Broccoli v. Echostar Communications Corp.

229 F.R.D. 506, 62 Fed. R. Serv. 3d 817, 2005 U.S. Dist. LEXIS 16000, 2005 WL 1863176
CourtDistrict Court, D. Maryland
DecidedAugust 4, 2005
DocketNo. CIV. AMD 03-3447
StatusPublished
Cited by25 cases

This text of 229 F.R.D. 506 (Broccoli v. Echostar Communications Corp.) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Broccoli v. Echostar Communications Corp., 229 F.R.D. 506, 62 Fed. R. Serv. 3d 817, 2005 U.S. Dist. LEXIS 16000, 2005 WL 1863176 (D. Md. 2005).

Opinion

MEMORANDUM OPINION

DAVIS, District Judge.

This employment discrimination ease was tried before a jury beginning on March 14, [509]*5092005, and on March 30, 2005, judgment was entered on the jury’s verdict in the amount of $9668.64 in favor of plaintiff, Dino Broccoli (“Broccoli”),1 on claims for breach of contract and violation of the Maryland Wage Payment and Collection Act (“wage payment claim”), Md. Code Ann., Lab. & Empl. §§ 3-501, et seq. At the same time, judgment was entered in favor of defendants Echostar Communications Corporation and Dish Network Corporation (collectively referred to as “Echostar”) as to claims for sexual harassment and retaliation asserted pursuant to Title VII of the Civil Rights Act of 1964. Finally, judgment was entered in favor of Echostar and defendant Stacie Andersen (“Andersen”) as to the state law claim for tortious interference with prospective economic advantage.

Broccoli has filed a motion for an award of attorney’s fees in respect to the wage payment claim as authorized by state law. See Md. Code Ann., Lab. & Empl. § 3-507.1 (authorizing an award of reasonable counsel fees and costs if an employer is found to have withheld wages in violation of section 3-507.1 and not as a result of a bona fide dispute). Also, Echostar has filed a bill of costs based on its assertion that it is a “prevailing party” under Fed.R.Civ.P. 54(d)(l)(“[C]osts other than attorney’s fees shall be allowed as a matter of course to the prevailing party unless the court otherwise directs.”), to which Broccoli has timely objected. In this Memorandum Opinion, the court shall rule on these two matters. In addition, the court shall articulate its reasoning for its earlier order granting in part Broccoli’s motion for sanctions and shall, concomitantly, determine the amount of fees and costs to be awarded to plaintiff pursuant to Fed.R.Civ.P. 37.

I.

A.

Plaintiffs principal claims in this case were based on allegations of sexual harassment and retaliation under Title VII. Several state law claims also survived summary judgment. In sum, plaintiff alleged that a Baltimore-based human resources administrator for Echostar, defendant Andersen, engaged in a series of inappropriate, sexually-charged behaviors, and related questioning and badgering of him, in the course of his employment, thereby creating a hostile work environment, and that, in retaliation for his rebuffs to her, Andersen orchestrated the termination of his employment under the guise of an organizational realignment and reduction in force. Furthermore, even after his termination, plaintiff asserted, Andersen provided false and defamatory employment references to his would-be employers, thus burdening his efforts to obtain employment, and thereby further violating Title VII’s anti-retaliation and non-discrimination proscriptions. Echostar and Andersen denied all of plaintiffs allegations and mounted a determined and vigorous defense to all of plaintiffs claims.

During discovery, on September 9, 2004, Broccoli filed a motion for sanctions against Echostar, alleging that Echostar had culpably failed to preserve critical records and documents relevant to several claims and defenses in the case and was guilty of spoliation of evidence.2 On January 8, 2005, in ruling on the motion for sanctions, the court issued an order granting the motion in part, noting that it was “clear beyond reasonable dispute that [Echostar] ha[d] been guilty of gross spoliation of evidence.” Consequently, at trial, the court imposed certain limits on Echostar’s ability to present evidence that [510]*510plaintiffs termination of employment was based on a “corporate reorganization” and that plaintiffs termination was for a “legitimate non-discriminatory/non-retaliatory reason,” and specifically, the court granted Broccoli’s request for an “adverse inference” instruction based on spoliation of evidence. The court deferred a full explication of its ruling until after trial, as well as any determination as to Broccoli’s request for fees and costs for Echostar’s discovery violations.

B.

A party has a duty to preserve evidence when the party is placed on notice that the evidence is relevant to litigation or when the party should have known that the evidence may be relevant to future litigation. Silvestri v. General Motors Corp., 271 F.3d 583, 591 (4th Cir.2001); Thompson v. HUD, 219 F.R.D. 93,100 (D.Md.2003). The duty to preserve encompasses any documents or tangible items authored or made by individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217-18 (S.D.N.Y.2003). Any information relevant to the claims or defenses of any party, or which is relevant to the subject matter involved in the litigation, is covered by the duty to preserve. Id.

“ ‘Document retention policies’, which are created in part to keep certain information from getting into the hands of others ... are common in business.” Arthur Andersen, LLP v. United States, 544 U.S.-,-, 125 S.Ct. 2129, 2135, 161 L.Ed.2d 1008 (2005). It is not wrongful for a manager or company to instruct its employees to comply with a valid document retention policy under normal circumstances. Id. at---, 125 S.Ct. at 2134-35. However, “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Thompson, 219 F.R.D. at 100 (quoting Zubulake, 220 F.R.D. at 218).

A failure to preserve documents and records, once the duty to do so has been triggered, raises the issue of spoliation of evidence. Spoliation refers to the destruction or material alteration of evidence or the failure to preserve the property for another’s use as evidence in pending or reasonably foreseeable litigation. Silvestri, 271 F.3d at 590. A court has discretion to impose sanctions for “the purpose of leveling the evidentiary playing field and for the purpose of sanctioning the improper conduct.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir.1995) (authorizing a court to permit a jury to draw adverse inferences from a party’s failure to present evidence, the loss of evidence, or the destruction of evidence). The court should, therefore, take into account the blameworthiness of the offending party and the prejudice suffered by the opposing party. See Anderson v. National R.R. Passenger Corp., 866 F.Supp. 937, 945 (E.D.Va.1994), aff'd, 74 F.3d 1230 (4th Cir. 1996).

C.

Under Eehostar’s extraordinary email/document retention policy, the email system automatically sends all items in a user’s “sent items” folder over seven days old to the user’s “deleted items” folder, and all items in a user’s “deleted items” folder over 14 days old are then automatically purged from the user’s “deleted items” folder. The user’s purged emails are not recorded or stored in any back up files. Thus, when 21-day-old emails are purged, they are forever unretrievable.

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Cite This Page — Counsel Stack

Bluebook (online)
229 F.R.D. 506, 62 Fed. R. Serv. 3d 817, 2005 U.S. Dist. LEXIS 16000, 2005 WL 1863176, Counsel Stack Legal Research, https://law.counselstack.com/opinion/broccoli-v-echostar-communications-corp-mdd-2005.