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Zamora v. Stellar Management Group, Inc.

United States District Court, W.D. Missouri, Southwestern Division

April 11, 2017

SAMANTHA ZAMORA, Plaintiff,
v.
STELLAR MANAGEMENT GROUP, INC., D/B/A QUALITY SERVICE INTEGRITY; AND STELLAR MANAGEMENT GROUP III, INC., AND THE VINCIT COMPANY, LLC, Defendants.

          ORDER (1) DENYING MOTION FOR SANCTIONS (DOC. 148), (2) AMENDING ORDER (DOC. 257), (3) PERMITTING ACCESS TO DELEON'S SECOND PHONE, AND (4) GRANTING MOTION TO RECONSIDER ORDER (DOC. 149)

          ROSEANN A. KETCHMARK, JUDGE UNITED STATES DISTRICT COURT

         Before the Court is Defendants Stellar Management Group, Inc. d/b/a Quality Service Integrity and Stellar Management Group III, Inc. (“QSI Defendants”)'s Motion for Sanctions for Failure to Preserve Electronically Stored Information. (Doc. 148.) Plaintiff filed opposing suggestions (doc. 170), QSI Defendants filed reply suggestions (docs. 192), and a hearing on the motion for sanctions was then held on April 7, 2017. Also pending is QSI Defendants' Motion to Reconsider Order Granting Plaintiff's Motion to Clarify (doc. 149), which has been fully briefed (docs. 170, [2] 192). For the reasons below, the Court now DENIES the motion for sanctions, and orders additional discovery by AMENDING its Order (doc. 257) that precluded access to Plaintiff's current work phone, permitting access to non-party witness David DeLeon's second phone, and GRANTING the motion to reconsider (doc. 149).

         I. Background

         Plaintiff brings this diversity action against QSI Defendants for wrongful retaliation and discharge for reporting wrongdoing under Fleshner v. Pepose Vision Institute, P.C., 304 S.W.3d 81 (Mo. 2010) (en banc). Plaintiff filed this action on March 9, 2016. (Doc. 1)

         QSI Defendants' request that Plaintiff produce for copying and inspection any cell phone used by Plaintiff to contact any current or former employee and request that Plaintiff execute a cell phone authorization, among other issues, were the subject of the fifth discovery dispute telephone conference in this case. Following the call, on January 6, 2017, the Court ordered (a) Plaintiff to produce her personal cell phones for copying to preserve a mirror image, but not to be disclosed until further order; (b) Plaintiff to request a call/text log from her cell phone provider, and identify any numbers she knows to belong to any current or former employee of QSI Defendants. (Doc. 113 at Part.I.3) Plaintiff then filed a motion to clarify and/or modify this order, stating among other things, that she primarily uses the phone for business work purposes, that the phone contains non-public information regarding her employer, and that she does not recall any communication on the phone that is related to this lawsuit. (Doc. 123.) The Court granted Plaintiff's motion and clarified that the January 6, 2017 Order did not extend to the work cell phone given to Plaintiff by her current employer (“Simmons phone”). (Doc. 125.)

         QSI Defendants' motion to reconsider seeks the production of the Simmons phone to determine if she has used the phone to contact individuals for reasons related to this lawsuit other than business reasons based on Plaintiff's history of using work phone for personal use and the fact that all other personal phones have been lost or discarded. (Doc. 149.)

         QSI Defendants allege in their Motion for Sanctions that Plaintiff deleted text messages and destroyed phones after filing suit. (Doc. 148 at 4.) QSI Defendants also contend Plaintiff was aware that QSI Defendants had requested her correspondence with their current or former employees of QSI Defendants yet she deliberately deleted a Facebook message Plaintiff sent to QSI Defendants' employee Erika Ortiz. (Id.) QSI Defendants maintain Plaintiff was aware of her obligation to preserve evidence because she took steps to preserve other evidence she believed was favorable to her case. (Id.) QSI Defendants are seeking dismissal, or a finding presuming that the lost information was unfavorable to Plaintiff, and a jury instruction directing for the presumption that the information was unfavorable to Plaintiff. (Id. at 19.)

         In response, Plaintiff argues that neither did she intentionally destroy evidence nor has QSI Defendants been prejudiced to establish that sanctions are warranted. (Doc. 170 at 1-3.) Plaintiff concedes her failure to preserve a single Facebook message and all communications with non-party witnesses Joel Ortiz and David DeLeon, but argues she did not intend to destroy evidence. (Id. at 2.) Plaintiff maintains she has cooperated in obtaining phone records related to the messages and that any negative light cast on her by the messages is not indicative of a motive to destroy, but instead, it is consistent with her feelings as a result of QSI Defendants subjecting her to mistreatment and retaliation. (Id. at 2.) Plaintiff asserts QSI Defendants have not been prejudiced because responsive correspondence identified by QSI Defendants is available to QSI Defendants from their current or former employees, namely, Joel Ortiz (current employee), David DeLeon (former employee), and Erika Ortiz (former employee). (Id. at 1-3.)

         In reply, QSI Defendants states that Plaintiff does not dispute that she failed to properly preserve six or seven phones, including that she intentionally conducted a factory reset of her QSI work phone. QSI Defendants state Plaintiff also does not dispute she deleted the Facebook message. QSI Defendants point out that at the same time, Plaintiff preserved information she believed was favorable to her claim. (Doc. 192 at 1-2.) QSI Defendants contend it is unknown what other messages Plaintiff failed to preserve and she cannot be relied on to disclose all relevant communications unless those communications have already been discovered by QSI Defendants. (Id. at 2.)

         II. Discussion

         A. Sanctions Standard

         Federal Rule of Civil Procedure 37(e) provides a federal court with authority to sanction a party for failing to preserve electronically stored information. Rule 37(e), in its entirety, provides as follows:

         If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve 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 ...

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