Johnson v. L'Oreal USA

Opinion

Littler Employment & Labor Law Solutions Worldwide Plaintiff's letter motion at Dkt. No. 76 is DENIED without prejudice to renewal at the time Plaintiff files any motions in limine. By September 30, 2020, Defendant shall make any supplemental productions, including its production of responsive documents identified from Defendant's September 14, 2020 July 2020 collection. VIA ECF The Clerk of Court is respectfully requested to close the letter motion at Dkt. No. 76. Honorable Lorna G. Schofield United States District Court | So Ordered. Southern District of New York 40 Foley Square Dated: September 15, 2020 Lorna G. SCHOFIEL New York, New York 10007 New York, New York UNITED STATES DISTRICT JUDGE Re: Amanda Johnson v. L’Oréal USA, Case No. 18-cv-09786 (LGS) Dear Judge Schofield: We represent Defendant L’Oréal USA (“L’Oréal” or “Defendant”) in the above-referenced matter. We write in response to Plaintiff's Letter Motion for Discovery Sanctions (Dkt. 76). L’Oréal has gone to extraordinary lengths to provide full discovery in this matter. After engaging in extensive discovery, L’Oréal identified specific issues with its preservation and data collection. L’Oréal has been transparent, providing detailed updates, and taking steps to cure each issue in turn. L’Oréal has invested enormous resources in remedial measures. While L’Oréal’s process was certainly not perfect, cumulative good-faith efforts ensured that potentially relevant data was located and searched, and gaps identified and filled. Consequently, Plaintiff has not been deprived of relevant information and suffers no prejudice. Plaintiff misrepresents L’Oréal’s disclosures, misstates the law, and misunderstands the curing effect of L’Oréal’s remedial measures. At the same time, Plaintiff ignores her own discovery failings. Plaintiff is entitled to relevant, reasonable and proportionate discovery, which L’Oréal has provided. Accordingly, sanctions are not warranted and Plaintiff's motion should be denied. I. Background As the Court is aware, this is a single-plaintiff matter involving allegations of discrimination and retaliation. Plaintiff's employment was terminated on June 19, 2018, due to inappropriate communications, and her data was promptly preserved, including her Office 365 (“O365”) account. Key HR and business team members assisted with investigations and mediation, and in September 2018, in-house counsel directed Maria Morales (VP, HR) to send a notice directing them to preserve information concerning Plaintiff. As detailed in our letter of July 16, 2020 (Dkt. 66), in spring 2019, L’Oréal collected a massive volume of email data from the 0365 email

! Recipients included Plaintiff's manager, Dan Bethelmy-Rada; her peers Kelly Conroy, Nicolas Krafft, Nour Tayara, Chizuru Wykoff; and her direct reports, Nahema Consesa Alcolea, Jeanna Diorio and Taylor Griggs.

SHeopntoermabbleer L1o4r,n a2 0G2.0 S chofield Page 2 accounts of 11 custodians.2 L’Oréal applied Plaintiff’s onerous English and French language search terms, which generated more the 3,500 separate lines of search results. L’Oréal analyzed and reviewed more than 48,000 documents, and during 2019-2020, produced more than 1,600 documents. L’Oréal subsequently collected and produced 2,439 pages of text messages from 6 iPhones. In 2020, in the course of providing supplemental discovery, L’Oréal identified specific issues with its data preservation and collection processes. L’Oréal systematically investigated, disclosed, and took remedial action to address each issue. L’Oréal re-collected all available email data for the 11 original custodians, plus three others, for the period of April 1, 2016 to June 30, 2019. The table below summarizes the custodians, the specific issue, and the remedial action taken: Custodian Email Issues Remedial action in July 2020 Johnson, Morales, O365 default filter excluded Filter disabled, data re-collected Realson, Tayara certain files from the original Spring 2019 data export (“filter”)3 Alcolea, Conroy, Filter; the O365 Spring 2019 Filter disabled; data re-collected Griggs, Rada, Wykoff collection inadvertently cut off through June 30, 2019 in June 2018 (“cut off”) Krafft Filter; cut-off; O365 email Krafft’s email account as of account purged when left 12/20/2019, was downloaded to L’Oréal his laptop hard drive, and all of that data was collected Conroy, Krafft, Email archived on laptop hard Archived email PST and OST files Morales, Rada drives collected Diorio Filter; cut-off; data purged All collected emails, plus the emails when left L’Oréal in summer of of three supplemental custodians 2019. However, with the (Catherine McNally, Farida exception of data excluded by Mercedes and Dick Younge), were the filter, all of her emails searched for Diorio’s name using through June 6, 2018 were to/from/cc/bcc fields collected in the original Spring 2019 data export. L’Oréal’s July 2020 collection outlined above netted over 238 GBs of email data, which was processed and deduplicated against previously-collected data. The results are still being searched, 2 In addition to herself, Ms. Morales and the 8 hold recipients listed above, Plaintiff requested document discovery from Carol Realson (Group VP, HR). 3 Plaintiff asserts that the filter “deleted” files (Dkt. 76, p. 2) – it did not. Rather, files that for various reasons were not able to be indexed were simply not exported. Any such files were included in the July 2020 recollection when the filter was disabled. SHeopntoermabbleer L1o4r,n a2 0G2.0 S chofield Page 3 analyzed and reviewed but to date, only an extremely low number of newly-collected documents are responsive and no significant new documents or information has been identified. Regarding text messages, L’Oréal instructed custodians to retain relevant communications. Upon collection, L’Oréal discovered data from 3 devices is no longer available: Custodian Text message status4 Remedial source Griggs, Krafft, Collected, produced from L’Oréal Wykoff iPhones Morales Collected, produced from personal iPhone of current employee Conroy, Diorio Collected, produced from personal iPhones of former employees Tayara L’Oréal iPhone irreparably damaged Group text messages with Conroy, in 2019 before collection – text Griggs, and Krafft messages not available Rada L’Oréal iPhone inadvertently wiped Group text messages with Conroy, when returned to L’Oréal IT in 2019 Griggs, Krafft; individual text – text messages not available messages with Conroy; paper print outs5 Alcolea Disposed of personal iPhone in 2019 Group and individual text messages before collection – text messages with Diorio, Griggs and/or Conroy not available Realson No relevant text messages L’Oréal is unaware of relevant text message communications lost from devices that were not produced from another source. 4 Plaintiff states her productions are complete, however, her own productions omit key communications directly related to her termination, including her text messages to Ms. Diorio about Plaintiff’s peers. , , Bates No. D0007616 (“I’m about to crawl so deep and so far into Bart’s ass that he will think I live in his fucking small intestines.”); Bates No. D0007586 (“Chizuru is about to get THESE HANDS....”). Plaintiff also failed to produce key text message exchanges with Ms. Conroy related to her (Plaintiff’s) inappropriate behavior. 5 Plaintiff produced only a few texts that she exchanged directly with Mr. Rada and the earliest was in April 2018. This undermines her speculation that there were a large volume of additional Rada text messages that were lost. Further, Plaintiff’s allegation that text messages around the time of her termination between Rada and Plaintiff’s team regarding complaints about her behavior were deleted is meritless. It is undisputed that Ms. Diorio provided HR and Mr. Rada with paper print-out and email versions of text messages and social media postings, produced as Bates No. D0004701; D000102-110; D000112-118. Plaintiff’s allegation that relevant text messages between Ms. Conroy and Messrs. Griggs and Rada were deleted or withheld also is false. All relevant communications were produced. Plaintiff’s letter includes multiple other misrepresentations regarding discovery, including for example, that handwritten notes concerning Ms. Morales’ meetings with or about Ms. Johnson were not produced when in fact notes were produced in April 2019. SHeopntoermabbleer L1o4r,n a2 0G2.0 S chofield Page 4 For the Court’s convenience, attached as Exhibit A is a chart which identifies the custodians at issue in this motion, their relevance to Plaintiff's Complaint and the status of ESI collection and production. II. Sanctions Are Not Warranted Under Governing Rule 37(e) a. Plaintiff misstates the law regarding Rule 37(e) sanctions Plaintiff articulates the wrong legal standard for evaluating ESI spoliation claims. (Dkt. 76 at 4- 6.) The 2015 Amendments to Rule 37(e) of the Federal Rules of Civil Procedure govern the loss of ESI, and the Committee Notes state that the amended rule “ or state law to determine when certain measures should be used.” Fed. R. Civ. P. 37(e) Advisory Committee’s Note (2015) (emphasis added). Inexplicably, Plaintiff argues that the Court should apply the framework articulated in , 306 F.3d 99 (2d Cir. 2002) and its progeny to impose sanctions for the alleged ESI preservation failures in this case when the Advisory Committee Notes expressly state the amended Rule 37 “rejects cases such as , 306 F.3d 99 (2d Cir. 2002), that authorize the giving of adverse-inference instructions on a finding of negligence or gross negligence.” ; , 2017 WL 462601, at *2 (S.D.N.Y. Jan. 17, 2017) (“[D]istrict courts in [the Second Circuit] ha[ve] already acknowledged that the December 1, 2015 amendment to Rule 37 has been interpreted as overruling the holding in Residential Funding Corp.” (internal quotation marks omitted). Courts are to apply Rule 37(e), not inherent authority, in this context. , 136 S. Ct. 1885, 1892 (2016) (inherent powers should not be used when “contrary to any express grant of or limitation on the district court’s power contained in a rule or statute.”). District courts in this Circuit have repeatedly affirmed that Rule 37(e) is the appropriate standard for evaluating ESI spoliation allegations. , 2019 WL 6838672, at *3 (S.D.N.Y. Dec. 16, 2019) (“District courts in the Second Circuit have recognized that Rule 37(e) replaces the prior framework for claims regarding a failure to preserve ESI.”); , , 2019 WL 4805765, at *8 (S.D.N.Y. Sept. 30, 2019); , 2018 WL 1512055, at *7 (S.D.N.Y. Mar. 12, 2018); , 2017 WL 6512353, at *7 (S.D.N.Y. Dec. 19, 2017). Rule 37(e) provides: “If [ESI] that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.” Here, to satisfy the mandatory predicate elements of Rule 37(e), Plaintiff must show that ESI that (i) should have been preserved was (ii) lost (iii) because Defendant did not take reasonable steps SHeopntoermabbleer L1o4r,n a2 0G2.0 S chofield Page 5 to preserve it, and (iv) it cannot be restored or replaced through additional discovery. L’Oréal disputes the existence of evidence supporting the first three elements, but for the sake of page limitations focuses its response on the last element, , that the information cannot be “restored or replaced through additional discovery.” As described above, L’Oréal replaced any missing data with supplemental collections from the original 11 custodians and data from 4 new custodians. , 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018) (denying sanctions for plaintiff’s failure to preserve a cell phone because the moving party failed to establish that the ESI could not be restored or replaced through additional discovery). Additionally, Plaintiff is not entitled to every single document that could possibly have existed. Discovery must be reasonable, not perfect. , , 2017 WL 933095 (S.D.N.Y. Mar. 8, 2017) (“The standard for evaluating discovery is reasonableness, not perfection.”); 2014 WL 4547039 (S.D.N.Y. Sept. 12, 2014) (“The Federal Rules of Civil Procedure do not require perfection”); , 2012 U.S. Dist. LEXIS 130123 (S.D.N.Y. Sept. 10, 2012) (“the standard for the production of ESI is not perfection[,]” but is one of “reasonable[ness.]”) Defendant has provided reasonable discovery through the above-described supplemental data collection and search efforts. b. Plaintiff must produce evidence of intent to deprive and cannot rely on mere speculation Even if Plaintiff were to meet all of the mandatory predicate elements of Rule 37(e), Plaintiff cannot show that L’Oreal acted with an “intent to deprive” Plaintiff of use of ESI in this case – another requirement to obtain serious sanctions like those Plaintiff seeks. Rule 37(e) prohibits awarding an adverse inference sanction for ESI loss absent a finding that the party acted with the intent to deprive another party of the information’s use in the litigation. Fed. R. Civ. P. 37(e)(2). , , , 656 Fed. Appx. 558, 560 (2d Cir. 2016) (adverse inference can be granted only upon finding that a party acted with intent to deprive); 2017 WL 6512353, at *11 ([T]he intent contemplated by Rule 37 is not merely the intent to perform an act that destroys ESI but rather the intent to actually deprive another party of evidence”)). Mere speculation is not enough—Plaintiff must produce evidence of L’Oréal’s intent to deprive Plaintiff of ESI in this litigation. Whether this Court requires “clear and convincing” evidence of intent to deprive,6 or applies the preponderance of the evidence standard,7 Plaintiff cannot meet the standard. There is no evidentiary basis for Plaintiff’s allegations that L’Oréal acted with an intent to deprive Plaintiff of relevant ESI in this litigation. Because Plaintiff cannot make the predicate showing of intent under Rule 37(e)(2), sanctions—particularly a severe sanction like an 6 , , 2018 WL 1512055, at *16 (“[T]his Court will not make a finding of intent to deprive on the basis of suspicion alone. Certainly, the evidence, as it stands, does not clearly and convincingly show that Defendants sought out emails that could disadvantage them in this case, and then chose those particular emails to delete, for the purpose of keeping them out of Lokai’s hands.”)); , 2019 WL 6210815, at *4 (S.D.N.Y. Nov. 21, 2019). 7 , , , 2018 WL 895624, at *10 (S.D.N.Y. Feb. 13, 2018) (moving party “has the burden of establishing the elements of a spoliation claim by a preponderance of the evidence.”) (citing , 2016 WL 1274585, at *33 (S.D.N.Y. Mar. 31, 2016)). HSeopntoermabbleer L1o4r,n a2 0G2.0 S chofield Page 6 adverse inference—would be improper. , 2018 WL 1626345, at *8 (S.D.N.Y. Mar. 29, 2018), , 2019 WL 400607 (S.D.N.Y. Jan. 31, 2019), and , 805 F. App'x 25 (2d Cir. 2020). If Plaintiff is entitled to any relief at all—which she is not—it would be limited to curative measures under subsection (1) of Rule 37(e), and only if Plaintiff can show prejudice. , No. 19-CV-225 (CM) (OTW), 2019 WL 6210815, at *3 (S.D.N.Y. Nov. 21, 2019). Here, Plaintiff has not and cannot meet this high standard. c. Plaintiff is not prejudiced because L’Oréal has cured potential discovery gaps consistent with Rule 37(e)(1) Plaintiff has failed to meet her burden of demonstrating she has been prejudiced, particularly when L’Oréal has gone to great lengths to cure any prior deficiencies. , 2017 WL 5633165 (S.D.N.Y. Nov. 21, 2017) (moving party is required to prove prejudice in situations where—as here—“‘the abundance of preserved information [ ] appears sufficient to meet the needs of all parties.’”) (citing Fed. R. Civ. P. 37(e) advisory committee’s notes to 2015 amendment)). Plaintiff’s speculation that she will suffer harm is not enough.8 III. Plaintiff is not entitled to attorney fees or costs of motion practice As it is yet to be determined whether relevant ESI has been lost, Plaintiff’s motion and granting any remedy or relief, including fees or costs, is premature and should be held in abeyance. IV. Conclusion For all the reasons outlined above, Plaintiff’s motion should be denied in its entirety. To the extent the Court requires additional information before ruling, we respectfully request an opportunity to be heard via conference and/or motion papers. We thank Your Honor for your consideration. Respectfully submitted, Jean L. Schmidt cc: Mr. Gregory S. Chiarello (via ECF) Ms. Allison L. Van Kampen (via ECF) 8 n.5. EXHIBIT A Case 1:18-cv-09786-JPC Document 82 Filed 09/15/20 Page 8 of 11

Custodian Title Relevance to Plaintiff’s Complaint Email/Text Messages1 Decisions Makers Dan Bethelmy-Rada International Brand Participated in the decision to All email collected Director General Manager terminate Plaintiff on June 15, 2018 Matrix DMI after Diorio gave him paper copies of Text messages not available text messages Plaintiff had sent to Plaintiff’s Supervisor Diorio. Remedial source: group test messages with Conroy, Griggs, Krafft; individual text messages with Conroy; paper printouts Text messages produced from Plaintiff’s team show that Rada spoke to two members of her team (Griggs and Alcolea) in person in the days leading up to Plaintiff’s dismissal – not via text as Plaintiff contends. (Dkt. 76, p.4). Note - Plaintiff produced only a few text messages that are between just herself and Rada, the earliest in April 2018. Maria Morales Human Resources Participated in the decision to All email collected Business Partner for terminate Plaintiff on June 15, 2018. Bethelmy-Rada’s group All relevant text messages produced On June 15, 2018, Diorio emailed Morales copies of the text messages she had given Rada. 1 All relevant email data collected in Spring 2019 has been produced. Additional email data collected in July 2020 is still being reviewed, and all relevant data will be produced. Case 1:18-cv-09786-JPC Document 82 Filed 09/15/20 Page 9 of 11

Custodian Title Relevance to Plaintiff’s Complaint Email/Text Messages1 Plaintiff’s Peers Kelly Conroy VP – Education All email collected All relevant text messages produced Note: Plaintiff failed to produce text messages with Conroy related to her (Plaintiff’s) inappropriate behavior. Nicolas Krafft VP – Business The only time Krafft is mentioned in All relevant text messages produced Development Plaintiff’s Amended Complaint is in connection with an incident between All email through June 4, 2018 her and Krafft at the WorldWide collected in June 2019 except for meeting in France on May 28, 2018, filtered data, and all relevant emails and her complaint to Rada on June 6, produced. 2018 that Krafft was sexist, and intolerant. (See Amended Compl. Krafft’s O365 email purged in July (Dkt. 20), ¶¶ 8, 219-237, 244-248). 2020, but all email as of 12/10/19 Plaintiff alleges that she was was copied to his laptop hard drive terminated in retaliation for her which was preserved and collected in complaint to Rada about Krafft. July 2020. All emails and text messages regarding that incident and her complaint have been produced. 2 Case 1:18-cv-09786-JPC Document 82 Filed 09/15/20 Page 10 of 11

Custodian Title Relevance to Plaintiff’s Complaint Email/Text Messages1 Nour Tayara VP – Marketing Plaintiff alleges that she was treated All email collected differently than Tayara because he received executive coaching and she Text messages not available did not. All documents related to executive coaching and Tayara’s Remedial source: group text coaching have been produced. messages with Conroy, Griggs, and Krafft Chizuru Wykoff AVP – Creative All email collected All relevant text messages produced Plaintiff’s Subordinates Jeanna Diorio Manager – Digital Diorio complained about Plaintiff to All relevant text messages produced Human Resources in early April 2018 in person. Human Resources then All email through June 6, 2018 conducted an investigation and collected in June 2019, except for interviewed all of Plaintiff’s direct filtered data, and all relevant emails reports. Documents related to Diorio’s produced. complaint and the investigation have been produced. Remedial source: search of all collected emails for the original 11 In June 2018, Diorio complained to custodians, plus 3 additional Compliance, Human Resources and custodians, for Diorio’s name in Rada about Plaintiff and provided from/to/cc/bcc fields them with hard copies of Plaintiff’s text messages to her and Plaintiff’s Plaintiff failed to produce relevant social media posts. All documents text messages she sent to Diorio, related to Diorio’s complaint, including text messages threatening including emails, have been produced. Plaintiff’s peers Chizuru and “Bart” 3 Case 1:18-cv-09786-JPC Document 82 Filed 09/15/20 Page 11 of 11

Custodian Title Relevance to Plaintiff’s Complaint Email/Text Messages1 Nahema Conesa Manager – Social Media Alcolea was interviewed by Human All email collected Alcolea Resources in April 2018 and voiced her complaints about Plaintiff. Text messages not available Rada spoke to Alcolea on June 12, Remedial source: group and 2018 about Plaintiff. individual text messages with Diorio, Griggs and/or Conroy Taylor Griggs Manager – Social Media Griggs was interviewed by Human All email collected and Director – Social Resources in April 2018 and voiced Media his complaints about Plaintiff. All relevant text messages produced Rada spoke to Griggs on June 12, 2018 about Plaintiff.