Episode 163: Ready to File a Motion for Sanctions? Make Sure You Tell the Court.

In Episode 163, Kelly Twigger discusses the the Court’s perspective on the timing of filing a sanctions motion and the groundwork to be laid by counsel in advance in Groves Inc. v. R.C. Bremer Mktg. Assocs.

Introduction

Welcome to this week’s episode of the Case of the Week series, brought to you by eDiscovery Assistant in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder at eDiscovery Assistant, your GPS for ediscovery knowledge and education, and the Principal at ESI Attorneys. Thanks so much for joining me today.

A couple of announcements before we get to our Case of the Week.

This Thursday, December 5^th, is E-Discovery Day, the only hallmark holiday in our ediscovery world. I’ll be joining a fantastic lineup of Doug Austin of eDiscovery today, Brett Burney from Nextpoint, and Tom O’Connor from the Gulf Coast Legal Technology Center to to talk about our favorite topic this year, hyperlinked files. The session will update what we know about technologies, leveraging hyperlinks, what we can really do to collect them, and how contemporaneous versions are being handled. The link to register is here. Our session is at 11am ET/10am CT.

Next, mark your calendars for the University of Florida eDiscovery Conference, to be held virtually and in person on February 12-13, 2025. The conference carries 12+ hours of CLE, and it is some of the best practical education in ediscovery that you’ll get in the year. It is free to attend virtually.

Okay, now on with the show.

This week’s decision touches on an issue of first impression here on Case of the Week, and that is the timing of when to file a sanctions motion. We talk a lot about sanctions motions and the analysis under the federal rules and state rules on sanctions, but we’ve not talked about when to file a sanctions motion. Perhaps the most important takeaway from today’s decision is this —  you need to know what your judge prefers on how to handle sanctions motions if you are going to bring one. We talk repeatedly on our Case of the Week series about knowing your judge, and today’s decision falls right in line with that thought process.

Let’s dive in.

This week’s decision comes to us from the Groves Inc. v. R.C. Bremer Mktg. Assocs. case. This is a decision from United States District Judge Iain Johnston dated November 22, 2024. If Judge Johnston’s name is ringing a bell, that’s because he’s written some of the most interesting decisions in electronic discovery, going back to the DR Distributors case that we’ve covered multiple times here on Case of the Week, as well as a total of 17 decisions that are included in our eDiscovery Assistant database.

U.S. District Judge Johnston always adds a dose of humor, reality, and some incredible practical application to his decisions, and today he has taken on the task of talking through when the timing to file a sanctions motion is appropriate. There are going to be a number of factors that we’re going to talk about. As always, we add the issues to our cases in eDiscovery Assistant, and this week’s issues include sanctions and spoliation.

Facts

We’re before the Court on a motion for sanctions that was filed by Grove against one of the defendants, Christopher Sheppard. The Court notes at the very end of its decision, which is not particularly long, and I encourage you to read it, that it has some pretty big questions about Sheppard’s conduct and looks forward to resolving the merits of the sanctions motion when it’s appropriate. District Judge Johnston is known for starting his decisions with quite the quote, and this one is no exception. Here is his opening quote:

This Court attracts Rule 37(e) motions like chum attracts sharks. (So—yes—in this simile, the Court is Fish guts and Fish heads.) This Court has been presented with Rule 37(e) motions at various stages of an action. It has received spoliation motions during discovery. … Allegations of spoliation have been made in the middle of summary judgment briefing, requiring the briefing to be stayed while the spoliation issue could be resolved. … It has received Rule 37(e) motions in the form of a motion in limine after the issue was raised during summary judgment. … And, in the middle of trial, a party even requested for the first time an adverse inference jury instruction under Rule 37(e) for the spoliation of electronically stored information (ESI). … This current motion is just the latest.

Rather than turning to the merits of the decision, District Judge Johnston noted that the timing of the filing of the fully briefed sanctions motion was too early in this case. This case is still proceeding with expert discovery, including the depositions of a couple of fact witnesses. No date has been for summary judgment motions, and no trial date has been set.

The Court takes this opportunity to address the timing of filing spoliation motions seeking sanctions. Spoliation motions can be filed too early. And they can be filed too late. As shown in this Order, there’s a sweet spot when the filing of the spoliation motion is just right. But determining that sweet spot will vary depending on the specific facts presented as well as the judge who decides the motion. The best way to find that sweet spot is to “have a conversation” — in the words of one of the Court’s former law clerks. Notify the court and opposing counsel as soon as possible about a spoliation concern and calmly and professionally talk to them about the most reasonable and best options to address the concern.

The Court notes that here, counsel has raised its concerns and filed multiple motions to compel with the Magistrate Judge, which were generally granted. A forensic examination of data from Sheppard, the defendant at issue, also revealed damning information against Sheppard. But the Court notes that no one, plaintiff included, asked the Court about the best time to raise the sanctions motion requesting an adverse inference instruction for alleged spoliation. That included both the Magistrate Judge and the District Court Judge. Then District Judge Johnston provided perhaps my favorite quote in his decision:

But litigation is not high tea at the Savoy. … So, if there’s a legitimate concern about spoliation rooted in fact and law, then counsel should raise it with opposing counsel immediately and then fairly and accurately convey the party’s discussion about the concern with the court at the next opportunity. Of course, all counsel are duty bound to promptly notify opposing counsel and the court when they have learned that relevant evidence has been spoliated.

The Court also noted that while counsel raised the issue of spoliation with the Magistrate Judge, the District Court did not become fully aware of the motion until it was briefed and “made its way to the top of a very long motions list.” The Court then spends a fair amount of time addressing the best time to file a spoliation motion. Citing to Magistrate Judge Paul Grimm’s thoughtful decision in Goodman v. Praxair Servs., Inc. from all the way back in 2009, Judge Johnston listed the five factors a court should consider in determining if a spoliation motion is tardy:

1. how long after the close of discovery the relevant spoliation motion has been made;
2. the temporal proximity between a spoliation motion and motions for summary judgment;
3. whether the spoliation motion was made on the eve of trial;
4. whether a Rule 16 scheduling order or local rule set a deadline for filing spoliation motions, and
5. the moving party’s explanation why the spoliation motion was not filed earlier.

The first factor is described as key and the second factor assumes that generally spoliation motions should be made before summary judgment motions are filed.

Also implicit in these factors, according to Judge Johnston, is the concept of prejudice –  one that we encounter on a regular basis in electronic discovery. The prejudice here is the notion that the time and money required to file a motion for summary judgment, as well as the court’s resources to rule on it, are extensive, and that a spoliation motion can vastly alter the arguments made on that motion. Similarly, making a spoliation motion on the eve of trial can completely derail proceedings, which prejudices the non-movant.

Having reviewed all of this, the Court acknowledged that Groves’ motion here is not tardy, but is instead premature. The Court notes multiple situations that might result in a motion being premature that include where discovery is still proceeding and a party does not yet have sufficient facts for the motion, or because a party has not yet determined whether this spoliated ESI can’t be restored or replaced as required by Rule 37.

The deadlines in the case, according to the Court, are also an issue, and the Court identified these questions to be asked:

• Is fact discovery closed or when does it close?
• Can a party still amend pleadings to assert new claims or take away claims where this spoliation may be an issue?
• Has a trial date been set and when is it? How far in the future are we talking about?  
• What remedy is the moving party seeking that may alter the path of the case?

For example, if a motion seeks dispositive sanctions like default judgment or dismissal, it likely makes more sense to file the motion before the summary judgment motion to avoid wasting time and money on summary judgment.

Another factor is whether a hearing is required. Although not always required, the rules do contemplate an evidentiary hearing, and this Court notes that it has ruled on spoliation motions, both with a hearing and without. Recall that the evidentiary hearing in the DR Distributors case, after which Judge Johnston issued a 256-page decision, was a full two days of evidence taken by the Court. That has a tremendous impact on the Court’s schedule, and it means that they’ve got to set aside time to be able to review all of the evidence from that hearing in order to be able to rule on the sanctions motion. Per Judge Johnston, judges will want to consider these critical factors in determining when to address this spoliation issue, but they won’t be able to consider the impact of these factors on the timing of this spoliation motion unless the parties inform that judge of the facts that affect those factors.

So, again — have a conversation. There’s a reason why Rule 16 allows judges to require parties to hold a conference with them before filing discovery motions.

Analysis

Let’s look at the Court’s analysis here, keeping all of that background in mind related to Groves’ decision for spoliation. Applying all of that here, Judge Johnston denied Grove’s motion as premature, but without prejudice, so that Grove can reinstate the motion at the appropriate time. According to the Court, the parties were still engaged in fact discovery and expert discovery still has to proceed.

But the deciding factor for District Judge Johnston really was the relief sought here. Plaintiffs sought a permissive adverse inference instruction that would impact a trial. Noting that the parties had a lot of work left to do to get this case to trial, the Court also found that there were “multiple off-ramps” before the case gets to trial. Off-ramps — just another visualization from Judge Johnston that always entertains me. According to the Court, the Court’s resources are better spent hearing the motion after the close of discovery, and it directed Grove to raise the motion again at the party’s pre-filing conference for summary judgment and inform the Court whether the spoliation motion will affect summary judgment briefing.

According to the Court, “[i]f Groves believes that the spoliation issue will affect any summary judgment briefing, it should inform the Court during the summary judgment prefiling conference so that the issue can be addressed in the most efficient way. If the case bypasses the seemingly obligatory summary judgment process and proceeds directly to a jury trial, then the Court will address the issue of an adverse jury instruction by way of a motion in limine with the final pretrial order.”

Now, that’s really important. I know I keep throwing quotes at you from Judge Johnston’s decision, but what better to rely your analysis on other than the actual words from the Court. What the Court is saying here is what you want and how you want it delivered has a huge impact on when the timing of a sanctions motion should be filed. According to the Court, again, “Going forward, consistent with Rule 1, it would behoove parties to raise any spoliation concerns with the judge who is going to decide the spoliation motion. In this way, the judge can determine the best way to proceed before the parties engage an extensive briefing that might be unnecessary.”

So that’s what we have from the Judge denying a motion for sanctions as premature based on the timing and the fact that discovery still remained open and the parties sought a permissive adverse inference as a sanction for spoliation.

Takeaways

What are our takeaways from Judge Johnston’s decision? Well, this decision makes it abundantly clear that if you’re in Judge Johnston’s court, you better consult directly with him about the timing for filing any sanctions motion.

How you go about that is really going to depend. I mean, the way that the federal court system works, you don’t always have contact with the district court judge when the magistrate judge is handling discovery-related issues. And so it may be worth posing a question to the magistrate judge — “Your Honor, we’ve discussed these spoliation-related issues. We’ve had multiple motions to compel. We do plan to bring a sanctions motion, and we’d like to discuss with the Court, and whether this judge will hear it or the district court will hear it, what the timing of that motion should look like from the Court’s perspective. So if we could set some time to be able to discuss that or to discuss it now, that would be helpful.” That’s the sort of approach that you want to be able to take, and you’ve got to have those things teed up when you go to the court on other issues, which means if you’re part of a litigation team that has identified spoliation concerns, you need to be in communication with the lawyer who’s going to court and making the arguments with the judge so they can raise these things as appropriate.

Another potential approach is the letter approach. It really depends on how the court has set things up and how they list things out in their standard practices for the court. Some judges have started including timing on sanctions motion. Very few of them are, so you’re going to want to engage with them. This may also be something that judges want to start adding to their standing orders in terms of things to be discussed at the pretrial conference or also to have a summary judgment pre-filing conference. Most of the cases that I’ve been involved in have not had a summary judgment pre-filing conference. So I think if you have that, that’s another consideration in terms of timing for raising a potential sanctions motion. Regardless, you really need to think about the factors that are identified here in this decision in terms of that timing. If your sanctions motion is going to dramatically impact discovery going forward and potentially has a very dispositive outcome for the case, those are two things that will impact timing of when you want to file that sanctions motion. But you need to be able to articulate that to the court, and that’s what the judge says here.

He had to look at independent factors, and there didn’t appear to be, or there isn’t mentioned here in this decision, anything from the plaintiffs on why the motion needed to be heard now as opposed to later in the case in advance of summary judgment or shortly thereafter. This decision also provides a great basis for counsel to evaluate that timing and when the facts that give rise to an otherwise premature motion. So make sure to include those facts on why the timing is critical. The decision here also makes excellent points about the value of both the parties’ and the Court’s resources, and that neither should be expended until the appropriate time. What if the facts change for your motion as discovery continues? You may find other spoliation issues to be included. You may find that there is another source for the spoliated ESI or that the case resolves before the Court need hear the motion.

Let’s flip this on the other side from Sheppard’s perspective, the defendant here who the motion was filed against. Is this an argument that Sheppard could make to the Court – that the motion was in fact premature and that there is other information to be had left in discovery? Possibly.  That’s one defense that you can make to a sanctions motion is whether or not it is actually appropriate given that you are still investigating other avenues of being able to replace or restore the lost ESI, if in fact, that’s the case.

Sanctions motions are very fact-intensive. They take a lot of time and money, just like summary judgment motions. So make sure you’re evaluating the factors that Judge Johnston sets forth here and consider that timing when bringing a sanctions motion. What makes the most sense for your client? There will be times when an early motion is critical to defining how discovery plays out and other times when, as Judge Johnston suggests, it’s more appropriate for a motion in limine prior to trial.

Most importantly, know your judge. This is one of our themes here on the Case of the Week, and it is critical. Judge Johnston has put out a written decision here telling you that he wants to be informed when there’s a spoliation motion so the Court can help determine the right timing for that motion to be filed. Don’t ignore that. Make sure your compatriots who are appearing before Judge Johnston in the Seventh Circuit are aware of it.

Share the decision. You can use the public link to the case from eDiscovery Assistant to be able to share it with anyone. Anyone can view those links.

Next, understand how the courts work. If you’re doing all of your motion practice in front of the magistrate judge, don’t assume that the district judge knows all the details of what has transpired, and don’t make the court do the work. Your case is one of hundreds that are sitting on their docket. Be transparent, be upfront, and work with the system, not against it. That requires thinking carefully when you discover potential spoliation about what additional facts that you need to support the motion, what you are asking for, and the best timing to bring the motion and why.

If you want an early motion like the plaintiff here, tell the court why it’s needed. So timing. Timing is going to be critical in terms of bringing a sanctions motion ensuring that you have everything that’s necessary to be within the complete bounds of the motion, that it’s filed at the appropriate time in the case, that it allows the court to consider the issues on this spoliation motion in the context of everything that is moving forward on the case.

One of the things that I think is really interesting here is that Judge Johnston suggests that if you’re asking for a permissive adverse inference — which many of the sanctions decisions that we discuss here on Case of the Week are — that that is more appropriate for a motion in limine prior to trial. That’s a pretty significant development. But it also does deal pretty effectively with the issue that I’ve raised multiple times, and that is, if I get a permissive adverse inference instruction but the case never actually goes to trial, have I actually gotten anything for the sanctions that were awarded? So think carefully about what you’re asking for, how that will play out, what is the likelihood of actually going to trial if you’re asking for a permissive or a mandatory adverse inference instruction, and think how those are going to factor in best for your client, as well as the cost and expense associated with the spoliation motion and the best time to file it.

Conclusion

That’s our Case of the Week for this week. Be sure to tune in next week, whether you’re watching us via our blog, YouTube, or downloading it as a podcast on your favorite podcast platform. Have a great week!

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