Centennial v. ServisFirst Bank

The plaintiff filed a motion to show cause order to determine why a defendant, a former employee now working for a competitor, should not be held in contempt for alleged failure to comply with an ESI Protocol Order.

In the second motion, the plaintiff moved for sanctions against the three defendants, two former employees and their current employer, asserting that the defendants engaged in a pattern of spoliation, willful disobedience of Court orders, and contumacious abuse of the judicial process that warranting entry of a default judgment against and the imposition of an award of attorneys’ fees and costs.

In response to the plaintiff’s first motion, the Court found that, because civil contempt “is a severe remedy,” and the burden on a litigant requesting such relief is, therefore “a high one, ” the party seeking civil contempt for noncompliance with a court order must demonstrate by clear and convincing evidence that: (1) the allegedly violated order was valid and lawful; (2) the order was clear and unambiguous, and <(3) the alleged violator had the ability to comply with the order.”

The court noted that although "the Court has substantial discretion in deciding whether and how to impose sanctions under Rule 37, the discretion, however, is not unbridled, as the magnitude of the sanctions must always be 'reasonable in light of the circumstances.'

On the first motion, the court held that the plaintiff's Centennial's request to initiate contempt proceedings was without merit "as even a casual observer to these proceedings is aware, this action has been rife with disagreements as to the relevance, preservation, and production of ESI, as well as accusations of intentional obfuscation and/or destruction of evidence . . . [and] [t]he instant dispute again seems to stem from the parties’ inability to see the forest for the trees and to come together in a rational, pragmatic approach to address the merits of their ongoing feud."

The court then found that the pattern of exchanges between the parties, which were solely by email, was not in compliance with "either the letter or the spirit of Local Rule 3.01(g), particularly given the complexity of the issues involved . . . [as] “3.01(g) requires a substantive conversation in a good-faith effort to resolve the motion without court action.”

Thus, for those reasons, the court denied the motion.

As to the plaintiff’s second motion, the court applied Rule 37(e), Fed. R. Crim. Pro., stating that four threshold elements must be present for 37(e) to apply: (1) there was a duty to preserve ; (2) relevant ESI was lost or destroyed; (3) the ESI was lost as a result of the party’s failure to take reasonable steps to preserve it; and (4) the lost ESI cannot be restored or recovered through additional discovery.

Additionally, “[e]ven if these elements are satisfied, a court may only award sanctions under subsection (e)(1) if it finds “prejudice” to another party, or under subsection (e)(2) if it finds that the party acted with the “intent to deprive” the opposing party of the use of the lost information in the litigation.

In response to the plaintiff’s second motion, the court held that the threshold requirements to trigger a finding of spoliation have not been met” because the plaintiff’s allegations are not sufficiently specific, and the time frame Centennial propose[d] is too indefinite.”

Additionally, the court was not persuaded based on the record before it that relevant information was actually lost, destroyed, or unrecoverable, as Rule 37(e) mandates before a finding of spoliation can be made.

Hence, the second motion was denied.

DOC. 697 – MOTION FOR ORDER TO SHOW CAUSE WHY DAVEY SHOULD NOT BE FOUND IN CONTEMPT OF COURT FOR FAILURE TO COMPLY WITH THE COURT’S ESI ORDERS (05.01.20)

DOC. 704 – GWYNN DAVEY’S OPPOSITIONTO CENTENNIAL BANK’S MOTION FOR ORDER TO SHOW CAUSE WHY DAVEY SHOULD NOT BE FOUND IN CONTEMPT OF COURT FOR FAILURETO COMPLY WITH COURT’S ESI (05.15.20)

DOC. 711 – CENTENNIAL’S MOTION FOR SANCTIONS AGAINST SERVISFIRST, DAVEY, AND MURRIN (05.29.20)

DOC. 728 – DEFENDANT SERVISFIRST BANK’S OPPOSITION TO CENTENNIAL’S MOTION FOR SANCTIONS (06.30 .20)

DOC. 751 – Order on Motion for Miscellaneous Relief (02.20.21)