The plaintiff, Tony B. Clay, brought claims for employment discrimination and retaliation based on race under Title VII against Consol Pennsylvania Coal Company (“Consol”).
The electronically stored information (ESI) in question are emails that specifically mentioned Clay. These emails discussed his employment, termination, and the allegedly racist remarks made about Clay, which are at the forefront for his claim against Consol for employment discrimination based on race. The emails are extremely relevant and should have been produced by the defense counsel in response to the plaintiff’s request for discovery issued in December 2012. While the company placed a litigation hold in June 2011 on all human resources employees, the defense counsel did not request any electronically stored information from the IT Department at Consol until April 2013. Additionally, it was at this time that the defendants placed holds on several other email accounts of employees who were directly involved in the firing of Clay, including the superintendent who signed the document which stated Clay’s termination.
The delay in the holds on email accounts and the gathering of the electronically stored information begs two questions: 1) why was there a delay in gathering the ESI; and 2) why was there a delay in placing a hold on accounts of individuals who were directly involved. While the defendants blame this on a miscommunication between the parties involved, this “miscommunication” proved to be costly to them.
As a result, the plaintiff filed a motion for sanctions against the defendants for an abuse of the discovery process. Clay felt as though the defense counsel had acted in bad faith and requested a default judgment against the defendant as well as reasonable expenses for taking certain depositions and permission to redepose six individuals at the expense of the defense. The magistrate judge declined to grant the plaintiff’s motion for Default Judgment. In making this decision, the judge considered four factors: 1) bad faith; 2) amount of prejudice; 3) need for deterrence; and 4) the effectiveness of less drastic sanctions.
However, the defendants were ordered to pay all reasonable expenses for the redeposition of six employees, but not for the employees who had yet to be deposed. The defense was responsible for the expenses associated for the
redepositions because the defendants allowed these depositions to occur in the first place without providing the plaintiff with much of his requested discovery. Additionally, the defendants provided no explanation for this failure and therefore sanctions are appropriate on this issue. As for those not yet deposed, the defendant is not responsible for these costs as the plaintiff made the choice not to depose these individuals initially. The
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defendants should not be forced to bear the cost of those being deposed for the first time.
While the defense was ordered to pay these expenses, it is important to note that the judge
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did not find any bad faith on their part. The court agreed with the judge and felt that these less drastic measures are more effective as they provide both deterrence for future noncompliance and alleviate the prejudice to the plaintiff.
To avoid having this outcome in the future, counsel and their client should have a better system of communication. Additionally, a policy should be in place with the IT Department in regards to gathering ESI whenever the need arises during the discovery process in litigation.
Jennifer Whritenour received her B.S. in Political Science and History in 2011 from the University of Scranton. She is a current student at Seton Hall University School of Law and will receive her J.D. in May 2014.
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April 2, 2014 at 6:07 PM
This case is another example of the significance of a litigation hold and just how much breadth they have. It is probably easy for companies of significant size to inadvertently overlook electronically stored information from certain parties or even entire company departments that may seem unrelated to the issues at hand. Whether or not these companies withhold information willingly or mistakenly, they are facing significant penalties for their failures. These companies and the respective companies that represent them must take more proactive approaches to eDiscovery or suffer the consequences.
April 23, 2014 at 11:47 PM
To me, this case highlights the inconsistency in which sanctions are ordered. I have read cases throughout the semester where one party’s shortcoming in discovery were much more egregious, yet no sanctions were ordered against them. Here no bad faith was found, but nonetheless sanctions were ordered. This case is an example of how difficult it can be to assess whether or not sanctions are appropriate and that parties really cannot predict how a judge may decide a sanctions claim.
April 24, 2014 at 10:34 AM
I agree with the comment above regarding sanctions. That is one of the most difficult aspects of ESI. Practicing lawyers have no idea how a judge is going to apply sanctions. One lawyer who does not adhere to discovery rules may be sanctioned and also put up in front of the ethics committee; yet, meanwhile there may also be the same scenario where no sanctions are given. I think in the future, it would be best if judges often awarded similar sanctions. Additionally, judges should be more clear about applying “bad faith.”
April 25, 2014 at 11:57 AM
I looked up this case because I was curious about the court’s holding that there was no bad faith. Unfortunately, the court notes that the original magistrate judge found bad faith and that after its own review, it too found no bad faith. However, the court never delves in the exact reasons why it agreed with the magistrate judge.
If not placing litigation holds on e-mail accounts of those who were directly involved in the firing of Clay for 2 years is not bad faith, then bad faith must be a mighty high bar to meet. I would think that such e-mail accounts would be relevant / likely to lead to relevant evidence for sure. Like Jennifer asks, why was there a delay in gathering relevant ESI — or even just putting the pertinent people on notice of a litigation hold of their e-mail accounts? I really wish we had more facts in the opinion to work off of in this case.
May 5, 2014 at 11:40 AM
I agree with Courtney and Salim. Although it may be difficult for a party to determine when sanctions may be levied, a party should know if they themselves are acting in bad faith. That takes away some of the surprise element when the inevitable sanctions come. However, sanctions for good-faith behavior should be much more bright-lined than the current discretion afforded to judges.