In Episode 26, Kelly Twigger of eDiscovery Assistant discusses the failure to preserve and produce video evidence and how it can lead to sanctions for spoliation. The case we are analyzing is Bursztein v. Best Buy, 2021 WL 1961645 (S.D.N.Y. 2021), May 17, 2021 presided over by United States Magistrate Judge Katharine H. Parker.
Good morning and welcome to our case of the week for May 25, 2021. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the Principal at ESI Attorneys. For those of you who tune in with each week, you know that we pick a decision from eDiscovery Assistant’s case law database, and in our partnership with ACEDS, talk to you about the practical implications of that decision, what it means for you, your practice, and for your clients.
It is May, and we are getting back in person. To all of you, whether you are students or parents who have graduates or are graduating this month, my warmest congratulations to you all. It’s a huge accomplishment. My hope is that you’ll get to celebrate with your friends, family, and colleagues with your great accomplishments. Congratulations!
For our event today, you can see in the comments and whatever platform you’re viewing us on the public link to our case today, which is in Bursztein v. Best Buy. You’ll see that will direct you to the public link in eDiscovery Assistant to be able to view the case. You can also see a link to our case report from 2020 that lays out some of the statistics from last year that we did in cooperation with Doug Austin of eDiscovery Today.
We’ve also just launched our new website over at eDiscoveryAssistant.com. Please hop over there and feel free to take a look.
All right. Let’s get into this week’s case, which is the latest on the decision on a motion for sanctions in the Bursztein v. Best Buy. This is a decision from May 17, 2021 and was written by Judge Katherine Parker, who is the United States Magistrate Judge in the Southern District of New York. If you’ve been following our case of the week, you know that Judge Parker also wrote the decision we covered most recently in Nichols v. Noom, which related to hyperlinks in Google Apps documents. It was a really important decision and one in which Judge Parker articulated excellent basis for her analysis. I’m pleased to say that the result here is exactly the same. It’s a terrific decision that I recommend you take a few minutes to read because of the way it lays out some of the issues we’re going to cover today.
Within eDiscovery Assistant you know that we issue tag each one of our decisions to make researching that much faster and issues for this particular case include video, 30(b)(6) sanctions, spoliation, failure to preserve, bad faith, and costs and fees. The database includes 23 different decisions from Judge Parker, including that new decision that we mentioned earlier and for which we’ve covered on #CaseoftheWeek.
All right, let’s dive into our case here. What are our facts? Before the court on a motion for sanctions under Rule 37 for spoliation and sanctions based on a failure to preserve and produce video surveillance footage showing the area of a fall and other relevant documents despite a Rule 26(f) order in place and entered by the court. This is a slip and fall case in which the plaintiff is alleged that she tripped and fell over a raised piece of metal on the top of a landing at an escalator at the New York City Best Buy store. Her resulting injuries included her shoulder and required her to have surgery.
At the time of the incident, while waiting for EMS workers to arrive, an employee at the store told the plaintiff that the condition that caused her fall had been present for a couple of weeks and that he had reported the issue to maintenance. The plaintiff was then treated at the scene by the EMS workers and flew home to Florida before seeking additional medical attention.
Now, moving on to discovery in the case, to quote the court, discovery “has been plagued by obstruction, lack of communication and boilerplate objections.” Never how you want a judge to start a decision.
The plaintiff here requested discovery, including video surveillance footage of the incident, on April 1, 2020. As of six weeks later, Best Buy had not answered. We know that under the discovery rules, responses are due within 30 days. Ostensibly, all objections are waived at that point. Interestingly, that’s never something that we get to in this case.
When Best Buy did respond on May 27th, they issued three pages of general objections and four pages of boilerplate specific objections and then produced two documents, including the Safety Incident Review and the Facility Services Agreement for the store.
Plaintiffs then responded to the perceived deficiencies. Best Buy did not respond again for six weeks, at which point it said it had no video footage and no further documents to provide, including maintenance schedules, records of inspection of the escalator and the entries on any logs, etc. Plaintiffs then tabled the discussions with Best Buy and instead took the 30(b)(6) deposition of the store manager at the location. During the deposition, the plaintiffs found that the store manager was not prepared on numerous of the topics listed on the 30(b)(6) notice, but what the manager did testify was that the repair and maintenance requests were logged in the Facility Request System, that surveillance footage of the incident did exist, and that he preserved the footage personally in the month after the incident. Both of those incidents of his testimony were in direct conflict with the discovery responses, the written discovery responses that had been provided by Best Buy today.
Following the deposition, the plaintiff re-served the demands for video footage and entries in the Facility Request System. Best Buy waited two months to respond, at which point they responded with boilerplate objections and some invoices related to the escalator and responded that the requested materials, including the surveillance footage, were no longer in Best Buy’s custody or control and that the manager’s testimony that the footage existed was wrong.
Plaintiff moved for sanctions on December 23rd. We’re talking about roughly six, seven months after the original request for information in April. On January 8th, 2021, ostensibly in response to the motion for sanctions, Best Buy filed an affidavit from the store manager who gave the 30(b)(6) deposition claiming that “he misunderstood the question concerning video footage during his deposition and explained that he understood plaintiff’s counsel’s question to relate to his general practice of saving surveillance footage as opposed to the specific surveillance footage at issue in this case.”
That’s where we stand as we move into the court’s analysis. We’ve got some pretty abhorrent behavior, at least as documented, on the part of Best Buy. There is also discussion within the case and allegations by Best Buy that discovery conduct on the plaintiff’s part was also not what we would hope for under Rule 26.
Looking at the Court’s analysis—the Court looks particularly at the availability of sanctions under Rule 37, for two separate instances: under a 37(b)(2), which provides for sanctions for failure to obey an order, and under 37(e) for failure to preserve.
Now this is, I mentioned this at the outset, but I really feel like this is another good opportunity to read through the Court’s breakdown of what’s required under these sections of Rule 37 in terms of arguing for sanctions.
We’re still seeing a lot of instances where parties who are moving for sanctions are not necessarily clear on the sections of the Rules that they’re asking for sanctions under and as a result are not necessarily meeting their burden of proof on those various elements for the individual sections. They’re laid out here in this decision. They’re laid out in the DR Distributors case that we’ve discussed. You’ve got lots of opportunities to be able to make sure that you’re understanding exactly what’s required under the various sections of the Rules and exactly what your requirements are to be able to meet your burden on a motion for sanctions.
Take a look at that. I mean, she really does pen an excellent analysis of the requirements of Rule 37(b)(2)(c), including the options available to the court for a violation, the purpose of discovery sanctions, and the factors that are set out by the Seventh Circuit on whether sanctions should be imposed under Rule 37.
Now, one thing the court does note is that sanctions lie within the sound discretion of the court. Then she moves on to break down under Rule 37(e) the five factors that have to be shown for getting sanctions without showing intent and also for getting sanctions that do require intent to deprive under 37(e)(2).
That’s our kind of initial breakdown. Here are the potential places for sanctions we’re looking at—37(b)(2) and 37(e)(1) and (2).
The Court then looked at the four categories of evidence that were outstanding: the video surveillance for footage, store of safety training materials, Facilities System Request (that appears to be a specific system where requests are logged and perhaps communicated to the facilities administrator), and then the fourth category is copies of the inspection report for the escalator.
Now, important to this decision is the Court did find that its Rule 26 order entered following the Rule 26 Conference was sufficient to establish a basis for sanctions and they did not require that the plaintiffs have moved for a motion to compel with a separate order in order to seek sanctions under 37(b).
That’s really important; the language of that Rule 26 order requires the parties to conduct discovery in accordance with the Rules of Federal Procedure, Federal Rules of Civil Procedure and the local rules. That was really the sole language that the Court said that Best Buy had violated here in order to make sanctions available under 37(b). That’s really important because a lot of times we’ve talked to on the #CaseoftheWeek before about filing a motion to compel in order to get a court order specifically on categories of discovery information. One of the takeaways from this case is whether or not you need to file that motion to compel.
Here, I think the level of conduct engaged in the discovery process was such that the Court felt that Rule 26 order had been violated and that was a sufficient basis. You won’t always find that. I mean, when you don’t have egregious conduct in discovery and you’ve simply got the issue that brings about the motion for sanctions, you may need a specific court order. Keep that in mind. Grain of salt when reading this case.
The Court also looked at Best Buy’s argument that the plaintiffs should be barred from seeking sanctions based on unclean hands. This is where Best Buy argued that the plaintiffs had also engaged in improper discovery conduct. The Court really looked at that and said that the plaintiff had produced the documents, although there were some delays in producing documents to the court, the plaintiff had produced the documents that were requested and that had promised to continue to produce those documents prior to the close of discovery. The conduct from the plaintiffs was not such that arose to a level that unclean hands could even be considered.
Now, that’s the first time I’ve seen unclean hands argued in response to a motion for sanctions. I guess I shouldn’t say argued; I should say considered by the Court on a motion for sanctions. I don’t know that I agree that that one can offset the other in terms of that kind of behavior, but we didn’t really get to that analysis in this case, so it more begs the issue of whether or not unclean hands is an appropriate response to a motion for sanctions.
The next piece that was important. The court looked at the fact that there was a motion for summary judgment currently pending and that any motion for sanctions was going to have an impact on that motion for summary judgment in the case. The court found that it was appropriate for the sanctions to impact the motion for summary judgment, and that was not going to serve as a bar for any kind of award of sanctions here.
The Court then also went specifically into Best Buy’s credibility in this case and found that the defendants had, “thwarted and disrupted discovery throughout the life of this case.” The court found that the defendants had repeatedly flouted their discovery obligations, failed to promptly communicate with discovery counsel, with opposing counsel, and repeatedly lodged baseless boilerplate objections to plaintiff’s discovery requests. Best Buy’s attempt to use those objections to avoid producing documents are, “a paradigm of discovery abuse.”
Essentially, we’ve got a situation where Best Buy pretty much infuriated the Court with its conduct, and that’s never going to be good on a motion for sanctions.
Jumping from assessing Best Buy’s credibility, the Court then moves into the analysis under Rule 37(e). As we know from previous cases, our question under Rule 37(e) is whether the information sought is ESI, whether there was in fact a duty to preserve the information, whether the information should have been preserved when litigation was anticipated, whether information was lost because a party failed to take steps to preserve it and whether the information can be replaced in discovery. Analysis of those factors—obviously the video surveillance information and the entries logged into the maintenance system were clearly ESI. There was a duty to preserve established with a preservation letter that was sent to the plaintiffs with a return receipt to show acceptance. That was important here because Best Buy try to argue that they did not have any notice of this case or and they did not receive the preservation letter. The plaintiffs were able to point specifically to the return receipt that Best Buy had signed in receiving the plaintiff’s letter. They were also able to point out that a claims administrator had reached out to plaintiff’s counsel about 10 days after receipt of the letter.
It’s important when you’ve got these kinds of situations that you’re crossing your Ts and dotting all Is. Sending your preservation letters with return receipt, or that you can be able to authenticate acceptance is important in some situations where you’ve got, you know, opposing counsel who aren’t necessarily going to engage in the way that we would hope in constructive discovery.
The Court also found that whether the ESI was lost here was more complicated because of the recanting affidavit by the manager, but then the court looked at the detail of the original testimony. That testimony showed that the manager specifically stated that he had reviewed the footage of the incident, saw the plaintiff trip, and that he took steps to preserve it within the month. As a result, the court issued this: “the manager’s sworn testimony, the attempted recantation of that testimony through an affidavit filed at the 11th hour, and Best Buy’s pattern of dilatory and obstructive conduct throughout discovery lead me to find that the video footage likely existed at one point and that Best Buy had a duty to preserve that footage pursuant to both the litigation hold it received and its own internal policies. Furthermore, the manager confirmed that the facility’s request system entries and the training manuals existed as well. Therefore, all of the ESI in question did exist and should have been preserved in anticipation of this litigation.”
The ESI was also otherwise not available, and we’ve satisfied those elements of Rule 37(e)(1). Our question next turns to whether there is intent to destroy the evidence. This is really important because we’ve talked multiple times about the increased burden of Rule 37(e)(2) and that intent to deprive and that the party bringing the motion has the intent, has the burden to show that there was intent to deprive. The Court looked at the evidence here and found that there really was very little evidence that the plaintiffs provided or that Best Buy provided about intent to deprive.
Judge Parker looked to other courts in the circuit that have inferred an intent to deprive through circumstantial evidence where a data loss could be could not be credibly explained other than by bad faith. In particular, she looked to the Moody vs. CSX Transport case in which the defendant’s foreman uploaded data from an incident onto a laptop and then purportedly uploaded that data onto the backup server. The data was not properly loaded on to the backup server and was eventually lost when the foreman’s laptop was recycled by the defendants.
Given the importance of the evidence, the Court held that the defendant’s conduct was stunningly derelict as to events intentionality. But in this case, Judge Parker looked at the conduct by Best Buy and said that there was no evidence that Best Buy affirmatively deleted the footage on purpose and that at best it was unclear from the discrepancies in testimony and thus plaintiff had not met its burden to show intent under Rule 37(e)(2). That’s the high bar that we’re looking at here.
One of the things that I found was interesting (and of course, we don’t have all the testimony from the manager in the decision), is there was not any discussion in the case about the plaintiff’s asking the manager about the process for preserving video footage, how long it was kept for where it was stored, who would have had access to it, when it would have been deleted — information that likely could have bolstered this intent to provide argument. When you’re arguing for sanctions under specific sections of the Rules, in particular, 37(e)(2) where you’re looking to establish an intent to deprive, you need to make sure that you get all of the testimony from that 30(b)(6) that you need in order to be able to put enough evidence before the court to have them determine whether circumstantial evidence depicts an intent to deprive under 37(e)(2).
It’s really important that you are thinking about your basis for sanctions when you’re getting your testimony. It’s not something you’re going to be able to fill in the puzzle pieces with later.
After saying no sanctions under 37(e)(2), based on the failure to show intent to deprive the court, then looked at overall sanctions and the allowance of attorney’s fees. The court looks specifically to New York law on slip and fall to determine whether prejudice exists. In New York, slip and fall cases require an existence of a defective or dangerous condition that the defendant either created or had actual notice of. The Court said that based on that requirement under New York law, evidence of the surveillance footage and the entries in the maintenance request logs were the primary evidence to prove those elements and that the loss of that data prejudiced the plaintiff. As such as a sanction, the Court allowed plaintiff to present evidence at trial regarding the spoliation of ESI and whether it existed, as well as the initial deposition testimony of the manager that he had preserved the footage after the incident.
That’s the sanction that ultimately was entered. The Court also awarded monetary sanctions to the plaintiff for costs and fees in bringing the motion for sanctions.
We talked a little bit, but what are our takeaways here? First, we’ve got to get rid of those boilerplate objections. Come on, people! We’ve talked about this so many times.
The Court actually cites the Fisher vs. Forrest case, which we’ve reviewed on our blog, and will add to the comments for you to be able to take a look at that case and what the Court said there. Essentially, you’ve got to make sure that when you’re providing objections or getting rid of your general objections, and you’re providing only extremely specific objections to a request that have a basis, in fact. Otherwise, you’re risking the court, throwing out those objections. Here they really spurred the court into feeling as though Best Buy were just engaging in dilatory practices relating to discovery. That coupled with the delays in actually responding to the requests, really prejudiced Best Buy’s case here. Although, frankly, given the situation, I think that the sanctions provided are pretty lenient. Although, that’s really because I think the plaintiffs weren’t able to meet their burden on the intent to deprive.
Plan, plan, plan. You’ve got to plan. You’ve got to know that you can’t deal with these boilerplate objections, and you’ve got to move to compel faster here. There’s a note in this decision by the Court that had the plaintiffs move to compel earlier that they might have been able to solve some of these problems on the intent to deprive. We talked about the intent to deprive standard and how that’s a high one. Again, plan, plan, plan. As you’re taking testimony, understanding that you’re looking at a potential sanctions motion and spoliation, you’ve got to understand the elements that you’re going to need to prove on a motion for sanctions and make sure that you get the testimony and or the documents or other evidence that you need to be able to meet your burden.
Next, take away we talked about this a little bit already, but I have discussed in the past the need for that motion to compel and to get that specific order in order to be able to get a violation of the order under 37(b)(1) as a basis for sanctions here. Of course, the court looked at the Rule 26 order and said that was a sufficient basis, but I think in most situations you’re going to want a specific ruling from the court on a motion to compel.
All right, finally, come on, let’s cooperate a little bit more, guys. I mean, it’s really hard to tell here whether it was counsel or the client that was being dilatory in the responses. Obviously, as counsel, we can never file something that we haven’t had the client sign off on. It was unclear here whether the client simply wasn’t providing information to counsel or whether counsel wasn’t providing it. We’ve got to resolve those issues, but either way, when you engage in dilatory practices, you’re going to bring the Court’s ire and it’s not going to work out well for you on a motion for sanctions.
That’s our case of the week for this week. Thanks so much for joining me. I’ll be back next week with another edition of our Case of the Week from, eDiscovery Assistant.
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