United States District Court, M.D. Alabama, Eastern Division
F. MOORER UNITED STATES MAGISTRATE JUDGE.
action is assigned to the undersigned magistrate judge to
conduct all proceedings and order entry of judgment by
consent of all the parties pursuant to 28 U.S.C. §
636(c). See Docs. 45, 46.
before the Court is Defendant's Motion for Sanctions
Including Dismissal of the Action With Prejudice (Doc.
73, filed 8/30/16). Plaintiff submitted her response on
September 16, 2016 (Doc. 75). The Court held a hearing and
oral arguments on the matter on September 22, 2016. After the
hearing, the Court permitted post-hearing briefing and
replies. See Docs. 79, 80, 81, 82, 83, 84, and 85.
An official transcript was prepared and docketed on December
2, 2016. After review of all the relevant pleadings,
testimony, and evidence presented, the motion is fully
submitted and ripe for review. On January 5, 2017, the Court
entered an order which GRANTED in part and DENIED in part the
Defendant's motion. See Doc. 87. This memorandum
opinion now provides the basis for that ruling.
Karla Morrison (“Plaintiff” or
“Morrison”) filed her Complaint in this case on
October 2, 2014 wherein she alleged violations of the Fair
Labor Standards Act (“FLSA”). See Doc.
1. Defendant is Charles J. Veale, M.D., P.C.
(“Defendant” or “Veale Practice”).
Plaintiff states she was employed by Defendant from September
2011 through her termination on August 19, 2014. Plaintiff
asserts two counts for violations of FLSA. Count I claims
that Defendant failed to pay her the minimum wage from
September 2011 until mid-February 2012 though she worked
approximately thirty (30) hours per week. Count II claims
that Defendant failed to pay overtime compensation from
February 2012 to August 19, 2014 (her termination date)
though Plaintiff regularly worked in excess of forty (40)
several continuances of the discovery deadline and other
relevant deadlines, the discovery period finally concluded on
August 5, 2016. See Doc. 66. On August 30, 2016,
Defendant filed its motion for sanctions for spoliation of
evidence. See Doc. 73. Defendant alleges that after
Plaintiff's termination, she improperly logged in to the
office email account and deleted all the emails contained
within the account. Defendant further alleges that she would
secretly and repeatedly log-in to the email account to delete
emails throughout the course of the litigation. Defendant
states Plaintiff added 2-step verification to the log in
process in April 2015 (long after she was terminated). The
verification process was linked to her cell phone.
denies the allegations. Plaintiff states that the only time
she accessed the account post-termination was either August
19 or 20, 2014 solely to close out items (including her
personal email). Plaintiff claims all emails related to the
practice had already been copied and placed in their proper
files at the Veale Practice. Plaintiff states that she was
only closing out matters already completed. Plaintiff
acknowledged she added an inactive account manager
notification and an auto-reply which automatically sent a
responsive email to the sender that they should contact the
Veale Practice directly at the appropriate telephone number.
Plaintiff denies accessing the account any time afterwards.
Plaintiff claims the deleted emails had no bearing on the
case and were clearly not important to the Veale Practice as
they did not make any efforts to retrieve them during 2015.
Plaintiff claims she did not activate the 2-step verification
process in April 2015 and posits anyone could have done that
and specifically identifies the Defendant as likely having
added Plaintiff's cell phone.
September 22, 2016, the Court heard oral arguments and
evidence as it related to the motion. The Court heard
testimony from Plaintiff's prior three attorneys (which
included a limited waiver of privilege as it pertained to
discovery matters), Plaintiff Karla Morrison, Nancy Veale,
Kathryn Peters, and Dana Johnson. The final three witnesses
were employees of the Veale Practice.
in its motion for sanctions first requests dismissal with
prejudice of the lawsuit. Alternatively, it requested
dismissal of the FLSA overtime claim. Plaintiff opposes any
sanctions, but states, in the alternative, that if granted
that appropriate remedy would be a permissive jury
instruction. At the conclusion of the hearing the Court
provided both parties the opportunity for supplemental
briefing including the Court's request to address
alternative remedies besides the far ends of the spectrum
each side requested. After receiving the briefs, their
sur-replies, and the official transcript of the proceeding,
the issue was fully ripe for disposition.
Jurisdiction and Legal Authority
asserts claims pursuant to 28 U.S.C. § 1331 (federal
question jurisdiction) as she brings claims for violations of
the Fair Labor Standards Act (FLSA), 29 U.S.C. § 201,
et seq. No party contests either subject matter or
personal jurisdiction and adequate support exists for both.
is the ‘intentional destruction, mutilation,
alteration, or concealment of evidence.'”
Swofford v. Eslinger, 671 F.Supp.2d 1274, 1279 (M.D.
Fla. 2009) (citations omitted); see also Evans v. Mobile
County Health Dep't, Civ. Act. No. 10-0600-WS-C,
2012 U.S. Dist. LEXIS 8530, 2012 WL 206141 (S.D. Ala. Jan.
24, 2012) (Cassidy, M.J.) (quoting Swofford);
cf. Green Leaf Nursery c. E.I. DuPont de Nemours &
Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (spoliation
defined as the destruction of evidence or the significant and
meaningful alteration of a document or instrument, without
reference to intentionality); Oil Equip. Co. v. Modern
Welding Co., ___ Fed.Appx. ___, 2106 U.S. App. LEXIS
17632, *15, 2016 WL 5417736, *5 (11th Cir. Sept. 29, 2016)
(quoting West v. Goodyear Tire & Rubber Co., 167
F.3d 776, 779 (2d Cir. 1999) (“Spoliation” refers
to “the destruction or significant alteration of
evidence, or the failure to preserve property for
another's use as evidence in pending or reasonably
foreseeable litigation.” Eleventh Circuit again
includes both intentional and negligent mens rea.). A
district court has “broad discretion” to impose
sanctions as part of its “inherent power to manage its
own affairs and to achieve the orderly and expeditious
disposition of cases.” Flury v. Daimler Chrysler
Corp., 427 F.3d 939, 944 (11th Cir. 2005). Sanctions for
spoliation of evidence are intended “to prevent unfair
prejudice to litigants and to insure the integrity of the
discovery process.” Id.
law governs the imposition of spoliation sanctions since
“spoliation sanctions constitute an evidentiary
matter.” Id. (citations omitted). However,
while federal law governs, a court may look to state law for
guidance to the extent is consistent with federal law.
Flury, 427 F.3d at 944 (examining spoliation factors
enumerated in Georgia law since the Eleventh Circuit had not
set forth specific guidelines and Georgia law on the subject
was wholly consistent with federal spoliation principles);
Southeastern Mechanical Services, Inc. v. Brody, 657
F.Supp.2d 1293, 1299 (M.D. Fla. 2009) (“[C]ourts may
look to state law principles for guidance so long as the
principles are consistent with [general] federal spoliation
principles [that do exist].”).
Alabama Supreme Court has applied the following five factors
in analyzing a request for spoliation sanctions: “(1)
the importance of the evidence destroyed; (2) the culpability
of the offending party; (3) fundamental fairness; (4)
alternative sources of the information obtainable from the
evidence destroyed; and (5) the possible effectiveness of
other sanctions less severe than dismissal.” Story
v. RAJ Properties, Inc., 909 So.2d 797, 802-803 (Ala.
2005) (citation omitted); see also Oil Equip Co.,
2016 U.S. App. LEXIS 17632 at *15-16, 2016 WL 5417736 at *5
(quoting Story); Ray v. Ford Motor Co., 792
F.Supp.2d 1274, 1279 (M.D. Ala. 2011) (citing
Federal Rule of Civil Procedure 37(e) addresses
Electronically Stored Information (ESI). The relatively new
Fed.R.Civ.P. 37(e) went into effect on December 1, 2015 which
is after the filing of this case. As such, it is not binding,
but the Court finds the material persuasive. It states as
(e) Failure to Preserve Electronically Stored
If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is
lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through
additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information's use ...