MEMORANDUM OPINION, GRANTING IN PART AND DENYING IN
PART DEFENDANTS' MOTION FOR SANCTIONS; GRANTING
DEFENDANTS' MOTION FOR LEAVE TO FILE UNDER SEAL
RUDOLPH CONTRERAS, UNITED STATES DISTRICT JUDGE.
I.
INTRODUCTION
On
August 25, 2016, One DC, a community organization, joined a
class action by residents of the Brookland Manor apartment
complex (“Brookland Manor”) against Defendants
Brentwood Associates, L.P., Mid-City Financial Corporation,
and Edgewood Management Corporation, for violations of the
Fair Housing Act (“FHA”), 42 U.S.C. §§
3601-19, and D.C. Human Rights Act (“DCHRA”),
D.C. Code §§ 2-1401 to 2-1404. Plaintiffs alleged
that the planned redevelopment of the complex by Defendants
was discriminatory and would force certain residents out of
their homes. During discovery, Defendants learned that an
employee of One DC had deleted relevant electronically stored
information (“ESI”) after Plaintiffs filed their
suit. Defendants now move for sanctions pursuant to the
Court's inherent authority and Rule 37(e) of the Federal
Rules of Civil Procedure. Defendants request that the Court
dismiss One DC from this case, and that it award their fees
and costs associated with defending against One DC's
claims and conducting discovery against One DC.
For the
reasons explained below, the Court grants Defendants'
motion for sanctions only in part. The Court finds that an
award of some fees and costs is appropriate here under Rule
37(e)(1) to cure the prejudice to Defendants resulting from
the spoliation. But because it does not find that One DC
acted intentionally to deprive Defendants of the lost ESI,
the Court will not grant any claim-dispositive sanction.
II.
BACKGROUND
The
Court has already set out the factual background for this
case in detail in its prior opinions. See Borum v.
Brentwood Vill., LLC, No. 16-1723, 2019 WL 2437686, at
*1-3 (D.D.C. June 11, 2019); Borum v. Brentwood Vill.,
LLC, 329 F.R.D. 90, 91-93 (D.D.C. 2019); Borum v.
Brentwood Vill., LLC, 324 F.R.D. 1, 6-7 (D.D.C. 2018);
Borum v. Brentwood Vill., LLC, 218 F.Supp.3d 1, 5-8
(D.D.C. 2016). It assumes familiarity with those prior
opinions and only briefly summarizes the facts relevant to
the present motion.
A.
One DC's Involvement in the Brookland Manor
Litigation
Residents
of the Brookland Manor apartment complex, joined by community
organization One DC, brought this action to challenge
Defendants' redevelopment plan for the Brookland Manor
property. See generally Compl., ECF No. 2.
Plaintiffs allege that the redevelopment plan, which would
eliminate all four- and five-bedroom apartment units and
significantly reduce the number of three-bedroom apartments,
would have a disparate impact on families. See Id.
¶¶ 5, 69-79.
One DC
is “comprised of members who include tenants of
affordable housing properties that are seeking to avoid
displacement, preserve affordable housing, ensure fair
housing, and further equitable development in D.C.”
Id. ¶ 108. One DC asserts that Defendants'
discriminatory conduct has caused it to “divert scarce
organizational resources” towards addressing the
situation at Brookland Manor and “frustrat[ed] its
mission of creating and preserving racial and economic equity
in D.C.” Id. ¶ 111. Specifically, One DC
alleges that it has diverted its resources to
“identifying, investigating, and combating
Defendants' discriminatory policies and practices, and to
counseling, organizing, and reassuring tenants who have been
forcibly moved or have feared imminent displacement under
Defendants' proposed redevelopment plan for Brookland
Manor.” Id. ¶ 113. Given that One DC has
a “limited operational budget and only two full-time
staff members . . . this project . . . diverts both money and
human resources from . . . other organizational activities
and community initiatives.” Id. ¶ 112. In
all, One DC alleges that, as of July 28, 2016, it had spent
640 staff-hours to “combat Defendants'
discriminatory conduct.” Id. ¶ 121.
Yasmina
Mrabet worked as One DCs primary organizer at Brookland Manor
from October 2016 until March 2018. See Mrabet Dep.
8:10-16, Pls.' Opp'n Defs' Mot. Sanctions
(“Pls.' Opp'n”) Ex. B, ECF
99-6.[1] As One DCs Right to Housing Organizer,
Mrabet “organize[d] tenants throughout the District of
Columbia and . . . help[ed] them form strong tenant
associations to deal with affordable housing issues.”
Moulden Dep. 37:17-38:4, Decl. of Lisa Schapira Ex. A, ECF
No. 94-3. Mrabet led One DCs activities at Brookland Manor,
see Id. at 38:5-10, and served as “One DCs
point person for the Brookland Manor project between 2016 and
2018, ” id. at 184:8-12. During the
litigation, she corresponded with several people about
Brookland Manor, including residents, volunteers, interns,
ANC commissioners, and other One DC members and employees,
serving as the main point of contact between Brookland Manor
residents and One DC. See Mrabet Dep. at
10:24-12:13.
B.
Mrabet's Destruction of E-mails Relevant to this
Litigation
In
March 2018, Mrabet left One DC because of an “internal
conflict at the organization.” Mrabet Dep. 8:14-20.
Before leaving, she deleted all of her e-mails. See
Id. at 13:25-14:2. On March 14, 2018, Claire Cook, the
Administrative Organizer at One DC, discovered that Mrabet
had deleted her e-mails.[2] See Pls.' Opp'n 7;
see also Decl. of Claire Cook ¶ 8, ECF 99-2.
Three business days later, Cook attempted to recover
Mrabet's e-mails. See Pls.' Opp'n 7;
see also Cook Decl. ¶ 13. One DC maintained
employee e-mail accounts through G Suite, see Cook
Decl. ¶ 3, which only allowed administrators to restore
data that was deleted within the past 25 days, see
Google Support Page 1, Decl. of Stephen Petkis Ex. C, ECF No.
99-7. Cook was only able to restore a limited set of e-mails
from February and March 2018, see Cook Decl. ¶
15, because the 25-day period in which One DC could recover
the e-mails had expired, see Moulden Dep. 186:3-7.
On May
21, 2018, Defendants requested “[a]ll documents related
to communications involving Yasmina Mrabet that relate to the
Brookland Manor Apartments, Mid-City, Edgewood, BALP or
allegations made in the Complaint.” Defs.' First
Set of Reqs. for Produc. of Docs. (“Defs.' Reqs.
for Produc.”) 6, Req. No. 4, Decl. of Lisa Schapira Ex.
B, ECF 94-3. In its June 20, 2018 response, One DC agreed to
“conduct a reasonable search . . . and produce
responsive, non-privileged documents, if any, that involve
Ms. Mrabet and relate to Mid-City, Edgewood, or BALP's
role in the management and redevelopment of Brookland Manor
Apartments between January 1, 2014 and the present.”
Pls.' Resps. and Objs. to Defs.' First Set of Reqs.
for Produc. of Docs. (“Pls.' Resps.”) 8,
Decl. of Lisa Schapira Ex. C, ECF 94-3.
However,
in a September 4, 2018 amendment, One DC revealed that Mrabet
had deleted her e-mail account and that the account was
“unrecoverable, ” although the set of e-mails One
DC would produce to Defendants would likely include the
“vast majority” of Mrabet's responsive emails
given One DC's practice of regularly copying other staff
members on e-mails. Pls.' Suppl. Resps. and Objs. to
Defs.' Reqs. for Produc. of Docs. (“Pls.'
Suppl. Resps.”) 5, Decl. of Lisa Schapira Ex. D, ECF
94-3. In response to Defendants' request, One DC produced
the 114 responsive, non-privileged documents that Cook had
restored, see Pls.' Opp'n 7, along with
“1, 308 responsive e-mails either to, from, or
copying” Mrabet, id. at 8. Plaintiffs
acknowledge that some responsive e-mails were likely lost
when Mrabet deleted her e-mails, but represent that “a
very substantial number of responsive e-mails were preserved
and produced” because of Mrabet's practice of
copying other staff members on e-mails. Id.
After
learning of the deletion, Defendants asked about One DC's
recordkeeping practices at the deposition of Dominic Moulden,
One DC's designated representative under Fed.R.Civ.P.
30(b)(6). See generally Moulden Dep. Moulden
explained that One DC might have orally instructed its
employees to preserve all documents sometime in the summer or
fall of 2016. See Id. at 179:24-180:13. But two
employees, Mrabet included, do not remember receiving an oral
litigation hold. See Mrabet Dep. 15:21-25; Ndubuizu
Dep. 64:25-65:11, Decl. of Lisa Schapira Ex. F, ECF No. 94-3.
One DC did not issue a written litigation hold until May 30,
2018. See Pls.' Opp'n 5. Nor did it activate
a vault system for permanent backup of e-mails until July
2018. See Moulden Dep. 183:10-16.
C.
Procedural History
Plaintiffs
filed suit on August 25, 2016. See generally Compl.
At the outset of litigation, Defendants filed a motion to
dismiss on several grounds, one of which included One
DC's lack of standing. See Defs.' Mem. Supp.
Mot. Dismiss, ECF No. 16-1. The Court denied the motion.
See Borum, 218 F.Supp.3d at 5. Based on the facts
alleged in the complaint, and One DC's allegations that
the planned redevelopment frustrated its goals and
“diverted its scarce resources away from its central
mission, ” the Court found that One DC had standing
because “Defendants' alleged discrimination forced
One DC to address an exigency in the community at the expense
of its broader social goals.” Id. at 20.
Defendants
have now moved for sanctions, arguing that One DC engaged in
spoliation of evidence long after it anticipated this
litigation and after the filing of this suit. See
Defs.' Mot. Sanctions 4 (“Defs.' Mot.”),
ECF No. 94-2. Defendants assert that the spoliation has
barred them from further pursuing their standing defense and
request as a remedy that the Court dismiss One DC's
claims. One DC filed an opposition, see Pls.'
Opp'n, and Defendants have filed their reply,
see Defs.' Reply, ECF No. 102. Thus, the motion
is ripe for resolution.
III.
LEGAL STANDARD
A.
Sanctions ...