In Groves Inc. v. R.C. Bremer Mktg. Assocs., No. 22 CV 50154 (N.D. Ill. Nov. 22, 2024), Illinois District Judge Iain D. Johnston denied the plaintiff’s spoliation motion without prejudice, while providing guidance regarding the timing for filing such a motion, stating: “Spoliation motions can be filed too early. And they can be filed too late. As shown in this order, there’s a sweet spot when the filing of the spoliation motion is just right.”

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Case Discussion and Judge’s Ruling

Judge Johnston began his ruling by stating: “This Court attracts Rule 37(e) motions like chum attracts sharks”, noting that his Court has received spoliation motions during discovery, in the middle of summary judgment briefing, and even in the middle of trial.

After denying the motion without prejudice in this “hotly contested case” for sanctions against defendant Christopher Shepperd, Judge Johnston stated: “The Court takes this opportunity to address the timing of filing spoliation motions seeking sanctions. Spoliation motions can be filed too early. And they can be filed too late. As shown in this order, there’s a sweet spot when the filing of the spoliation motion is just right. But determining that sweet spot will vary depending on the specific facts presented as well as the judge who decides the motion. The best way to find that sweet spot is “to have a conversation”—in the words of one of the Court’s former law clerks…Notify the court and opposing counsel as soon as possible about a spoliation concern and calmly and professionally talk to them about the most reasonable and best options to address the concern.”

While acknowledging that “Groves raised its concerns with Magistrate Judge Schneider through multiple motions to compel” (which led to a forensic examination that “provided fairly damning information against Shepperd”), Judge Johnston said: “as far as the Court can tell, nobody addressed with Magistrate Judge Schneider the best way and best time to raise Groves’ requested relief for an adverse inference instruction due to alleged spoliation of ESI. Certainly, nobody raised the best way and best time to seek this relief with the undersigned, before whom the motion is pending.”

Judge Johnston then proceeded to address the proper timing of spoliation motions, starting with factors to “consider in determining if a spoliation motion is tardy. These factors are (1) ‘how long after the close of discovery the relevant spoliation motion has been made,’ (2) the ‘temporal proximity between a spoliation motion and motions for summary judgment,’ (3) whether the spoliation motion was made on the eve of trial, (4) whether a Rule 16 scheduling order or local rule set a deadline for filing spoliation motions, and (5) the moving party’s explanation why the spoliation motion was not filed earlier.” For this case, he added: “Unquestionably, Groves’ motion is not tardy. The Court’s concern is that the motion is premature.”

Continuing, he said: “In addition to filing spoliation motions too late, counsel can also jump the gun and file them too early”, noting that a common problem is “when the movant doesn’t have sufficient facts.” He added: “But once it’s been established that the spoliated ESI can’t be restored or replaced, other factors impact the appropriate timing of spoliation motions…If the parties are still in pretrial discovery and not near the date for filing summary judgment motions, some courts might find a spoliation motion premature…This is particularly true if the summary judgment filing date is far in the future and no trial date is set.”

Judge Johnston identified several critical factors to consider, stating: “’Courts also have a general duty to avoid deciding unnecessary issues. To that end, courts may sequence motion practice in an effort to avoid deciding unnecessary issues and will generally resolve trial related motions after it is clear that there will likely be a trial.’”

He also identified the likely remedy as “[a]nother critical factor to consider” and that – while “Rule 37(e) is a discovery rule” – spoliation motions could be both discovery motions and evidentiary motions.

Continuing, he added: “Moreover, another critical factor is whether an evidentiary hearing will be necessary to resolve factual disputes relating to the spoliation. This issue intersects with the previously identified critical factors of (a) having sufficient facts and (b) the remedy sought… Among other concerns, allowing one party to present evidence to the jury about the other party’s failure to preserve evidence without also providing an instruction could result in serious Rule 403 problems.”

Concluding his analysis of the sweet spot on when to file a spoliation motion, Judge Johnston stated: “Judges will want to consider these critical factors in determining when to address the spoliation issue. But they won’t be able to consider the impact of these factors on the timing of the spoliation motion unless the parties inform that judge of the facts that affect these factors. So—again—have a conversation. There’s a reason why Rule 16 allows judges to require parties to hold a conference with them before filing discovery motions.”

As to the present matter, Judge Johnston stated: “Critically, the relief sought by Groves’ spoliation motion is a permissive adverse inference jury instruction. But there’s a lot of work before this case gets to a jury trial. And there are off-ramps for this action before a jury trial, too. There’s the possibility of settlement, for example. Additionally, there’s the nearly obligatory motion for summary judgment… So, instead of spending resources on Groves’ motion at this time when they could be used elsewhere, the Court denies the motion without prejudice.” But he noted: “Groves can rest assured that it has not waived this issue. It has timely raised its concern about the spoliation of the emails and brought it to the attention of Shepperd and the Court. No party will be prejudiced by deferring the issue under the facts of this case, including the fact that the specific relief sought is a permissive adverse jury instruction. Instead, the parties, the Court, and other litigants seeking access to the Court’s resources will benefit by holding the issue in abeyance until it needs to be decided.”

Judge Johnston also added this: “Having conducted this analysis about the timing of Groves’ motion, the Court would be remiss if it didn’t note that it has grave concerns about Shepperd’s conduct about the emails that are “not accessible.” There’s a lot to be desired by his conduct and much that remains unexplained. And those few explanations that are provided are not particularly satisfactory or persuasive. If Shepperd didn’t know this before, he is now on notice that the Court is more than willing to impose appropriate sanctions for spoliation of ESI (and any other type of evidence), including adverse inference instructions and significant attorneys’ fees, when they are available.”

Thanks to Judge Johnston, who sent the case to me last Friday! In doing so, he said: “Based on this somewhat conflicting case law, courts should have some grace, patience, and empathy for attorneys who might be not exactly sure when they should file spoliation motions.”

So, what do you think? Do you agree with Judge Johnston that there’s a sweet spot for when to file a spoliation motion? 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.

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