United States District Court, D. Maryland
David Copperthite United States Magistrate Judge
October 30. 2015, the Secretary of Labor
("Plaintiff") filed the original complaint alleging
violations of the Employee Retirement Income Security Act by
Defendants (ECF No. 1). On April 29. 2017. Plaintiff filed
the First Amended Complaint (ECF No. 91). The case has been
litigious since its inception more than two years ago. On
November 16. 2017, this case was referred to me for all
discovery. ECF No. 239. On February 16, 2018. Defendants
filed a motion to compel discovery and for sanctions (ECF No.
312) against Plaintiff. On March 2, 2018. Plaintiff filed an
opposition (ECF No. 322), and on March 16, 2018, Defendants
filed their reply (ECF No. 324). The issue is fully briefed
and no hearing is necessary. Loc.R. 105.6 (D.Md. 2016). For
the reasons that follow. Defendants* motion is DENIED WITHOUT
PREJUDICE as to the motion to compel and DENIED as to the
motion for sanctions.
their motion to compel and for sanctions. Defendants request
that the Court impose sanctions for Plaintiffs
"destruction of or failure to preserve missing notes of
[Siamack] Gharanibli"s interviews of [former FCE
employee] Syria Castillo, and for counsel's failure to
disclose interview notes and other related conduct during Mr.
Gharanfoli"s deposition." ECF No. 312-1 at 3.
Plaintiff posits that the Court should deny Defendants'
motion to compel because it was procedurally deficient under
Local Rule 104.8(a) and. in any event, Mr. Gharanfoli's
notes are protected by several privileges, including the
informant's, deliberative process, and law enforcement
privileges. ECF No. 322 at 7.
regarding the procedural deficiencies for denying
Defendants' motion to compel, Plaintiff argues that
Defendants" motion did not comply with Local Rule
104.8(a) because it was filed more than thirty days after
receiving Plaintiffs privilege log in February 2017 and
Defendants failed to serve a copy of the motion on Plaintiff
before filing it with the Court, along with Plaintiffs
response and a certificate of conference. ECF No. 322 at
13-14. Defendants argue that their motion was timely because
the grounds for the motion only arose after Mr.
Gharanibli"s deposition on January 25. 2018 and February
1, 2018 because his testimony shed new light on the contents
of Plaintiffs February 2017 privilege log. ECF No. 324 at
4-5. Local Rule 104.8 provides that, when a response to a
request for production of documents has been served, a party
dissatisfied with the response must serve a motion to compel
on the responding party (but not file the motion with the
court) within 20 days of receipt of the response. The
responding party then has 14 days to serve the propounding
party with a memorandum in opposition, after which the
propounding party has 11 days in which to file a reply
memorandum. If this exchange of memoranda does not resolve
the dispute, counsel must them confer with one another in
accordance with Local Rule 104.7 in a further effort to
resolve the dispute. If unsuccessful, the moving party may
then file a certificate with the court attesting to having
held the conference required by focal Rule 104.7. along with
the motion to compel, the opposition memorandum and any
reply. Loc.R. 104.8(c).
is correct that Defendants have not complied with Local Rule
104.8. Although Defendants, in their reply, describe their
attempts to confer with Plaintiffs counsel regarding
Plaintiffs privilege log and whether documents should be
produced. Defendants failed to file a certificate of good
faith effort to confer and acknowledge as much, stating that
"(i]f no resolution [to the motion] is reached,
[D]efendants will then file the certification." ECF No.
324 at 6-7. Because Defendants' counsel has not complied
with Local Rule 104.8. and yet contemplates doing so, the
Court will not consider Defendant's motion to compel at
this time. Instead, counsel for Plaintiff and Defendants
should meet in person to confer and address the privilege
log, specifically documents authored by Mr. Gharanfoli and
any notes taken by other government employees who attended
Mr. Gharanfoli's interviews. The parties should make
sincere attempts to resolve this discovery dispute and comply
with the Local Rules without further involvement by the
regarding Defendants" request for spoliation sanctions
for Plaintiffs alleged destruction or failure to preserve
notes of witness interviews, Defendants argue that Plaintiff
had a duty to preserve Mr. Gharanfoli's notes of his
interviews of Ms. Castillo and either destroyed or failed to
retain those notes. ECF No. 312-1 at 19-25. According to
Defendants, the Court should impose spoliation sanctions in
the form of an adverse inference against Plaintiff that Mr.
Gharanfoli"s notes were not preserved because they
contained evidence supportive of Defendants' defenses.
Id. at 24-25. Moreover, Defendants request that the
Court order Plaintiff to search for and produce Mr.
Gharanfoli's unproduced interview notes and reports.
Id. at 25.
refers to the destruction or material alteration of evidence
or to the failure to preserve property for another's use
as evidence in pending or reasonably foreseeable
litigation." Silvestri v. Gen. Motors Corp.,
271 F.3d 583. 590 (4th Cir. 2001) (citation omitted). As a
threshold issue, the evidence purportedly destroyed or lost
must have actually existed, Okezie v. Prime
George's Cty., Md, No. DKC-13-0168, 2014 WL
1429183, at *2 (D.Md. Apr. 11, 2014). The party bringing the
spoliation claim has the burden to "prove, not simply
believe, that evidence was destroyed or suppressed."
Id. (citing Turner v. United States, 736
F.3d 274, 282 (4th Cir. 2013)).
Defendants take issue with the tact that Mr. Gharanfoli's
notes for two of the four interviews with Ms. Castillo were
not produced until late January 2018, shortly before his
deposition, while no notes were produced for the other two
interviews. ECF No. 312-1 at 22. Defendants point to Mr.
Gharanfoli's testimony that he took notes of every
witness interview and always prepared an interview report
after an interview as support that, despite his testimony to
the contrary. Mr. Gharanfoli did take notes during all of his
interviews with Ms. Castillo and that his notes from two of
the interviews were not retained. Id. at 21-22.
Based on these facts, Defendants argue that they have
provided enough proof to satisfy their burden that Mr.
Gharanfoli's notes existed beyond "a belief,
expectation, or mere suspicion." ECF No. 324 at 8.
However, Mr. Gharanfoli testified that all of his notes were
produced and that he did not take additional notes or create
additional interview reports regarding his discussions with
Ms. Castillo. See FXF No. 312-3 at 76. Defendants
seek to rely on Mr. Gharanfoli's usual conduct, but that
is not enough to satisfy the burden for spoliation sanctions.
See Okezie, 2014 WL 1429183, at *3 (denying
spoliation sanctions where Defendants argued that while a
recording should have been created and that they would have a
duty to preserve such a recording, no such evidence ever
existed); Heeler v. City of Hammonton, No.
11-cv-02745. 2013 WL 6499257. at *5 (D.N.J. Dec. 11, 2013)
(declining to find spoliation where "Plaintiff
essentially asks th[e] [c]ourt to find that Defendants
spoliated evidence simply because it was 'routine' to
record calls during which bail was set and no recordings of
the call setting Plaintiffs bail were produced during
discovery"). Accordingly. Defendants "ha[ve] not
satisfied [theirj burden to establish facts from which the
Court could *at least infer that the evidence existed in the
first place."" Okezie, 2014 WL 1429183, at
*3 (quoting Omogbehin v. Cino, 485 Fed.Appx. 606,
609 (3d Cir. 2012)).
foregoing reasons, FCE's motion to compel and for
sanctions (ECF No. 312) is DENIED WITHOUT PREJUDICE as to
Defendants" motion to compel and DENIED as to
Defendants" request for spoliation sanctions. The
parties are ORDERED to confer in person within ten days of
this Order in order to attempt to resolve the issues raised
in Defendants' motion to compel. Within fourteen days of
this Order, the parties shall file a joint submission
advising the Court whether any disputes remain regarding
these motions for the Court to address.
the informal nature of this letter, it is an Order of the
Court and will be docketed accordingly.
 At the parties' conference, they
should also discuss, and hopefully resolve. Plaintiff's
Motion for Leave to File Sur-Reply (ECF No. 325) and
Defendants" Motion for Leave to File Amended Exhibit
(ECF No. 326), which were filed on March 23 and 26,
respectfully. If a resolution cannot be reached, the parties