In re: Able Body Temporary Services, Inc. » The Florida E-Discovery Case Law Database » Levin College of Law » University of Florida

In re: Able Body Temporary Services, Inc.

In re: Able Body Temporary Services, Inc.

Case Date: 11/19/2020
Citation: 2020 WL 8611156 (M.D. Fla. Nov. 19, 2020)
Court Type: Bankruptcy
Court: Middle District of Florida (M.D. Fla.)
Judge: Bankruptcy Judge: Caryl E. Delano
Rule(s): Fed. R. Civ. P. 37(e)(2)
Issues:

The electronic discovery issue, in this case, is whether Regions intentionally withheld documents from production, acted in bad faith in failing to produce documents, or destroyed, tampered with, or concealed documents such that the Court could draw an adverse inference that the allegedly withheld documents would have been unfavorable to Regions in this proceeding.

THESE JOINTLY ADMINISTERED ADVERSARY PROCEEDINGS came before the Court on Plaintiff Trustee Herendeen’s Motion for Adverse Inference or, Alternatively, to Preclude Regions from Offering Evidence in Support of Certain Defenses and Affirmative Defenses (the “Adverse Inference Motion”), the opposition filed by Defendant Regions Bank (“Regions”), and Plaintiff’s reply.

Plaintiff requested that the Court draw an adverse inference that documents allegedly withheld by Regions (the Documents) would have been unfavorable to Regions in these proceedings. Alternatively, Plaintiff requested that the Court prohibit Regions from introducing evidence predicated on the Missing Documents to establish certain of its defenses and affirmative defenses. Plaintiff contended that because of Regions’ obstruction, discovery abuses, and failure to produce the Missing Documents, they are unavailable to her to rebut Regions’ defenses to her claims for the avoidance of fraudulent transfers and for damages for aiding and abetting and unjust enrichment.

Specifically, Plaintiff asserts that the Missing Documents would have shown that:

  • 1. “Regions had knowledge of the kite prior to June 28, 2010, and in the 5 month period of time during which the Bank Statement Backup was not produced (from December 2009 through mid-May 2010);”
  • 2. “Regions’ actions violated its uncollected funds policy and the policies and procedures of the BSA/AML Monitoring and Reporting Operations Department;” and
  • 3. “Regions did not have a security interest emanating from grants of provisional credit in the 5 month period of time during which the Bank Statement Backup was not produced (from December 2009 through mid-May 2010).”

In its opposition to the Adverse Inference Motion, Regions contended that:

  • 1. The Missing Documents either do not exist or that Regions produced all of the documents that could be located;
  • 2. That Plaintiff did not show that the Missing Documents are crucial;
  • 3. That Plaintiff has not shown that Regions tampered with or concealed any of the Missing Documents in bad faith;
  • 4. That the alleged Missing Documents do not support the requested sanction; and
  • 5. That Plaintiff seeks an adverse inference with respect to claims that she cannot pursue under the Eleventh Circuit’s decision in Isaiah v. JPMorgan Chase Bank,  and the request must therefore be denied as moot.
Resolution:
On the record presented by Plaintiff in support of the Adverse Inference Motion, the Court could not find that Regions intentionally withheld documents from production, acted in bad faith in failing to produce documents, or destroyed, tampered with, or concealed documents.
In addition, with respect to certain of the documents such as the DepositChek Advance Notification of Return Report and Searchspace alerts, the Court could not find that any such documents even existed.
Further, as the Court’s rulings on the parties’ pending motions for partial summary judgment demonstrated, the Court concurred with Regions that the alleged “Missing Documents” did not have an impact on Plaintiff’s prima facia case on her fraudulent transfers claims, her aiding and abetting claims, or her unjust enrichment claims. Finally, as the Court held in its earlier order denying the Terminal Sanctions Motion, the Court may consider a less drastic sanction for the alleged abuses, and it is appropriate to reserve jurisdiction on this issue.
The Court ordered that the Adverse Inference Motion be denied, however, the Court reserved jurisdiction to address the issues of monetary sanctions for Regions’ alleged discovery abuses.
Relevant Documents:

Order

Opposition

Reply

E-Discovery Issues: Adverse Inference, Motion for Sanctions
E-discovery Tags: Sanctions
E-discovery subjects: Electronically stored information

Published: July 13th, 2021

Category: Uncategorized


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