Bursztein v. Best Buy Stores, L.P.

Background

Perla Bursztein alleged that she tripped over a raised piece of metal on an escalator landing at a Best Buy store on November 10, 2017, injuring her shoulder and requiring surgery. She sought sanctions under Federal Rule of Civil Procedure 37, arguing that Best Buy failed to comply with discovery obligations and failed to preserve evidence.

The disputed evidence included surveillance footage, store safety-training materials, Facilities Request System entries, and an escalator inspection report. Bursztein said Best Buy did not timely respond to her discovery requests, provided largely boilerplate objections, produced few documents, and presented a corporate witness who was not prepared to testify about several noticed topics. The witness, Spencer Stanfield, testified that he had viewed and preserved surveillance footage showing Bursztein’s fall. Best Buy later represented that it did not possess the footage, and Stanfield submitted an affidavit attempting to clarify or recant his testimony.

Best Buy argued that Bursztein could not seek sanctions because she had not first filed a motion to compel. It also argued that Bursztein had engaged in misconduct by failing to provide certain documents and videos. The court rejected both arguments. It held that violating the Rule 26(f) discovery order could independently support sanctions and that Best Buy had not shown the bad faith required to bar Bursztein’s motion under the unclean-hands doctrine.

Findings About Lost Electronically Stored Information

The court treated the surveillance footage, Facilities Request System entries, and at least some training materials as electronically stored information. It found that Best Buy had received Bursztein’s preservation letter and therefore had a duty to preserve relevant information. Based largely on Stanfield’s deposition testimony and Best Buy’s broader discovery conduct, the court found that the information likely existed and should have been preserved. The court also found that the information apparently could not be obtained through additional discovery.

The court found that the missing information prejudiced Bursztein. The surveillance footage and Facilities Request System entries could have helped establish how long the alleged defect existed and whether Best Buy had actual or constructive notice of it. The training materials could have shown what employees were expected to do about hazardous conditions.

The court distinguished between sanctions based on prejudice and harsher sanctions based on an intent to deprive a party of information. It found that Bursztein had not presented clear and convincing evidence that Best Buy intentionally destroyed the information. Although Best Buy had not offered a credible explanation for the loss, the court said the evidence did not establish whether the loss resulted from intentional conduct or incompetence. It therefore found Rule 37(e)(2) sanctions inappropriate at that time.

Ruling

The court held that lesser sanctions under Rule 37(e)(1) were appropriate because Bursztein was prejudiced by the loss of the information. It permitted Bursztein to present evidence at trial about the spoliation—the failure to preserve relevant evidence—and about whether the information existed. It also permitted evidence concerning Stanfield’s original deposition testimony about the surveillance footage.

The court declined at that time to prevent Best Buy from introducing any evidence. It nevertheless ordered Best Buy to pay Bursztein’s reasonable fees and costs incurred in briefing the sanctions motion because Best Buy’s discovery conduct caused Bursztein to spend time and resources pursuing the missing information. The court directed Bursztein’s counsel to submit verified time records by May 31, 2021, after which it would decide whether the requested fees were reasonable.

The conclusion states that Bursztein’s motion for sanctions was granted in part and denied in part. Judge Katharine H. Parker signed the opinion and order.