United States District Court, E.D. Louisiana
E. KNOWLES, III UNITED STATES MAGISTRATE JUDGE
the Court are three motions: (1) Plaintiffs' Motion for
Sanctions for Spoliation of Evidence [Doc. #116]; (2)
Defendants' Motion to Compel [Doc. #125]; and (3)
Defendants' Motion to Quash or Modify Subpoena [Doc.
#131]. Having reviewed the pleadings and the case law, the
Court rules as follows.
background of this lawsuit has been adequately outlined by
this and the District Court, and the Court need not do so
again. Blank v. Tomorrow, PCS, L.L.C., Civ. A. No.
16-11092, 2017 WL 4310675 (E.D. La. Sept. 28, 2017).
Plaintiffs' Motion for Sanctions for Spoliation of
Court is aware, on October 23, 2017, plaintiffs propounded
written discovery requests on Tomorrow Telecom Incorporated
(“Telecom”) that specifically requested e-mails
from Telecom employees. On March 8, 2018, nearly five months
after plaintiffs first requested them, Telecom issued its
first substantive responses to plaintiffs' e-mail
requests. Telecom claimed that all responsive e-mails had
been deleted by Yahoo! on or about December 31, 2017.
Plaintiffs maintain that Telecom had numerous opportunities
to inform Yahoo! that critical e-mails for their case had
been destroyed but made no mention of it. Had defendants been
forthcoming about the destruction of the e-mails, plaintiffs
argue that they and/or defendants could have recovered them.
March 8, 2018 responses indicated that at least 19 former
Telecom employees communicated with plaintiffs or regarding
plaintiffs while using their @tomorrowtelecom.com email
addresses specifically regarding overtime or chargebacks.
Thus, plaintiffs contend that Telecom knew that the e-mails
it failed to preserve contained communications relevant to
plaintiffs' claims for unpaid overtime and chargebacks.
argue that Telecom was in control of and had a duty to
preserve the e-mails since they asked for them on October 23,
2017. Plaintiffs maintain that Telecom had control over the
e-mails. Four of the e-mail account holders in question -
Jong Park, Catherine Kim, Jeff Baik, and Michael Lim - were
all current employees of defendants who have been active in
this litigation. Jong Park was deposed; Catherine Kim, Jeff
Baik, and Jong Park have aided in responding to
plaintiffs' discovery requests since January 5, 2018; and
Michael Lim submitted a sworn verification in support of
Telecom's motion to dismiss.
contend that Telecom's counsel purportedly issued a
litigation hold, but it was obviously not communicated or
maintained as the e-mails were nevertheless totally
destroyed. Rather, Telecom engaged in a wait-and-see game
that resulted in the deletion of highly relevant emails.
Plaintiffs argue that the content of the e-mails highlights
how devastating their deletion is to their case. These
e-mails not only contain evidence of Telecom's control
over Tomorrow PCS, but also other sub-dealers in other
states. Michael Lim, Vice President of Telecom, sent e-mails
to the “GMs” of the sub-dealers imposing on them
a new “Charge Back Policy” being used by
“Team Albuquerque.” Lim further instructs these
“GMs” how to implement the policy, by
“changing the line ‘Tomorrow Talk' [in the
attached document] to your company [name].” Then, Jeff
Baik, an Accounting Associate for Telecom, sent e-mails to
the same “GMs, ” informing them of Telecom's
new incentive system. And Steve Shin, the Chief Financial
Officer of Telecom, sent an e-mail to many of the same people
to inform them of the June incentive plan for Telecom.
maintain that Telecom's failure to preserve e-mails could
only be an intentional act designed to deprive them of
evidence that supports their claim that Telecom is liable as
an employer under the FLSA and that its influence reached far
wider than Louisiana and Texas. They ask the Court to
sanction Telecom with an adverse presumption that these
e-mails contain evidence of: 1) Telecom's status as
plaintiffs' employer; 2) Telecom's control over
Tomorrow PCS and its employees regarding employee
compensation and the implementation of chargebacks; 3)
Telecom's operations in other states and control over
other affiliated sub-dealer locations.
argue that they supplemented their responses to discovery and
produced 366 pages of e-mails from @tomorrowtelecom accounts
that were discovered in a separate folder. Telecom does not
dispute that it had a duty to preserve certain e-mail
correspondence regarding its compensation methods and
plaintiffs' employment but contends that it actively
engaged to preserve all relevant ESI within its possession,
custody, and control. They maintain that a litigation hold
was issued to Jong Park, Michael Lim, and Catherine Kim on
August 26, 2016, notifying them of their obligation to
preserve company records related to the employment of Blank
and other Customer Service Representatives during the three
years prior the filing of the lawsuit. The litigation hold
also called for the preservation of e-mail messages and
attachments, backup e-mail files, and deleted e-mails.
notes that although it requested the preservation of company
e-mails from its employees, it cannot control the maintenance
of each individual employees' @tomorrowtelecom account
nor can it unilaterally review and collect data from the
employees' private accounts. Telecom employees set up
personal e-mail accounts with Yahoo!, an independent carrier,
which is linked to an account associated with Telecom.
Because these materials are not initiated or maintained on a
company server, Telecom has no access to them. Even Lindsay
Blank testified that Tomorrow PCS did not host her
@tomorrowpcs e-mail account.
maintains that it had no knowledge regarding the e-mails'
relevance because an attempt to retrieve the e-mails was not
made until after the Court issued its February 26, 2018 Order
wherein it sustained many of Telecom's objections to
plaintiffs' discovery requests. Lim then conducted an
inquiry regarding the unilateral deletion of e-mails by
Yahoo! and discovered that this was an ongoing problem with
Yahoo! e-mail account holders. Telecom then produced the
results of Lim's inquiry revealing customer complaints to
Yahoo! regarding the unilateral deletion of e-mails to
notes that it did not destroy electronically stored
information (“ESI”), and plaintiffs have failed
to provide any evidence indicating that Telecom destroyed
ESI. Yahoo! is not a party to this action, and the manner in
which Yahoo! controls its user accounts is not determinative
here. Telecom argues that plaintiffs' motion itself
proves that the e-mails were not “totally
destroyed” because they purport to have obtained copies
of the e-mails from other sources.
notes that plaintiffs issued a subpoena to Yahoo!, as
instructed by the Court on numerous occasions, and Yahoo!
provided notice that it would respond to the subpoena within
fifteen days. Finally, Telecom has recently recovered
responsive information and provided it to plaintiffs.
Therefore, it maintains that there has been no spoliation of
impose an adverse inference, Telecom maintains that the
evidence must show that a party had a dishonest, deceptive or
culpable state of mind for the court to find that the party
acted in bad faith. Telecom contends that plaintiffs have no
direct proof suggesting that Telecom's conduct was
willful or the e-mails even relevant. It argues that
plaintiffs have refused to take depositions of
defendants' witnesses, despite court order and
defendants' offering of multiple dates on at least three
occasions. Unlike case law cited by plaintiffs, there ...