Timing is Still Everything: Motion for Spoliation Sanctions Denied as Untimely

Am. Nat’l Prop. & Cas. Co. v. Campbell Ins., Inc., No. 3:08-cv-00604, 2011 WL 3021399 (M.D. Tenn. July 22, 2011)

In this case, the court denied plaintiff’s Motion for Sanctions for Spoliation of Evidence as untimely, citing the facts that it had been 14 months since the alleged spoliation was discovered, that discovery had already closed, and that trial was weeks away.  In reaching its conclusion, the court relied heavily on the summary of the law regarding the timeliness of spoliation motions laid out by the court in Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009).

Plaintiff learned in May 2010 that defendants had failed to preserve certain emails from a particularly relevant time period which plaintiff believed would have contained “damning” evidence of defendants’ efforts to solicit plaintiff’s customers in violation of their non-compete obligations.  Despite its belief that spoliation had occurred, plaintiff waited until July 6, 2011 to file a motion for sanctions.  By that time, discovery had closed, the deadline for filing discovery motions had passed, and trial was weeks away.

Addressing the timeliness of the motion, the court relied heavily on the summary of the law provided in Goodman v. Praxair Servs., Inc., which identified the appropriate considerations when assessing the timeliness of spoliation motions:

First, “[key] to the discretionary timeliness assessment of lower courts is how long after the close of discovery the relevant spoliation motion has been made ….”
Second, a court should examine the temporal proximity between a spoliation motion and motions for summary judgment.
Third, courts should be wary of any spoliation motion made on the eve of trial.
Fourth, courts should consider whether there was any governing deadline for filing spoliation motions in the scheduling order issued pursuant to Fed. R. Civ. P. 16(b) or by local rule.
Finally, the explanation of the moving party as to why the motion was not filed earlier should be considered.

(Citations omitted).  The Goodman court went on to explain that because resolution of a spoliation motion can require additional hearings or additional discovery, among other things, the “least disruptive time to undertake this is during the discovery phase, not after it has closed.”

Accordingly, the court in the present case denied plaintiff’s motion for sanctions as untimely.  In doing so, the court also rejected plaintiff’s argument that “because the relevant emails were deleted and cannot be produced,” its motion was not a discovery motion at all, and thus not subject to the deadline for filing discovery motions.