/>iPrior posts have discussed sanctions generally, as well as decisions analyzing the particulars of the operative rules (see November 2024 and December 2023 posts), but today’s blog discusses considerations for when, during a litigation, is the proper time to file a spoliation motion.
District Judge Iain Johnston’s[1] decision in Groves, Inc. v R.C. Bremer Marketing Associates, et al.provides not only a helpful discussion of the issue but also a reminder that practitioners should understand each judge’s rules and preferences when appearing in court.
Background
Groves Inc. brought a spoliation motion against defendant Christopher Sheppard. Specifically, movant alleged emails were spoliated and sought a permissive adverse inference jury instruction. Plaintiff submitted the motion to the court and fully briefed it while proceeding with expert discovery, fact witness depositions, and awaiting dates for summary judgment or trial. Although the court, paraphrasing Inspector Clouseau, held, “now is not the time to be filing a spoliation motion” and denied the motion without prejudice, it provided a useful discussion on the timing of filing spoliation motions.
The court noted it has been presented with Rule 37(e) motions at various stages of an action: during discovery; in the middle of summary judgment briefing, requiring the briefing to be stayed while the spoliation issue was resolved; in the form of a motion in limine after the issue was raised during summary judgment; and in the middle of trial. It noted there are instances when the filing is too early or too late, and noted “there’s a sweet spot when the filing of the spoliation motion is just right. But determining that sweet spot will vary depending on the specific facts presented as well as the judge who decides the motion.” Finding that sweet spot, the court indicated, requires “a conversation” where counsel notifies “the court and opposing counsel as soon as possible about a spoliation concern and calmly and professionally talk[s] to them about the most reasonable and best options to address the concern,” notwithstanding that “some counsel view assertions of spoliation as a declaration of war.”
The court then specifically addressed the filing timing of such motions, providing guidance on tardy spoliation motions (collecting cases), premature spoliation motions (collecting cases) and, importantly, the best time to file spoliation motions.
Tardy Spoliation Motions
Referencing what the court deemed the leading opinion regarding tardy spoliation motions (Goodman v. Praxair Servs.), it noted that spoliation motions should be “filed as soon as reasonably possible after discovery of the facts that underlie the motion.” [2] In Goodman, a 2009 case, Judge Grimm identified five factors courts should consider in determining if a spoliation motion is tardy:
- “how long after the close of discovery the relevant spoliation motion has been made,”
- the “temporal proximity between a spoliation motion and motions for summary judgment,”
- whether the spoliation motion was made on the eve of trial,
- whether a Rule 16 scheduling order or local rule set a deadline for filing spoliation motions, and
- the moving party’s explanation of why the spoliation motion was not filed earlier.
The first factor was described as the “key.”
The second factor assumes generally that spoliation motions should be made before summary judgment motions are filed. [3] Regardless of the factors, the court said, the ultimate question in determining whether a spoliation motion is tardy is whether the requested relief sought was made without unreasonable delay.
The court then noted that Groves’ motion was not tardy. Rather, the concern was whether it was premature. The court then turned its attention to discussing premature spoliation motions.
Premature Spoliation Motions
According to the court, “counsel can also jump the gun” and file spoliation motions too early – i.e., when the movant doesn’t have sufficient facts. An obvious example is filing a spoliation motion before discovery has been served and responded to. Less obvious but more common is filing spoliation motions under Rule 37(e) when the movant hasn’t yet established that the electronically stored information (ESI) cannot be restored or replaced – a prerequisite to obtaining relief under Rule 37(e).
However, assuming it has been established that the spoliated ESI can’t be restored or replaced, the court noted that “other factors impact the appropriate timing of spoliation motions.” For example, the existence and proximity of case management deadlines; whether fact discovery is closed; whether amended pleadings are still permitted; whether a trial date has been set, and whether the parties are still in pretrial discovery and not near the date for filing summary judgment motions.[4]
Another critical factor to consider is the likely remedy – whether it be a corrective measure or a sanction – that the moving party anticipates seeking, which informs consideration of the best time for the motion. For example, a party seeking to extend or reopen discovery should file a spoliation motion before discovery closes or as soon as possible thereafter. Alternatively, if a party anticipates seeking evidentiary remedies, filing the spoliation motion before or with the summary judgment motion might make more sense. Another critical factor is whether an evidentiary hearing will be necessary to resolve factual disputes relating to the spoliation.
Analysis
Against these guideposts, the court analyzed the facts before it, noting
- the timing was appropriate since parties were conducting fact discovery;
- Movant did not allege it could not proceed with expert discovery as a result of the spoliation;
- there would be no prejudice to defendant Shepperd if the spoliation issue is decided later, given Groves sought a permissive adverse inference jury instruction as relief (noting that trial was a long way off with “off-ramps for this action before a jury trial,” possibly including settlement and summary judgment).
Rather than expend resources on a spoliation motion at this time when they could be used elsewhere, the court denied the motion without prejudice, assuring the movant it had not waived the issue because it was timely raised and brought to the attention of Shepperd and the court. It further noted no party would be prejudiced by deferring the issue under the facts of this case, including the fact that the specific relief sought was a permissive adverse jury instruction. Rather, the parties, the court, and other litigants seeking access to the court’s resources “will benefit by holding the issue in abeyance until it needs to be decided.” And the court directed that “[a]fter the close of all discovery, if any of the parties intend on moving for summary judgment, Groves [could] take up the issue with the Court during its summary judgment prefiling conference.”[5]
Conclusion
There are several important lessons within this decision, including the importance of engaging counsel in a cooperative way to resolve issues before rushing to motion practice. Additionally, sanctions motions are fact-intensive, costly to brief, and a potential drain on judicial and party resources. Litigants should evaluate the Goodman factors and give thought to the best time to bring a sanctions motion so it isn’t waived, but also is resolved efficiently. And, critically, know your judge. Understand the judge’s rules, preferences, and prior decisions.[6]
[1] Those familiar with Judge Johnston’s writing understand he often includes humor, interesting quotes, and practical application to his decisions. This decision follows course, beginning with “This Court attracts Rule 37(e) motions like chum attracts sharks. (So—yes—in this simile, the Court is fish guts and fish heads.)”
[2] Retired Judge Grimm listed several reasons why spoliation issues should be raised with the court as soon as practicable: the motions are “fact intensive, can require extensive evidentiary hearings, can disrupt the timing of the rest of the case (with significant costs resulting to the parties and the court), and the remedy sought or provided can significantly affect the case.” Id. at 508.
[3] Although a 2023 case (National Fair Housing All v. Bank of America, N.A.) explicitly added prejudice as a sixth Goodman factor, the court noted that implicit in some of the Goodman factors is the concept of prejudice. For example, a spoliation motion that would alter summary judgment briefs and the court’s ruling “would result in significant wasted resources. Similarly, making a spoliation motion on the eve of trial can completely derail the scheduled trial, which—again—prejudices the non-movant, the court, and the other litigants who are seeking to have their actions resolved.”
[4] The court noted that while there are excellent reasons for delaying a decision on alleged spoliation, a “movant’s desire to obtain a ruling that it can use as settlement leverage is not on the list of excellent reasons.”
[5] The court noted if movant felt the “spoliation issue will not affect the summary judgment briefing, the Court will defer the issue until resolution of any summary judgment motions. If, however, it believes that the spoliation issue will affect any summary judgment briefing, it should inform the Court during the summary judgment prefiling conference so that the issue can be addressed in the most efficient way. If the case bypasses the seemingly obligatory summary judgment process and proceeds directly to a jury trial, then the Court will address the issue of an adverse jury instruction by way of a motion in limine with the final pretrial order.”
[6] Judge Johnston notes in the decision, “Strangely, in places, the parties take certain positions regarding Rule 37(e), ignoring the Court’s previous extensive decisions concerning Rule 37(e) motions. See, e.g., Hollis v. Ceva Logistics U.S., Inc., 603 F. Supp. 3d 611 (N.D. Ill. 2022); DR Distribs., LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021); Snider v. Danfoss, LLC, No. 15 CV 4748, 2017 U.S. Dist. LEXIS 167591 (N.D. Ill. July 12, 2017). No doubt, the parties are not ethically bound to cite this Court’s prior decisions regarding Rule 37(e) and this Court’s orders are not precedential. But one would think that rather than completely ignoring this Court’s orders directly on point and citing other district court decisions – which are likewise not precedential – the parties would at least address these decisions and attempt to distinguish them. See Walker v. Spina, 359 F. Supp. 3d 1054, 1066 n.3 (D.N.M. 2019) (“One of the things that consistently amazes the Court is the unwillingness of modern lawyers to tailor their briefing to the particular judge before whom they argue. The Court still gets briefings filled with citations to other district cases, even though it has written opinions more directly on point. * * * There is nothing wrong—and a lot right—with our colleagues in other states, but it mystifies the Court why lawyers continue not to research and know the judge before whom they are practicing.”). The filings also cite and rely upon multiple cases that pre-date the 2015 amendments to Rule 37(e). Those cases are of extremely limited value.
