Attorneys For Defendant University Medical Center of Southern Nevada

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LEWIS
BRISBOIS
BISGAARD
&SMITHLLP
ATTORNEYS AT LAW
ROBERT W. FREEMAN
Nevada Bar No. 3062
E-mail: robert.freeman@lewisbrisbois.com
MARGARET G. FOLEY
Nevada Bar No. 7703
E-mail: margaret.foley@lewisbrisbois.com
CAYLA WITTY
Nevada Bar No. 12897
E-mail: cayla.witty@lewisbrisbois.com
LEWIS BRISBOIS BISGAARD & SMITH LLP
6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
702.893.3383
FAX: 702.893.3789
Attorneys for Defendant
University Medical Center of Southern Nevada
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
***
DANIEL SMALL, CAROLYN SMALL.
WILLIAM CURTIN, DAVID COHEN,
LANETTE LAWRENCE, and LOUISE
COLLARD, Individually, and on Behalf of All
Other Persons Similarly Situated,
Plaintiffs,
vs.
UNIVERSITY MEDICAL CENTER OF
SOUTHERN NEVADA;
Defendant.
CASE NO. 2-13-cv-0298-APG PAL
DEFENDANTS OBJECTION TO THE
REPORT AND RECOMMENDATION
AND FINAL FINDINGS OF FACT AND
CONCLUSIONS OF LAW OF SPECIAL
MASTER DANIEL B. GARRIE,
DKT. NO. 189, FILED AUGUST 18, 2014
FULL BRIEFING AND ORAL ARGUMENT
REQUESTED
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/ / /
/ / /
1
UMCs Motion to Extend Page Limits is being filed concurrently with this objection so the
numerous issues raised by the Report and Recommendation may be adequately addressed. In the
present procedural posture, UMC is also entitled to a hearing on its Objection even when the
issues are comprehensively briefed to the district court beforehand. See In re Wonderbowl, Inc.,
424 F. 2d 178, 180 (9
th
Cir. 1970); Kieffer v. Sears, Roebuck & Co., 873 F. 2d 954, 956 (6
th
Cir.
1989).
Case 2:13-cv-00298-APG-PAL Document 207 Filed 09/02/14 Page 1 of 48
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TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................ 2
TABLE OF AUTHORITIES.......................................................................................................... 3
I. INTRODUCTION ....................................................................................................................... 6
II. PROCEDURAL BACKGROUND........................................................................................... 7
III. LEGAL ARGUMENT ........................................................................................................... 12
A. Findings of Fact ..................................................................................................... 13
1. Blatantly Wrong .......................................................................................... 16
2. Stretching the Bounds of Reasonable Inference.......................................... 17
3. Professionalism Lost to Personality............................................................ 24
B. Conclusions of Law ............................................................................................... 27
1. Thorough Review of the R & R and its Underpinnings is Needed in
the Present Circumstances........................................................................... 27
2. Absent Any Legal or Factual Foundation for Its Pronoucement of
Prejudice, The R & Rs Recommendations for Sanctions are
Unsupportable ............................................................................................. 29
a. Due Process Requires Far More Than What Mr. Garrie
Offers to Support Such Radical Sanctions ...................................... 30
b. Plaintiffs Have the Evidence They Need for the Claims They
Have Pleaded .................................................................................. 38
3. In the Event the Court Concludes Sanctions Are Permitted By the
Existing Record, An Array of Lesser, Non-Terminating Sanctions
Are Available to Consider........................................................................... 41
a. Adverse Inference............................................................................ 43
b. Attorneys fees and costs ................................................................. 46
IV. CONCLUSION ....................................................................................................................... 47
CERTIFICATE OF SERVICE.................................................................................................... 48
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TABLE OF AUTHORITIES
Cases
Adriana Intl. Corp. v. Lewis & Co., 913 F.2d 1406 (9th Cir. 1990) ...................... 28, 29, 30, 31, 34
Akiona v. U.S., 938 F.2d 158 (9th Cir. 1991)................................................................................. 43
Apple, Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976 (N.D. Cal. 2012) ("Apple II") .. 14, 31, 32,
33, 34, 45
Benedict v. Hewlett-Packard Co., 2014 U.S. Dist. LEXIS 18594 (N.D. Cal. Feb. 13, 2014) ....... 40
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir. 2001)........................................ 38
Centrifugal Force, Inc. v. Softnet Communication, Inc., 783 F. Supp. 2d 736 (S.D. N.Y. 2011) . 44
Chambers v. NASCO, Inc., 501 U.S. 32, 45, 111 S. Ct. 2123 (1991) ............................................ 43
Chevron U.S.A., Inc. v. M & M Petroleum Servs., 2009 U.S. Dist. LEXIS 68829, 59-60 (C.D.
Cal. Aug. 6, 2009) .............................................................................................................. 42
Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012) ............................... 33
Chism v. Natl Heritage Life Ins. Co., 637 F.2d 1328 (9
th
Cir. 1981)...................................... 29, 42
Clark v. Atlanta Newspapers, Inc., 366 F. Supp. 886 (N.D. Ga. 1973) ......................................... 27
Computer Assoc. Int'l v. Am. Fundware, Inc., 133 F.R.D. 166 (D. Col. 1990) ............................. 42
Computer Task Group, Inc. v. Brotby, 364 F.3d 1112 (9th Cir. 2004) .................................... 43, 44
Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091 (9th Cir. 2007) ............ 29
Cottle-Banks v.Cox Commns Inc., 2013 U.S. Dist. LEXIS 72070, 2013 WL 2244333 at *15-16
(S.D. Cal. May 21, 2013) ....................................................................................... 34, 37, 38
De Silva v. North Shore-Long Island Jewish Health Sys., 2014 U.S. Dist. LEXIS 77669 (E.D.
N.Y. June 5, 2014) ............................................................................................................. 40
Dzung Chu v. Oracle Corp. (In re Oracle Corp. Sec. Litig.), 627 F.3d 376 (9
th
Cir. 2010).... 33, 34
Fjelstad v. American Honda Motor Co., 762 F.2d 1334 (9th Cir. 1985)........................... 30, 31, 34
Forrester v. Roths I.G.A. Foodliner, Inc., 646 F.2d 413 (9
th
Cir. 1981)....................................... 40
Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423 (2d Cir. 2001) .................................................. 43
Gaddis v. Abell, 2006 Bankr. LEXIS 4312 (Bkrtcy. D. Md. July 13, 2006) ................................. 36
Gamble v. Boyd Gaming Corp., 2014 U.S. Dist. LEXIS 78069 (D. Nev. June 6, 2014) .............. 41
Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993) ......................................................................... 43
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Halaco Engineering Co. v. Costle, 843 F.2d 376 (9th Cir. 1988).................................................. 42
Hammond Packing Co. v. Arkansas, 212 U.S. 322 (1909) ............................................................ 30
In re Wonderbowl, Inc., 424 F.2d 178 (9th Cir. 1970)............................................................... 1, 27
Kieffer v. Sears, Roebuck & Co., 873 F.2d 954 (6th Cir. 1989) ................................................ 1, 27
Kora v. Renown Health, 2011 U.S. Dist. LEXIS 45456 (D. Nev. April 25, 2011) ....................... 41
Leon v. IDX Sys. Corp., 464 F.3d 951 (9
th
Cir. 2006).................................................................... 33
Lillehagen v. Alorica, Inc., 2014 U.S. Dist. LEXIS 67963 (C.D. Cal. May 15, 2014).................. 40
Malone v. U.S.P.S., 833 F.2d 128 (9th Cir.1987) .................................................................... 28, 29
McKeen-Chaplin v. Provident Sav. Bank, 2013 U.S. Dist. LEXIS 113654 (E. D. Cal. Aug. 9,
2013)................................................................................................................................... 41
Montoya v. Orange Cnty. Sheriffs Dept, 987 F. Supp. 2d 981 (C.D. Cal. 2013) ........................ 44
Nat'l Ass'n of Radiation Survivors v. Turnage, 115 F.R.D. 543 (N.D. Cal. 1987) ........................ 42
North American Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447 (9th Cir. 1986) ........... 29
Pension Committee of Univ. of Montreal v. Banc of Am. Sec. LLC, 685 F. Supp. 2d 456
(S.D.N.Y.2010) ............................................................................................................ 33, 34
Phoceene Sous-Marine, S.A. v. U.S. Phosmarine, Inc., 682 F.2d 802 (9th Cir. 1982) .................. 42
Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604 (C.D. Cal. 2013) ..................................... 43, 44
Resource Life Ins. Co. v. Buckner, 698 S.E.2d 19 (Ct. App. Ga. 2010) ........................................ 37
Roadway Express, Inc. v. Piper, 447 U.S. 752 (1980)................................................................... 42
Scarborough v. Eubanks, 747 F.2d 871 (3d Cir. 1984) ................................................................. 29
Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3rd Cir. 1994) ......................................... 43
Sec. & Exch. Comm'n. v. Seaboard Corp., 666 F.2d 414 (9th Cir. 1982)................................ 31, 34
Skeway v. China Natural Gas, Inc., 2014 U.S. Dist. LEXIS 82779 (D. Del. June 18, 2014)........ 35
Syed v. M-I, LLC, 2014 U.S. Dist. LEXIS 104820 (E.D. Cal. July 30, 2014) ............................... 40
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915 (9th Cir. 1987).................................................. 42
Telford v. Ideal Mortgage Bankers, Ltd., 2010 U.S. Dist. LEXIS 110540 (E.D.N.Y. August 17,
2010)................................................................................................................................... 35
UMG Records, Inc. v. Hummer Winblad Venture Partners (In re Napster, Inc. Copyright Litig.),
462 F. Supp. 2d 1060, 1077 (N.D. Cal 2006) .............................................................. 33, 44
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Ward v. NationsBanc Mortgage Corp., 2006 Ohio App. LEXIS 2599 (Ct. App. Ohio, June 2,
2006)................................................................................................................................... 36
White v. Baptist Memorial Health Care Corp., 699 F.3d 869 (6 th Cir. 2012) ....................... 39, 40
Williams v. U.S. Bank Nat. Assn., 290 F.R.D. 600 (E.D. Cal. 2013) ............................................. 40
Rules
Fed. R. Civ. P. 37 ......................................................................................................... 13, 18, 27, 30
Fed. R. Civ. P. 37(e)....................................................................................................................... 18
Fed. R. Civ. P. 53 ........................................................................................................................... 12
Other Authorities
Memorandum from the Honorable David G. Campbell, Chair of Advisory Committee on Civil
Rules of the Judicial Conference of the United States to the Honorable Jeffrey S. Sutton,
Chair of the Committee on Rules of Practice and Procedure of the Judicial Conference of
the United States (May 8, 2013)................................................................................... 18, 19
Weissmann, Jordan. Everybody Relax: An MIT Economist Explains Why Robots Wont Steal
Our Jobs. Slate.com, Aug. 25, 2014. ............................................................................... 17
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I.
INTRODUCTION
COMES NOW Defendant UNIVERSITY MEDICAL CENTER OF SOUTHERN
NEVADA (Defendant or UMC), by and through its attorneys, Robert W. Freeman, Esq.,
Margaret G. Foley, Esq., and Cayla Witty, Esq., and Lewis Brisbois Bisgaard & Smith LLP, and
hereby objects to the Report and Recommendation and Final Findings of Fact and Conclusions of
Law of Special Master Daniel B. Garrie, Dkt. No. 189, filed August 18, 2014 (R&R).
Per this Courts March 14, 2014 Order, Dkt. No. 152, Special Master Daniel B. Garrie was
tasked with resolving the e-discovery disputes in this instant litigation as well as issue specific
findings of fact and conclusions of law regarding the set-up of pertinent data systems at UMC,
possible spoliation of electronic data at UMC, and preservation efforts at UMC. The Special
Master process lasted nearly twice as long as originally ordered by the Court, and exposed various
issues in connection with the preservation and production of ESI in this ongoing litigation.
However, in preparing the Court to resume supervision and direction of this litigation, including
analysis regarding possible discovery sanctions forewarned by this Court, Special Master Garrie
lost sight of his assigned tasks and his neutrality. This loss came at an extreme price to UMC, for
Special Master Garrie now condemns UMC to haphazardly recommended, severe, case-
dispositive sanctions by thoughtlessly attaching improper weight to answers to scattered
questions and by jumping to erroneous conclusions without any depth of legal analysis all the
while as UMC was paying for Special Master Garries considerable time and expenses, with the
court-ordered purpose of trying to get the ESI issues in the case investigated and resolved. That is
not what UMC received.
To be sure, some information investigated and presented in the Special Master
proceedings was undeniably appropriate for production as ESI to Plaintiffs in this litigation, being
admittedly relevant to the claims and defenses of the parties. Further, some of the information
presented shows that UMC, as a public institution tasked with the care and safety of Clark
County, Nevadas most struggling citizens, struggles itself to identify and fulfill its obligations
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with respect to determining the relevance of vast amounts of ESI. This is still an open question
following the Special Master proceedings, during which UMC dutifully turned over a huge
amount of data in deference to Special Master Garries authority and apparent expertise.
However, instead of answering this baseline relevance question, which Special Master Garrie was
expressly hired and directed by Magistrate Judge Leen to do, among his other enumerated duties,
Special Master Garrie chose instead to skip this analysis and proceed to recommend extremely
punitive, case-dispositive sanctions against UMC. In light of this remarkably flawed procedure
and the less-than-polished final product of Special Master Garries work, his recommendations
for extraordinarily harsh financial sanctions against the single hospital in Las Vegas that provides
badly-needed indigent care to this community, UMC must very firmly object to the findings of
fact and conclusions of law in the Report and Recommendations, as set forth below. UMC
respectfully requests this Court to heed UMCs many objections during its de novo review of the
Special Masters proceedings and Report and Recommendations, and to substitute its own fully-
supported findings of facts and conclusions of law for Special Master Garries.
II.
PROCEDURAL BACKGROUND
Plaintiffs filed their initial Complaint on July 27, 2012. See Dkt. #1. Plaintiffs served the
Complaint on the registered agent of UMC on August 7, 2012. See Dkt. #14. Plaintiffs filed an
Amended Complaint on December 13, 2012. See Dkt. #37. UMC, by and through its former
counsel from the law firm of Morris, Polich & Purdy, filed its Answer on January 2, 2013. See
Dkt. #42. Plaintiffs then moved to conditionally certify a class action under the FLSA on January
11, 2013. See Dkt. #46. On January 23, 2013, Plaintiffs filed their first set of written discovery
requests to UMC, including interrogatories and requests for production. UMC filed its responses
on March 15, 2013. The parties engaged in meet-and-confer with regard to asserted deficiencies
Plaintiffs sought to remedy in document productions, especially with regards to electronically
stored information (ESI).
On May 15, 2013, Plaintiffs filed a Motion to Compel specifically seeking electronic
discovery and ESI production. See Dkt. #92. Plaintiffs Motion was heard on July 12, 2013. See
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Minutes from 7/12/13 Hearing, Dkt. #115. The Court granted Plaintiffs Motion to Compel, based
in part on the negotiations of counsel conducted off the record in the courtroom that day. See id.
The Court had also granted Plaintiffs motion regarding the conditional certification on June 14,
2013. A status conference in front of the Court was scheduled for August 15, 2013. See Dkt.
#115.. Before that scheduled conference, UMC turned over more than 60,000 pages of payroll
and personnel records for opt-in plaintiffs in accordance with the ESI Protocol Order. See Dkt.
#131.
2
At the August 15 status conference, the parties, under direction from the Court, agreed to
begin searching ESI relating to five (5) custodians data responsive to ten (10) search terms. See
Dkt. #121. UMCs substituted counsel of the law firm of Lewis Brisbois Bisgaard & Smith LLP
engaged an ESI vendor to assist with ESI searching, begun on August 19, 2013 under the Courts
Order.
On September 24, 2013, the parties attended another status conference regarding ESI with
the Court. See Dkt. #128. UMC was ordered to produce ESI for the five custodians data
responsive to the ten search terms within two weeks. See id. UMC produced its first ESI in report
format on October 9, 2013. See Dkt. #142. This summary and html report of keyword responsive
documents from the five agreed-upon custodians did not include native files, but UMC produced
it in accordance with the two week directive from the Court and to allow Plaintiffs to understand
the volume and content of information responsive to the search terms used. As Plaintiffs indicated
this report was unusable to them and more information was required to comply with the ESI
Protocol Order entered into by the parties in March 2013 (while UMC was represented by former
counsel), the parties agreed to meet and confer to determine further productions. See Dkt. ## 137
& 142. At another status conference on November 12, 2013, the Court ordered the parties to meet
and confer with technical staff present to assist with confirming compliance with the ESI Protocol
Order. See Dkt. #138. UMC engaged a new ESI vendor for the follow-up production, and the
2
This substantial volume of documents is a mere fraction of the complete production of 613 opt-
in plaintiff packets, production of which was complete as of February 11, 2014. See Dkt. #147,
pp. 6-7.
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parties held a phone conference on November 20, 2013 including both sides ESI consultants. See
Dkt. # 141 at p.5.
On December 9, 2013, UMC produced a second data group. See Dkt. #142. After
Plaintiffs raised concerns regarding the technical viability of the second data group, UMC
reprocessed the data once again. See Dkt. #142. On January 14, 2014, UMC provided Plaintiffs
with samples of two documents from the reprocessing (including native files, image placeholders
and extracted text) immediately prior to a conference call that same day. See Dkt. #142. During
that conference call, Plaintiffs requested and obtained a third sample, of document 000000001,
and informed UMC that the production was still flawed because the extracted text contained raw
undecoded mime-encoding. See Dkt. #142. On January 21, 2014, UMC produced to Plaintiffs a
third ESI production. See Dkt. #143. This third production corrected the December 9, 2013
second production where the extracted text was taken from image placeholders instead of from
the original native files. The Plaintiffs moved during this January 21, 2014 status conference to
have a Special Master appointed to assist the parties in settling their technical e-discovery
disputes. See Dkt. #144. On February 3, 2014, Plaintiffs provided UMC with four issues that it
felt impaired the January production. See Dkt. #148. Those issues were: 1) extracted text
including formatting directives and mime-encoded text; 2) original files that included additional
metadata; 3) reconstructions of native files in place of originals; and 4) failure to extract email
attachments as separate records. See Dkt. #148.
At a February 11, 2014 status conference, the Court granted Plaintiffs verbal motion for a
Special Master to be appointed for e-discovery disputes at the expense of UMC. See Dkt. #146.
On February 25, 2014, the parties submitted a Joint Status Report, each side suggesting one
candidate to be appointed as Special Master. See Dkt. #148. On March 3, 2014, the Court
appointed Daniel B. Garrie as Special Master in this litigation. See Dkt. #149. A status conference
was held in chambers with the Court on March 10, 2014 to outline the scope of the Special Master
proceedings. See Dkt. #149.
On March 14, 2014, the Court issued an order summarizing the March 10, 2014 in-
chambers status conference. See Dkt. #152. The Court specifically directed the Special Master to
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resolve the multiple ESI discovery disputes discussed in the parties February 7, 2014 Joint Status
Report (Dkt 148). See Dkt. #152. The Special Master was directed to conduct an investigation
limited to the custodians already identified by the parties. See Dkt. #152.
3
To perform this
investigation, the Special Master was allowed to engage and direct additional resources he
deemed reasonably necessary. See Dkt. #152.
More specifically, the Court requested a detailed report from the Special Master regarding
the following:
2. . . . The report will address the scope of the collection and the processes used
to perform the collection. It will also include a detailed chain-of-custody for
all evidence items collected to date by Defendants. It will also provide the
following information: (i) a detailed description of the computer hardware
(e.g., laptop, tablets, desktops), systems, networks, applications, and software
used, owned, or controlled by University Medical Center of Southern Nevada
(UMC) from July 1, 2010
[4]
to the January 1, 2013; (ii) an accounting of all
electronic mail applications, personal and office applications, and messaging
applications, and how they were used by the identified custodians; (iii) a list
of computers or devices, computer networks, or other hardware that may have
been used to generate, receive, or store any data relevant to the subject matter
of this litigation; (iv) a detailed description of all backups performed on
computer systems and the identity of any backups currently in existence,
including their physical locations, their custodians, their dates of creation,
contents, and media types. The report will also identify any backup media and
data that has been erased, copied over, destroyed, or otherwise altered since
the commencement of this litigation.
3. The Special Master shall issue specific findings of fact concerning whether
UMC withheld, deleted, destroyed or permitted to be destroyed, information,
documents and electronically store information (ESI) that it was legally
obligated to maintain in connection with this lawsuit, and whether any such
information, documents or ESI that formerly existed either in usable or
reasonably retrievable form was withheld, deleted or overwritten by UMC.
Should the Special Master determine that UMC did not retain and safeguard
3
It is not clear from the Courts Order if this is referencing the five mutually agreed-to
custodians, see Dkt. No. 131, or the 22 custodians first raised by Plaintiffs, see id. Nonetheless, in
a spirit of the utmost cooperation, UMC has provided ESI to plaintiffs from 27 custodians as
identified in collections during these Special Master proceedings.
4
The ESI collected, reviewed, and produced in this litigation was not limited to this date range.
In a concerted effort to provide useful results, UMCs productions include documents that were at
any time accessed, modified, or created after June 2008, a significant increase on the relevant
time period in this litigation. Because of the accessibility and storage of certain ESI, this date
parameter brought in documents that were over a decade or more old.
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responsive documents, information or ESI in usable or reasonably retrievable
form, then the Special Master shall undertake a further investigation to
determine whether such documents, information or ESI are responsive and
can be recovered or reconstituted, and recover such responsive ESI.
4. The Special Master shall examine the adequacy of UMCs efforts to preserve
and retain information, documents and ESI related to the claims at issue in
this lawsuit, including but not limited to the adequacy of UMCs document
retention policies and procedures, the existence of any directives to UMC
employees to keep and maintain documents, including ESI, and/or not to
destroy documents including ESI (i.e., litigation hold notices or orders), and
any other affirmative preservation efforts made by UMC (collectively
UMCs retention practices). The Special Master shall make specific
findings concerning, among other things: a timeline detailing UMCs
retention practices; a determination as to the adequacy of UMCs retention
practices and the litigation hold notice or order; a finding as to whether the
scope of UMC preservation efforts were reasonable and in good faith; and the
extent to which UMC or its counsel audited document and data retention
compliance, or otherwise took affirmative steps to ensure all relevant evidence
was preserved.
5. The Special Master shall examine whether UMCs actions in defending this
case contributed in any way to the alleged failure to maintain relevant
evidence, including but not limited to an examination of Defendants
prelitigation communications about the scope of their claims, and the date
that Defendant first became aware of potential document preservation issues.
6. The Special Master shall examine whether UMCs current preservation efforts
are reasonable and comply with UMC ongoing preservation obligations.
See Dkt. #152, pp. 2-4. The Court set a time limit of ninety (90) days for the Special Master to
file his R&R with the Court, unless he or a party could show to the Court reasonable cause for
requiring additional time. See id. at p.5.
On March 18, 2014, Special Master Garrie issued an Order outlining several requests for
information from UMC. See Dkt. #154. The parties participated in two in-person Special Master
hearings on April 4, 2014 and April 7, 2014, and a telephonic hearing with the Special Master on
April 10, 2014.
On April 14, 2014, Special Master Garrie issued his second Order. See Dkt. #159. The
parties attended another telephonic hearing on April 15, 2014, followed by the third in-person
hearing on April 22, 2014. Another telephonic hearing was held, and then a fourth in-person
hearing took place on May 6, 2014.
Throughout May, June, and July, Special Master Garrie issued additional written orders.
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See Dkts. #169, #174, #176, and #179. Several telephonic hearings were conducted during these
months, and a fifth (and final) in-person hearing took place on June 16, 2014.
After the parties provided significant briefing to the Special Master regarding the
objectives to which he was tasked, he issued another order on July 31, 2014, see Dkt. #183. One
final telephonic hearing was held on August 4, 2014, and a final order was issued on August 13,
2014, see Dkt. #185.
One hundred fifty-seven (157) days from the issuance of this Courts Order, Dkt. No. 152,
Special Master Garrie filed a Report and Recommendation on August 18, 2014. See Dkt. #189
(including fifty (50) exhibits filed at Dkt. ##189-99). To clarify the Courts March 14, 2014
Order, Dkt. No. 152, a minute order was entered August 19, 2014, stating that objections to the
Special Masters R&R are due within fourteen (14) days of the filed R&R. See Dkt. #200; see
also Fed. R. Civ. P. 53(f) (stating that objections to master reports are due within twenty-one (21)
days of service unless the time is modified by the Court).
III.
LEGAL ARGUMENT
In accordance with Federal Rule of Civil Procedure 53 and this Courts Order, Dkt. No.
152, UMC objects to the Special Masters Report and Recommendation. The Special Masters
findings of fact and conclusions of law will be reviewed de novo. See Dkt. No. 152, p.4; see also
Fed. R. Civ. P. 53(f). The Court may adopt or affirm, modify, wholly or partly reject or reverse,
or resubmit to the special master, with instructions, the report and recommendation of the special
master. Fed. R. Civ. P. 53(f)(1).
UMC objects to Special Master Garries findings of fact on several grounds. Several
factual findings are incorrect or misrepresented by Special Master Garrie, many others are
strained inferences not supported by the record Special Master Garrie was tasked with
establishing, and the entire factual section of his R&R is riddled with inappropriate
editorialization, much of it negative towards UMC, well outside the scope of the Special Masters
tasked duties. As such, the factual underpinnings to the Special Masters findings of fact are very
often erroneous, and/or are mere hypothesizing or commentary not worthy of deference. UMC
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strongly urges that a great number of the findings of fact should be set aside, while others might
be salvaged if significantly amended.
Where the legal conclusions rely on insufficient or otherwise invalid factual averments,
Special Master Garries conclusions of law and recommendations should be reversed in toto, as
discussed below. Furthermore, as shown in the lengthy, messy, and generally superficial written
record, the legal conclusions often lack one or more of the necessary elements to support their
own heavy weight and their corresponding draconian, recommended consequences. Their
dramatic flair does not compensate for their legal shortcomings, and these legal conclusions and
their follow-up recommendations should be reversed.
5
Recognizing the Courts de novo standard for review of the Special Masters Report
&Recommendations, UMC respectfully asks that this Court scrutinize the extensive record and
issue a substantially-modified order grounded in the actual context of this litigation rather than an
abbreviated and single-sided approach. In light of the peculiarities of the written record of the
Special Master proceedings documented herein, not to mention the unsettled state of federal law
with respect to discovery sanctions (extensive revisions to FRCP 37 have been approved for
amendment early next year, to create uniform national standards and remedy circuit splits and
inequitable results such as those recommended by Special Master Garrie), UMC respectfully
requests that it be permitted to provide full briefing on these important factual and legal issues
and to be heard by the Court to a degree commensurate with the trailblazingly-severe
recommendations against UMC made by Special Master Garrie.
6
A. Findings of Fact
This Court has shown great patience with UMC in discovery related to the claims of
Plaintiffs, as clearly evidenced by the detailed outline of required fact finding tasked to the
5
As recognized above and throughout this Objection, UMC concedes that Special Master Garrie
performed some valuable work in this case, helping UMC and its counsel to identify and remedy
issues regarding overlooked databases, additional sources of potentially-relevant ESI, and a few
steps taken by UMCs respective local ESI vendors that may not comport with best practice
standards for data collection and processing.
6
See UMCs Motion for Extended Page Limits, filed concurrently with this Objection.
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Special Master in the Courts March 14, 2014 Order, Dkt. No. 152. Special Master Garrie was to
determine whether UMC withheld, deleted, destroyed or permitted to be destroyed, information it
was legally obligated to maintain. Further, Special Master Garrie was assigned to investigate
whether any withheld or otherwise unproduced responsive ESI could be recovered for
production, within the limited scope of ESI connected to the custodians already identified by the
parties. Following this investigation, Special Master Garrie was to make findings regarding a
timeline of UMCs retention practices, the adequacy of such practices and determine whether
UMCs efforts were reasonable and in good faith and the extent to which the document and data
retention compliance was audited and complied with on-going preservation obligations. In
furtherance of this goal, the Special Master was allowed to engage and direct additional resources
deemed necessary.
The duty to preserve evidence relevant to an action attaches upon notice of the potential
action. See Apple, Inc. v. Samsung Electronics Co., 888 F. Supp. 2d 976, 991 (N.D. Cal. 2012)
(Apple II). The Plaintiffs original Complaint was filed July 27, 2012, and was served on
Defendant by August 7, 2012. From that point, undoubtedly some preservation duty existed for
documents in the possession, custody, or control of UMC relating to the claims of Plaintiffs in
this suit.
In accordance with the specificity of the Courts Order, the Special Master should have
quickly and cleanly established the proper scope of potentially-relevant data to be preserved,
investigated what actions UMC took or failed to take with regard to preservation of that particular
range of ESI, and analyzed how the specific actions or inactions of UMC with regard to that
particular data affected the evidentiary needs of discovery proceedings in this lawsuit. The
parties could then have focused on specifics of problem-solving for the evidentiary needs of this
case. Instead, UMC and its counsel were doomed to scurry about looking at various systems
upon Special Master Garries rapid-fire orders, often given without any grounding in the
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evidentiary needs of this lawsuit.
7
He had the assistance of several paid staff as well as the
cooperation of all parties as directed and allowed by the Courts Order to accomplish this task.
Instead, the Special Master proceedings wandered through many unnecessary and confusing
scenarios, and the results produced by the Special Master have distinct factual inaccuracies,
careless stretched assumptions outside the record, and improper and discourteous editorializations
of the record.
To summarize in rough categories, an examination of the record shows many instances
where Special Master Garrie was blatantly wrong; made dubious inferences, many premised on
mistaken information; and elevated opinion and speculation into so-called factual findings
without the ballast of analysis to support them. Based on these shaky foundations, UMC submits
that Special Master Garrie proceeded to simply castigate UMC for supposed wrongs that Special
Master Garrie was actually hired to investigate and work though with the parties. Except in the
very limited circumstances UMC acknowledges throughout this Objection, the Special Masters
investigative and facilitative role was never carried out. Instead, UMC now finds itself
recommended to suffer dispositive sanctions and presumed damages of extraordinary magnitude,
with Special Master Garries sizeable bill for fees and costs thrown in for good measure.
8
7
As discussed in greater detail below, the evidentiary needs of the lawsuit provide the
cornerstone for identifying potentially-relevant data that must be preserved. Once the
cornerstone is in place, the progressively-smaller building blocks of data (1) responsive to
keyword and custodian searches; (2) actually relevant to the claims and defenses of the parties;
and (3) critically-important to plaintiffs case such that its loss or destruction causes prejudice
warranting measures up to and including sanctions.
In retrospect, UMC strongly believes that the Special Master proceedings were largely doomed
from the start because the critical foundation of identifying potentially-relevant data to be
preserved in this specific lawsuit was never laid. Without that foundation, there was no frame of
reference established for responsiveness, relevance, or prejudice to guide the proceedings, and
UMC was left to flounder before the stern gaze and accusatory finger of Mr. Garries
sermonizing monologues captured in the hearing transcripts. UMC could not have predicted that
the neutral appointed to investigate and resolve technical ESI issues would transform by the time
of his final report and recommendations into the deliverer of this diktat.
8
UMC recognizes Special Master Garries technical expertise and impressive credentials and
does not dispute that it agreed to put Mr. Garrie forward as one of two special master candidates.
Candidly, however, UMC believes that the end product of these proceedings, Special Master
Garries Report and Recommendations, is frankly shoddy and unprofessional work product, full
of unsubstantiated, immoderate, and conclusory findings and conclusions.
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1. Blatantly Wrong
Special Master Garrie: The issue we have right now is -- I guess what I
want to figure out or understand is
Let's go off the record for a second.
See 4/22/14 Transcript, p.100. The record is replete with statements such as this. Incomplete
thoughts, interrupted questions, off-the-record discussions. There are gaps of knowledge and
inquiry in every hearing. This frustration of the proceedings is a severe detriment to the
usefulness of the record.
Following from that, the importance of the Special Masters R&R is wholly undermined
by facially incorrect averments and incorrect citations to the record. These clear errors cast doubt
onto all references to the record by the Special Master in this matter. Most egregious is the
reference to chain of custody documents a specific request from the Courts Order for which
the documents, supposedly contained within Exhibit 28, were not filed. UMC provided chain of
custody documents for many data sources throughout the proceedings, but without the record as
identified in Special Masters R&R, UMC cannot adequately address any possible inaccuracies
presented.
But a single missing exhibit could be fixed. A whole document riddled with mistakes
should not be. The rampant citation problems make it impossible to trust the later inferences and
legal conclusions that rely on these so-called facts. Sometimes, the citation references the wrong
docket entry;
9
sometimes, the citation misses the correct location of the referenced material
10
9
See, e.g., R&R citation to Dkt. No. 121 (Minutes of Proceedings) in footnote 11 on page 4
which should have been to Dkt. No. 131 (8/15/13Transcript). The exact same citation error is
repeated in footnote 12 on page 4. same issue. See also R&R citation to Dkt. No. 138 (Minutes of
Proceedings) on page 5 instead of Dkt. No. 139 (11/12/13 Transcript), and R&R citation to Dkt.
No. 143 (Minutes of Proceedings) on page 5 instead of the Joint Status Report at Dkt. No. 142
(Special Master also misrepresents the Defendants position on pulling and providing data from
custodian UMC-issued mobile devices in this Joint Status Report).
10
See, e.g., Exh. 4, citation to testimony of UMC Chief Information Officer Ernie McKinley
within the 4/22/14 transcript at 158:25 159:7 (actually found at 157: 12-17). Of the five
citations to the record on page fourteen of the Special Masters Report and Recommendation,
only two are correct. Attached to this Objection as Exhibit B is a table that provides a sampling of
similar blatant errors.
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Sometimes, the Special Master just gets the information plain wrong.
11
For example, he states
that the ESI of Claudette Myers was not initially collected. See R&R p.29, ln.4. This is simply
incorrect, as Ms. Myers was one of the 26 custodians whose ESI was collected by UMC in April
2013, which the Special Master notes just a page after claiming Ms. Myers ESI was not
collected. See R&R p30, ln.1-5. A similar mistake is made when the Special Master analyzes the
text message details provided by Sprint via subpoena. See R&R, p.53-54. Without paying
attention to the list of custodians as required by the Courts order, the Special Master includes
Lisa Pacheco, who was never identified as a custodian in these proceedings, in the count of lost
text messages.
12
Recognizing that these proceedings lasted nearly twice as long as expected and
acknowledging that this is a complex multi-plaintiff action, it is still unacceptable (and
irresponsible) to rely on factual findings that are not accurate and to recommend blithely that the
stiffest sanctions imaginable
13
flow logically from such wobbly pillars.
2. Stretching the Bounds of Reasonable Inference
Throughout the Special Master proceedings, certain catch phrases became thematic. Most
potently: ones and zeroes dont lie.
14
What the Special Master was expressing was that
electronic data, in its pure binary form, shows very specific results. Data certainly can have
11
For example, Special Master incorrectly states that three opt-ins had access to Clarity on page
41. ON June 27, 2014, UMC informed the Special Master of the five (5) opt-in plaintiffs that
were listed users (this means the individual had an account to access the application, but there
may not be any associated data in the system). See letter (Opt-in Plaintiff Users of Clarity at
UMC) dated June 27, 2014 attached hereto as Exhibit C. Similarly, Special Master clearly did
not view the Order and Notice of Substitution of Counsel, Dkt. No. 90, cited on page 4 of his
Report and Recommendation as his parenthetical incorrectly lists Counsel Margaret G. Foley and
Cayla Witty where Counsel Robert W. Freeman was the only individual listed in the court filing.
12
It should be noted that the details for Lisa Pachecos UMC-issued number were requested, but
she is still neither an identified custodian nor are any of the texts from the relevant time period. It
should be noted as well that the texts identified to Doug Spring are from 2013 when the UMC
number Mr. Spring had (and surrendered) in 2008 was reassigned to someone else at UMC, and
are also probably improperly counted in this analysis.
13
For UMCs supposed sins, nothing from the regular menu of remedial measures or sanctions
was harsh enough, it would seem. Instead, a collection of sanctions, including two dozen wide-
ranging factual findings supported by thin air, with no reference to any case ever decided within
the Ninth Circuit, are claimed to be appropriate for UMC. If ordered, such sanctions would be
not only case-dispositive, but defendant-dispositive, driving this public hospital into insolvency.
14
See, e.g., 4/22/14 Transcript at 102:3.
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specific results, but often data must be interpreted out of binary form in a precise manner by a
human being to make sense.
15
Settling discovery disputes requires similar detail-oriented parsing.
But in the Special Masters Report and Recommendations, the data interpretation is devastatingly
off.
For example, at page 18 of the R&R, Special Master states: [t]his failure to preserve
UMC WIRE coupled with the fact that UMC produced responsive information later obtained
from UMCWIRE supports the conclusion that UMCs failure to preserve UMC WIRE resulted in
the destruction of responsive ESI. The Special Master appears to reason that because there is
now data, therefore, data was lost or destroyed. The logic in this sentence is deeply flawed, but is
repeated with regard to the Siemens Policies and Procedure server collected and searched by
UMC.
Perhaps as a counterweight to such homegrown logic that is used to wreak unforeseen and
devastating havoc on litigants like UMC, the United States Judicial Conference (the federal
courts governing body) has met multiple times over the last few years to address badly-needed
reform of the law governing discovery sanctions in federal court. FRCP 37 has been revised
substantially, with amendments due to become effective early in 2015. According to the Judicial
Conference Committee that drafted the amendments,
[a] central objective of the proposed new Rule 37(e) is to replace
the disparate treatment of preservation/sanctions issues in different
circuits by adopting a single standard. In addition, the amended
rule makes it clear that in all but very few exceptional cases in
which failure to preserve irreparably deprived a party of any
meaningful opportunity to present or defend against the claims to
the litigation, sanctions(as opposed to curative measures) could
be employed only if the court finds that the failure to preserve was
willful or in bad faith, and that it caused substantial prejudice in the
litigation.
16
15
Ones and zeroes may not lie, but they certainly lack the human qualities of common sense
and flexibility that are also missing from the Report and Recommendations. See Weissmann,
Jordan. Everybody Relax: An MIT Economist Explains Why Robots Wont Steal Our Jobs.
Slate.com, Aug. 25, 2014.
16
Memorandum from the Honorable David G. Campbell, Chair of Advisory Committee on Civil
Rules of the Judicial Conference of the United States to the Honorable Jeffrey S. Sutton, Chair of
(footnote continued)
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The curative measures discussed in the Committee Notes include:
Permitting additional discovery that would not have been allowed had the party
preserved information as it should have
Requiring party that failed to preserve information to restore or obtain it
Requiring party that failed to preserve information to develop substitute
information that the court would not have ordered the party to create but for the
failure to preserve
Ordering payment of another partys reasonable expenses, including attorney fees,
caused by the failure to preserve
Permitting introduction of evidence at trial about the loss of information
Allowing argument to the jury about possible significance of lost information
Judicial Conference Memo at pp. 13-14. Importantly, three findings must be made by the court
before sanctions are permitted:
Court finds that lost information should have been preserved.
Court finds loss of info caused serious prejudice in the litigation (because digital
data often duplicate other data, substitute evidence is often available).
Court must find party failing to preserve did so willfully or in bad faith.
Id. at 15. The Committee notes further emphasize the role of proportionality in consideration of
possible curative measures or sanctions. Id. at p. 20. The judges focus should be on the
information needs of the litigation at hand. Id. Also, the court should be sensitive to party
resources; aggressive preservation efforts can be extremely costly, and parties (including
governmental parties) may have limited resources to devote to those efforts. Id. (Emphasis
added).
The Committee also pinpoints the problem at the heart of the Special Master Proceedings
no evaluation of the scope of what must be preserved:
The Committee has been repeatedly informed of growing concern about the
increasing burden of preserving information . . . particularly . . . electronically
stored information. Many . . . have emphasized their uncertainty about the
the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States
(May 8, 2013) (Judicial Conference Memo) (attached hereto as Exhibit D).
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obligation to preserve information, particularly before litigation has actually
begun. The remarkable growth in the amount of information that might be
preserved has heightened these concerns. Significant divergences among federal
courts across the country have meant that potential parties cannot determine
what preservation standards they will have to satisfy to avoid sanctions.
Extremely expensive overpreservation may seem necessary due to the risk
that very serious sanctions could be imposed even for merely negligent,
inadvertent failure to preserve some information later sought in discovery.
(Emphasis added).
Id. at pp. 10-11. Further,
The amended rule is designed to ensure that potential litigants who make
reasonable efforts to satisfy their preservation responsibilities may do so with
confidence that they will not be subjected to serious sanctions should information
be lost despite those efforts.
Id. at p. 11. The amendments recognize that [d]espite reasonable efforts to preserve, some
discovery information may be lost. Id. at 14-15. The amendments further spell out the
expectation that courts will employ the least severe sanction needed to repair the prejudice
resulting from loss of the information. Id. at p.15.
The Rule amendments look very prescient to UMC from its present vantage point. UMC
did not know what to preserve; the Court asked Special Master Garrie to help them figure it out;
and that did not happen. Instead, UMC was sent straight to its room with no supper for supposed
wrongs committed outside the scope of its duties and no finding of prejudice to Plaintiffs. This
egregious result needs to be corrected.
UMC sees this cursory and unreasonable stretch of the facts presented straight-faced as
authoritative and true throughout the R&R. In footnote 40, Special Master cites the testimony of
Leah Conedy to contradict the representation within custodian interviews that the custodians did
not systematically use their personal cell phones for work. Again, the citation to the record does
not contain the factual basis that the Special Master is attempting to establish. Moreover, the
information within the record does not create the damning contradiction that the Special Master
blithely asserts. Doug Spring, the high priority custodian that the Special Master is singling out in
footnote 40, did not have a UMC-issued device because he did not need one for work. However,
certain individuals within UMC, particularly within Human Resources and at the director-level,
may have had Mr. Springs phone number, such as Leah Conedy, Ernie McKinley, and Susie
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Kisner
17
mentioned. This matches the custodian interview with Mr. Spring: Will occasionally
text with other individuals within HR department or Directors from UMC, but not a general
contact number for UMC. See Custodian Interview Report for Doug Spring, Completed March
26, 2014, found at Dkt. #199-1, p. 16.
The Special Master continues somewhat randomly to single out Mr. Spring for nefarious
activity throughout the R&R. This leads to another inappropriate assumption, this time regarding
the disclosure of so-called timekeeping systems. This inappropriate assumption starts from a
presumed answer to a question not actually asked, and the situation only goes downhill from
there. The Special Master claims that Mr. Spring, amongst the other high priority custodians,
was asked during custodian interviews and by the Special Master during a hearing about
timekeeping systems other than Kronos. See R&R, p.40. This is clearly not so. The custodian
interview questions provided by the Special Master did not include specific inquiries into
GRASP, CrimeStar, Teletracking, or Clarity; and the Special Master did not inquire in-person
when Mr. Spring testified on May 6, 2014. See 5/6/14 Transcript at pp. 66-128. The custodian
interview is aimed at uncovering the applications, systems, programs, data with which the actual
custodian interfaces. The Special Master correctly cites that Mr. Spring may have approved the
use of CrimeStar and Teletracking, but Mr. Spring did not use those applications at all. That is all
that is shown by the lack of mention of those systems in the custodian interview reports, not that
he was withholding information.
18
This is further exemplified by the focus in hearings on
identifying opt-in plaintiffs that use the systems (rather than sticking to identified custodians, as
ordered by Judge Leen). Mr. Spring is not an opt-in, and does not use the systems.
19
17
It is also disconcerting that Special Master points to hearsay testimony that lacks foundation to
condemn Mr. Spring. There is no ones-and-zeroes evidence that Mr. Spring used his personal
device for business, and the assumption that he did simply because he didnt have a UMC-issued
device is an improper assumption from the Special Master or Ernie McKinley.
18
Analytically, the process went like this. Rank speculation from an erroneous premise was
pronounced to be fact. The resultant fact was then used as a cudgel to beat UMC and
baselessly justify severe sanctions. This pattern may be seen over and over in Special Master
Garries Report and Recommendations.
19
Mr. Spring (and others) have Clarity access, but no data had been shown for their use of the
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This type of confusion is rampant throughout the discussion of timekeeping systems in the
Special Master R&R. It is not untrue that no one person or group of persons at UMC have the
skill, knowledge, and expertise with any of the four timekeeping systems,
20
but this state of
affairs is common
21
and is not any justification for sanctions. This lack of in-house expertise
merely makes it a bit more difficult and expensive to produce appropriate data or reports, but
UMC has engaged outside experts as ordered by the Special Master to assist in production.
Therefore, it is also premature and inappropriate to find that the systems were not preserved or
that any data was lost or destroyed from the timekeeping systems. See R&R, p.45, ln.15-18.
But where the Special Master has made up his mind with regard to a result, regardless of
the ones-and-zeroes or actual testimony, the result will stand as the Special Master wants it.
Another example is the Special Masters misinterpretation of John Espinozas testimony
regarding Mr. Espinozas personal mobile device. The Special Master references that UMC
custodian emails were analyzed using search term to determine if any used a mobile device to
send UMC email. The Special Master glosses over the fact that none of the interviewed
custodians, most especially John Espinoza for this purpose, had their personal mobile devices
connected to the UMC email server. Furthermore, the Special Master does not rely on an email to
show that Mr. Espinoza had sent an email from his iPhone, even though the Special Master
painstakingly reviewed Mr. Espinozas emails with counsel for UMC. The record upon which the
Special Master relies when mistakenly condemning Mr. Espinoza for sending work emails from a
personal device is not an admission from Mr. Espinoza
22
but is simply the Special Master
inserting himself as proof. Yet, not cited by the Special Master is the later record that no emails
system. That is also true of a couple of the opt-in plaintiffs who have user access.
20
See Dkt. No. 183, referenced in R&R, p.45-46.
21
To use a familiar example, attorneys normally need to call in a specialized technician to fix an
electronic copy machine or other office equipment. This is no cause for shame or punishment it
is commonplace to be reliant on the copy machine vendor for determining how, exactly, the
machine works.
22
Mr. Espinoza repeatedly denies this action on the record, to no avail. The Special Masters
mind was made up.
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were located within Mr. Espinozas account that show he was using his personal device.
Like his insistence (couched as fact but unsupported by the record) that Mr. Espinoza uses
his personal device for work, Special Master Garrie also inserted his own belief that UMC keeps
Kronos data in spreadsheet format as business practice where the testimony does not support that
assumption.
23
Even though UMC turned over a complete copy of the Kronos database to
Plaintiffs, and generated volumes of pdf format reports for each opt-in plaintiff from Kronos, the
Special Master listened to continuing argument from Plaintiffs for the same information in
another form. From this duplicative and unnecessary discussion, the Special Master decided that
UMC misrepresented its business practices. See R&R, p. 46. In the course of testimony regarding
data provided to the Department of Labor by UMC, Jackie Panzeri testified that after the payroll
department generated pdf reports from Kronos, other employees took those pdf reports and
converted them to excel spreadsheet. Ms. Panzeri did not testify that she or anyone in her
department was able to run excel reports directly from Kronos. This is squarely in line with the
representations of UMC and its counsel throughout discovery. At no point did the ESI Protocol
Order direct UMC to convert the reports it runs in the normal course of business from any
database into excel format for production. Database production could be made in report format or
in complete native production, but an additional requirement to convert to excel was not
contemplated. UMC stands by its representations that the excel reports requested from Kronos
would be an unduly burdensome task as it would demand UMC to perform a task outside its
normal business practice, overburden UMCs stressed technology and involve substantially more
23
The same analytical pattern noted above, with respect to Mr. Spring, is also apparent here.
Sheer speculation or hypothesizing (UMC keeps KRONOS data in spreadsheet form) is derived
from an erroneous factual premise (Ms. Panzeri actually testified that the KRONOS report was
made in .pdf and then was specially converted to Excel by other employees on a single occasion,
not that she ran Excel spreadsheets directly from KRONOS). Next, the demonstrably incorrect
hypothesis is pronounced to be fact (UMC keeps KRONOS data in spreadsheet format) and
used as a cudgel to berate and sanction UMC (UMCs misrepresentation of its business
practices forms partial basis of recommendations for case-dispositive sanctions). This pattern
would be ridiculous, except for the exceptionally harsh recommendations that follow from its use.
UMCs buyers remorse from paying Mr. Garrie very well to treat UMC in this irresponsible and
downright degrading manner is considerable and fully-justified.
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employee time.
24
Special Master Garrie got it completely wrong here, as elsewhere. This is not a simple
discovery matter. This lawsuit involves over 600 plaintiffs, a large public employer, and vast
amounts of information to be culled. Whether the review of the record was done with lazy,
confused, superior, or biased eyes, or a combination thereof, it does not matter. All that results
are improper assumptions within the Special Masters R&R.
3. Professionalism Lost to Personality
Unfortunately, more than the broad and inappropriate assumptions made by the Special
Master in his R&R show laziness, confusion, superiority, and bias. The Special Master was
brought into this litigation in response to very technical disputes in the production of ESI. Daniel
B. Garrie was selected for his superior technical and legal comprehension and experience. He was
not selected to provide color commentary in sport. But the proceeding transcripts and Special
Master R&R read with as much commentary (if not more) as technical information.
Special Master rudely cuts off witnesses for using phrases such as I do not know instead
of just answering yes or no.
25
He claims that nothing could get done without his handholding.
26
He even denigrates UMCs ESI consultant by claiming that the extensive process documentation
created by Mr. Joseph Edmondson via screenshots and explanation of each step in the production
process was a picture book generated by Special Master Garrie. See R&R, p. 37, fn.73. These
same condescending comments and misrepresentations pepper the R&R
27
and have no place in
24
When it came to the burden of converting pdf to excel format, Special Master did not inquire
into how long this process took or any other cost analysis. In light of his own experiences outside
of UMCs business structure, the Special Master just assumed that the conversion was simply a
push of a button. While the technical aspect of converting a pdf form to excel is rather simple, the
time taken from UMC staff to generate reports and provide those reports for additional processing
with additional staff can be time-intensive and detrimental to the other vital tasks of employees to
this publicly-funded hospital. Once more, the R&R shows the disregard for contextual facts the
Special Master has in making his factual findings.
25
See testimony of UMC Chief Human Resources Officer John Espinoza, 4/22/14 Transcript at
84:3-8.
26
See R&R at p.4.
27
See, e.g., various section headings within R&R Whos On First? at p. 22; Did I Do
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this supposedly neutral process. They certainly do not support the incredibly severe sanctions
Mr. Garrie goes on to recommend.
This lack of professionalism manifested itself in other ways just as shocking to UMC.
UMC was cooperative and extremely diligent in moving through immense data production in a
short period of time, all the while receiving more and more assignments from the Special Master.
Digesting this objection, the Court will not be shocked that UMC was shocked by the Special
Masters Report and Recommendation.
This shock is in no small part due to the informality and extensive ex parte contact
between the Special Master and counsel for UMC (which was not objected to by any party or the
Special Master). Throughout the proceedings, UMC and its counsel engaged in many open and
productive discussions. Almost every telephonic hearing was followed up the very same
day/night with an ex parte call to counsel. Each break in the in-person hearings was accompanied
by an off-the-record discussion with UMCs IT staff, ESI consultant, and/or UMCs counsel.
During these communications, UMC and its counsel found that the Special Master expressed a
more nuanced understanding of the lawsuit as a whole, assisted the parties in making more
reasonable requests and/or objections, and attempted to apply more analysis to the respective
technological situations and resource allocation being addressed in the hearings. That these
communications, were not part of the record did not detract from UMC and its counsels
expectations that many of the ESI issues were being resolved. In fact, these communications
often aided UMC in making sure that its ESI issues were being resolved. It was during an
extensive nearly three (3) hour ex parte session that the Special Master analyzed ESI regarding
the high profile custodians emails and made a decision not to image their personal devices.
Several ex parte telephone calls occurred between the Special Master and counsel for UMC
concerning the disclosure and snapshot preservation of the GRASP, Clarity, Teletracking, and
CrimeStar database systems. It seemed like everything would work out - the technical issues were
That at p. 59, etc. There are many of these immature and unnecessary editorializations within
the Special Master Report and Recommendations.
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dealt with and the parties could move forward to the merits of the case. Thus, the actual result, a
crashing end to the productive technical aid and the damning of UMC on all accounts, came as
quite the shock.
UMC had already pointed out that these informalities seriously undermined the progress
accomplished by the Special Master proceedings. In a letter to the Special Master on July 31,
2014, discussing a dispute surrounding inspection or production of certain hard copy documents
at UMC,
28
Counsel Foley pointed out how the then production versus inspection conundrum
had its roots in the dangers of informality and ex parte contact with Special Master. Without a
clear record complying with the Courts parameters for these proceedings, it was all but certain
that the parties expectations were incongruous and led to additional hostility, distraction, and
expense.
UMC also asked that the Special Master allow the parties to review a draft report and
recommendation ahead of its filling, a common practice in such special master proceedings that
allows the parties to put to use their knowledge of the dispute to make proposed revisions to the
special masters report and avoid such heated corrections as required here. If the parties had
known in advance about the factual inaccuracies, an outline of the undisputed facts could have
been agreed to by the parties. At least, UMC could have provided some outline of the blatant
mistakes to Mr. Garrie rather than wait to sort it all out afterwards for the Court in now-
heightened adversarial positions. UMC does not take pleasure in having to so heavily censure the
Special Masters Report and Recommendation, but as it stands, the Report and Recommendation
is utterly detrimental to UMC, for it prevents the very essence of what the court system is
designed to fashion: a just resolution to our disputes, a chance to defend ourselves on the merits
from baseless claims.
/ / /
/ / /
28
UMC objected that this particular area of discovery was outside the scope of the Special Master
proceedings, but again committed to continuing in good faith in this discovery activity.
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B. Conclusions of Law
In keeping with the rushed and inaccurate findings of fact generated by the Special
Master, the R&Rs conclusions of law lack the depth and basic attention to detail that was
requested by the Court and is required by the parties to move this litigation forward. In light of
the severe sanctions recommended, which are unprecedented in Ninth Circuit case law, and the
lack of legal foundation to uphold the cursory recommendations for the severest of sanctions, it
would behoove the Court to closely scrutinize and extensively modify the R&R, in UMCs view.
1. Thorough Review of the R & R and its Underpinnings is Needed in the Present
Circumstances
The threshold findings of the scope of UMCs duty to preserve data potentially relevant to
this suit were never made, despite Judge Leens specific instructions.
29
Consequently, the
attendant findings that might have defined responsiveness, relevance, and what data Plaintiffs
needed to avoid prejudice (that then could support sanctions), were never made either.
Accordingly, legal conclusions purported to rest on findings never made are tainted as well.
In any event, and fortunately for UMC, a masters findings of law carry no weight with
the court, see Clark v. Atlanta Newspapers, Inc., 366 F. Supp. 886, 890 (N.D. Ga. 1973), and the
court must decide de novo all objections to conclusions of law made or recommended by a
master. FRCP 52(f)(4). Objections to a special masters report are entitled to a mandatory
hearing before the district court even if the objections have been comprehensively briefed. See In
re Wonderbowl, Inc., 424 F.2d 178, 180 (9th Cir. 1970); Kieffer v. Sears, Roebuck & Co., 873
F.2d 954, 956 (6th Cir. 1989).
The standard for this courts review of the severe sanctions recommended likewise
requires intense scrutiny due to the truncated ability to address the merits of the underlying
claims. Dismissal sanctions under Rule 37 and a courts inherent powers are similar, as cases
29
See Sauget v. Johnston, 315 F.2d 816, 818 (9th Cir. 1963), advising that [a] masters report
should only cover those matters stated in the order of reference, and noting with approval that
the special master in question did exactly what he was supposed to do. An apt corollary for the
present case might be that a masters report should be sure to actually cover those matters stated
in the order of reference.
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involving a dismissal of plaintiffs complaint as a sanction are comparable to those involving
dismissal of a defendants answer. Adriana Intl. Corp. v. Lewis & Co., 913 F.2d 1406, 1412 (9th
Cir. 1990). As such, this Objection relies on Rule 37 and the district courts inherent powers. In
the Ninth Circuit, the test for whether the harshest of sanctions should be imposed is well-
established:
A district court must weigh five factors in determining whether to dismiss a case
for failure to comply with a court order: "(1) the public's interest in expeditious
resolution of litigation; (2) the court's need to manage its docket; (3) the risk of
prejudice to the defendants; (4) the public policy favoring disposition of cases on
their merits; and (5) the availability of less drastic sanctions."
Malone v. U.S.P.S., 833 F.2d 128, 130 (9th Cir.1987). Where a court order is violated, the first
two factors generally support sanctions
30
and the fourth factor commonly cuts against a default. It
is the third and fifth factors (prejudice and the availability of lesser sanctions) that are usually
decisive. Adriana Intl. Corp., 913 F.2d at 1412. Furthermore, the test is not a mechanical
exercise:
The list of factors amounts to a way for a district judge to think about what to do,
not a series of conditions precedent before the judge can do anything, and not a
script for making what the district judge does appeal-proof . . . [it] also provides a
non-exhaustive list of things [a court] can think about [when considering
dispositive sanctions].
. . .
What is most critical for case-dispositive sanctions, regarding risk of prejudice and
of less drastic sanctions, is whether the discovery violations threaten to interfere
with the rightful decision of the case. Adriana, 913 F.2d at 1412. While
contumaciousness [insubordination] toward the court needs a remedy, something
other than case-dispositive sanctions will often suffice.
30
While the first two dismissal factors generally support a courts decision to grant case-
dispositive sanctions, see Malone, 833 F.2d at 131, the Courts appointment of Special Master
Garrie removed this case from the Courts regular docket. Thus, during the 157 days during
which Special Master Garrie was presiding this case has not impeded the Courts docket
management. Further, UMC has paid handsomely for these court-adjacent proceedings, freeing
judicial resources for other docket activities. As UMC has produced significant ESI and other
information during these proceedings, UMC believes that even though UMC is objecting to the
Special Masters Report and Recommendation, this litigation is now in place to move forward
under the standard trial procedures appropriate for litigation of this size. Thus, the second element
the Courts need to manage its docket does not support dismissal or any other sanctions in
this matter.
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Id. at 1057-1058 (9th Cir. 1998); accord Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills,
482 F.3d 1091, 1097 (9th Cir. 2007) (The most critical factor to be considered in case-
dispositive sanctions is whether a partys discovery violations make it impossible for a court to
be confident that the parties will ever have access to the true facts. Dicksons pattern of
deception and discovery abuse made it impossible for the district court to conduct another trial
with any reasonable assurance that the truth would be available. It is appropriate to reject lesser
sanctions where the court anticipates continued deceptive misconduct.) (internal citations and
quotations omitted).
31
2. Absent Any Legal or Factual Foundation for Its Pronoucement of Prejudice, The R &
Rs Recommendations for Sanctions are Unsupportable
At the core of a courts analysis in assessing severe sanctions, as laid out above, must be a
determination of wrong experienced by the supposedly-aggrieved party. In determining whether,
as here, a plaintiff has been prejudiced, we examine whether the defendant's actions impair the
defendant's ability to go to trial or threaten to interfere with the rightful decision of the case.
Malone, 833 F.2d at 131 (in a Title VII action, the court collected cases of examples of prejudice
when affirming district courts dismissal of complaint for plaintiffs actions in waiting until six
weeks before trial to notify defendant she would not adhere to the pretrial order).
32
Here, by
contrast, no prejudice to Plaintiffs case was assessed and Plaintiffs received the evidence they
needed for trial.
31
In New Images of Beverly Hills, Defendants behavior included one deception after another,
including its appellant brief, which the court characterized as yet another fraud on the court by
arguing a defendants bankruptcy stayed the order to compel, but the defendants presented a
docket sheet that it had manipulated to read as 7/00 instead of 03/17/00). Conn. Gen. Life Ins.
Co., supra.
32
We have no doubt that Ms. Malone's last-minute notification of her decision not to comply
with the pretrial order in Malone had a prejudicial effect on the Government. See North American
Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986) (endorsing district
court's finding that willful violation of the discovery order had, given the imminence of the trial
date, prejudiced [defendant's] ability to prepare for trial); Scarborough v. Eubanks, 747 F.2d
871, 876 (3d Cir. 1984) (prejudice includes irremediable burdens or costs imposed on the
opposing party); Chism v. Natl Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9
th
Cir. 1981)
(indicating that defendant had been prejudiced by plaintiffs continual flouting of discovery rules,
failure to comply with pretrial conference obligations, and repeated violations of local court
rules). Malone, 833 F.2d at 131.
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Alarmingly, this critical assessment of prejudice to Plaintiffs case, from which sanctions
may then ensue, was never made. At page 65 of the Report and Recommendation, one may find
a subheading which reads Plaintiffs [sic] Have Suffered Prejudice As A Result of UMCs
Spoliation, but no analysis of any potential prejudice to Plaintiffs case is provided there. Much
like the phantom record cites mentioned in the Findings of Fact, and discussed above, cross-
references are made to prior sections of the Report and Recommendation, but, oddly enough, no
assessment of prejudice can be found in the cited sections. The sum total of the R & Rs
prejudice discussion is:
Data has been lost from UMCs failure to preserve ESI on three timekeeping
systems, the Q-Drive, as well as several other key ESI repositories. See Section
III.C., supra. It is uncontroverted that UMCs spoliation includes thousands of
files on network file shares and thousands of text messages. See Section III.E.,
supra. UMCs significant delay and errors in preserving and collecting ESI
makes it a near certainty that responsive evidence was irretrievably lost or
deleted. See Sections III.A., III.B, supra. Thus, Special Master Garrie concludes
that Plaintiffs have suffered prejudice.
R & R, p. 65. In the closed loop of this subsection purporting to address prejudice, with cross-
references that lead nowhere, all references are to UMC none address Plaintiffs or their case
which is the proper focus of any prejudice to, well, their case. This dereliction of Mr. Garries
duties simply cannot be allowed to stand as the basis of sanctions, let alone terminating sanctions.
a. Due Process Requires Far More Than What Mr. Garrie Offers
to Support Such Radical Sanctions
In order for a discovery sanction to comport with due process, the sanction imposed under
Rule 37 must be specifically related to the particular claim which was at issue in the order to
provide discovery. Adriana, 913 F.2d at 1413. For example, in Fjelstad v. American Honda
Motor Co., 762 F.2d 1334 (9th Cir. 1985), the Ninth Circuit rejected the district courts
imposition of partial default judgment because:
Unlike the defendant's refusal to disclose any material information in [Hammond
Packing Co. v. Arkansas, 212 U.S. 322, (1909)], American Honda's failure to
supplement its response to the interrogatory concerning potential witnesses does
not give rise to a presumption that the denials in its answer to the complaint are
untrue or that its defenses are meritless. When the district court imposed the
sanction of partial default judgment, American Honda had made available to the
plaintiffs, among other materials, a number of witness statements, numerous
photographs of the accident scene taken on the date of the accident, photographs
of American Honda's investigation of the accident scene and inspection of the
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motorcycle, videotapes of the investigation, the report of the highway patrolman
who investigated the accident, a wiring diagram of the motorcycle, and an
exhaustive list of studies and reports on the causes of motorcycle accidents,
including a number of reports on motorcycle conspicuity and headlight use. In its
responses to the interrogatories, it identified, among other people, the original
purchaser of the motorcycle and the driver of the tractor ditcher, who later was
deposed. It also set forth the factual basis upon which it contended that the
plaintiffs (both the minor plaintiff and her parents) were negligent. Finally,
nothing in the record suggests that American Honda's failure to identify any
potential witness in a timely manner adversely affected the plaintiffs' ability to
establish that the motorcycle's lack of conspicuity caused or contributed to the
accident, or that the delay helped to conceal information tending to show the
invalidity of one or more of American Honda's possible defenses. In these
circumstances, allowing American Honda to suffer partial default judgment
because of its single willful violation of the July 29 order would be unjust.
Fjelstad, 762 F.2d at 1342-43. Particularly instructive is the contrast that the Fjelstad court drew
with the abysmally woeful production in Hammond Packing, where the defendant had refused to
disclose any material information. Id.
Delay alone has been held to be insufficient prejudice. See U.S. v. Kahaluu Constr. Co.,
857 F.2d 600, 604 (9th Cir. 1988). Failure to produce documents as ordered, however, can be
considered sufficient prejudice. Sec. & Exch. Comm'n. v. Seaboard Corp., 666 F.2d 414, 417 (9th
Cir. 1982); Adriana, 913 F.2d at 1412. In Adriana, the repeated failure of plaintiff to appear at
scheduled dispositions compounded by its continuing refusal to comply with court-ordered
production of documents constituted an interference with the rightful decision of the case.
Adriana, 913 F.2d at 1412.
Even parties one would reasonably expect as having a level of technical sophistication
and outright competence with regards to its ESI systems still run afoul of snafus, glitches,
ignorance, and technical difficulties. No case illustrates this better than Apple II. Special Master
Garrie quotes liberally from this case, but omits the critical factual grounding that led the district
court to grant relief from the magistrate courts imposition of adverse inference instructions
against Samsung. The facts of this case show why a publicly-funded county hospital should not
face harsher sanctions over technology issues than either of these technology giants.
In Apple II, the magistrate court had found that:
(1) Samsung's duty to preserve evidence arose on August 23, 2010;
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(2) Samsung's continued use of its biweekly email destruction policy, insufficient
distribution of the litigation hold notice before April 2011, and failure to confirm
compliance with the litigation hold notices constituted willful violation of this
duty; and
(3) the destroyed documents were relevant and prejudicial to Apple's claims, as
demonstrated by the stark difference in production from mySingle and Microsoft
Outlook custodians, and the fact that some of the mySingle custodians whose
production of email was remarkably low were senior Samsung employees whose
internal communications would have been especially probative to the claims at
issue in this litigation.
Apple II, 888 F. Supp. 2d at 983 (internal quotations omitted). Based on these findings (including
a willful violation), the magistrate court did not order dispositive sanctions, but only that:
Samsung has failed to prevent the destruction of relevant evidence for Apple's
use in this litigation. This is known as the "spoliation of evidence."
I instruct you, as a matter of law, that Samsung failed to preserve evidence after
its duty to preserve arose. This failure resulted from its failure to perform its
discovery obligations.
You may also presume that Apple has met its burden of proving the following two
elements by a preponderance of the evidence: first, that relevant evidence was
destroyed after the duty to preserve arose. Evidence is relevant if it would have
clarified a fact at issue in the trial and otherwise would naturally have been
introduced into evidence; and second, the lost evidence was favorable to Apple.
Whether this finding is important to you in reaching a verdict in this case is for
you to decide. You may choose to find it determinative, somewhat determinative,
or not at all determinative in reaching your verdict.
Id. Samsung objected to this adverse inference instruction and filed its own motion for an adverse
inference instruction based on Apples failure to preserve ESI, but the magistrate court ruled it
untimely. Id. at 983-84. Regarding Samsungs objection, the court noted that:
Although Samsung did make some efforts to preserve documents, such as by
sending out litigation hold notices and conducting training with key employees,
Samsung to this day has not suspended its email systems biweekly automatic
destruction policy, even as to key custodians, nor has it presented any evidence
that Samsung employees have at all complied with the instructions they were
given.
Id. at 992. The ongoing failure still did not warrant enormous monetary sanctions, let alone case-
dispositive sanctions. Indeed, the court concluded that an irrebuttable presumption is not
warranted by the facts and litigation history of the case, and for that reason [the court] modifies
the nature and scope of the adverse inference instruction as set forth [below]. Id. The court
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modified the adverse inference instruction to be a simple, rebuttable presumption as a sanction
for Samsungs ongoing and willful violation:
Samsung Electronics Company has failed to preserve evidence for Apples use in
this litigation after its duty to preserve arose. Whether this fact is important to you
in reaching a verdict in this case is for you to decide.
Id. at 995. A factor the court considered in choosing the appropriate sanction was how much
Samsung had produced (12,000,000 pages as a part of an earlier investigation, which included
80,000 emails from 380 witnesses, totaling 14 terabytes). Id. at 994. The court further noted that:
Samsung had produced over 70,000 pages, comprised of 5,159 documents and
emails, from the very custodians whose documents Apple identified as having
been likely destroyed. Samsung also produced non-custodial emails that were
sent to or received by the key Samsung custodians identified by Apple. Id. 19.
Finally, Apple deposed a substantial number of the key Samsung witnesses whose
emails Apple suspects may not have been preserved. Id. 12-17. Thus, Apple
"should have been able to glean" much material evidence "from the documents
actually produced, the extensive deposition testimony, and the written discovery
between the parties." Dzung Chu v. Oracle Corp. (In re Oracle Corp. Sec. Litig.),
627 F.3d 376, 386(9
th
Cir. 2010) (citation altered). On the one hand, "the loss of
an entire source of documents significantly hampers [an opposing party's] ability
to prepare and prosecute their case." UMG Records, Inc. v. Hummer Winblad
Venture Partners (In re Napster, Inc. Copyright Litig.), 462 F. Supp. 2d 1060,
1077 (N.D. Cal 2006) (citation altered). On the other hand, the Court finds it
difficult to conclude that Apple's "ability to go to trial" was significantly
hampered where discovery in this case has been so voluminous. See Leon v. IDX
Sys. Corp., 464 F.3d 951, 959 (9
th
Cir. 2006) (citation altered); see In re Oracle,
627 F.3d at 386 (limiting scope of adverse inference instruction where ample
discovery was produced); Pension Committee of Univ. of Montreal v. Banc of Am.
Sec. LLC, 685 F. Supp. 2d 456, 479 & n.97 (S.D.N.Y.2010) (citation altered)
(where the parties seeking spoliation sanctions had already "gathered an
enormous amount of discovery both from documents and witnesses," "[u]nless
they can show through extrinsic evidence that the loss of the documents has
prejudiced their ability to defend the case, then a lesser sanction than a spoliation
charge is sufficient to address any lapse in the discovery efforts of the negligent
plaintiffs"), abrogated on other grounds by Chin v. Port Auth. of New York & New
Jersey, 685 F.3d 135 (2d Cir. 2012). On this record, the Court concludes that
Apple was prejudiced, but that Apple has not made a showing of prejudice
sufficient to warrant a strong adverse inference instruction that permits the
jury to find Samsung's spoliation "determinative" of all issues in the case.
Id. at 994-95 (emphasis added).
Regarding Samsungs motion for an adverse inference instruction against Apple, the court
found that Apple had failed to institute its own litigation hold notices for almost a year, as well
failing to end certain email destruction policies warranted an adverse inference because such
behavior was also willful after the duty to preserve arose. Id. at 999. It concluded, however, that
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the same mild adverse inference instruction was appropriate because Samsung had similarly
failed to show that it was substantially prejudiced by this failure. Id.
Thus, where other sources of information exist or could be located, little prejudice to the
non-despoiling party was evident. Moreover, the procedural posture of Apple II illustrates why
ordering dispositive sanctions when discovery as to the merits of the case has not even begun is
not a prudent task to take. Specifically, where discovery has been voluminous and from
multiple sources, such as extensive deposition testimony, a court will have difficulty, as the
court in Apple did, in finding that a partys ability to go to trial was significantly hampered. Id.
at 994 (citing In re Oracle, 627 F.3d at 386).
Consequently, for a partys actions to warrant spoliation sanctions, "[i]t is not enough for
the innocent party to show that the destroyed evidence would have been responsive to a
document request." Pension Comm., 685 F. Supp. 2d at 467. The innocent party must show that
the evidence would have been helpful in proving its claims or defenses." Id.; see also Cottle-
Banks v.Cox Commns Inc., 2013 U.S. Dist. LEXIS 72070, 2013 WL 2244333 at *15-16 (S.D.
Cal. May 21, 2013) (negligent destruction of documents did not warrant adverse inference
instruction or evidence preclusion where non-spoliating party failed to show relevance and thus
was not prejudiced).
The facts and litigation history here, as in Apple II, do not warrant case dispositive
sanctions. There has been no showing of any kind of prejudice to Plaintiffs. There is no hurdle to
prevent trial on the evidence produced, no interference preventing a rightful decision in this case.
The delays in this case are not sufficient prejudice to warrant the sanctions recommended by
Special Master Garrie. And as discussed in Fjelstad and Seaboard, UMC has produced
significant information, and has complied in all technical expediency with the orders of the Court
and Special Master Garrie. UMCs actions are not the complete refusal to provide discovery and
failure to appear at hearings demonstrated in Adriana. Moreover, even if UMC theoretically
failed to meet its obligation for preservation and somehow could be found to be willful in its lack
of diligence for insufficient distribution of litigation hold notices and not suspending inadvertent
document destruction practices, just like both named parties in Apple II, the actions do not
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warrant the default judgment for opt-in plaintiffs and the de facto case-ending presumptions
recommended by the Special Master.
Special Master Garries seemingly exhaustive research to track down any cases where a
court has imposed the sanction of certifying a class as a discovery sanction turned up a mere
handful, none of which are within the Ninth Circuit. The type of case and the actual discovery
abuses at hand show why this is such a rare sanction, apparently never reported before in the
Ninth Circuit.
In two of the cases, the defendant defaulted, and thus the question before the court was the
interplay between default and class certification. For example, in Skeway v. China Natural Gas,
Inc., 2014 U.S. Dist. LEXIS 82779 (D. Del. June 18, 2014), a defendant did not answer, and the
court entered a default. Before moving for default judgment, however, the plaintiff moved to be
appointed as a class representative. Skeway, 2014 U.S. Dist. LEXIS 82779 at **6-7. As such, the
issue before the court was whether certification could occur after a court entered a default, but
before it was reduced to judgment. The court made clear that default does not short-circuit a
courts responsibility to make a Rule 23 class certification determination. Id. at *7. However, the
court also noted that public policy supported the ability for a court to certify a class even when
the defendant has defaulted because it would otherwise encourage defendants to default rather
than face a class action suit. Id. at *8. Based on the factual allegations in the complaint and
plaintiffs representations, the court granted plaintiffs motion to be a class representative and for
class certification. Id. at *25.
So, too, in Telford v. Ideal Mortgage Bankers, Ltd., 2010 U.S. Dist. LEXIS 110540
(E.D.N.Y. August 17, 2010); the defendant failed to answer, prompting the magistrate judge to
recommend the entry of a default. Telford, 2010 U.S. Dist. LEXIS 110540 at *11. Significantly,
the magistrate judge also recommended that the district court grant the plaintiff an opportunity
to conduct discovery for 90 days on the question of class and damages, especially in light of the
fact that the plaintiff had not submitted any documentation to date to support his damages claim
for himself or for the putative class, to be followed by a hearing. Id. at **11-12.
Although the defendants answered in Gaddis v. Abell, 2006 Bankr. LEXIS 4312, (Bkrtcy.
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D. Md. July 13, 2006), another case cited in the R & R, that is apparently all they did, failing to
respond at all to interrogatories and production requests (specific to class certification) for over
six months, even after the court had entered orders instructing it to do so. Gaddi, 2006 Bankr.
LEXIS 4312 at *3. Notably, in the plaintiffs motion to compel, she had argued that she could not
file her motion for class certification because she needed certain documents from the defendants;
these were the very documents defendants had failed to produce even after having been ordered
to do so. Id. Defendants lackluster production was in line with their equally lackluster defense:
the defendants did not even file an opposition to plaintiffs motion for sanctions. Id.
Special Master Garries inclusion of Ward v. NationsBanc Mortgage Corp., 2006 Ohio
App. LEXIS 2599 (Ct. App. Ohio, June 2, 2006) provides an unusual narrative more about
judicial conduct than about discovery abuses, and because of the sparse record, it is not clear if
the defendant ever answered. But even if it did, both parties and the court allowed the case to
languish on the courts docket until a visiting judge decided summarily to issue an order granting
plaintiffs three-year-old motion for discovery sanctions, and, it seems, separately from that
sanction, the visiting judge certified the class. Ward, 2006 Ohio App. LEXIS 2599 at **4-6. He
did not, however, comment on defendants three-year old motion for a protective order also
awaiting resolution. Id. at *6. The Court of Appeals for the Sixth Appellate District (Erie
County) found this sanction to have been an abuse of the visiting judges discretion because there
were not enough facts before the lower court to support certification. Id. at *15. The court
explained that a motion for class certification was not a strict prerequisite to certification, so long
as the information contained in the pleadings is so unequivocal as to enable a trial court to make
a class certification by a preponderance of the evidence. Id. at *12. Thus, because there is not
sufficient factual evidence in the record to have permitted a meaningful class certification
determination by a preponderance of the evidence, the Ohio Court of Appeals reversed the lower
courts judgment. Id. at *13. In the case at bar, a motion for conditional certification of a
collective action has been granted, but the factual evidence before the court does not provide the
evidence needed for final certification of a collective FLSA action or for certification of a Rule
23 class. In any event, the Ward court found class certification to be an improper sanction and
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reversed it, providing no support for Special Master Garries certification in this case and in fact
providing a good reason to deny Mr. Garries recommendation for any class certification-based
sanctions.
Finally, Special Master Garrie relied on Resource Life Ins. Co. v. Buckner, 698 S.E.2d 19
(Ct. App. Ga. 2010), but his parenthetical summary of the cases importance overlooks the more
measured approach the court actually took in response to the defendants discovery abuses. In
Resource Life, the defendants discovery failings spanned six years, during which time the trial
court estimated the defendants had produced only 4% of what it had been ordered to produce.
Resource Life Ins. Co., 698 S.E.2d at 26. Based on these discovery abuses, the trial court
imposed a rebuttable presumption, which would be remedied if the defendant could produc[e]
proof in 120 days of the trial courts sanctions order [whether] an insureds loan did or did not
terminate early (which was the crux of plaintiffs discovery battle). Id. at 27. The court did not
impose class certification as a discovery sanction but investigated the actual discovery issue
before it and issued a conditional sanction order that would resolve it a much better course of
action in UMCs view. Notably, the lower court in Resource Life had already granted the
plaintiffs motion for class certification on the merits of evidence obtained during five years of
discovery; class certification had nothing to do with the discovery sanction. Id. at 22.
These various cases from other circuits cited by Special Master Garrie in support of the
virtually unheard-of sanctions recommended for UMC are generally unpersuasive. By
comparison, in a case much closer to home jurisdictionally and factually, the Southern District of
California reasoned with precision and clarity as to the requirements for class certification under
Rule 23 as well as when spoliation sanctions are appropriate.
In Cottle-Banks v. Cox Comms., Inc., 2013 U.S. Dist. LEXIS 72070 (S.D. Cal., May 21,
2013), the court found that commonality did not exist among a purported class of individuals who
were charged for cable-box rental fees they had not agreed to pay. Cottle-Banks, 2013 U.S. Dist.
LEXIS 72070 at **25, 27. Pertinent to the matter at hand is that the plaintiff had also filed a
motion for spoliation sanctions because Cox recorded over its recorded conversations between
agents and customers. Id. at *29. Specifically, the plaintiff sought an order from the court that:
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1) There shall be an adverse inference operative in all proceedings in this case,
that all CSR call recordings destroyed by Defendant after service of the original
complaint in this cause would have evinced a common practice by Defendant
[in] violation of 47 U.S.C. 543(f) by not disclosing equipment and
corresponding charges during telephone calls with customers ordering cable
service; and/or
2) Defendant shall be precluded from introducing evidence that its CSRs complied
with 47 U.S.C. 543(f) before June of 2011.
Id. at *29 (emphasis added). The court provided a clear articulation of what options are available
to a court for spoliation of evidence:
Courts may sanctions parties for spoliation of evidence by instructing the jury that
it may draw an inference adverse to the party or witness responsible for destroying
the evidence; by excluding witness testimony proffered by the party responsible
for destroying the evidence and based on the destroyed evidence; and dismissing
the claim of the party responsible for destroying the evidence. In re Napster, 462
F. Supp. 2d at 1066 (citations omitted). Plaintiff seeks an adverse interference, or
in the alternative, evidence preclusion.
Id. at **35-36.
Particularly relevant here is the courts analysis of whether the deleted recorded calls
would have been relevant to class-related claims by providing insight into Coxs ordering
practices at the time of the class period. Cox argued that the deleted calls would reveal more of
the same unsupportive recordings that have already been produced. Id. at *42. The burden falls
on the prejudiced party to produce some evidence suggesting that a document or documents
relevant to substantiating his claim would have been included among the destroyed files. Byrnie
v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 108 (2d Cir. 2001). The plaintiff could not
produce such evidence, as only 2 of the 280 previously produced recordings supported the claim
of Cox failing to obtain an affirmative acceptance of an equipment rental. Cottle-Banks, 2013
U.S. Dist. LEXIS 72070 at *43. As such, because the plaintiff could not show relevance of the
destroyed evidence to her claim of common practice, the court found the plaintiff had not
demonstrated that Cox over-writing of the recordings warranted an adverse inference, let alone
the imposition of class-dispositive conclusive presumptions. Id. at *44.
b. Plaintiffs Have the Evidence They Need for the Claims They
Have Pleaded
Special Master Garrie did not analyze any potential prejudice to Plaintiffs case created by
the data lost at UMC, but if he had analyzed it, he would have learned that there was no prejudice
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created. Therefore, no sanctions at all were warranted.
Even without the 1.1 terabytes of ESI produced to them, Plaintiffs have the data they need
to move forward with this case. They have brought FLSA claims asserting that the Plaintiffs,
whether considered singly, as a collective group of 600+ opt-ins, or as a putative Rule 23 class,
all missed one or more uninterrupted lunch periods they were entitled to receive as hourly
employees. All hourly employees are paid through Kronos, and UMC turned over its entire
Kronos database to Plaintiffs many months ago, along with individual Kronos printouts for the
opt-in Plaintiffs.
Because UMC instituted an automatic 30-minute meal break deduction through Kronos
for all its hourly employees, and because it also had an official policy, that all hourly employees
had been trained about, to notify a designated department representative if they missed all or part
of their lunch break, UMC was entitled to rely on hourly employees to follow the policy in order
to get reimbursed through Kronos for short or missing lunch breaks. Even the hourly employees
at UMC who use Crime Star or Teletracking to record their lunch breaks currently have to follow
the notification policy and affirmatively report a missed lunch break so they can be paid back for
the time through Kronos. Therefore, Kronos is the operative system for evidence of missed meal
breaks that hourly employees have supposedly not been paid for. From 2009 to October 2012,
the employee had to act to be paid back for a missing lunch. These actions are recorded in
Kronos as reimbursements for automatic 30-minute meal break deductions for all hourly
employees.
Many courts around the country have ruled within the last few years that such automatic
meal deduction policies as UMCs are legal and may permissibly place the burden on hourly
employees to report partial or missing meal breaks to management in order to be repaid for them.
See White v. Baptist Memorial Health Care Corp., 699 F.3d 869, 876-78 (6
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Cir. 2012), in which
the Sixth Circuit Court of Appeals held that when an employer has an honest and reasonable
process in place for employees to follow for missing lunch breaks, the employee must use the
process to assert entitlement to overtime pay. When the plaintiff used the system, she was
compensated for the missed lunch break, but when she failed to use the system, she was not
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compensated. See id. at 877. Without any evidence that the employer prevented plaintiff from
utilizing the notification process or otherwise impeded or ignored the notifications, the plaintiff
could not recover damages from the employer under the FLSA. See id.
The White case reinforces the clear holding in the Ninth Circuit case Forrester v. Roths
I.G.A. Foodliner, Inc., 646 F.2d 413, 414-15 (9
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Cir. 1981), that an employer must be notified of
the alleged overtime worked in order to compensate the employee for it. For UMC, this means
that employees need to follow the notification procedure to get paid overtime for missed lunches.
The notification procedure is recorded through Kronos. If any opt-in Plaintiffs missed lunches,
invoked the notification procedure, but then did not get reimbursed for the automatic deduction in
Kronos, Plaintiffs have the Kronos database to be able to show any particular Plaintiff was not
reimbursed.
Apart from White v. Baptist Hospital being consistent with Ninth Circuit law as expressed
in Forrester, the White analysis is being adopted by federal courts all around the country, and it
has been followed by a number of Ninth Circuit district courts. A recent case in the Eastern
District of New York, De Silva, provided a detailed analysis and opined that the automatic-
deduction Kronos system used by UMC is permissible under the FLSA. See De Silva v. North
Shore-Long Island Jewish Health Sys., 2014 U.S. Dist. LEXIS 77669 (E.D. N.Y. June 5, 2014).
The district court judge in De Silva proceeded to adopt the Sixth Circuits White analysis to
decertify a conditional FLSA collective class (which the opt-in Plaintiffs in this case are) and
cited to numerous other federal court rulings adopting White as well. See De Silva at *13-*16.
De Silva also notes the sheer number of district courts that have decertified automatic
deduction collective actions in the context of hospital breaks. Id. at *15.
District courts in the Ninth Circuit have also adopted the White analysis See Williams v.
U.S. Bank Nat. Assn., 290 F.R.D. 600, 605 & n.5 (E.D. Cal. 2013) (applying Whites two-step
process for an FLSA wage and hour collective action class); Benedict v. Hewlett-Packard Co.,
2014 U.S. Dist. LEXIS 18594 (N.D. Cal. Feb. 13, 2014); Syed v. M-I, LLC, 2014 U.S. Dist.
LEXIS 104820 (E.D. Cal. July 30, 2014); Lillehagen v. Alorica, Inc., 2014 U.S. Dist. LEXIS
67963 (C.D. Cal. May 15, 2014); McKeen-Chaplin v. Provident Sav. Bank, 2013 U.S. Dist.
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LEXIS 113654 (E. D. Cal. Aug. 9, 2013). Whatever validity may be shown for Plaintiffs claims
of missed meal breaks under the FLSA is properly shown through Kronos data, which is already
in Plaintiffs hands.
The very backbone of FLSA overtime violation actions is the timekeeping system from
which hourly, non-exempt employees earnings are calculated, and this is just as true in the
District Court of Nevada, as elsewhere shown above. In Gamble v. Boyd Gaming Corp., 2014
U.S. Dist. LEXIS 78069 (D. Nev. June 6, 2014), employees sought to notice a conditional class
of all hourly, non-exempt employees subject to rounding of time to the nearest quarter-hour
using the Kronos timekeeping management system. Because all rounding of time was captured in
Kronos, the Plaintiffs used this data to establish a company-wide policy, practice, or scheme that
allegedly deprived hourly, non-exempt employees of wages for time worked. Id. at *11-12. In an
individual FLSA violation action, Kora v. Renown Health, 2011 U.S. Dist. LEXIS 45456 (D.
Nev. April 25, 2011), the Kronos timekeeping management system showed an anomaly in the
clocking-in and clocking-out for the employee leading to an underpayment of 3 hours at an
overtime rate. After the defendant used Kronos to track the actual time worked and paid plaintiff
the appropriate overtime earnings, the Court relied on the Kronos data to grant summary
judgment to the defendant as the Kronos data was the definitive record to show that the payment
for time worked was properly remedied by the defendant. Id. at *12-15. Here, it is clear that the
Kronos data would be the backbone of Plaintiffs claims as well the definitive record to show
that payment for time worked was properly remedied by the defendant. The Kronos data has
been produced in duplicative form: first as OCRd pdf files, and second in the full native
database form. Plaintiffs have the data on which their claims rely, and cannot show that their
claims are harmed in any way by any data loss described in the Special Masters Report and
Recommendation.
3. In the Event the Court Concludes Sanctions Are Permitted By the Existing Record, An
Array of Lesser, Non-Terminating Sanctions Are Available to Consider
As mentioned above, in considering case-dispositive sanctions, lesser sanctions must be
analyzed. The Special Masters R&R utterly fails to meet this basic standard. At best, he stacks
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sanctions, ending the merit-based inquiry with default judgment and overbroad factual rebuttable
presumptions AND requiring UMC to pay fees and costs. Recognizing that UMCs record is not
immaculate, a full discussion of possible sanctions should be submitted by the Court in place of
the R&R.
It bears repeating that [d]efault judgment is a particularly severe sanction. Roadway
Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). A default judgment should be entered against a
party only if lesser sanctions would be ineffective. Halaco Engineering Co. v. Costle, 843 F.2d
376, 381 (9th Cir. 1988). As a sanction for destruction of evidence, courts must consider the
following: (1) the existence of certain extraordinary circumstances; (2) the presence of
willfulness, bad faith, or fault; (3) the efficacy of lesser sanctions; and (4) the relationship
between the misconduct and the matters in controversy. Id. at 379-80. The Court may also
consider whether prejudice inured to the victim of the misconduct. Id. Rejection of lesser
sanctions in favor of dismissal or default judgment is appropriate only when no lesser sanction
could both punish Defendants and deter other similarly tempted and only when the facts show
that deceptive conduct has occurred and will continue. Computer Assoc. Int'l v. Am. Fundware,
Inc., 133 F.R.D. 166 (D. Col. 1990); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917 (9th
Cir. 1987); Chism, 637 F.2d at 1332.
A more reasonable lesser sanction that must be considered in assessing spoliation is the
adverse instruction that any destroyed evidence goes to the merits of the case, and further, that
such evidence was adverse to the party that destroyed it. See Phoceene Sous-Marine, S.A. v. U.S.
Phosmarine, Inc., 682 F.2d 802, 806 (9th Cir. 1982); Nat'l Ass'n of Radiation Survivors v.
Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987); Computer Assoc. Int'l, 133 F.R.D. at 170. Again,
to impose an adverse inference sanction, a moving party must demonstrate: (1) that the party
having control over the evidence had an obligation to preserve it at the time it was destroyed; (2)
that the party having control over the evidence had a culpable state of mind; and (3) that the
destroyed evidence was relevant to the partys claim or defense such that a reasonable trier of fact
could find that it would support that claim or defense. Chevron U.S.A., Inc. v. M & M Petroleum
Servs., 2009 U.S. Dist. LEXIS 68829, 59-60 (C.D. Cal. Aug. 6, 2009) (internal quotations
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omitted).
The exercise of a court's inherent powers must be applied with "restraint and discretion"
and only to the degree necessary to redress the abuse. Chambers v. NASCO, Inc., 501 U.S. 32, 45,
111 S. Ct. 2123, 115 L. Ed. 2d 27 (1991); see also Schmid v. Milwaukee Electric Tool Corp., 13
F.3d 76, 79 (3rd Cir. 1994) (courts should choose "the least onerous sanction corresponding to
the willfulness of the destructive act and the prejudice suffered by the victim"). Accordingly, the
determination of an appropriate sanction for spoliation is "confined to the sound discretion of the
trial judge, and is assessed on a case-by-case basis." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d
423, 436 (2d Cir. 2001) (internal citations omitted).
In deciding whether the district court adequately considered lesser sanctions, we
consider whether the court (1) explicitly discussed the alternative of lesser
sanctions and explained why it would be inappropriate; (2) implemented lesser
sanctions before ordering the case dismissed; and (3) warned the offending party
of the possibility of dismissal.
Computer Task Group, Inc. v. Brotby, 364 F.3d 1112, 1116 (9th Cir. 2004) (granting discovery
sanctions after individual defendant refused to answer discovery, made purposefully
contradictory information, filed baseless motions, and ignoring eight motions to compel).
In determining the appropriate sanction, courts should seek to impose a sanction that
accomplishes the following objectives: (1) deter parties from engaging in the sanctioned conduct;
(3) place the risk of an erroneous judgment on the party who wrongfully created the risk; and (4)
restore the prejudiced party to the same position he would have been in absent the wrongful
destruction of evidence by the opposing party. Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604,
626 (C.D. Cal. 2013) (internal quotations omitted).
a. Adverse Inference
UMC has not shown deceptive conduct warranting case-dispositive sanctions. However,
there may be certain circumstances that warrant some form of sanction for even negligent
destruction of evidence. The courts may impose sanctions even against a spoliating party that
merely had "simple notice of 'potential relevance to the litigation.'" Glover v. BIC Corp., 6 F.3d
1318, 1329 (9th Cir. 1993) (quoting Akiona v. U.S., 938 F.2d 158, 161 (9th Cir. 1991)). Still, "a
party's motive or degree of fault in destroying evidence is relevant to what sanction, if any, is
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imposed." In re Napster, 462 F. Supp. 2d at 1066-67.
In order to prove that an opposing party failed to preserve electronic records, a
party must show: (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.
Montoya v. Orange Cnty. Sheriffs Dept, 987 F. Supp. 2d 981, 1010 (C.D. Cal. 2013) (internal
citations omitted). The party seeking spoliation sanctions bears the burden of establishing the
elements of spoliation. Reinsdorf, 296 F.R.D. at 627 (quoting Centrifugal Force, Inc. v. Softnet
Communication, Inc., 783 F. Supp. 2d 736, 740 (S.D. N.Y. 2011)). Indifferent or inept actions are
not sufficient to show a culpable state of mind. See Montoya, 987 F. Supp. 2d at 1010.
While discovery sanctions in this suit would not be aimed at curbing intentional actions,
such as the gross discovery abuses in Brotby, and Plaintiffs have not shown any relevance of the
data possibly lost from the weak preservation efforts as required, it is still well decided that
UMCs preservation efforts were not first-rate. The record is replete with this lack of effort. But
the record does not create the extreme circumstances that would justify the Special Masters
recommendation for default judgment for the opt-in plaintiffs or the string of factual
presumptions regarding liability and damages relating to all effected hourly employees at UMC.
If UMCs behavior is considered negligent, the burden to show the relevance of lost data
and how such a loss of the data is prejudicial to their claims lies with Plaintiffs. After being
notified to maintain cellular phone text data, but before the Court ordered the production of text
message data for three (3) high priority custodians, see Dkt. #143, UMC upgraded its BlackBerry
server environment and wiped the 3 custodians phones in the process. Because text messages
are not considered regular business records and the custodians have stated that they did not use
texts to discuss issues relevant to this suit, there is no record of how texts could even be
responsive to the agreed-upon search terms or Plaintiffs discovery requests, let alone relevant to
establish an element of Plaintiffs claims. Similarly, UMC did not activate a freeze on the
expansive data from the shared network folders (Q: Drive) relating to the custodians identified in
these proceedings until the Special Masters intervention. With the changing ESI vendors and
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counsel at play, this valuable document repository was not timely identified for ESI purposes.
The Special Masters Q Drive analysis identified files were lost, but no record exists to show that
relevant documents were part of those files that were found to be a part of folders emptied over a
four month period. Access to documents does not make them relevant, let alone demonstrate
clear and convincing evidence of any culpability for their loss.
If there is no use for the presumed lost data, Plaintiffs cannot be prejudiced by its loss.
Plaintiffs still have discovery opportunities to investigate text usage and content with UMC
custodians. UMC has been able to move forward with significant productions of ESI (and other
documents) in a short period of time, due in part to the technical guidance of the Special Master,
albeit at a significant cost in time and expenses. Where sanctions are appropriate to deter
negligent behavior and UMC must recognize its e-discovery problems, an adverse inference
instruction as finalized by the district court in Apple II would be most appropriate:
University Medical Center of Southern Nevada has failed to preserve evidence for
Plaintiffs use in this litigation after its duty to preserve arose. Whether this fact is
important to you in reaching a verdict in this case is for you to decide.
This sanction would sufficiently address Plaintiffs perceived interest in the evidence no longer
available to them. Because no relevance for the lost data has been shown and additional
discovery such as further necessary electronic production and fact depositions will provide
sufficient grounds for Plaintiffs to move forward to trial on the merits, this lesser sanction
effectuates the best method to restoring Plaintiffs to a position that they would hold if the data
had been preserved.
This measured response to the realistic loss of data at UMC is directly tied to the
particular claims at issue, more so than the comprehensive factual averments Special Master
recommended for presumption. As Special Master Garries recommendations addressed all
necessary elements to make Plaintiffs claims even though Plaintiffs have not shown that this
information would or even could be shown with the possible data lost, this recommendation is
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wildly off-base.
33
This is startlingly inappropriate especially for the damages valuation Special
Master Garrie proposes: UMCs, hourly-paid employees missed, on average, one meal break for
every shift worked in each pay period during their employment.
34
Where a lesser sanction can
effectuate a result that more directly relates to the circumstances of this discovery situation,
UMC should be allowed to move forward to the merits of this litigation.
b. Attorneys fees and costs
UMC recognizes that Plaintiffs have also been subjected to technical expenses as a result
of its technical problems leading up to the appointment of Special Master Garrie and believes that
some portion of Plaintiffs ESI consultants expenses during the ESI disputes before Judge Leen,
before Mr. Garries appointment, should be reimbursed by UMC.
That being said, it is beyond dispute that Special Master Garrie was hired, at UMCs sole
expense, in order to address these problems with the parties and their ESI consultants. See
Exhibit A. Therefore, UMC has already paid more than its fair share in the Special Master
proceedings, and, as discussed above, did not receive much of what it paid for or what the Court
ordered. Further fees and costs associated with Mr. Garries activities beyond the enormous
amount UMC has already paid should be borne by the parties that incurred them.
UMC also respectfully requests that Mr. Garries recommendation of attorneys fees and
33
See discussion above at Section (B)(2)(a) regarding such comprehensive sanctions establishing
class action elements being unheard of in the Ninth Circuit.
34
It should also be noted that UMC believes that this particular recommendation may be in error
like many of the facts presented earlier. This belief is mainly based on the complete lack of
damage calculation discussion at play in the Special Master proceedings and the grammatical
confusion evidenced in the recommendation itself on average v. every shift.
Moreover, Special Master Garrie provides no cite to the amended complaint (unlike every other
proposed fact or conclusion included in the recommended sanctions package) or to any record
evidence at all for this number. UMC is at a loss to identify the foundation of this extremely
punitive recommendation, having never heard from plaintiffs counsel any assertion that every
single one of their clients missed every single lunch. In a letter dated October 31, 2013,
Plaintiffs counsel assumed three missed lunches per week but provided no evidentiary support
for that assumption. Given the poor showing of support for nearly all of the findings of fact and
conclusions of law in the R & R, the apparent culmination of Mr. Garries venture funded by
UMC, UMC reasonably seeks to learn what basis, if any, underlies this brutal recommendation.
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costs as an additional sanction on top of the others recommended is unsupported.
35
Having failed
to meet his duty to determine the scope of UMCs preservation obligations, from which the
narrower ranges of responsive, relevant, and prejudicial-if-lost might have been determined,
Special Master Garrie cannot legitimately now be heard to recommend additional payments be
made by UMC as sanctions for purported prejudice he could not be bothered to analyze. Any
fees and costs associated with Mr. Garries legally-unsupported conclusions that Plaintiffs were
prejudiced, or that any basis at all for sanctions can be derived from those dubious conclusions,
should not be shouldered by UMC as a matter of basic fairness.
IV.
CONCLUSION
Based on the foregoing, UMC respectfully asks that this Court reject nearly all of the
Report and Recommendation and Final Findings of Fact and Conclusions of Law by Special
Master Daniel B. Garrie, and enter an order on its own de novo review of the actual written
record and related legal standards.
DATED this 2nd day of September, 2014.
By /s/ Margaret G. Foley
Robert W. Freeman, Esq.
Nevada Bar No. 3062
Margaret G. Foley, Esq.
Nevada Bar No. 7703
Cayla Witty, Esq.
Nevada Bar No. 12897
6385 S. Rainbow Boulevard, Suite 600
Las Vegas, Nevada 89118
Attorneys for Defendant
University Medical Center of Southern Nevada
35
As discussed above, if the Court believes some lesser sanction than those recommended is
appropriate, the payment of certain attorneys fees and costs might be appropriate as an
alternative sanction, not an additional one as Special Master Garrie recommends.
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CERTIFICATE OF SERVICE
Pursuant to Fed. R. Civ. P. 5(b), I HEREBY CERTIFY that on the 2nd day of
September, 2014, I served a true and correct copy of the foregoing DEFENDANTS
OBJECTION TO THE REPORT AND RECOMMENDATION AND FINAL FINDINGS
OF FACT AND CONCLUSIONS OF LAW OF SPECIAL MASTER DANIEL B. GARRIE,
DKT. NO. 189, FILED AUGUST 18, 2014 via the Courts CM/ECF electronic filing and
service system to all parties on the current service list:
DAVID C. OMARA, ESQ.
WILLIAM M. OMARA, ESQ.
THE OMARA LAW FIRM. P.C.
311 East Liberty Street
Reno, Nevada 89501
Phone: 775-323-1321
Fax: 775-323-4082
Email: david@omaralaw.net
Email: bill@omaralaw.net
Counsel for Plaintiffs
MARC L. GODINO. ESQ. (pro hac vice)
KEVIN F. RUF, ESQ. (pro hac vice)
KARA M. WOLKE, ESQ. (pro hac vice)
1925 Century Park East, Suite 2100
Los Angeles, California 90067
Phone: 310-201-9105
Fax: 310-201-9160
Email: mgodino@glancylaw.com
Email: kevinuff@glancylaw.com
Email: kwolke@glancylaw.com
JON A. TOSTRUD, ESQ. (pro hac vice)
ANTHONY CARTER, ESQ. (pro hac vice)
TOSTURD LAW GROUP
1925 Century Parkway East, Suite 2125
Los Angeles, California 90067
Phone: 310-278-2600
Fax: 310-278-2640
Email: jtostrud@tostrudlaw.com
Email: acarter@tostrudlaw.com
By__/s/ Cayla Witty_______
An employee of

Attorneys For Defendant University Medical Center of Southern Nevada

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