The opinion of the court was delivered by: Sue E. Myerscough, U.S. District Judge.
Thursday, 06 September, 2012 03:06:17 PM
Clerk, U.S. District Court, ILCD
This cause is before the Court on Plaintiff's Renewed Motion for Sanctions and Motion for Appointment of a Special Master (d/e 401).
The Court held hearings on the Motion on March 23, 2012, April 2, 2012, April 4, 2012, July 23, 2012, and August 22, 2012. The Court has also considered the briefs and exhibits submitted by the parties (see d/e 402, 424, 425-434, 436-438, 472, 473, 474, and 475) as well as the litigation hold letters (filed under seal at d/e 465). For the reasons that follow, the Motion is DENIED.
In February 2011, Plaintiff filed the Refiled Motion for Sanctions for Spoliation of Evidence (d/e 336). In that Motion, Plaintiff asserted:
(1) Defendants lost, destroyed, or failed to recover audio, video, and electronically stored information (ESI) evidence; (2) Defendants failed to preserve video of Paul Carlock in the jail; and (3) Defendants destroyed, altered, and discarded ESI. Plaintiff sought an adverse inference instruction, reasonable attorney fees incurred in connection with the motion for sanctions, and at least one-half of the search and recovery costs incurred by Plaintiff.
In response, Defendants asserted that they preserved and produced all relevant discovery , including video from the only camera that recorded relevant images, and over 5,000 pages of documents. written reports. On April 18, 2011, after a hearing, this Court denied Plaintiff's Refiled Motion for Sanctions (d/e 336) without prejudice and with leave to renew the motion if Plaintiff found additional evidence of bad faith spoliation or discovery abuse.
In February 2012, Plaintiff filed the Renewed Motion for Sanctions at issue herein asserting that Plaintiff "has discovered more proof that Defendants knowingly and deliberately (in bad faith) failed to preserve Carlock-related (relevant) evidence." Mem., p. 6 (d/e 402). According to Plaintiff, this new evidence includes the following: (1) relevant e-mails that were found, proving that several Defendants lied in affidavits claiming no relevant e-mails existed; (2) that Defendants are still withholding computers of key custodians who sent and/or received Carlock-related e-mails; (3) that Defendants preserved relevant ESI from another case because that ESI was helpful to them; and (4) e-mails have been generated from jail personnel regarding specific inmates, despite Defendant Durr's affidavit to the contrary. Mot., p. 2-3 (d/e 401).
"An employer's destruction of or inability to produce a document, standing alone, does not warrant an inference that the document, if produced, would have contained information adverse to the employer's case." Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir.2002). Before this Court will draw the inference that the missing documents contained information adverse to Plaintiff, Plaintiff must demonstrate that Defendants "intentionally destroyed the documents in bad faith." Norman-Nunnery v. Madison Area Technical College, 625 F.3d 422, 428-29 (7th Cir. 2010) ("The crucial element in a spoliation claim is not the fact that the documents were destroyed but that they were destroyed for the purpose of hiding adverse information").
Having reviewed the transcripts of the hearings and the submitted materials and briefs, the Court stands by its previous finding that no bad faith was shown regarding the audiotapes and videotapes. With regard to the ESI, this Court has a few concerns.
Specifically, despite having notice to preserve in November 2007 (from Carlock's family) and January 2008 (from Carlock's family's attorney), Defendants did not take steps to preserve ESI (as opposed to videos) until March 2008, the date of the litigation hold meeting, at the earliest. See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) ("Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents"). However, the failure to take steps to preserve ESI affected only the ...