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Equal Employment Opportunity Commission v. Performance Food Group, Inc.

United States District Court, D. Maryland

March 6, 2019

EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff,
v.
PERFORMANCE FOOD GROUP, INC., Defendant.

          MEMORANDUM OPINION

          BETH P. GESNER CHIEF UNITED STATES MAGISTRATE JUDGE.

         This case was originally referred to me for all discovery and related scheduling matters in accordance with 28 U.S.C. § 636 and Local Rules 301 and 302 of the United States Court for the District of Maryland. (ECF No. 57). This case was subsequently re-referred to me for all discovery and related scheduling matters, including the resolution of the motions at hand. (ECF No. 209). Currently pending are: plaintiff's Motion for Sanctions for the Spoliation of Paper Applicant Files (“Paper Spoliation Motion”) (ECF Nos. 203, 204), plaintiff's Motion for Sanctions for the Spoliation of ESI (“ESI Spoliation Motion”) (ECF Nos. 205, 206), defendant's Opposition to Plaintiff's Motion for the Spoliation of Paper Applicant Files and Motion for Sanctions for the Spoliation of ESI (“Opposition”) (ECF Nos. 218, 219), and plaintiff's Reply Memorandum in Support of Plaintiff's Motions for Sanctions for the Spoliation of Paper Applicant Files and ESI (“Reply”) (ECF No. 221). No. hearing is deemed necessary. Loc. R. 105.6. For the reasons noted below, plaintiff's motions are DENIED.

         I. Factual Background

         In 2013, plaintiff Equal Employment Opportunity Commission (“EEOC”) filed this employment action against defendant Performance Food Group, Inc. and its successors, predecessors, affiliates, and subsidiaries (collectively “PFG” or “defendant”), alleging unlawful sex-based discrimination in violation of Title VII of the Civil Rights Act of 1964 and Title I of the Civil Rights Act of 1991. (ECF No. 5 at 2). Defendant is “engaged in the business of marketing and distributing branded food and non-food products to various customers in the food service industry nationwide.” (ECF No. 5 at 3). Prior to May of 2008, defendant was comprised of two divisions, Broadline and Customized. (ECF No. 5 at 4). Defendant operated approximately twenty distribution centers, called operating companies (“OpCos”), in the Broadline division. Id. Operative positions at these OpCos are “intermediate-skilled occupations and include workers who operate machines or factory-related processing equipment, ” and include, but are not limited to: “selector; receiving clerk; yard jockey, driver; driver trainee; driver check-in; forklift operator; mechanic; dispatcher; fueler; meat cutter; meat packer; router; sanitation specialist; transportation supervisors; and warehouse supervisors.” (ECF No. 5 at 18).

         In the summer of 2007, plaintiff served defendant with three charges alleging discrimination based on sex filed by employees at defendant's Carroll County Foods (“CCF”) OpCo.[1] (ECF No. 203 at 11). Each charge included a preservation notice referencing the Title VII recordkeeping regulation, 29 C.F.R. § 1602.14, which requires retention of “all personnel records relevant to the charge or the action until final disposition of the charge or action.”[2] (ECF No. 203 at 11-12). On November 14, 2007, plaintiff requested, among other information, demographic information for all CCF warehouse employees and the status and contact information of two members of corporate management, Broadline Division's Corporate Vice-President of Operations Dan Peckskamp and Regional Vice-President of Operations David Russ. Id. On August 7, 2008, plaintiff notified defendant by letter that “its investigation included ‘potential sex discrimination in hiring, discharge, promotion, and compensation at all of [defendant]'s facilities' from 2004 to the present.” (ECF No. 203 at 12 (quoting ECF No. 203-8)). Along with this letter, plaintiff filed a Computerized Data Information Request.[3] (ECF No. 203 at 12).

         On August 11, 2008, plaintiff notified defendant that it was investigating defendant's' compliance with the Equal Pay Act and requested a visit to inspect and copy, among other documents, “individual employee and/or job applicant data (job applications, test scores, job and wage histories, performance appraisals, etc.” (ECF Nos. 203 at 12, 203-9). Plaintiff issued administrative subpoenas for this information in October of 2008 and February of 2009, (ECF Nos. 203-10, 203-11), and this court enforced the subpoenas “to the extent [they] seek[] hiring data for employees and applicants under Peckskamp's or Russ's ultimate control.” Memorandum and Order re: Subpoena Enforcement, EEOC v. Performance Food Group Co., LLC, No. MJG-09-2200 (D. Md. February 28, 2010), ECF No. 29 at 20. In September of 2012, plaintiff issued a letter finding “that there is reasonable cause to believe that since at least July 1, 2004, [defendant] has, within its Broadline Division, subjected a class of female applicants and employees to a company-wide pattern of denied hire and promotion.” (ECF No. 205-25 at 2). In June of 2013, plaintiff filed the instant suit, alleging that, “[s]ince at least July 1, 2004, [defendant] has maintained and continues to maintain a standard operating procedure of discriminating against females in its hiring of operatives at its Broadline facilities. This standard operating procedure emanates from [d]efendant's top management, and in particular, from its Corporate and Regional Vice Presidents.” (ECF No. 5 at 19). Plaintiff also alleged that defendant discriminated against Julie Lawrence by failing to promote her to Nighttime Warehouse Training Supervisor at its CCF OpCo. (ECF No. 5 at 22).

         On March 12, 2014, this Court bifurcated the case into two phases. (ECF No. 37). The Court ordered that Phase One would consist of a determination of the extent to which, if at all, plaintiff could establish its pattern or practice claim. (ECF No. 37 at 12). If plaintiff prevailed in Phase One, the case would proceed to Phase Two to resolve any individual claims. (ECF No. 37 at 13). As to plaintiff's second claim that defendant failed to promote Julie Lawrence, the parties agreed that all issues pertaining to that claim would be tried without bifurcation. (ECF No. 37 at 14). The court ordered that discovery regarding the second claim and Phase One of the first claim would proceed simultaneously. Id. The parties have spent the last few years engaged in discovery. Currently pending are plaintiff's Paper Spoliation Motion (ECF No. 203) and ESI Spoliation Motion (ECF No. 205). Each motion will be addressed separately.

         II. Spoliation of Paper Applications

         A. Legal Standard

         Federal courts have two sources of authority for the imposition of sanctions due to spoliation of non-electronically stored information. First, a court may issue sanctions under Federal Rule of Civil Procedure 37 when a party commits spoliation in violation of a specific court order. Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 505-06 (D. Md. 2009). A court may also impose sanctions for spoliation based upon its inherent authority to control the judicial process. Id. Here, plaintiff has not identified any court order violated by defendant in its alleged spoliation; “accordingly, the [c]ourt's ability to impose any sanction must derive from its inherent authority to regulate the litigation process, rather than from any sanction prescribed by the Federal Rules of Civil Procedure.” Id. at 506.

         In addressing issues regarding spoliation, the term “spoliation” means “the destruction or material alteration of evidence or . . . 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) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir.1999)). A party seeking sanctions based on the spoliation of evidence must establish three elements:

(1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a “culpable state of mind;” and (3) the evidence that was destroyed or altered was “relevant” to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.

Goodman, 632 F.Supp.2d at 509 (quoting Thompson v. U.S. Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 101 (D. Md. 2003)).

         If a court finds the above elements to be met, then it may impose sanctions that must serve “the purpose of leveling the evidentiary playing field and . . . the purpose of sanctioning the improper conduct.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995). Courts have broad discretion to impose sanctions for spoliation of relevant evidence and the available sanctions “rang[e] from dismissal or judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment of attorney's fees and costs.” Goodman, 632 F.Supp.2d at 506 (citing In re NTL, Inc. Sec. Litig., 244 F.R.D. 179, 191 (S.D.N.Y. 2007)). For the following reasons, I conclude that the spoliation at issue here does not warrant the imposition of the sanctions sought by plaintiff.

         B. Discussion

         i. Breach of the Obligation to Preserve Relevant Evidence

         In determining whether to impose sanctions for spoliation, the first element is whether “the party having control over the evidence had an obligation to preserve it when it was destroyed or altered.” Thompson, 219 F.R.D. at 101. “The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Id. (quoting Silvestri, 271 F.3d at 591). The duty to preserve relevant evidence is an independent duty that exists even if the party seeking the evidence did not request a court order for its preservation. Thompson, 219 F.R.D. at 100. In order to fulfill the duty to preserve relevant evidence, “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold' to ensure the preservation of relevant documents.” Id. (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) (“Zubulake IV”)).

         Plaintiff alleges that defendant has failed to preserve an estimated 23, 769 paper application files from the period of January 1, 2004, to June 30, 2009. (ECF No. 203 at 7). Plaintiff further alleges that defendant primarily failed to preserve the files of applicants who were not hired, and that this failure to preserve was especially stark for female applicants who were not hired. Id. Plaintiff argues that defendant was on notice to preserve all Broadline OpCo applications in August of 2007, once it received three charges by employees alleging discrimination on the basis of sex, as these charges placed defendant on notice of a potential pattern or practice claim. (ECF No. 203 at 13). Plaintiff also argues that defendant was placed on further notice on November 14, 2007, when plaintiff demanded workplace-wide demographic information and asked to interview Vice-Presidents Peckskamp and Russ. (ECF No. 203 at 14).

         Plaintiff argues that, under defendant's retention policies, [4] as of August of 2007, defendant should have possessed “non-hired” applicant documents for 2005-2007 and hired applicant documents for 2004-2007. (ECF No. 203 at 15). Plaintiff further argues that defendant should have possessed all applications for 2004-2007 for its CCF OpCo, as in 2004, defendant was in litigation with plaintiff in a different case where a consent decree required defendant to retain job applications until at least June of 2007. Id. (citing Consent Decree at ¶¶ 2, 10(c), EEOC v. Carroll County Foods, Civ. No. MJG-03-1698 (D. Md. June 3, 2004), ECF No. 32).

         Defendant argues that it was not placed on notice of a company-wide pattern or practice claim until August 7, 2008, when plaintiff issued a letter informing defendant of its expanded investigation. (ECF No. 218 at 68). Defendant argues that the three employee charges filed in 2007 only required defendant to preserve CCF OpCo applications. Id. Similarly, defendant argues that plaintiff's request for information in November of 2007 was limited to CCF employees and two corporate employees, such that defendant “could not have reasonably anticipated in November 2007” that plaintiff would “file a complaint alleging systemic companywide sex discrimination at all of its warehouses with respect to selectors and drivers.” (ECF No. 218 at 54-55).

         Defendant does not dispute that its duty to preserve CCF OpCo applications began in the summer of 2007 when it received individual employee charges.[5] Id. These charges, however, did “not indicate whether the offending conduct was localized or part of a company-wide policy, thus it is insufficient notice of a pattern-or-practice claim.” EEOC v. L.A. Weight Loss, 509 F.Supp.2d 572, 539 (D. Md. 2007). Further, plaintiff's November 14, 2007 letter failed to place defendant on notice of a pattern-or-practice claim, as it specifically requested information about employees from only the CCF OpCo. See id. at 540 (finding that defendant was placed on notice of a company-wide pattern or practice claim when plaintiff provided a request for additional documentation of all vacancies). Accordingly, defendant's duty to preserve all OpCo applications did not begin until August 7, 2008, when plaintiff informed defendant that it was expanding the scope of the investigation.

         While plaintiff argues that defendant should be charged with failing to preserve applications in accordance with its document retention policy (ECF No. 203 at 15), defendant's document retention policy does not have the force of law.[6] Rather, defendant was only required by law to retain applications for one year after an applicant was not selected or an employee was terminated. See 24 C.F.R. § 1602.14 (“Any personnel or employment record made or kept by an employer (including but not necessarily limited to . . . application forms submitted by applicants . . .) shall be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.”) Accordingly, by law, defendant was only required to keep applications dating from June 11, 2006[7] for CCF OpCos and from August 7, 2007[8] for all other OpCos.

         Plaintiff alleges that defendant spoliated approximately 23, 769 paper application files from all OpCos during the period of January 1, 2004, to June 30, 2009. (ECF No. 203 at 7). Defendant “acknowledges that it did not preserve all of the application data that it had a duty to preserve, ” but argues that “almost half of the alleged missing applications are for male and female applicants who applied during calendar years 2004 and 2005, the period of time before PFG's preservation duty was triggered, ” and that defendant produced application data for “81% of applicants who applied between 2006 through mid-2009.” (ECF No. 218 at 68). Because defendant was only required to keep applications dating from June 11, 2006 for CCF OpCos and from August 7, 2007 for all other OpCos, defendant was not responsible for preserving all 23, 769 paper application files identified by plaintiff. Rather, plaintiff reports that, for all OpCos, defendant failed to produce 4, 668 applications from 2007[9], 447 from 2008, and 3, 337 from the first half of 2009. (ECF No. 203 at 17). In sum, defendant failed to preserve between 3, 784[10] and 8, 542[11] applicant files out of a total of between 31, 462[12] and 53, 653[13] applicants for all OpCos between August 7, 2007, and June 30, 2009.

         As to the alleged destruction at the CCF OpCo during the year 2006, plaintiff reports that defendant failed to produce 144 “non-hire” applications. (ECF No. 203 at 19). Plaintiff does not specify, however, which of these applications that defendant had a duty to preserve, i.e. which applications were dated after June 11, 2006. Defendant may have failed to preserve anywhere between zero and 144 applications, and I cannot determine the extent of spoliation from the CCF OpCo for the year 2006 based on the information available to me. Nonetheless, while defendant did not fail to preserve the total amount of applications alleged by plaintiff, plaintiff has established defendant did fail to preserve a number of applications from all OpCos dating back to August 7, 2007, and likely some applications from the CCF OpCo for the year 2006. The first element of the Thompson analysis is satisfied.

         ii. Culpability

         The second element to consider is whether the destruction or loss of evidence was accompanied by a “culpable state of mind.” Thompson, 219 F.R.D. at 101. Plaintiff alleges that “[d]efendant did not simply fail to pay attention to its legal duties, fail to notice when they accrued, fumble its litigation hold, or suffer the misfeasance of one or two individuals with sole control over the documents, ” but that defendant acted willfully and in bad faith. (ECF No. 203 at 30). Defendant argues that plaintiff “has not proffered any evidence that [defendant] failed to produce paper applications in bad faith or that it engaged in egregious conduct.” (ECF No. 218 at 70). Three possible states of mind “can satisfy the culpability requirement: bad faith/knowing destruction, gross negligence, and ordinary negligence.” Goodman, 632 F.Supp.2d at 518 (citing Thompson, 219 F.R.D. at 101). The Fourth Circuit only requires a showing of fault, with the degree of fault impacting the severity of sanctions. Silvestri, 271 F.3d at 590. For the reasons discussed below, I find that there is insufficient evidence to conclude that defendant acted willfully or in bad faith, but there is sufficient evidence to conclude that defendant was negligent.

         Ordinary negligence is “[t]he failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation[.]” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 529 (D. Md. 2010) (citing Black's Law Dictionary 846 (Bryan A. Garner ed., abridged 7th ed., West 2000)). Gross negligence “is something more than carelessness, ” which “‘differs from ordinary negligence only in degree, and not in kind.'” Id. (citing Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d 456, 464 (S.D.N.Y. 2010)). Willfulness and bad faith both require “intentional, purposeful, or deliberate conduct.” Id. at 530 (citing Buckley v. Mukasey, 538 F.3d 306, 323 (4th Cir. 2008)). For a court to find that a party acted willfully, “it is sufficient that the actor intended to destroy the evidence.” Id. (citing Goodman, 632 F.Supp.2d at 520). Bad faith, on the other hand, “requires ‘destruction for the purpose of depriving the adversary of the evidence.'” Id. (quoting Powell v. Town of Sharpsburg, 591 F.Supp.2d 814, 820 (E.D. N.C. 2008)).

         In Victor Stanley, this court found that defendants “set out to delete, destroy, or hide thousands of files containing highly relevant ESI pertaining to [p]laintiff's claims . . . lied about their ESI production; obstructed the discovery process; and intentionally destroyed evidence when they were aware of the lawsuit.” Id. at 531. Here, however, plaintiff has not provided any evidence that defendant destroyed the paper applications “for the purpose of depriving [plaintiff] of the evidence” or that defendant “intended to destroy the evidence.” Id. Rather, plaintiff's arguments focus on defendant's failure to implement a proper litigation hold. (ECF No. 203 at 24-27). Accordingly, I do not find that plaintiff has established that defendant acted willfully or in bad faith.

         In determining whether defendant's conduct was negligent, the court must first consider defendant's failure to institute a litigation hold or advise employees to retain documents. Generally, if a company has a document retention or destruction policy, it must suspend that policy and “implement a ‘litigation hold' to ensure the preservation of relevant documents” once the preservation duty attaches. Goodman, 632 F.Supp.2d at 511 (citing Thompson, 219 F.R.D. at 100). Courts have found that the quality of the litigation hold instituted directly correlates to the level of culpability and sanction that attaches to the inadequacy of those efforts, if any. When no litigation hold has been instituted, courts have found such conduct to be grossly negligent. In Cognate Bioservices, Inc., et al. v. Smith, Civ. No. WDQ-13-1797, 2015 WL 5158732 (D. Md. August 31, 2015), the defendant failed to institute a litigation hold at his consulting firm. Id. at *5. As a result, multiple potentially relevant emails and documents were deleted by employees. Id. The court noted “had [defendant] instituted any litigation hold-even a less-than-ideal litigation hold-the circumstances might have warranted a finding of regular negligence.” Id. (citing Victor Stanley, 269 F.R.D. at 529). But, under the circumstances, since no steps were taken to preserve such evidence, the court found the defendant's conduct to be grossly negligent. Id.

         In this case, there is ample evidence that defendant failed to properly institute a litigation hold. As previously discussed, defendant's duty to preserve paper applications attached to its CCF OpCo on June 11, 2007, and to all other OpCos on August 7, 2008. Defendant was required to implement a litigation hold once this duty attached. Defendant's designee testified that it believed it first became aware of a litigation hold in late 2008 but could not recall any details about the hold. (ECF No. 203 at 25). Defendant's designee could not recall whether the hold required the OpCos to preserve paper applications. Id. Defendant's designee also could not recall what was included in litigation hold notices, and defendant could not produce any such notices. Id. Plaintiff also provides evidence that, if there was a litigation hold, it was not communicated to all OpCo HR managers.[14] (ECF No. 203 at 26).

         Even if there was a litigation hold, however, defendant's designee testified that the litigation hold was merely self-enforced.[15] Id. “A party's obligations ‘do not end with the implementation of a litigation hold . . . [c]ounsel must oversee compliance with the litigation hold, monitoring the party's efforts to retain and produce the relevant documents.” In re Ethicon, Inc. Pelvic Repair Systems Product Liability Litigation, 299 F.R.D. 502, 521 (S. D. W.Va. 2014) (quoting Zubulake v. UBS Warburg, LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004) (“Zubulake V”)). “At a minimum . . . counsel should have educated employees on what measures were expected of them to collect and preserve material evidence.” Id. Here, however, even if there was a litigation hold, it was not properly implemented, and there was no monitoring for compliance. Under the circumstances, I conclude that defendant's failure to implement any measures to ensure that potentially relevant evidence would be preserved constituted at least ordinary negligence.[16] The second element of the Thompson analysis is satisfied.

         III. Relevance and Prejudice

         The third element that must be met before sanctions are imposed is that the destroyed or altered documents are relevant to the proponent's claims and defenses. In the Fourth Circuit, “a finding of ‘relevance' for purposes of spoliation sanctions is a two-pronged finding of relevance and prejudice.” Victor Stanley, 269 F.R.D. at 532. When the alleged spoliator is found to have acted willfully or in bad faith in failing to preserve evidence, “the relevance of that evidence is presumed in the Fourth Circuit.” Id. at 532. When a failure to preserve evidence is the result of either ordinary or gross negligence, as is the case here, the plaintiff must establish that the lost documents were relevant to their case. Thompson, 219 F.R.D. at 101 (quoting Zubulake IV, 220 F.R.D. at 220).

         Evidence is relevant if a “reasonable trier of fact could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.” Victor Stanley, 269 F.R.D. at 531 (quoting Thompson, 219 F.R.D. at 101). Here, plaintiff alleges that the missing paper applications are relevant to its pattern or practice claim. (ECF No. 203 at 33). Specifically, the missing paper applications here would likely be relevant to plaintiff's pattern or practice claim, as the applications would allow plaintiff to evaluate the qualifications of the Phase I female claimants and male hires for individual comparisons. (ECF No. 203 at 34). Similarly, this evidence would allow plaintiff to evaluate the reasons given by defendant for why individual female claimants were not hired. Id. Indeed, defendant does not challenge the relevance of these documents in its Opposition. Accordingly, I find that a reasonable factfinder could conclude that these missing employment records would have supported plaintiff's claims.

         Turning to whether plaintiff has been prejudiced due to the spoliation, spoliation is prejudicial if “a party's ability to present its case or to defend is compromised.” Victor Stanley, 269 F.R.D at 532 (citing Silvestri, 271 F.3d at 593-94). Here, plaintiff alleges that defendant's conduct has prejudiced plaintiff “by preventing it from identifying and preventing it from identifying and evaluating aggrieved females whom it could have used as Phase I claimants, and from seeking relief for those unidentified non-Phase I claimants during Phase II.” (ECF No. 203 at 33). Plaintiff has also alleged that it is prejudiced by the lack of “individual comparator information needed to rebut pretextual explanations for why [defendant] did not hire [plaintiff's] Phase I claimants” and that “[t]he failure to preserve has also opened the door for [defendant] to attack [plaintiff's] statistical populations as insufficiently representative.” Id. Plaintiff further details how the spoliation prejudiced the claims brought on behalf of specific Phase I claimants.[17](ECF No. 203 at 35-39).

         Defendant alleges that plaintiff was not deprived “of any evidence it needs to establish its pattern or practice claim.” (ECF No. 218 at 71). Defendant argues that the issue in Phase I is whether defendant has a companywide pattern or practice of failing to hire women into operative positions, which can be proven through statistical and anecdotal evidence. (ECF No. 218 at 71- 72). Defendant further asserts that plaintiff submitted an expert report supporting its pattern or practice theory and that, in this report, its expert did not claim that the missing applicant data prevented her from making relevant findings. (ECF No. 218 at 73). In response to plaintiff's argument that “[t]he failure to preserve has also opened the door for [defendant] to attack [plaintiff's] statistical populations as insufficiently representative, ” (ECF No. 203 at 33), defendant argues that its expert does not base any challenges on missing data, but rather on plaintiff's expert's flawed methodology and failure to use all data that was available for analysis. (ECF No. 218 at 74-75).

         Additionally, defendant claims that plaintiff was not prejudiced by its inability to identify and evaluate aggrieved females. (ECF No. 218 at 74). Defendant argues that plaintiff was able to select nineteen female applicant who applied during the years in question, between 2004 and mid- 2009.[18] Id. Similarly, defendant argues that plaintiff did not experience prejudice to the claims brought on behalf of the Phase I claimants. Rather, defendant argues, these claims will not be tried until Phase II, and the claimants' only role in Phase I is to provide anecdotal testimony in support of the pattern or practice claim, so there is no prejudice at this time. (ECF No. 218 at 75).

         In response, plaintiff asserts that paper applications and related documents “are essential to proving the pretext of [d]efendant's asserted reasons for not selecting the female applicant, ” particularly when plaintiff “has the burden of actually proving [defendant's] representations to be false.” (ECF No. 221 at 21-22 (emphasis in original)). Furthermore, plaintiff argues, it is “using the circumstances of Phase I witness' non-selections to help prove a pattern or practice of discrimination . . . their qualifications, those of their comparators, [defendant's] purported reasons for not selecting them, and proof of pretext is all at play in Phase I liability phase.”[19] (ECF No. 221 at 12). Plaintiff further argues that the prejudice is significant in light of defendant's second expert report, which claims that the disparity between the number of male and female applicants hired was due to a disparity in prior experience. (ECF No. 221 at 28). Specifically, plaintiff argues that its expert cannot properly rebut defendant's expert reports without data from the spoliated applications. (ECF No. 221 at 29).

         Here, plaintiff alleges that PFG “has maintained and continues to maintain a standard operating procedure of discriminating against females in its hiring of operatives at its Broadline facilities.” (ECF No. 5 at 19). As noted by plaintiff, “[t]he relative qualifications of the claimant and comparators as they existed on the documents reviewed by the decisionmakers, and [d]efendant's actual deliberative process, is critically at issue.” (ECF No. 221 at 22 (emphasis in original)). Plaintiff's ability to present evidence in support of its pattern or practice claim is compromised by the spoliation of such documents. Although individual claimants may testify anecdotally, their testimony does not cure this prejudice, as they will only be able to testify as to their own qualifications. Additionally, plaintiff is harmed by its inability to offer paper applications and related documents to rebut defendant's proffered explanations for not hiring female applicants. As to plaintiff's ability to present expert witness testimony, I do not have sufficient information before me to determine whether plaintiff has experienced prejudice at this time. As discussed further below, this issue may be more appropriately presented by a motion in limine, including a Daubert motion, to the trial judge. Nonetheless, excluding plaintiff's ability to present expert witness testimony, based on the record before me, I find that plaintiff has been prejudiced by this spoliation, plaintiff's ability to present its case has been compromised, and the final element of the Thompson analysis has been satisfied.

         C. Sanctions

         After finding that all three elements of the Thompson analysis are satisfied, a court may impose sanctions that must serve “the purpose of leveling the evidentiary playing field and . . . the purpose of sanctioning the improper conduct.” Vodusek, 71 F.3d at 156. Here, plaintiff requests a variety of “remedial and punitive sanctions” that it argues are warranted because “this is a rare case in which a party's behavior has been so egregious, and/or the prejudice so substantial.” (ECF No. 203 at 42).

         i. Limited Default Judgment

         Plaintiff first requests that the court grant limited default judgment against defendant for the period of January 1, 2004, through June 30, 2009, or in the alternative, grant limited default judgment against defendant for six OpCos in which the spoliation has been most severe and ...


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