Discovery — Scrubbing Departing Employees’ Computers before Litigation Is Foreseeable ≠ Spoliation — It Is an Obvious Truism That a Court Should Not Enter an Order Compelling a Party to Produce Documents That Don’t Exist (Good Quote)

Wells v. JPC Eqestrian, Inc., 2014 U.S. Dist. LEXIS 156407 (M.D. Pa. Nov. 4, 2014):

A. Email

The plaintiffs first contend that the defendants have failed to produce relevant emails in response to their original discovery requests which sought emails that mention, or refer to the plaintiffs in any way shape or form from 2002 through 2010. The defendants have provided the plaintiff with responsive documents, but the plaintiffs believe there may be more that have not been produced. The defendants flatly dispute this assertion, and have explained the way in which they searched for responsive email in their initial disclosures and in response to the plaintiffs' discovery request.

In order [*9]  to cull responsive emails, the defendants searched the email boxes assigned to Varun Sharma and Richard Knapp, JPC's Comptroller, as the two employees who "reasonably could have had communications with or about Plaintiffs regarding the subject matter of this litigation." (Doc. 32, at 9.) The plaintiffs have suggested that other email must exist, and they argue that the defendants should scour the email accounts for since-departed employees to search for responsive email. The defendants have flatly represented that these emails "do not exist." In the related action of Kearney v. JPC Equestrian, Inc., et al., No. 3:11-CV-1419, Sharma has sworn under oath that his email box has been thoroughly searched, and that there are no further responsive emails. (No. 3:11-CV-1419 (M.D. Pa.) Doc. 124, Ex. B.)

It is an obvious truism that a court should not enter an order compelling a party to produce documents where the documents do not exist. See, e.g., Taylor v. Harrisburg Area Comm. Coll., 2013 WL 6095481 (M.D. Pa. Nov. 20, 2013). Such is the case here, and we find there is no basis to order the defendants to produce additional emails from Sharma's email box in the face of his sworn representation that no additional responsive emails exist.

Likewise, we find no basis to compel [*10]  the production of other email that the plaintiffs believe must exist on computers that were once used by former employees or other personnel whom the plaintiffs believe may have been privy to email relevant to this litigation. The defendants have represented to the Court that JPC Equestrian does not maintain a central server for storing emails, and email retention for each employee is computer-specific. In layman's terms, this means that an employee's emails reside solely on an employee's respective computer, and not elsewhere within the company. The defendants have affirmatively represented that when an employee leaves JPC Equestrian, their computer is "scrubbed," and reassigned to another employee. Such is the case with two employees who Kearney believes may have had relevant emails: Nina Depetris (former Vice President), and Ron Valtos (former Comptroller). These employees left the company in 2009 and 2010 respectively, and their computers were "scrubbed" and reassigned shortly thereafter, and prior to this litigation being commenced. The defendants thus maintain that by the time this litigation commenced in February 2011, any emails residing on the computers used by Depetris or [*11]  Valtos had long since been deleted from their computers, which had been reassigned.3

3   The plaintiffs have not suggested that by "scrubbing" or reassigning these computers a year or more before this litigation commenced that the defendants have knowingly, intentionally, or recklessly destroyed relevant documents. We thus find no basis on the record to conclude that the defendants failed to abide by their obligation under the Federal Rules of Civil Procedure to preserve potentially relevant evidence. Spoliation is "the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably forseeable litigation." Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 430 (S.D.N.Y. 2004) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). The plaintiffs have not suggested, much less shown, that the defendants failed in their duty to preserve potentially relevant evidence.

Considering the defendants' representations regarding their initial disclosures to the plaintiffs and their responses to the plaintiffs' request for relevant emails, together with their explanation regarding the email retention system that JPC uses for its employees, we have no basis to conclude that the defendants have withheld responsive documents, or that there [*12]  is any basis to compel a further response regarding potentially relevant email communication. The plaintiffs' motion to compel further production of responsive email will, therefore, be denied.4

4   Although the plaintiffs purport to disbelieve the defendants' repeated representations that all responsive email have been produced, and insist there must be additional emails that have not been provided, we are constrained to note that the plaintiffs have acknowledged that they retained few emails from the defendants, and in fact did not share much email correspondence with Varun Sharma. (Doc. 32, Ex. C.) This admission would serve to support, rather than undermine, the defendants' repeated representation to the plaintiffs and the Court that no further responsive emails exist.

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