E-Discovery: Delay in filing motion for spoliation sanctions could leave moving party at starting gate

In Dreith v. Nu Image Inc., 2011 DJDAR 109 (9th Cir. July 19, 2011), Judge Stephen S. Trott, writing for the court, affirmed the trial court's entering an order of default against defendants for engaging in discovery misconduct that was "sufficiently egregious." He concluded: "The Federal Rules of Civil Procedure exist to move a case forward to disposition, and to do so promptly and expeditiously. As Judge Wilson correctly noted, discovery too often has become a desultory game of hide and seek. The Companies ignored their clear responsibilities under the [collective bargaining agreement], and now they must pay the piper. 'At some point, litigation must come to an end. That point has now been reached.' Facebook Inc. v. Pac. Nw. Software Inc., 640 F.3d 1034, 1042 (9th Cir. 2011)."

Three days later, on July 22, U.S. District Judge Aleta A. Trauger delivered a comprehensive decision in American National Property and Casualty Co. v. Campbell Insurance Inc. et al., 2011 WL 3021399 (M.D. Tenn.), discussing the timing of filing motions that seek sanctions for spoliation (suppression or destruction of evidence where there is a legal obligation to reveal or to produce). Judge Trauger specifically noted that Federal Rule of Civil Procedure 37, while governing "most motions for discovery sanctions," does not provide for specific "timing" when it comes to filing motions "seeking spoliation sanctions." The plaintiff's argument was that some of the defendants were culpable in failing to preserve certain emails and that this justified "a harsh penalty." Defendants responded by asserting that the plaintiffs were untimely in filing their spoliation motion. The judge noted that other courts "have identified a number of factors that can be used to assess the timeliness" of such motions (citing Goodman v. Praxair Services Inc., 632 F.Supp.2d 494 (D.Md. 2009), and devoted her opinion to a discussion of those that actively contribute to such a result. Let's take a good look at what she found important.

In Goodman, a summary of the law dealing with "discretionary timeliness assessment" concerning the filing of spoliation motions seeking sanctions is provided. The following are factors that may be used for such an assessment: the length of time between close of discovery and the filing of the motion; the "temporal proximity" between the spoliation motion and those for summary judgment, if any; the remoteness of the filing of the motion to "the eve of trial"; the existence of a "governing deadline" in the issued scheduling order pursuant to a local or Federal Rule of Civil Procedure 16(b); and the moving party's explanation for the delay in filing the motion.

In discussing the length of time between close of discovery and the filing of the motion for spoliation sanctions, McEachron v. Glans, No. 98-CV-17(LEK/DRH), 1999 WL 33601543 (N.D.N.Y. June 8, 1999), held timely the making of a spoliation motion two weeks following close of discovery; and Shamis v. Ambassador Factors Corp., 34 F.Supp.2d 879, 886 (S.D.N.Y.1999) concluded that the filing of a motion for spoliation sanctions two months after conclusion of discovery was also timely, because it did not occur "well after the close of discovery...nor after the start of trial."

Concerning the "temporal proximity" between a motion for summary judgment and one for spoliation, Glenn v. Scott Paper Co., Civ. A. No. 92-1873, 1993 WL 431161 (D.N.J. Oct. 20, 1993), held untimely a spoliation argument used to defend a summary judgment motion because the plaintiff failed to raise any concerns or call them to the attention of the court "during the discovery phase." In Morse Diesel Int'l Inc. v. United States, 81 Fed. Cl. 220, 222 (2008), the plaintiff's spoliation motion was held to be untimely because it was filed after the court had ruled on plaintiff's motion for partial summary judgment.

Ferrone v. Onorato, No. 05-303, 2007 WL 2973684, (W.D.Pa. Oct. 9, 2007), noted that the proper place to make the spoliation argument was in an "appropriate discovery motion," rather than in opposition to the motion for summary judgment. However, in McDonald v. Wal-Mart Stores East LP, No. 3:07cv425, 2008 WL 153783 (E.D.Va. Jan. 14, 2008), the plaintiff's request to file a summary judgment motion nunc pro tunc was granted because a "clear record" would benefit both parties since the spoliation argument had been included in an earlier motion in limine.

Turning to the "eve of trial" factor, in Permasteelisa CS Corp. v. Airolite Co. LLC, No. 2:06-cv-569, 2008 WL 2491747 (S.D.Ohio June 18, 2008), the filing of a spoliation motion just one week prior to trial was held to be untimely.

The lesson of the cases cited in the Goodman opinion seeking to define timeliness is that motions for spoliation sanctions are least disruptive if made during rather than after closure of the discovery phase. Therefore, they "should be filed as soon as reasonably possible after discovery of the facts that underlie the motion...because resolution of spoliation motions are [sic] fact intensive, requiring the court to assess when the duty to preserve commenced, whether the party accused of spoliation properly complied with its preservation duty, the degree of culpability involved, the relevance of the lost evidence to the case, and the concomitant prejudice to the party that was deprived of access to the evidence because it was not preserved."

In an apparent commentary on the perceived attitude of a sizable portion of the bar when it comes to the discovery phase, Goodman was direct in its condemnation of the discovery games lawyers like to play: "Courts are justifiably unsympathetic to litigants who, because of inattention, neglect, or purposeful delay aimed at achieving an unwarranted tactical advantage, attempt to reargue a substantive issue already ruled on by the court through the guise of a spoliation motion, or use such a motion to try to reopen or prolong discovery beyond the time allotted in the pretrial order."

Judge Trauger decided that the plaintiff's motion for spoliation sanctions was untimely and therefore should be denied because the alleged spoliation took place 14 months prior to the filing of the motion, more than four months had elapsed since closure of fact discovery, the trial would commence in less than seven weeks, and plaintiff failed to explain its delay in filing the motion.

In reviewing discovery opinions (e-discovery or otherwise), we continue to see the plethora of attempts by lawyers to play the "desultory game of hide and seek" condemned in both Dreith and American National, even though courts increasingly make them "pay the piper" as the bench becomes more sophisticated and determined in its management of the discovery process defining that point at which "litigation must come to an end." With each new decision, the writing on the wall appears all the more legible demonstrating that such "point has now been reached."