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Borum v. Brentwood Village, LLC

United States District Court, District of Columbia

July 18, 2019

ADRIANN BORUM, et al., Plaintiffs,
BRENTWOOD VILLAGE, LLC, et al., Defendants.




         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.


         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.


         A. Sanctions ...

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