MEMORANDUM AND ORDER
BESOSA, District Judge.
On September 30, 2013, defendants filed a motion in limine requesting that the Court exclude all text messages sent and received between plaintiff Jonathan Polo-Echevarria ("Polo") and prpng@hotmail. com or "Siempre Atento" at trial. (Docket No. 92.) They claim that Polo's own admission that certain text messages were deleted from his phone precludes the use of any messages whatsoever, (Docket No. 92), and they submit that the "complaint must be dismissed with prejudice since the case is based on those printed text messages...." (Docket No. 128 at p. 10.)
While their motion in limine was pending, defendants received documents in response to an ex-parte subpoena to T-Mobile that they had issued — unbeknownst to plaintiffs or the Court — on August 23, 2013. The documents T-Mobile produced in response to the subpoena contain Polo's phone and text messaging records from December 1, 2010 to March 1, 2011. (Docket No. 158-1.) Defendants informed the Court of the phone and text logs in a supplemental motion in limine, in which they again request that plaintiffs' case be dismissed due to spoliation of evidence and plaintiffs' bad faith.
I. Plaintiffs' Motion to Quash
As a preliminary matter, plaintiffs argue that defendants' T-Mobile subpoena should be quashed as procedurally defective for failure to give pre-service notice. (Docket No. 144 at p. 2.) Pursuant to Federal Rule of Civil Procedure 45(b)(1), which was in effect at the time defendants issued the subpoena to T-Mobile, a subpoena commanding the production of documents and electronically stored information requires that notice be served on each party before service. The Advisory Committee
Defendants issued the subpoena to T-Mobile before the discovery deadline; had plaintiffs objected, the Court would probably not have quashed defendants' subpoena — just as it did not quash plaintiffs' subpoena to attain Rodriguez's AT & T records. (See Docket Nos. 59 & 70); (See also Docket No. 61) (plaintiffs' admission that "[t]he fact that there were telephone conversations between plaintiff and defendant Rodriguez is certainly relevant and fair game here. It is corroboration of plaintiff's testimony"). Thus, quashing the subpoena now for failing to give timely notice would only result in its re-issuance. Given that trial is less than two weeks away, a re-issuance would promote inefficiency, delay, and undue costs on the litigants. See, e.g. Richardson v. Axion Logistics, LLC, 2013 WL 5554641, 2013 U.S. Dist. LEXIS 144440 (M.D.La. Oct. 7, 2013).
Furthermore, the Court finds defendants' late disclosure of the T-Mobile records to be harmless to plaintiffs. Plaintiffs do not advance any argument demonstrating prejudice resulting from the late production of the records, and the Court finds no basis for concluding either that the defendants are attempting to engage in trial by ambush or that the T-Mobile information otherwise affects plaintiffs' ability to litigate their case. Cf. Klonoski v. Mahlab, 156 F.3d 255, 270-71 (1st Cir. 1998) (finding defendants' late disclosure of letters significantly prejudiced plaintiff because "it was devastating to his ability to succeed with the jury"). To the contrary, the records merely reveal information personally known to Polo, and the plaintiffs will have had more than one month to review the records before going to trial. (Docket No. 144 at p. 2.) Accordingly, the Court
II. Defendants' Motions in Limine
Arguing that Polo engaged in spoliation and that the case therefore must be dismissed, defendants direct the Court to the T-Mobile records. They point out that Polo received numerous messages — the Court counts 22 messages from prpng@hotmail.com between December 31, 2010 and January 7, 2011 and 16 messages from prpng@hotmail.com between February 4, 2011 and February 7, 2011-that were not among the messages plaintiffs produced in discovery. (Docket No. 158-1 at pp. 90-94.) That estimate does not include the numerous text messages that Polo sent in response. (See Docket No. 167 at pp. 7-10.)
The Court finds that spoliation occurred in this case. A party has a general duty to preserve relevant evidence once it has notice of or reasonably foresees litigation; failure to preserve the evidence constitutes spoliation. Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 399 (1st Cir.2012); see also Perez-Garcia v. P.R. Ports Auth., 871 F.Supp.2d 66, 69 (D.P.R.2012) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y.2003)). "The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation." Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir.2001). It cannot be disputed that all messages and phone calls between Polo and Rodriguez, and Polo and the prpng@hotmail.com and "Siempre Atento" users, are relevant to plaintiffs' lawsuit. (Docket
Once spoliation has been established, the Court enjoys considerable discretion over whether to sanction the offending party. See Booker v. Mass. Dep't. of Pub. Health, 612 F.3d 34, 46 (1st Cir. 2010). The only sanction defendants identify in their motions in limine is dismissal of the entire lawsuit; that sanction is traditionally reserved, however, for the most extreme of cases. Benitez-Garcia v. Gonzalez-Vega, 468 F.3d 1, 5 (1st Cir.2006) ("[I]t has long been our rule that a case should not be dismissed with prejudice except when a plaintiff's misconduct is particularly egregious or extreme."). The Court regards an adverse inference instruction
To qualify for an adverse inference instruction, defendants must "proffer[] evidence sufficient to show that the party who destroyed the document knew of (a) the claim (that is, the litigation or the potential for litigation), and (b) the document's potential relevance to that claim." Booker v. Mass. Dep't of Pub. Health, 612 F.3d 34, 46 (1st Cir.2010). The Court finds that defendants easily meet their burden. It is reasonable to conclude that the mere act of Polo forwarding himself some messages from prpng@hotmail.com on February 8, 2011 — the same day that he submitted a sexual harassment complaint to CPS — reveals his understanding that those messages were relevant to a potential claim against Rodriguez. Even if Polo's behavior does not amount to bad faith, his selective retention of certain messages over the 38 messages that had been received from prpng@hotmail.com and his respective responses, indicates his belief that the records would not help his side of the case. See Nation-Wide Check Corp., 692 F.2d at 219. Thus, Polo knew of both the potential for litigation and the potential
III. Conclusion
For the reasons discussed above, the Court
FootNotes
The First Circuit Court of Appeals has indicated that such an instruction usually is appropriate "only where the evidence permits a finding of bad faith destruction." United States v. Laurent, 607 F.3d 895, 902 (1st Cir. 2010). It recognizes, however, that "unusual circumstances or even other policies might warrant exceptions." Id. at 902-03; See also Nation-Wide Check Corp. v. Forest Hills Distrib., Inc., 692 F.2d 214, 219 (1st Cir.1982).
Comment
User Comments