American Federation of Government Employees v. Hawley , 255 F.R.D. 51 ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JOSEPH JONES et al.,
Plaintiffs,
v. Civil Action No. 07-855 (HHK/JMF)
KIP HAWLEY et al.,
Defendants.
MEMORANDUM OPINION
This case is before me for resolution of Defendants= Motion for Preclusion of
Evidence Not Disclosed During Discovery (ADefs. Mot.@) [#19]. For the reasons stated
herein, defendants= motion will be granted.
INTRODUCTION
Plaintiffs are four individual transportation security officers who work for the
Transportation Security Administration (ATSA@). Class Action Complaint at 4-5.
Plaintiffs claim that Kip Hawley, Administrator of the TSA, and others failed to
safeguard their personnel records, in violation of the Aviation and Transportation
Security Act and the Privacy Act of 1974. Id. at 2. Specifically, plaintiffs claim that the
TSA lost a hard drive that contained information such as their names, social security
numbers, dates of birth, payroll information, financial allotments, and bank account and
routing information. Id. at 7.
DISCUSSION
Plaintiffs do not deny that, as defendants charge, they:
1. Failed to preserve and produce documents relevant to their claim,
although they admitted that they had such documents in their possession.
2. Indicated that they had no responsive documents in their response to the
defendants’ Request to Produce Documents, although their other responses to discovery
indicated that they did.
3. Never searched for documents that the defendants demanded, except for
one plaintiff, who limited his search to what he described as information that was
Areasonably accessible.@ Defs. Mot. at 5-6 (quoting deposition of plaintiff Soulia at 105).
4. Indicated that they would supplement their responses to the interrogatories
but never did.
Plaintiffs resist the imposition of any sanctions for these derelictions on the
grounds that, while they concede that they did not maintain and produce documents that
would corroborate their claim of being damaged, defendants have no suffered any harm
because Athe Defendants are not hampered in any way from presenting their case by the
lack of these barely relevant documents.@ Plaintiff=s Opposition to Defendants= Motion
for Preclusion of Evidence Not Disclosed During Discovery at 6.
That argument misapprehends that a fundamental purpose of discovery is to
secure information that will impeach or contradict an opponent=s case. Plaintiffs cannot
be seriously arguing that such information does not meet the discovery standard of Rule
26(b)(1) of the Federal Rules of Civil Procedure of being relevant or likely to lead to
relevant evidence. It certainly does. See Kerr v. United States District Court, 511 F.2d
192, 196-97 (9th Cir. 1975) (AIn addition to discovering information pertaining to a
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party's case in chief, it is entirely proper to obtain information for other purposes such as
cross-examination of adverse witnesses.@). Since the plaintiffs have lost information that
they were unquestionably required to preserve and produce, the question becomes what
remedy is appropriate for the Court to impose.
The Federal Rules of Civil Procedure do not contain a provision specifying a
remedy for the failure to preserve evidence but, as I noted in a previous opinion, A[i]t is
settled beyond all question that at common law the destruction, alteration, or failure to
preserve evidence in pending or reasonably foreseeable litigation warrants the finder of
fact inferring that the destroyed evidence would have been favorable to the opposing
party.@ Ashford v. E. Coast Express Eviction, No. 06-CV-1561, 2008 WL 4517177, at *2
(D.D.C. Oct. 8, 2008) (citing United Med. Supply Co., Inc. v. United States, 77 Fed. Cl.
257, 263 (2007)). See also Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1481 (D. C. Cir.
1995) (holding that each party has A>an obligation to preserve and also not to alter
documents it knew or reasonably should have known were relevant . . . if it knew the
destruction or alteration of those documents would prejudice [its opponent].=@) (internal
quotations omitted). A[A] court may employ an adverse inference due to a party's >failure
to preserve evidence,= even if deliberate or reckless conduct is not present.@ More v.
Snow, 480 F. Supp. 2d 257, 275 (D.D.C. 2007) (citations omitted); Miller v. Holzmann,
No. 95-CV-1231, 2007 WL 172327, at *3 (D.D.C. Jan. 17, 2007) (AIt is the law of this
Circuit that a party has an obligation to preserve evidence it knew or reasonably should
have known was relevant to the litigation and the destruction of which would prejudice
the other party to that litigation.@). Before allowing an adverse inference however, Athe
court should consider the >degree of negligence or bad faith involved, the importance of
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the evidence involved, the importance of the evidence lost to the issues at hand, and the
availability of other proof enabling the party deprived of the evidence to make the same
point.=@ Id.Moreover, the efficacy of the drawing of such an inference in this case has to be a
function of its present status. The defendants have moved for summary judgment
arguing, inter alia, that the statute under which plaintiffs proceed, the Privacy Act, 5
U.S.C. ' 522 (a)(g)(1)(D), 1 requires that they establish that the defendants= failure to
comply with the Act caused an adverse effect, but only to the extent of the actual damage
they sustained. Defendants= Motion for Summary Judgment at 24. Defendants then argue
that the granting of the motion that is the subject of this Opinion should lead to the
preclusion of plaintiffs= presenting any evidence of damages and without any proof of
damages, defendants= motion must be granted. Id. at 25-26. Defendants also argue that
plaintiffs’ claims are conclusory. Id. at 27-28.
Plaintiffs oppose the relief sought by the defendants in the motion before me by
asserting that Athey incurred >actual damages= although not financial loss.” Plaintiffs=
Opposition to Defendants= Motion for Summary Judgment (“Plains. Opp. SJ”) at 11.
They claim to have experienced concern and worry about their potential liability for
fraudulent debts due to the disclosure of the information on the hard drive and about any
future financial harm they may incur. Id.
In reply, citing inter alia, Rice v. United States, 245 F.R.D. 3, 6-7 (D.D.C. 2007),
defendants argue that the plaintiffs= concerns about what may happen to them are
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All references to the United States Code are to the version that appears in Westlaw or Lexis.
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insufficient as a matter of law to satisfy the requirement of showing actual damage under
the Privacy Act. Reply in Support of Defendants= Motion for Summary Judgment at 12.
Given the briefing relating to defendants’ motion for summary judgment, the
government=s request for sanctions may be unnecessary. If Judge Kennedy construes the
evidence in the light most favorable to the plaintiffs, who are opposing the motion for
summary judgment, but still finds their allegations of harm insufficient on their face to
establish actual damages, the case will be dismissed whether or not plaintiffs are
sanctioned. There is, however, one aspect of this matter that, in my view, requires the
imposition of sanctions.
In support of their contention that plaintiffs experienced Aaggravation, worry or
concern@ because of the loss of the hard drive, plaintiffs reference AAttachment 1 and 2.@
Plains. Opp. SJ at 11. Attachment 1 contains the interrogatory responses of plaintiffs
Nagel, Soulia and Thomas while Attachment 2 is the interrogatory response of Jones.
Those responses contain allegations of more specific harm than the general concern to
which plaintiffs refer in their opposition to the motion for summary judgment. The
following chart indicates the specific harm of which each plaintiff complains as well as
the plaintiffs’ admissions that while they once had the relevant documents, they no longer
do and therefore never produced them during discovery:
Plaintiff Allegations of Specific Harm Admission
Thomas Because he was president of Admitted that he once had
American Federation of documents, including e-mails,
Government Employees local, related to securing bank and credit
fellow members called him with accounts. Reply in Support of
questions about the consequence of Defendants= Motion for Preclusion
the loss of the hard drive. He had of Evidence Not Disclosed During
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to tell his wife that she could not Discovery (“Defs. Reply”) at 6
use their debit card for a few days. (citing Thomas Deposition at 240).
Nagel She was forced to quit her job Admitted that she once had
because she felt that the TSA documents pertaining to her efforts
broke its faith with her. Her to secure other employment. Defs.
account was frozen at the credit Reply at 6 (quoting Nagel
union causing the teller to say that Deposition at 87).
she was trying to access her
account illegally. Although the
teller over-rode the freeze, she was
embarrassed by the reaction of
other persons and inconvenienced
because accessing her account took
more time than normal.
Soulia Application for car loan almost did Admitted that she once had a loan
not go through and she was pre-approval letter, an e-mail
required to spend more time request to a car dealer, and
processing the loan than normal. voicemail messages relating to
To get the apartment in San Diego securing a car loan on which her
she wanted, she had to cancel the damages claim for personal time is
identity theft protection and all the based. Defs. Reply at 6 (citing
alerts on her bank account and Soulia Deposition at 121).
credit cards.
Plaintiffs= failing to preserve these documents has deprived the defendants of
fundamental information that could have been used to investigate the bona fides of
plaintiffs’ claims. Their negligence is inexcusable. The documents go to the very heart
of their claims for damages, and there is no substitute for them which the defendants
could use or find. I therefore conclude that defendants are entitled to the adverse
inference they seek and I therefore will order that, as to the allegations made in what
plaintiffs call Attachments 1 and 2, i.e., their interrogatory responses, the inference will
be drawn that, had the plaintiffs kept and produced the documents at issue, their contents
would be adverse to their allegations.
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Finally, I note that, as I emphasized above, whether sanctions should be imposed
is a function of the status of the case. I believe that the government should be able to
renew its motion that all evidence of actual damages be precluded at trial, if plaintiffs=
case should survive summary judgment.
An Order accompanies this Memorandum Opinion.
/S/
JOHN M. FACCIOLA
UNITED STATES MAGISTRATE JUDGE
Dated: January 12, 2009
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