United States District Court, D. Maryland
L. HOLLANDER, JUDGE
fraud action, plaintiff Alia Salem Al-Sabah has filed suit
against defendants Jean Agbodjogbe; his wife, Nandi A. Scott;
and several corporate entities maintained exclusively by
Agbodjogbe. The corporate defendants are N&A Kitchen,
LLC; 5722 York Road, LLC; 9 Jewels, LLC; and ASA Foundation,
Inc. ECF 1 (the “Complaint”). Stated generally,
Al-Sabah claims that she gave Agbodjogbe nearly $6 million to
pursue charitable endeavors in Baltimore, but he instead used
the money to purchase and improve properties in his own name.
Id. ¶ 1. This Memorandum concerns
defendants' pursuit of sanctions against Al-Sabah for her
alleged failure to preserve electronically stored information
(“ESI”). ECF 147; ECF 149; ECF 154.
19, 2019, defendants, pursuant to Fed.R.Civ.P. 37, filed a
motion for the imposition of sanctions against plaintiff,
alleging the spoliation of ESI. ECF 147 (the
“Motion”). Defendants filed the Motion more than
a year after the close of discovery, which ended on April 4,
2018. See ECF 92. In short, defendants argued that
sanctions were appropriate because Al-Sabah failed to
preserve four iPhone photographs of a draft operating
agreement between Agbodjogbe and Al-Sabah creating N&A
Kitchen, LLC, in which Agbodjogbe and Al-Sabah each had a
fifty percent membership interest. ECF 147. The Motion was
supported by two exhibits. ECF 147-1; ECF 147-2. Plaintiff
opposed the Motion (ECF 148), supported by ten exhibits. ECF
148-1 to 148-10.
11, 2017, I referred the case to United States Magistrate
Judge David Copperthite to manage discovery. ECF 33. In a
letter to counsel docketed on July 24, 2019 (ECF 151), Judge
Copperthite denied the Motion. He ruled: “The motion
for sanctions ECF 147 is DENIED as untimely and violative of
the Court's Scheduling Order. Even if considered timely,
the Motion is DENIED on the merits as failing to provide any
persuasive support that the missing photographs prejudiced
the Defendant and that any lack of preservation by Plaintiff
was negligent or intentional.” Id. at 2.
August 8, 2019, defendants filed an “Objection to The
Magistrate Judge's July 24th, 2019 Order.” ECF 154
(the “Objection”). Plaintiff opposed the
Objection (ECF 155), supported by one exhibit. ECF 155-1.
Further, plaintiff seeks attorney's fees and expenses
under Fed.R.Civ.P. 37(a)(5)(B) and 28 U.S.C. § 1927 for
the costs incurred in responding to defendants' Motion
and Objection. ECF 155. Defendants have replied. ECF 156.
hearing is necessary to resolve the Objection. See
Local Rule 105(6). For the reasons that follow, I shall deny
defendants' Objection. And, I shall grant in part and
deny in part plaintiff's request for legal fees.
Court entered a Scheduling Order on May 22, 2017. ECF 26.
According to that Order, discovery was to conclude on October
27, 2017. Id. At the request of the parties, the
Court extended the discovery deadline three times, ultimately
setting a discovery deadline of April 4, 2018. See
ECF 73; ECF 89; ECF 92.
parties submitted a Joint Status Report on April 4, 2018. ECF
106. In the Report, the parties acknowledged that discovery
was not complete due to several outstanding depositions.
Id. at 1-2. At the time, defendants did not raise
the issue of the photographs or accuse plaintiff of
spoliation. See id.
10, 2019, the parties filed another Joint Status Report. ECF
144. Here, the parties represented that discovery was
complete and that “the Parties have no other matters
that they wish to bring to the attention of the Court at this
time.” Id. at 3.
noted, on June 19, 2019, defendants moved for the imposition
of sanctions against plaintiff, pursuant to Fed.R.Civ.P. 37.
ECF 147. According to defendants, Al-Sabah admitted during
the course of her deposition on December 14, 2017, that she
had taken four pictures of the draft N&A operating
agreement on her iPhone. Id. at 4-6. In the
following months, defendants repeatedly requested that
plaintiff produce these images, to no avail. Id. at
8. As a result, defendants claimed to have undertaken
“needless investigation and wasted resources and
time” in attempting to obtain the photographs, and
asserted that they had been “prejudiced by the conduct
of the Plaintiff” because the “existence or
non-existence of any said agreement is critical to the
case[.]” Id. Defendants asked the Court to bar
plaintiff from introducing any evidence “suggesting
that the parties reached or entered into an agreement or
mutual understanding.” Id.
response, Al-Sabah contended that the Motion should be denied
as untimely, pointing out that defendants filed for sanctions
more than fourteen months after discovery ended, and they
provided no explanation for the delay. ECF 148 at 10-12.
Plaintiff also argued that sanctions were not warranted
because she had produced a fully executed copy of the
operating agreement. Id. at 12-13; see ECF
148-4. Finally, plaintiff asserted that the Motion failed to
demonstrate that she acted in bad faith or that defendants
were prejudiced by the absence of electronic versions of the
photographs, especially given that plaintiff had produced the
contested images in PDF format. Id. at 13-15.
noted, Judge Copperthite denied the Motion (ECF 147) on July
24, 2019. ECF 151. In reaching his decision, Judge
Copperthite first concluded that defendants' Motion was
untimely. Id. at 1. He reasoned, id.:
Discovery closed over a year ago. District courts exercise
broad discretion over discovery issues. Seaside Farm,
Inc. v. United States, 842 F.3d 853, 860 (4th Cir. 2016)
(citing Carefirst of Md., Inc. v. Carefirst Pregnancy
Ctrs., Inc., 334 F.3d 390, 402-03 (4th Cir. 2003)). A
court's scheduling order “is not a frivolous piece
of paper, idly entered, which can be cavalierly disregarded
by counsel without peril.” Potomac Elec. Power Co.
v. Elec. Motor Supply, Inc., 190 F.R.D. 372, 375-76 (D.
Md. 1999) (internal quotations omitted). Properly construed,
‘good cause' means that scheduling deadlines cannot
be met despite a party's diligent efforts. Carelessness
is not compatible with a finding of diligence and offers no
reason for a grant of relief. Id. at 375 (internal
quotations omitted). Defendant was on notice from April, 2018
that the four photographs were no longer on the cell phone of
Plaintiff. Plaintiff propounded additional discovery
specifically inquiring about the loss of the photos in April
2018 (ECF 148-p.8). Defendant had ample opportunity to raise
the issue before the Court before the close of discovery or
even when providing the status report to the Court. Defendant
did not. Defendant has failed to provide good cause why his
dilatory motion is now before the Court.
Judge Copperthite observed that even if the Motion was
timely, it was nonetheless ...