How does a Court decide if a defendant does not immediately supply documents requested, even if they are not destroyed, and the plaintiff already has access to them?

Is it electronic discovery if the Plaintiff already has what they are asking for?

Author: Rachel Smith
Case Citation: Johnson v. Brennan, No. CV 4:16-02612, 2017 WL 5672692 (S.D. Tex. Nov. 27, 2017)

Employee/Personnel/Employer Implicated: Employer and Employee
eLesson Learned: A District Court dismissed the Plaintiff’s case for age discrimination against USPS, while also denying the request for sanctions when the documentation that was not provided by the Defendant was not in fact destroyed, and the Plaintiff was already in possession of those documents.

In this case, a case originally about employment discrimination, the District Court dismissed the Plaintiff’s claims against the Defendant, USPS for failure to meet the standards. Plaintiff’s claims included age discrimination in the workplace and hostile work environment. Plaintiff also requested sanctions be issued to the Defendant for failure to produce specific e-mails to the Plaintiff in a timely manner, and for spoliation of evidence.

The Court denied the request for sanctions because Rule 37(e) provides for sanctions if electronically stored information “is lost because a part failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery”. Certain sanctions also require a showing of “prejudice… from loss of information”. In this case, the e-mails were not destroyed, because once the Plaintiff requested sanctions, the Defendants produced the documents that were requested. Also important, the e-mails were such that both the Plaintiff and the Defendant were both parties to the e-mails, therefore both parties would have access to all of the e-mails as they were either sending or receiving them. This means that the e-mails that were not produced by the Defendant, were in fact in Plaintiff’s possession the entire time.

The Court must follow the intentions of Rule 37(e) when deciding when to sanction a party in a matter. Here, because the e-mails were not material, or destroyed, and because the Plaintiff had them in her possession the entire time, the Court decided that sanctioned would not be issued.

Rachel Smith is a Seton Hall University School of Law student, Class of 2018. She received her B.A in Women’s and Gender Studies from Rutgers University in 2010.

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