The opinion of the court was delivered by: Michael T. Mason, United States Magistrate Judge:
Magistrate Judge Michael T. Mason District Judge Gary Feinerman
MEMORANDUM OPINION AND ORDER
Plaintiff Fred R. Jacobeit initiated this action against defendants Rich Township High School District 227 (the "District") and Rich Central Principal Maceo Rainey. In his First Amended Complaint , plaintiff, a long-time District employee, alleges, among other things, that the District and Principal Rainey, along with the Rich Central Athletic Director, hired him as the assistant girl's basketball coach for the 2007-08 school year at Rich Central High School. According to plaintiff, defendants unlawfully fired him two weeks later, after he started performing his coaching duties, based on his race, age and disability. For their part, defendants contend that the School Board never officially hired Jacobeit for the position. According to defendants, the Board has the sole authority to hire, a power that may not be delegated to an athletic director, principal, or any other school official. (See Pl.'s Mot. at Ex. A - Defs' Mot. to Dismiss, p. 4-5.)
Plaintiff now asks the Court to impose sanctions for various discovery violations explained in more detail below. Specifically, plaintiff seeks (1) an order "directing that the fact that Jacobeit was officially hired be taken as established" and prohibiting the District from introducing any testimony that contradicts that fact; and (2) costs and attorneys' fees for prosecuting the motions for sanctions, as well as plaintiff's prior motion to compel. Alternatively, plaintiff asks the Court to enter an order allowing an independent computer analyst to conduct a forensic examination of the District's computers to discover previous versions of relevant documents and e-mails.
The parties fully briefed plaintiff's motions and the Court extensively reviewed those briefs. As set forth in our order dated November 10, 2010 , certain representations in the defendants' response required additional briefing to determine, among other things, the steps defendants took to preserve and gather relevant documents in this matter. Unfortunately, the briefing was delayed as a result of Rainey's contention that the School Board failed to retain an attorney of his choosing to represent him in this case. (See Rainey v. Bd. of Educ. of Rich Township District 227, 11 CV 107.)
Although the plaintiff has bombarded the Court with documents, many of which we view as unnecessary, and the issues have become somewhat convoluted in the parties' numerous submissions, we see plaintiff's motions as presenting three distinct issues: (1) whether defendants' untimely disclosure of certain documents warrants sanctions; (2) whether the District's undisputed destruction of an audio tape recording amounts to spoliation and warrants sanctions; and (3) whether defendants failed to take the appropriate steps to properly preserve relevant e-mails in this matter and, if so, whether that failure is sanctionable. We address each issue in turn below. Defendants' Untimely Disclosure of Documents
Discovery was initially set to close in this matter on September 1, 2010. On September 3, 2010, the District produced Jacobeit's Recommendation for Hire form signed by the Director of Human Resources, Selma McDonald. (Pl.'s Mot. at Ex. K.) The Recommendation for Hire form previously produced by the District included only the signature of Principal Rainey. (Pl.'s Mot. at Ex. B.). As stated on the record at the September 23, 2010 status hearing, plaintiff's counsel views this form as a "smoking gun" and pleads incurable prejudice as a result of its belated production.
Plaintiff's motions also indicate that on September 24, 2010, the District produced a number of e-mails between McDonald, Rainey, Superintendent Howard Hunigan, Athletic Director Will Dwyer, Financial Officer Ilandus Hampton and Rich East Principal Jeff Craig. (Pl.'s Mot. at Ex. O, Ex. P.) The e-mails are dated November 15, 2007 through December 17, 2007 and include direct references to Jacobeit and the coaching position primarily at issue in this case. According to plaintiff, these e-mails reveal, among other things, that (1) the Board likely approved Jacobeit's hire before the Recommendation for Hire form could be cancelled; (2) that Rainey and McDonald spoke via telephone regarding the recommendation to hire Jacobeit and that Rainey, McDonald, Hunigan and Dwyer met in person regarding the same; (4) that Dwyer gave the "authority [for Jacobeit] to work"; (5) that McDonald consulted with Craig regarding Jacobeit's employment decision; and (6) that conversations were had regarding filling the position from which Jacobeit was removed. Plaintiff takes issue with the e-mails, arguing that they are in direct conflict with prior discovery responses and testimony of the witnesses in this litigation, as well as in a related arbitration.
As noted above, as a result of defendants' delay in producing the Recommendation for Hire form and the e-mails, plaintiff seeks evidentiary and exclusionary sanctions, as well as costs and fees incurred, pursuant to Federal Rules of Civil Procedure 26 and 37. Rule 26(a) requires a party to disclose the name of each individual likely to have discoverable information that the disclosing party may use to support its claims or defenses, and to provide a copy or a description of all documents that it has in its possession and may use to support its claims or defenses. Fed. R. Civ. P. 26(a)(1)(A). Rule 26 also requires a party to supplement or amend its disclosures and discovery responses in a timely manner if it learns that the information disclosed or the response is "incomplete or incorrect and if the additional corrective information has not otherwise been made known to the other parties during the discovery process or in writing." Fed. R. Civ. P. 26(e)(1).
To ensure compliance with discovery requirements, Rule 37 provides that a party that fails to provide information or identify a witness as required by Rule 26(a) or 26(e) "is not allowed to use that information or witness to supply evidence on a motion, at a hearing, or at a trial, unless the failure was substantially justified or is harmless." Fed. R. Civ. P. 37(c)(1). While the Seventh Circuit has stated that the sanction of exclusion is automatic and mandatory unless the sanctioned party can show that its violation was either justified or harmless, Salgado v. Gen. Motors Corp., 150 F.3d 735, 742 (7th Cir.1998), the determination of whether the violation is in fact justified or harmless is entrusted to the broad discretion of the district court. David v. Caterpillar, 324 F.3d 851, 857 (7th Cir. 2003). In addition to, or instead of, the sanction of exclusion, a court may impose other sanctions, including: (1) ordering payment of attorney's fees and costs; (2) designating certain facts be taken as established; and (3) prohibiting a party from supporting or opposing designated claims or defenses. Fed. R. Civ. P. 37(c)(1) (allowing the imposition of sanctions set forth in Rule 37(b)(2)(A)). Factors to consider when determining whether exclusionary sanctions are appropriate include: (1) the prejudice or surprise to the party against whom the evidence is offered; (2) the ability of the party to cure the prejudice; (3) the likelihood of disruption to the trial; and (4) the bad faith or willfulness involved in not disclosing the evidence at an earlier date. Wells v. Berger, Newmark & Fenchel, No. 07 C 3061, 2008 WL 4365972, at *3 (N.D. Ill. Mar. 18, 2008) (citing David, 324 F.3d at 857).
With respect to the Recommendation for Hire form, plaintiff argues that the late disclosure of this so-called "smoking gun" document severely hindered his ability to properly pursue discovery when paired with what he views as prior misleading and inconsistent testimony. We disagree. Accepting plaintiff's heavy-handed reliance on the Recommendation for Hire form would require this Court to draw factual and legal conclusions not supported by the record before us. For example, according to plaintiff, the document "debunks the District's defense that it did not 'hire' Jacobeit because the District cannot be bound 'solely' by the acts of Principal Rainey and/or Athletic Director Dwyer." (Pl's. Mot. at 3.) Citing portions of Superintendent Howard Hunigan's deposition, plaintiff contends that Hunigan in fact authorized McDonald to determine the procedures through which hiring decisions are made, as well as for processing the paperwork resulting in the hire. However, plaintiff mischaracterizes Hunigan's testimony. Even the piecemeal transcript of Hunigan's deposition reveals his belief that the hiring of District personnel, including coaches, must be approved by the School Board. (Pl.'s Mot. at Ex. L - Hunigan Dep. at 14-16, 22.) Other deponents share this same view. (See, e.g., Pl.'s Mot. at Ex. H - Brookins Dep. at 9.) Thus, contrary to plaintiff's assertion, the mere fact that McDonald's signature is included on the Recommendation for Hire form does not necessarily "debunk" the District's defense in this litigation, nor is that issue properly before this Court.
Plaintiff also relies heavily on the fact that McDonald signed the newly-disclosed Recommendation for Hire Form on November 13, 2007, the day before Principal Rainey purportedly told Superintendent Hunigan that he wished to pull his recommendation to hire Jacobeit for the coaching position. Plaintiff also notes that the Classified-Exempt Personnel Report, which was provided to the School Board members for "consent agenda" approval at the November 14, 2007 meeting, is also dated November 13, 2007. According to plaintiff, because he "did not know that the Recommendation to Hire form had advanced as far as it did...[he] spent no time trying to discover when (or whether) his name had been on the Personnel Report list of hires that was presented to the School Board" for the November 14, 2007 meeting. (Pl.'s Mot. at 5.) Instead, plaintiff purportedly turned his discovery efforts to developing alternative methods of proving that he was in fact hired, notwithstanding the fact that his name was not included on the Personnel Report.
Again, accepting plaintiff's contention that the Personnel Report may have included Jacobeit's name at some point in time would require this Court to improperly draw inferences and make factual conclusions in favor of plaintiff and we decline to do so.*fn1 Instead, guided solely by the standard set forth above, we need only determine whether the District violated its duties under the Federal Rules by failing to produce the form earlier. We find that it did not. In particular, the District's delay in producing the form did not so severely prejudice the plaintiff as to warrant the evidentiary and exclusionary sanctions he seeks. Although plaintiff deposed a number of District officials prior to receiving the second version of the Recommendation for Hire form, plaintiff was able to question those officials about the significance of the form and its role in the hiring process, as the District previously produced the form, albeit a different version. The fact that plaintiff may not have gotten the answers he wanted or expected is of no moment. Nonetheless, because, as explained below, we are granting plaintiff leave to re-depose McDonald, we will allow plaintiff to question her regarding her knowledge of the version of the Recommendation for Hire form that includes her signature.
With respect to the e-mails produced three weeks after the close of discovery, plaintiff argues that he has been severely prejudiced because, in his view, the e-mails further demonstrate that the prior testimony adduced by the witnesses was false and intentionally misleading. As with the Recommendation for Hire, we find that the plaintiff is taking creative liberties with the record before the Court and improperly asking the Court to do the same. As such, we disagree that the severe sanctions plaintiff seeks are appropriate. We do agree, however, that plaintiff has been prejudiced in that he was unable to question the witnesses about these e-mails at their depositions. We are troubled by the fact that the delayed production of the e-mails resulted from a misunderstanding between defense counsel and McDonald regarding whether e-mails were responsive to plaintiff's discovery requests. (See District's Supp. Brief at 5.) Plaintiff's ability to conduct discovery should not suffer as a result of this misunderstanding. Further, it is fair to say that plaintiff may have been surprised by these newly produced e-mails, in that they do include some contradictions to ...