In Staten v. Home Care Servs., Inc., No.: 21-11323 (E.D. Mich. Nov. 22, 2022), Michigan Magistrate Judge Curtis Ivy, Jr. rejected the plaintiff’s use of law of the case doctrine as an objection to defendant’s request for sanctions, finding that plaintiff’s misrepresentations regarding his ability to produce emails invalidated the objection.
In this employment discrimination case, the defendant had previously filed a motion to compel after the plaintiff had produced only screenshots of emails in his possession related to whether the plaintiff signed or knew of the arbitration agreement, which it contended were illegible and in black and white. Despite defendant’s assertion that the plaintiff had access to the original format emails on March 1, 2022, when he screenshotted the emails for production, the Court accepted the plaintiff’s representation that he produced the documents he had in his possession and had no access to other versions of those documents. Thus, the motion to compel was denied.
On June 7, 2022, Plaintiff was deposed about the arbitration agreement. He made admissions that appear to undercut the representations in response to the motion to compel. He testified that his work emails are in his personal email account, but he did not do a keyword search of his personal account. Rather, he scrolled to the dates covering his employment and looked for emails received around that time. He stated he did not search his sent or deleted boxes and could not explain why his screenshotted emails were in black and white. He stated that he had access to the full emails in his personal account, even after he filed this lawsuit. Some documents discussed during the deposition were illegible, but Plaintiff confirmed they were likely emails sent from ADP to his personal account. He was not sure if he still had those emails.
As a result, the defendant moved for sanctions against Plaintiff for misrepresentations about the emails and sought an order compelling full and complete production of emails.
Noting that “Plaintiff characterizes the motion for sanctions as an attempt to relitigate the Court’s March 31, 2022, Order on the motion to compel” and that the plaintiff asserted that the Court’s conclusion that Plaintiff produced all the documents over which he had possession is law of the case doctrine and “cannot now be challenged”, Judge Ivy stated: “Defendant’s motion does not implicate the law-of-the-case doctrine. Defendant is not challenging a prior ruling. Instead, it is arguing that facts discovered after the Court’s ruling cast doubt on Plaintiff’s representations to the Court. The motion for sanctions is not a veiled appeal of the prior ruling.”
Judge Ivy also stated: “There is inconsistency between what Plaintiff provided to his attorneys for production, his deposition testimony, and his affidavit. He testified that emails from ADP were in his personal email account and that he looked for them during the dates of his onboarding and employment. His testimony is that at least some emails he produced through screenshots were available as emails in his inbox, but were not produced in their native format. And his testimony suggests he had access to emails produced in the form of screenshots, although after his employment was terminated, even though it was represented to Defendant that he lacked access to them because he no longer had access to a work computer. He testified that he did not save emails from ADP, but also that he did not delete them. Plaintiff’s last word in his affidavit cannot satisfy the Court that he has met his discovery obligations of preserving evidence and thoroughly searching his emails. These inconsistencies warrant some measure of sanctions.”
He also said: “It became clear at the hearing on this motion that Plaintiff’s counsel was never involved in the search of Plaintiff’s email. Counsel relied on Plaintiff to conduct the search, decide which emails were relevant, and later provide them to counsel. As counsel stated on the record, Plaintiff is a lay person who is not in the best position to (1) conduct a thorough search of emails, (2) accurately decide which emails are relevant, and (3) produce the emails, in full, in their native format. For these reasons, Plaintiff’s counsel is ORDERED to search Plaintiff’s entire personal email account—inbox, sent, and deleted email boxes—for responsive emails. Counsel must then produce any such emails in their native format, with entire emails downloaded to PDF and sent to Defendant’s counsel. If no emails exist beyond what have already been produced in their native format, they must certify in writing to Defendant that the search was conducted in accordance with this Order, but no responsive emails were located. Emails that were previously produced as screenshots must be produced in their native format. If the screenshot emails cannot be located in Plaintiff’s personal email account, counsel must certify in writing the attempt to locate those emails and that they could not be located. The search, production, and/or certification must be completed within 10 days of this Order.” He also ordered the plaintiff “to pay Defendant’s costs in bringing this motion.”
So, what do you think? Are you surprised that the Court ruled that the motion did not implicate law of the case doctrine, or do you agree plaintiff’s misrepresentations invalidated it? Please share any comments you might have or if you’d like to know more about a particular topic.
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