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Banks v. Enova Financial et al

November 30, 2012

BANKS
v.
ENOVA FINANCIAL ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Sharon J. Coleman than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

For the reasons stated herein, this Court affirms the Order of the Magistrate Judge and denies defendant's Motion to Set Aside the Order..

O[ For further details see text below.] Docketing to mail notices.

STATEMENT

On July 23, 2012, defendant Enova Financial filed Objections to the Magistrate Judge's Order on Spoliation and a Motion to Set Aside the Order. This Court entered a briefing schedule, with which neither party complied. This Court struck the motion, but thereafter allowed the parties a second opportunity to brief defendant's motion. Plaintiff did not respond. For the reasons stated herein, this Court affirms the Order of the Magistrate Judge and denies defendant's Motion to Set Aside the Order.

On July 10, 2012, Magistrate Judge Nan Nolan entered an order granting in part and denying in part plaintiff Banks' Motion to Compel the Production of Certain Electronically Stored Information. Magistrate Judge Nolan requested the parties brief only the allegation of spoliation of the audio recording of customer service telephone calls that were the catalyst to Banks' termination. The magistrate judge found that Enova Financial was under a duty to preserve the recording at the time it destroyed the recording as part of its routine file destruction and retention policy. The magistrate judge further found that, although the evidence did not support a finding of willfulness or bad faith, the evidence did support a finding of fault or gross negligence by Enova. The magistrate judge sanctioned Enova by a presumption at the summary judgment stage of a factual dispute as to whether plaintiff hung up on the customer, and if the case proceeds to trial, the court should instruct the jury with a "spoliation charge." The magistrate judge left the precise contours of the "spoliation charge" for this Court to determine in the event of trial, but distinguished a "spoliation charge" from an "adverse instruction" in that a "charge" does not require the jury to presume that the lost evidence is both relevant and favorable to the innocent party. Defendant objects to this sanction, arguing that Magistrate Judge Nolan's decision applied the incorrect standard for spoliation and therefore is clearly erroneous and contrary to law.

Background

Plaintiff, Jonathan Banks, was employed by CashNet America in the In-bound Collections Department. CashNet America, part of Enova Financial, provides short-term cash advances over the Internet to customers in the United States, United Kingdom, Australia and Canada. In-bound collections employees field calls from customers who want to initiate payment arrangements. In-bound collections calls are recorded and retained for ninety days before being deleted. Banks filed the instant lawsuit claiming discrimination and retaliation. On November 6, 2008, a customer called Banks' supervisor to complain that Banks' had hung up on him twice that day. According to defendant, the supervisor listened to the audio recordings of the customer's calls and discussed the matter with plaintiff's manager, who also listened to the recording, as did a representative from Human Resources. Banks was terminated on November 13, 2008. The recording of the calls was destroyed on February 6, 2009, as part of defendant's routine ninety day retention and destruction policy.

Plaintiff filed an EEOC charge on November 22, 2008, but defendant asserts that it did not receive notice of the charge until December 23, 2009. Plaintiff filed a claim for unemployment on December 9, 2008, which was awarded. Defendant appealed the award of unemployment benefits on January 8, 2009. Plaintiff filed a complaint in this matter on June 30, 2010.

Legal Standard

A district court's review of any discovery-related decisions made by the magistrate judge is governed by Rule 72(a) of the Federal Rules of Civil Procedure. Under Rule 72(a), a district judge may set aside a magistrate judge's ruling on a non-dispositive motion if the order is clearly erroneous or contrary to law. Fed.

R. Civ. P. 72(a). The clear error standard means that the district court can overturn the magistrate judge's ruling only if the district court is left with the definite and firm conviction that a mistake has been made. Webb v. CBS Broadcasting, Inc., No. 08 C 6241, 2011 U.S. Dist. LEXIS 23258, 2011 WL 842743, at *2-3 (N.D. Ill. Mar 8, 2011). In general, a magistrate judge's choice ...


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