In Maziar v. City of Atlanta, No. 1:21-cv-02172-SDG (N.D. Ga. June 10, 2024), Georgia District Judge Steven D. Grimberg sustained in part and overruled in part the plaintiff’s objections to the Magistrate Judge’s order denying spoliation sanctions against the defendant, finding that the defendant’s text message spoliation was not in bad faith, but that the plaintiff was prejudiced, so he ordered denial of the defendant’s pending motion for summary judgment and attorneys’ fees and costs for the plaintiff associated with prosecuting the sanctions motion.

Case Background

In this case involving claims of retaliatory termination of the plaintiff by the defendant, plaintiff’s counsel sent the City a demand letter on November 24, 2020 that included a request for a litigation hold, which was nearly six months before the plaintiff was fired. The letter asked the City to “preserve data and/or ESI … related to all aspects of Ms. Maziar’s employment.” The City failed to issue a litigation hold to Qaadirah Abdur-Rahim (the plaintiff’s supervisor) at that time.

The plaintiff’s employment was terminated on May 6, 2021. Only then, on May 10, did the City first issue a litigation hold to Abdur-Rahim. Counsel for the City instructed Abdur-Rahim to “produce any messages related to Ms. Maziar related to [the April 29 meeting].” No one searched Abdur-Rahim’s personal or work phone independent of these instructions. After the plaintiff served her discovery requests on the City on November 21, 2022, Abdur-Rahim left her job at the defendant a month later and – notwithstanding the litigation hold and pending litigation – the defendant wiped her work phone of all data. In January 2023, Abdur-Rahim upgraded her personal phone, which she claimed resulted in the loss of all text messages on that phone as well.

In September 2023, the defendant produced three text messages from Abdur-Rahim in response to plaintiff’s discovery requests. One of those was a cropped message from Carol Anderson (another former City employee) to Abdur-Rahim regarding concerns raised by Maziar at the April 29 meeting that led to plaintiff’s termination:

The plaintiff thus sought sanctions based on defendant’s text message spoliation and failure to produce responsive text messages specifically regarding the remainder of the cropped message and any relevant texts preceding or following it. The magistrate judge denied the motion and the plaintiff filed objections.

Judge’s Ruling

In analyzing the objections, Judge Grimberg began with a bad faith analysis: “The magistrate judge correctly determined that Rule 37(e)(2) sanctions are not warranted because there was insufficient evidence to conclude that the City intended to deprive Maziar of any evidence…The Order concludes that the City’s actions were ‘quite careless’ and grossly negligent, but not aimed at depriving Maziar of evidence supporting her claims.”

Judge Grimberg also rejected the plaintiff’s argument that the magistrate judge clearly erred in the application of Skanska USA Civil Se. Inc. v. Bagelheads, Inc., where, the plaintiff was sanctioned under Rule 37(e)(2) after a finding of bad faith because it deleted data from five of thirteen relevant phones subject to a litigation hold. Judge Grimberg stated: “This case is indeed similar to Skanska. But there are enough differences that undersigned does not find clear error in the magistrate judge’s determination that the City did not act in bad faith. For example, unlike Skanska, the City did make some effort to produce text messages and other data. Further, it did not misrepresent any aspects of its discovery protocol or text message deletions to the Court like Skanska did. To the contrary, the City has been quite candid to the Court that it failed to preserve data that it should have. In light of these differences, undersigned finds no clear error in the magistrate judge’s denial of bad faith sanctions.”

Judge Grimberg also found that “[t]here is nothing clearly erroneous” about the observation that the City’s disclosure of at least one text message that was arguably inculpatory suggested that the City was not intending to deprive Maziar of evidence.

However, Judge Grimberg found “clear error in the magistrate judge’s conclusion concerning prejudice under Rule 37(e)(1)”, stating “Undersigned finds that the magistrate judge clearly erred by improperly narrowing the scope of Maziar’s motion” to comparator evidence. He added: “after review of the transcript of the discovery conference before the magistrate judge, Maziar’s spoliation motion and relevant briefing, the objections, and oral argument before undersigned, it is clear that Maziar was concerned about the loss of any and all texts regarding the April 29 meeting, not just comparator evidence… The breadth of Maziar’s spoliation concerns was made clear both in her motion and at oral argument before undersigned… Maziar is prejudiced by an inability to contextualize the cropped text or learn additional information from texts about the April 29 meeting that likely existed. Maziar has been prejudiced and sanctions are warranted.”

So, Judge Grimberg, while rejecting plaintiff’s request for an adverse inference sanction for text message spoliation, ordered denial of the defendant’s pending motion for summary judgment and attorneys’ fees and costs for the plaintiff associated with prosecuting the sanctions motion.

So, what do you think? Are you surprised neither court found intent to deprive for the text message spoliation? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Check out Kelly Twigger’s discussion of the case here!

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