later in this opinion.


                                              2
Court. Id. (citing Bates Order, 11/9/06; Bates Order, 1/4/07). Nevertheless, plaintiff filed

her Memorandum Regarding Discovery Conference and Status of Discovery [#29]

(“Plaintiff’s Memo. on Discovery”), notifying the Court that the parties could not reach a

resolution and that plaintiff continued to seek Court action to compel discovery and to

employ a forensic expert. Id. (citing Plaintiff’s Memo. on Discovery 1). Judge Bates

again ordered cooperation among the parties, but to no avail; the plaintiff continued to

complain about defendants’ discovery failures, alleging that defendants may have

engaged in improper conduct concerning discovery. Id. (internal citations omitted). After

another status conferences with Judge Bates, plaintiff filed Plaintiff’s Second Motion to

Compel Discovery, and for Sanctions [#35]. Id. at 45. Judge Bates referred the matter to

me, and I attempted to resolve the motion. I ordered an evidentiary hearing on the issue

of spoliation of electronically stored information (“ESI”). D’Onofrio I 247 F.R.D. at 49.

       A. Evidentiary Hearing

       The evidentiary hearing was “held on April 4, 2008 for the purpose of

determining: ‘(a) the basis for the [ ] conclusion that email and other electronically stored

information have not been produced; (b) testimony from plaintiff as to what

electronically stored information she believes has not been produced; and (c) the

circumstances concerning the scrapping of plaintiff’s computer and the consequences

thereof in light of any demand made by plaintiff to preserve its contents.’” D’Onofrio II,

254 F.R.D. at 129-30 (citing D’Onofrio I, 247 F.R.D. at 49).

       At the hearing, plaintiff presented Mr. Douglas Bond, a forensic computer

analyst, who plaintiff retained as an expert in this matter. D’Onofrio II, 254 F.R.D. at 130

(citing Transcript of Evidentiary Hearing-Morning Session 4:17-25 (Apr. 4, 2008) (“AM




                                              3
Tr.”)). Mr. Bond testified that he might be able to locate electronically stored

information on the defendants’ servers using forensic techniques. Id. (citing AM Tr.

28:1-13). Bond further explained that his investigation is best done in person. AM Tr.

34:7-15. The defendants agreed to allow an in-person search of the defendants’ servers,

but the parties were unable to come to an agreement as to the appropriate protocol to

guide that search. D’Onofrio II, 254 F.R.D. at 130.

       At the evidentiary hearing, I also heard evidence concerning plaintiff’s spoliation

allegations. D’Onofrio II, 254 F.R.D. at 130. Defendants called Mr. John Cavender, who

is a security officer with Clear Channel Communications. Mr. Cavender testified to what

searches for electronically stored information he performed in response to plaintiff’s

discovery requests and explained the defendants’ Legato system. Id. Defendants also

called Mr. Eugene Mason, who is Vice President of Finance at SFX Basketball. Mr.

Mason testified that he is the “de facto I.T. person” in the office where plaintiff was

employed. Id. (citing Transcript of Evidentiary Hearing-Morning Session 72:22-24 (Apr.

4, 2008) (“PM Tr.”)). Mr. Mason also testified that he “scrapped” plaintiff’s computer

after he decided that it could not be used and also searched for items requested by the

plaintiff. Id. (citing PM Tr. 77:1-12).

       After the hearing, defendants filed motions for leave to file supplemental

briefings. D’Onofrio II, 254 F.R.D. at 130. I denied the motions; however, I recognized

that after the forensic search was completed and the extent of any lost ESI was

determined, supplemental briefing might be warranted. Id.




                                              4
       B. The Search

       Prior to the search, I crafted a protocol for the search. D’Onofrio II, 254 F.R.D. at

130. In doing so, I determined that reproducing the prior searches conducted by

defendants, as proposed by defendants, was “not likely to produce all of the

electronically stored information that plaintiff legitimately demanded.” Id. at 131. I came

to this conclusion for several reasons. First, defendants’ first search was limited to e-

mails sent and received by plaintiff. See id. (citing PM Tr. 32:4-24). Second, plaintiff

has testified that she kept several back-ups of electronic files both on disks and in hard

copy in her office and that she had only used the discarded computer for a short time

because it was a replacement for an older model that crashed. Id. (citing AM Tr. 78:11-

14; PM Tr. 74:6-11). I was not, however, aware of any efforts taken to locate and

produce the back-ups, hard copies, or restore the crashed computer. Lastly, defendants’

witness testified that the first time that he was asked to make a copy of the plaintiff’s file

on the server was in March of 2008, a full two years after this case was filed, and one and

a half years after plaintiff filed her first motion to compel discovery. Id. (citing PM Tr.

90:3-21).

       As will be established later, defendants, at a minimum, also failed to implement

appropriately a litigation hold after plaintiff notified Clear Channel in October 2005 that

she intended to file suit. I therefore crafted a protocol that permitted plaintiff’s “expert to

conduct a diligent search of all potential repositories of electronically stored information

that [were] likely to yield information that [was] responsive to plaintiff’s discovery

demands.” Id. at 132. I determined that plaintiff’s expert must be permitted to search any

depository of electronically stored information that may contain the following: “(1) e-




                                               5
mails to or from plaintiff to include e-mails in which her name appears in the “cc” or

“bcc” lines; (2) e-mail in which her name is mentioned; (3) electronically stored

information created by her; (4) electronically stored information sent to her, again

whether sent to her directly or as one of other recipients; (5) electronically stored

information in which her name appears, whether her full name or her first or last name or

initials.” Id. I also required defendants to restore electronically stored information newly

discovered during the search, if such restoration was necessary to render it “reasonably

usable,” in accordance with Rule 34(b)(2)(E)(ii) of the Federal Rules of Civil Procedure.

Id. I defined reasonably usable as “capable of being read on a computer using either

commonly available word processing software, such as Word or Word Perfect, e-mail

software such as Outlook or Lotus Notes, or Adobe Acrobat Reader and without the

necessity of having to buy other software because only that software renders the restored

e-mail.” Id. Defendants agreed to pay $10,000 for the expert’s search; however, I

indicated I would determine how to allocate costs in excess of $10,000. Id.

       C. Privilege Review

       The searches yielded hundreds of thousands of documents. D’Onofrio II, 254

F.R.D. at 133 (citing Joint Motion for Extension of Time to Enlarge Time to Comply

[#95] at 1). The protocol I crafted for the search allowed defense counsel several weeks

to conduct privilege review of the documents recovered by the search and to create a

privilege log. D’Onofrio II, 254 F.R.D. at 133. Defendants filed a 568-page privilege log

on March 5, 2009. D’Onofrio III, 256 F.R.D. at 278. The logs contained 9,413 entries

that variously asserted attorney-client or work-product privileges, or sought to withhold

documents on the grounds that they contained proprietary or private information. Id. In




                                              6
an effort to proceed efficiently with this large privilege log, I convened a hearing on

March 10, 2009 to discuss whether the parties might be aided by the new Federal Rule of

Evidence 502(d)-(e). Id. (internal citations omitted). Defendants agreed to permit

plaintiff to test the validity of the privilege log using statistical sampling. Id. at 279. A

protective order was put in place for the process. See Protective Order [#106]. Some

disputes, not at issue in this pending motion, arose in regards to the privilege log; thus, I

undertook an in camera review of a sampling of the documents. See Memorandum

Order [#115].

        D. Motion for Sanctions

        After about a six-month break in proceedings, for the parties to pursue mediation,

plaintiff filed the pending Motion for Sanctions and Spoliation Instruction/Inference. See

Motion for Sanctions and Spoliation Instruction/Inference and Memorandum of Points of

Authorities in Support [#123] (“Pl. Mot.”). In the motion, plaintiff seeks “default

judgment as to Count IV and an adverse jury instruction/inference as a result of

[d]efendants’ intentional spoliation of evidence and misconduct in this case.” Id. at 1.

Plaintiff also seeks attorneys’ fees and costs. Id. Plaintiff argues that “[d]efendants’

intentional destruction of [p]laintiff’s computer and data stored within, the wiping of

documents related to the plaintiff from the [ ] server, and the loss of the contents of her

office,3 have prejudiced her throughout discovery, and [d]efendants should not be

permitted to benefit from that misconduct.” Pl. Mot. 1. It is for these reasons, and

defendants’ “pattern of stubborn defiance” that plaintiff believes sanctions to be

appropriate. Id. (quoting Bray v. Gillespie Mgmt. LLC v. Lexington Ins. Co., 259 F.R.D.


3
 Plaintiff claims that upon her termination she was not permitted to retrieve from her
office information that would have established her claims.


                                               7
591, 594 (M.D. Fl. 2009)). Plaintiff argues that sanctions are justified because

defendants’ failure to preserve evidence has placed “unreasonable burdens” on plaintiff,

including forcing her to recreate the entire record of her work product. Id. at 17.

       Defendants argue that plaintiff raises issues already addressed by the Court, such

as the format in which e-mails were produced. Defendants’ Opposition to Plaintiff’s

Motion for Sanctions and Spoliation Instruction/Inference [#135] (“Defs. Opp.”) at 5.

Moreover, defendants argue that plaintiff cannot meet the burden necessary to warrant an

adverse inference in the case, that plaintiff sent a preservation letter to her employer, or

that the evidence that was lost has not been recovered. Id. at 8-12.

II. Legal Standard

       The parties in this case have flung case law from all over the country at each

other. I am reminded of the anecdote about an appellate court judge who, when counsel

relied on a single, lonely district court case from another Circuit for his entire argument,

interrupted the lawyer to say: “Counsel, you can find a district court in this country that

will say anything.” The point for counsel is that it should focus on what guidance the

court of appeals for this Circuit has provided. While the court of appeals has not yet

made its way into the specific complications that arise from the loss of electronically

stored information, it has given clear guidance as to what consequences should flow from

the loss of information due to a party’s fault.4

       A party to litigation has “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




4
 “Fault” is merely used for the moment as a place marker, awaiting a discussion of how
one is to define the “fault” that will engender certain consequences.


                                               8
alteration of those documents would prejudice [its opponent].” Shepherd v. Am. Broad.

Cos., 62 F.3d 1469, 1481 (D.C. Cir. 1995) (internal quotations omitted).

       A. Spoliation

       A party’s obligation to preserve potentially relevant evidence arises “once [the

party] anticipates litigation.” Smith v. Cafe Asia, 246 F.R.D. 19, 21 n.2 (D.D.C. 2007)

(quoting United Med. Supply Co., Inc. v. U.S., 77 Fed. Cl. 257, 258 (2007) (internal

quotation marks omitted)). A party that fails to preserve such evidence “runs the risk of

being justly accused of spoliation5 and may find himself the subject of sanctions.” Id.

(citing United Med. Supply Co., 77 Fed. Cl. at 263; Lebron v. Powell, 217 F.R.D. 72, 78

(D.D.C. 2003)).

       B. Categories of Sanctions the Court Has the Discretion to Award for Spoliation

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

remedy for the failure to preserve evidence. The trial court, nevertheless, has a great deal

of discretion in exercising its inherent powers to fashion an appropriate sanction, but

because of their potency, such powers must be exercised with restraint. See Chambers v.

NASCO, Inc., 501 U .S. 32, 43-46 (1991) (finding that the inherent authority of the court

should be exercised when an applicable rule or statute is “not up to the task.”). Sanctions

available to a court, under its inherent power, include dispositive sanctions, awards of

attorneys’ fees and expenses, contempt citations, disqualifications or suspensions of

counsel, and drawing adverse evidentiary inferences or precluding the admission of




5
  “Spoliation refers to the destruction or material alteration of evidence or to the failure to
preserve property for another’s use as evidence in pending or reasonably foreseeable
litigation.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of America Sec.,
685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010).


                                               9
evidence. Shepherd, 62 F.3d 1469 at 1475 (citing Gregory P. Joseph, Sanctions: The

Federal Law of Litigation Abuse § 28(A) (2d ed. 1994)).

       The court of appeals has subdivided these sanctions into two categories: (1)

punitive or penal sanctions; and (2) issue-related sanctions. See Shepherd, 62 F.3d at

1478. Issue-related sanctions include adverse evidentiary determinations and preclusion

of the admission of evidence. Id. (citing Marrocco v. Gen. Motors Corp., 966 F.2d 220,

225 (7th Cir. 1992); Jamie S. Gorelick, Stephen Marzen & Lawrence Solum, Destruction

of Evidence § 3.16, at 118 (1989 & Supp. 1995)). The court of appeals has found that,

“[b]ecause issue-related sanctions are fundamentally remedial rather than punitive,” a

court may impose such sanctions “whenever a preponderance of the evidence establishes

that a party’s misconduct has tainted the evidentiary resolution of the issue.” Id. Punitive

or penal sanctions require a higher burden of proof than issue-related sanctions.

Shepherd, 62 F.3d at 1478. These sanctions are dispositive sanctions (dismissal or

default judgment), contempt orders, awards of attorneys’ fees, and the imposition of

fines. Id. Because the court of appeals has found these to be fundamentally penal in

nature, a court “must find clear and convincing evidence of the predicate misconduct”

before imposing them. Id.

       C. Sanctions Sought by Plaintiff

               1. Dispositive Sanctions

       Dispositive sanctions, such as dismissal of a lawsuit or default judgment, as a

sanction for spoliation, falls within a court’s inherent powers; however, they are

particularly severe sanctions. Chambers, 501 U.S. at 43-45; see also Shepherd, 62 F.3d at

1475 (internal citations omitted). The court of appeals for the District of Columbia




                                             10
Circuit has indicated that a dispositive sanction (i.e. dismissal or default) is a drastic

sanction that should “be taken only after unfruitful resort to lesser sanctions.” Ripalda v.

Am. Operations Corp., 977 F.2d 1464, 1466 (D.C. Cir. 1992) (finding in a case of

attorney misconduct that the district court’s reliance on dismissal in the first instance was

an abuse of discretion) (internal citations omitted). Thus, such a draconian sanction

“should be imposed only in the most severe of circumstances, and in general only after a

resort to lesser sanctions have proved [sic] ineffective.” United States ex rel. Miller v.

Holzmann, No. 95-CV-1231, 2007 WL 781941, at *2 (D.D.C. Mar. 12, 2007). Further,

for a court to impose a dispositive sanction, it must be “satisfied by clear and convincing

evidence that the accused party acted in bad faith.” Shepherd, 62 F.3d at 1477.

                2. Attorneys’ Fees

        The court of appeals has categorized attorneys’ fees as a punitive or penal

sanction like dispositive sanctions. See Shepherd, 62 F.3d at 1478. As such, a court

“must find clear and convincing evidence of the predicate misconduct” before imposing

them. Id.

                3. Adverse Inference

        “There are three elements required to establish an adverse inference: (1) the party

having control over the evidence had an obligation to preserve it when it was destroyed

or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and

(3) the evidence that was destroyed or altered was relevant to the claims or defenses of

the party that sought the discovery of the spoliated evidence, to the extent that a

reasonable factfinder could conclude that the lost evidence would have supported the

claims or defense of the party that sought it.” Mazloum v. District of Columbia Metro.




                                              11
Police Dep’t, 530 F. Supp. 2d 282, 291 (D.D.C. 2008) (Bates, J.) (citing Thompson v.

HUD, 219 F.R.D. 93, 101 (D.Md. 2003)) (internal citations omitted).

       The decision to give an adverse inference instruction to the jury as to a particular

issue “is a question of law subject to de novo review; the choice of the language to be

used in a particular instruction, however, is reviewed only for abuse of discretion.”

Novak v. Capital Mgmt. & Dev. Corp., 570 F.3d 305, 315 (D.C. Cir. 2009) (quoting Joy

v. Bell Helicopter Textron, Inc., 999 F.2d 549, 556 (D.C. Cir. 1993)). More specifically,

the trial court’s refusal to permit the jury to infer from evidence that was not produced

that its production would have been harmful to the non-producing party is reviewed for

an abuse of discretion. Czekaksi v. Lahood, 589 F.3d 449, 454 (D.C. Cir. 2009). “Such

an instruction ‘is appropriate if it is peculiarly within the power of one party to produce

the evidence and the evidence would elucidate a disputed transaction.’” Id. The party

complaining of the missing evidence bears the burden of demonstrating that it is

peculiarly in the opposing party’s control. Id. at 455-56 (quoting United States v. West,

393 F.3d 1302, 1309 (D.C. Cir. 2005)).

       But, as the court of appeals cautioned, care must be taken before an instruction

premised on a missing witness or evidence is given, because “there is the danger that the

instruction permitting an adverse inference may add a fictitious weight to one side or

another of the case. When thus an instruction is sought which in a sense creates evidence

from the absence of evidence, the court is entitled to reserve to itself the right to reach a

judgment as wisely as can be done in all the circumstances . . . .” Burgess v. United

States, 440 F.2d 226, 234 (D.C. Cir. 1970). While the facts will vary from case to case, it




                                              12
is impossible to derive a definite guideline; instead “[t]he problem is one which must be

left in large part to the sound judgment of the trial judge.” Id. at 234 n.12.

               4. Preclusion

       The plaintiff has not requested preclusion as a sanction; however, preclusion is an

issue-related sanction within the inherent powers of the court that may be applied in the

case of spoliation. Preclusion can “ensure that a party will not be able to profit from its

own failure to comply” with discovery rules or rules set forth by the Court. Butera v.

District of Columbia, 235 F.3d 637, 661 (D.C. Cir. 2001) (citing Dellums v. Powell, 566

F.2d 231, 235 (D.C. Cir. 1977)). Preclusion can take two forms. It may be affirmative (a

party is precluded from proving a fact) or negative (a party is precluded from disproving

what the other party’s evidence establishes). For example, preclusion could prevent

defendant from arguing that plaintiff’s work was dissimilar from the work of her

comparator as a remedy for the alleged loss of evidence of her work product.

       It must be recalled, however, that preclusion may have a dispositive effect on the

case, as was illustrated in the Bonds case. See Bonds v. District of Columbia, 93 F.3d

801, 808 (D.C. Cir. 1996). In Bonds, the trial court’s decision to preclude the defendant

from presenting certain evidence was understandably deemed by the court of appeals to

be, for all practical purposes, the entry of judgment against that party. Id. When

preclusion has the effect of default judgment, then, under the law of this Circuit, it can be

justified only by a clear and convincing showing of bad faith. See Shepherd, 62 F.3d at

1478. Even if preclusion does not have a dispositive effect, its consequences must be

carefully considered before it is ordered.




                                              13
        Nevertheless, to guard against abuses of the judicial process, preclusion may be a

necessary sanction. Id. Further, there is a deterrent value to preclusion, discouraging

sloppiness, a significant consideration in a world where too many businesses still may

not have efficient and useful record-keeping policies. Bonds, 93 F.3d at 808 (internal

citations omitted). See also Weisberg v. Webster, 749 F.2d 864, 870-71 (D.C. Cir. 1984)

(discussing the court’s use of sanctions for deterrence as legitimate).

III. Analysis

        A. Evidence Was Lost

                1. Defendants’ Obligation to Preserve

        Plaintiff argues that defendants’ obligation to preserve arose upon receipt of

plaintiff’s letter, dated October 6, 2005, indicating that she intended to initiate litigation

and requesting that electronically stored information be preserved. Pl. Mot. 16.

Defendants argue that this letter, which it refers to as the preservation letter, did not

create a duty to preserve, because the letter was not sent to plaintiff’s employer. Defs.

Opp. 9. Instead, defendants contend that plaintiff’s service of the letter on her

employer’s parent company did not put anyone at SFX on notice of potential litigation.

Id. Further, according to defendants, the letter was insufficiently detailed to impose a

duty to preserve plaintiff’s computer. Id.

        I disagree with defendants. The letter sent by plaintiff’s counsel on October 6,

2005, less than two weeks after plaintiff was terminated, clearly indicated that plaintiff:

(1) regarded her termination to be wrongful; (2) had retained counsel; (3) believed her

termination to be a violation of the District of Columbia Human Rights Act, Title VII of

the Civil Rights Act, the Civil Rights Act of 1964, the Civil Rights Act of 1991, the




                                              14
Worker Adjustment and Retraining Notification Act, the Americans with Disability Act,

and the Family Medical Leave Act; and (4) believed the company’s restructuring was a

pretext to terminate plaintiff based on her medical status and a manifestation of disparate

treatment based on her gender. Pl. Mot. 16 (citing Pl. Mot, Ex. A). Further, plaintiff’s

counsel informed defendants that plaintiff might formally request, through discovery, e-

mail and other electronic communications, word processing documents, spreadsheets,

databases, calendars, telephone logs, contact manager information, internet usage files,

and network access information. Id. The letter concludes by asserting that “the company

and its subsidiaries and related entities . . . must take every reasonable step to preserve

this information until the final resolution of this matter.” Id. (emphasis added). The letter

warns against routine data destruction and backup tape recycling policies. Id.

       There is no ambiguity in this letter in regards to the plaintiff’s intent to pursue her

claims in court, if necessary, or to the type of data she requests defendants to preserve.

Defendants’ argument that by sending the letter to the parent company, rather than to

plaintiff’s employer SFX, is disingenuous. The letter was sent to Clear Channel, SFX’s

parent company. The reference line of the letter indicates that it is in regards to Clear

Channel and SFX. Moreover, Clear Channel is a named defendant in this case. The

defendants, i.e., all defendants, were on notice and should have undertaken steps to

preserve potentially relevant information.

               2. Defendants Failed to Preserve Evidence

       The fact that defendants failed to preserve evidence has been established.

Initially, in response to discovery requests, plaintiff was told that no responsive

documents existed, that her computer had been thrown away, and that her file on the




                                             15
server was empty. D’Onofrio III, 256 F.R.D. at 278. It was at this point that plaintiff

sought the assistance of a forensic expert.

               3. Defendants’ Remedial Efforts Restored Some Evidence That Was Lost

        Pursuant to the Court’s order, defendants made their servers available to

plaintiff’s expert for a forensic exam that yielded hundreds of thousands of documents.

D’Onofrio II, 254 F.R.D. at 133. Up to $10,000 of the cost of this search was paid for by

defendants, who then executed a privilege review of these thousands of documents.

D’Onofrio III, 256 F.R.D. at 278. As a result of defendants’ efforts, some of the lost

documents were recovered, and the loss of evidence was not total.

        B. Punitive or Penal Sanctions

               1. Default Is Not An Appropriate Sanction In This Case

        As explained earlier, in the D.C. Circuit, a party seeking a dispositive sanction

because of her opponent’s loss or destruction of evidence must establish, by clear and

convincing evidence, that the accused party acted in bad faith. See Shepherd, 62 F.3d at

1477.

        It is clear to me that plaintiff’s demand that she be awarded default judgment on

her Equal Pay Act claim fails to meet this standard. While it is evident that defendants

failed to act to preserve evidence, plaintiff has not shown, by clear and convincing

evidence, that defendants acted in bad faith, i.e., with a purposeful intent to destroy

evidence. See, e.g., Shepherd, 62 F.3d at 1477. Furthermore, if the Court can find a less

drastic sanction than dismissal or default that is fully effective, it should impose that

lesser sanction. Bonds, 93 F.3d at 808; Ripalda, 977 F.2d at 1466. It is yet to be

determined whether plaintiff is entitled to any other issue-related sanction, such as an




                                              16
adverse inference or defendants’ being precluded from presenting certain evidence. Until

the plaintiff’s entitlement to such sanctions is first addressed and resolved, dismissal

cannot, under this Circuit’s law, even be considered. To award plaintiff a default

judgment without considering the efficacy of less drastic remedies violates this Circuit’s

law in the most obvious way.

                2. Attorneys’ Fees

        The court of appeals has categorized attorneys’ fees as a punitive or penal

sanction like dispositive sanctions. See Shepherd, 62 F.3d at 1478. As such, a court

“must find clear and convincing evidence of the predicate misconduct” before imposing

them. Id. The evidence in this case of the predicate misconduct is simply not clear and

convincing.

        In other prominent spoliation cases, the lost evidence is gone forever and the

consequences of its loss are a function of that reality. To say of this case, however, that it

involves the loss of evidence is to have Hamlet without the Dane. To take that metaphor

a step further, it stops the play after the First Act. This case involves the apparent loss of

evidence, a diligent and expensive attempt to retrieve what was lost from other sources,

and a bitter, irreconcilable dispute as to what may still be missing and its relevance to

plaintiff’s claims.

        I can first say that it appears to me that the award of attorneys’ fees now, under

my inherent power, would be an abuse of discretion. While it is certainly true that

plaintiff has expended significant resources to litigate the consequences of the loss of the

information at issue, it is equally true that defendants have expended a veritable king’s

ransom on the forensic search of the Legato server and an examination of its contents for




                                              17
relevance and privilege, all in an effort to restore what was lost. I have presided over this

case for three years and am personally familiar with the high yield of documents from the

forensic search, because I reviewed thousands of e-mails claimed to be privileged.

Having done that, and having a general familiarity with the extraordinary amount of

information that a forensic search yields and the consequential costs of privilege review,

I can say without hesitation that I fully credit defense counsel’s assertion that the search,

review, and discovery disputes in this single-plaintiff case has cost over $1 million. The

heart and soul of any sanction is its proportion to the harm done and the prejudice

sustained. Bonds, 93 F.3d at 808 (finding that “[t]he choice of sanction should be guided

by the ‘concept of proportionality’ between offense and sanction.”). Given what

defendant has already expended, adding attorneys’ fees under the Court’s inherent power

to sanction crosses the line from fairness to disproportional punishment. That, put

simply, is to place Pelion upon Ossa, and I will not do it.6

       Rule 37 of the Federal Rules of Civil Procedure awards, except in certain

circumstances, attorneys’ fees to a moving party whose motion to compel discovery is

granted, unless the opposing party establishes substantial justification for its position.

See Fed. R. Civ. P. 37(a)(5)(A). The motion before me is one for sanctions and not to

compel. The Rule just cited is therefore inapplicable. I appreciate that I must resolve the

parties’ cross-motions for sanctions related to plaintiff’s Second Motion to Compel

Discovery and for Sanctions [#37], which seeks attorney fees. See D’Onofrio I, 247

F.R.D. at 55 (postponing the parties’ cross-motion for sanctions until the conclusion of



6
 This is a statutory fee-shifting case; however, this opinion speaks only to the award of
attorneys’ fees in the exercise of the Court’s inherent powers.


                                              18
the evidentiary hearing). The parties will be permitted an opportunity to be heard on the

issue of attorneys’ fees available under Rule 37 as to the earlier motion, once all other

motions are resolved. I hope that resolution of all the other issues will finally move this

case to trial, and I would prefer not to interfere with that process until I have first

resolved the issues pertaining to Plaintiff’s Motion for Sanctions and Spoliation

Instruction/ Inference [#123].

        C. Issue-related Sanctions

        Having found punitive sanctions to be unwarranted in this case, I turn now to

issue-related sanctions.

                1. Adverse Inference

        The plaintiff has moved for an adverse inference instruction. Pl. Mot. 1.

Generally, an adverse inference instruction would tell the jury that it may infer from the

loss of the evidence that, had the evidence been produced, it would have been detrimental

to the party that lost it. Before ordering such a sanction, however, this Court must first

establish what was lost and what was recovered. From that, the Court can craft a

balanced instruction.

        The plaintiff would have the Court instruct the jury to apply an adverse inference

to the lost evidence, without qualification; but, that instruction is half true. In this case,

there were remedial efforts taken to restore the lost evidence. The proper instruction,

therefore, would have to take into account that, while certain information was lost,

defendant made an effort to find it from another source, and that the alternative source

yielded some evidence. The problem, of course, is that the parties do not agree about

what remains lost. They agree even less about the significance of what was lost.


                                               19
Plaintiff says that there is still much evidence that was lost, and it is significant.

Defendants say that, given what was recovered, nothing was lost, but if any thing was, it

is insignificant.

        Moreover, in the instant case, plaintiff cannot establish by clear and convincing

evidence that defendants acted in bad faith; therefore, any adverse instruction would be

based on conduct that is not in bad faith. When a party, for example, has acted

negligently and lost evidence, the inference does not flow naturally from the facts. When

a person purposefully destroys evidence, it is reasonable to infer that he did so to keep it

from being used against him. That is the historical basis of the doctrine and the maxim

that everything is construed against the spoliator.7 When, as in this case, it is not a

party’s bad faith that leads to the destruction of evidence, its actions hardly bespeak an

intention worthy of such a harsh punishment because the logical premise of the

instruction– that the spoiliator must have destroyed the evidence to keep any one from

seeing it– is not there. Without clear and convincing evidence of bad faith, all that is

known or can be said is that a party was negligent, sloppy, or even reckless; a court

cannot logically infer the intent of what a party did from its behavior because its behavior

was unthinking– it was negligent and sloppy. If the jury is, nevertheless, instructed to

draw an inference that the lost evidence would have been detrimental, it can only be

because the interests in righting the evidentiary balance and in the deterring of others

trumps the lacuna that a logician would detect in the logic of giving such an instruction.




7
 Armory v. Delamirie, (1721) 93 Eng. Rep. 664 (K.B.) (directing the jury to “presume
the strongest against [defendant],” who had lost the evidence).


                                               20
The problem, however, in this case is that imbalance in the evidence due to the loss is an

unknown quantity and of an unknown value as to which the parties do not agree.

               2. Preclusion

       Preclusion may provide an approach that flows more logically when the

destruction of evidence is not in bad faith. If I issued the sanction of preclusion in this

case, the jury would not be instructed to draw an inference. Instead, defendants would be

prohibited from presenting certain evidence because their behavior caused the loss of that

evidence. Regardless of any intent, if the defendants destroyed evidence, plaintiff would

be prevented from using it. Thus, the sanction of preclusion disables defendants from

relying on the loss they caused.

       While in this case the loss of evidence was followed by a genuine effort to find it,

preclusion may be the most appropriate way to right evidentiary balance that was upset

by the loss. On the other hand, defendants may be able to show, that, because of their

efforts to find the lost information or otherwise, plaintiff has made no legitimate showing

that the lost evidence would have helped her. Thus, while preclusion may still be

justified on the basis of deterrence, the absence of any showing of prejudice may offend

this Circuit’s insistence that any litigation sanction be calibrated as carefully as possible

to the prejudice suffered and the harm done. The problem, again, is that the Court does

not know what remains lost and whether the lost evidence had significance for the case;

thus, I cannot determine whether preclusion would be carefully calibrated enough of a

sanction to satisfy the standard set by the court of appeals.




                                              21
                3. Need for an Evidentiary Record

        In light of the complexity and nuance required to craft a balanced sanction, I am

convinced that I must predicate any ruling or recommendation to Judge Bates on the

strongest possible evidentiary record. It is only after establishing the prejudice the

plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent

with this Circuit’s insistence that any sanction imposed be a function of the prejudice

done to a party by its offending opponent. Bonds, 93 F.3d at 808. Accordingly, I will

order an evidentiary hearing to address the factual issues that I will now identify. The

parties differ about several factual issues that bear directly on what, if any, sanction

should be awarded. They fall roughly into two categories, those that pertain to the

physical contents of plaintiff’s office when she left her employ and the other with the loss

of electronically stored information on the computer she used. I believe the following

issues are still in dispute:

        (1) What were the contents of plaintiff’s office, and what was in the file drawers

or cabinets immediately outside her office, on the day of her departure?

        (2) When plaintiff returned to retrieve items from her office, was she precluded

from taking whatever she wanted?

        (3) Did any one supervise plaintiff as she removed items from her office?

        (4) What was stored on plaintiff’s computer that was not also on a network

server? This would pertain to what is usually called her “local drive,” i.e., the part of her

computer where information was stored that was not also stored on a network server.




                                              22
        (5) Of the contents of plaintiff’s computer when she left, what should have been

captured on some other media, whether the local server or the Legato server?

        (6) When plaintiff’s computer was disposed of, did the person disposing it know

of her lawsuit?

        (7) What was recovered from the DC server that duplicates information relevant

to this lawsuit that was in plaintiff’s office or on her computer?

        (8) What was never recovered from the DC server that was relevant to this

lawsuit?

        (9) What was recovered from the Legato server that duplicates information

relevant to this lawsuit that was in plaintiff’s office or on her computer?

        (10) What was never recovered from the Legato server that was relevant to this

lawsuit?

        Counsel will meet and confer first to establish whether, in their view, there are

additional factual issues that must be resolved. If they agree that there are, they may

jointly propose them as additions in a jointly filed document. If, on the other hand, they

cannot agree, either party may propose additional issues, and I will consider including

them.

        As to all factual issues, I expect counsel to make a genuine effort to eliminate any

need to hear evidence as to facts that are not in dispute. Thus, counsel will also meet and

confer and attempt to reach agreement as to facts not in dispute and, if they can agree,

jointly file a statement of their agreement. A separate Order specifies the deadlines by

which all of this must be accomplished.



                                             23
       I appreciate that plaintiff seeks additional discovery as to the merits of the case

itself. See Plaintiff’s Show Cause Response to Support the Enlargement of Time for

Discovery [#127]. Action on that request will be stayed until the hearing is held.

IV. Conclusion

       For the reasons stated herein, I recommend that plaintiff’s motion for the sanction

of default judgment in regards to her Equal Pay Act claim be denied. Further, an

evidentiary hearing to address other sanctions sought by plaintiff in her motion will be

held. A separate order accompanies this Memorandum Opinion.

       In this Memorandum Opinion, I have spoken to plaintiff’s demand that she be

awarded default judgment. That portion of the Memorandum Opinion must therefore be

deemed a Report and Recommendation. As to that portion, plaintiff is reminded that

failure to file timely objections to the findings and recommendations set forth in this

report may waive her right of appeal from an order of the District Court adopting

such findings and recommendations. See Thomas v. Arn, 474 U.S.140 (1985).
                                                                      Digitally signed by John
                                                                      M. Facciola
                                                                      Date: 2010.08.24 10:12:44
                                                                      -04'00'
                                              JOHN M. FACCIOLA
                                              UNITED STATES MAGISTRATE JUDGE




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