Jonathan E. Banks v. Enova Financial, et al 10 C 4060 United States District Court, N.D. Illinois Signed July 10, 2012 Counsel Thad Sweeney Mogensen, Mogensen & Associates LLC, Chicago, IL, for Jonathan E. Banks. Jeffrey S. Fowler, Laner Muchin, Ltd., Chicago, IL, for Enova Financial, et al. Nolan, Nan R., United States Magistrate Judge STATEMENT *1 This action arises out of Plaintiff's allegations that during his employment with Defendant Cash America Net Holdings, LLC (“CashNet”), he was discriminated against on the basis of his race, color and religion. In particular, he contends that he was denied promotions, harassed, retaliated against, and discharged because of his race, color and religion. He also alleges that Defendants failed to reasonably accommodate his religious beliefs. On January 20, 2012, Plaintiff filed a Motion to Compel, seeking, inter alia, copies of the two November 6, 2008 telephone conversations that were the basis for Plaintiff's termination.[1] Defendants filed a response on January 26, 2012. Plaintiff filed a reply on February 3, 2012, and an amended reply on February 6, 2012. During subsequent hearings, Defendants informed the Court that the two telephone conversations were unavailable, having been routinely deleted 90 days after they were recorded. Thereafter, the Court ordered the parties to file briefs “limited to the spoliation issue.” Plaintiff filed his memorandum on May 22, 2012,[2] and Defendants filed their response on May 31, 2012. Plaintiff did not file a reply. For the reasons stated below, the Motion is granted in part and denied in part. I. BACKGROUND CashNet provides short-term cash advances via the Internet to customers in the United States, United Kingdom, Australia and Canada. CashNet's collection department fields calls from customers who want to initiate payment arrangements. Collections calls are recorded, maintained for 90 days, and are then deleted. (Brian O'Neill Aff. ¶¶ 3–4.) CashNet also has a “Jabber” system (similar to “Instant Messaging”) whereby supervisors can communicate with one another electronically; however, during the relevant time period, Jabber communications were not saved or stored in any way.[3] (Id. ¶¶ 7–8.) Plaintiff was employed by CashNet in its Collections Department. On November 6, 2008, Defendants assert that a customer called Plaintiff's supervisor, complaining that Plaintiff had twice hung up on her that morning. (Disc. Doc. Banks000068–70 (“IDES Bd. of Review Decision”) at 1.) The supervisor listened to the audio recordings of the telephone calls and discussed the matter with Plaintiff's manager, who also listened to the recordings, as did an individual in CashNet's human resources department. (Id.) Based upon Plaintiff's conduct, and considering his prior disciplinary record, he was discharged on November 13, 2008. The audio recordings from Plaintiff's November 6, 2008 telephone calls were recycled on or about February 6, 2009, pursuant to Defendants' retention policy of deleting audio files after 90 days. (O'Neill Aff. ¶ 5.) Plaintiff denies that he twice hung up on the customer. (IDES Bd. of Review Decision 2.) *2 Shortly after his termination, Plaintiff filed for unemployment benefits, which were granted on December 9, 2008. (IDES Hr'g Tr. 3, Sept. 11, 2009.) The local employment security office determined that he was discharged but not for misconduct connected with his employment. (Id.) CashNet appealed this determination on January 8, 2009. (Id.) After a hearing on February 20, 2009, the decision was reversed, and Plaintiff's unemployment benefits were denied. On appeal, however, the Circuit Court of Lake County, Illinois, remanded the case and ordered “a rehearing de novo before a different referee on all issues including plaintiff's request that the employer produce tape-recordings of the calls which led to termination, consideration of plaintiff's evidence including proper collection tactics and evidence of employer evaluations.” Banks v. Board of Review, No. 09 MR 628 (Lake County Cir. Ct. Aug. 4, 2009). At the subsequent rehearing, CashNet did not produce the telephone tapes. (IDES Bd. of Review Decision 1–2.) Instead, without objection by Plaintiff, CashNet's human resources manager and its section manager both testified that they had previously listened to the tapes and concluded that Plaintiff twice hung up on the customer. (Id. 1.) During Plaintiff's testimony, he denied hanging up on the customer. (Id. 2.) The referee found that Plaintiff was discharged for misconduct connected with his employment and was not qualified for benefits. (IDES Bd. of Review Decision 1.) However, on appeal to the Board of Review, the referee's decision was reversed. (Id. 3.) The Board of Review concluded that because the telephone tapes were never entered into evidence, the testimony of CashNet's human resources manager and its section manager ran “afoul of the best evidence rule.” (Id.) Accordingly, the Board found Plaintiff's testimony “more credible ... in light of evidentiary flaws associated with the testimony of the employer's human resources manager and the employer's section manager which affect its weight.” (Id.) Therefore, the Board concluded that Plaintiff “was discharged for reasons other than misconduct connected with work” and was eligible for unemployment benefits. (Id.) On or about November 22, 2008, Plaintiff filed discrimination charges with the United States Equal Employment Opportunity Commission and the Illinois Department of Human Rights. (Compl.¶ 7.1.) The parties agree that the EEOC sent a copy of the charge to Defendants in December 2008. (Pl.'s Mem. 2; Defs.' Mem. 2.) Nevertheless, CashNet contends that it did not actually receive notice of the EEOC charge until December 23, 2009, more than one year after Plaintiff's discharge and more than ten months after the audio recordings had been deleted pursuant to CashNet's retention policy.[4] (Defs.' Mem. Ex. B (Defendants' Verified Answers to Plaintiff's Interrogatories) at 8; see also Mot. Ex. 4.) II. DISCUSSION Plaintiff requests that the Court sanction Defendants for their spoliation of evidence. “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d 456, 465 (S.D.N.Y. 2010). Motions seeking spoliation sanctions result from an alleged failure to preserve relevant evidence. “A party has a duty to preserve evidence, including any relevant evidence over which the party has control and reasonably knew or could reasonably foresee was material to a potential legal action.” Krumwiede v. Brighton Assocs., L.L.C., 05 C 3003, 2006 WL 1308629, at *8 (N.D. Ill. May 8, 2006). Plaintiff contends that Defendants' failure to preserve the telephone tapes was reckless. (Pl.'s Mem. 5–6.) Moreover, Plaintiff asserts that his ability to prosecute his case has been severely prejudiced by the destruction of the tapes. (Id. 6–7.) As a sanction, Plaintiff requests an adverse inference instruction. (Id. 7.) *3 Defendants do not dispute that the telephone tapes are no longer available. (Defs.' Mem. 1.) Instead, they contend that no sanction is necessary “because the loss was not caused by willfulness, bad faith, or fault, and because Plaintiff had ample opportunity to conduct other discovery concerning that data.” (Id.) A. Sanctions for Spoliation of Evidence The Court's authority to sanction a party for spoliation of evidence is both inherent and statutory. Chambers v. NASCO, Inc., 501 U.S. 32, 50–51 (1991); Barnhill v. United States, 11 F.3d 1360, 1368 (7th Cir. 1993). If spoliation of evidence violates a court order or affects the court's discovery schedule, sanctions may be imposed under Rule 37. See Fed.R.Civ.P. 37(b)(2); Chambers, 501 U.S. at 50–51. The court's inherent authority, on the other hand, is based on the court's power “to control the judicial process and litigation,” Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 517 (D.Md.2010) (citations omitted), a power which is necessary “to fashion an appropriate sanction for conduct which abuses the judicial process,” Chambers, 501 U.S. at 44–45; see Barnhill, 11 F.3d at 1367. This authority “is based on the Court's power to manage and ensure the expeditious resolution of cases on their dockets and is not limited to discovery violations.” Larson v. Bank One Corp., No. 00 C 2100, 2005 WL 4652509, at *8 (N.D. Ill. Aug. 18, 2005). Thus, “[j]udges have inherent authority to impose sanctions for misconduct by litigants, their lawyers, witnesses, and others who participate in a lawsuit over which the judge is presiding.” S.E.C. v. First Choice Mgmt. Servs., Inc., 678 F.3d 538, 543 (7th Cir. 2012). Nevertheless, the Court need not determine whether it is exercising its statutory or inherent authority. “Under either Rule 37 or under the Court's inherent authority, the analysis for imposing sanctions is essentially the same.” Larson, 2005 WL 4652509, at *8. Sanctions are intended to serve one or more of the following purposes: (1) to ameliorate the prejudice caused to an innocent party by a discovery violation; (2) to punish the offending party; and (3) to deter future misconduct. See Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639, 643 (1976) (noting dual purpose of punishment and deterrence); Marrocco v. Gen. Motors Corp., 966 F.2d 220, 224 (7th Cir. 1997) (discussing compensatory purpose of directed verdict as sanction for prejudice resulting from lost documents: “sanctions can be employed for a wide array of purposes, but they cannot replace lost evidence”). To further these policies, the court may impose further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal. Fed. R. Civ. P. 37(b)(2); Pension Comm., 685 F.Supp.2d at 469. “[W]hen weighing sanctions in response to a party's misconduct, the Court has broad discretion to fashion an appropriate sanction.” Larson, 2005 WL 4652509, at *9. The court's discretion is guided by three principal factors: (1) a breach of the duty to preserve evidence; (2) the level of culpability for the breach; and (3) the prejudice that resulted from the breach. Jones v. Bremen High Sch. Dist. 228, No. 08 C 3548, 2010 WL 2106640, at *5 (N.D. Ill. May 25, 2010). B. Duty to Preserve Evidence and Breach of that Duty *4 The duty to preserve evidence arises from many sources, including common law, statutes, regulations, or a court order in the case. Fed.R.Civ.P. 37(f) advisory committee's note; see Pension Comm., 685 F.Supp.2d at 466 (“The common law duty to preserve evidence relevant to litigation is well recognized.”). Thus, a person or entity has an ongoing duty to preserve evidence over which it has control and reasonably knows or can foresee would be material–and thus relevant–to a potential legal action. See Jones, 2010 WL 2106640, at *5. “The scope of the duty to preserve is a broad one, commensurate with the breadth of discovery permissible under Fed. R. Civ. P. 26.” Danis v. USN Commc'ns, Inc., No. 98 C 7482, 2000 WL 1694325, at *32 (N.D. Ill. Oct. 23, 2000). “A party fulfills its duty to preserve evidence if it acts reasonably.” Jones, 2010 WL 2106640, at *6. “More than good intentions [are] required; those intentions [must] be followed up with concrete actions reasonably calculated to ensure that relevant materials [are] preserved.” Danis, 2000 WL 1694325, at *38. Defendants contend that when they deleted the telephone recordings, they were under no duty to preserve evidence. (Defs.' Mem. 6–9.) They argue that the duty to preserve did not arise until December 2009, when they received notice of Plaintiff's EEOC charge, which was fully ten months after the recordings had been routinely deleted pursuant to their retention policy. (Id. 9.) The Court finds otherwise. First, given that the telephone recordings were key to Defendants' decision to terminate Plaintiff, it would have been reasonable to save the recordings for any potential post-employment litigation. See Jones, 2010 WL 2106640, at *6 (“A party fulfills its duty to preserve evidence if it acts reasonably.”). Plaintiff asserts that he asked to hear the audio recordings during his discharge meeting. (Pl.'s Mem. 1.) Defendants contend otherwise. (Defs.' Mem. 6–8.) Nevertheless, even if Plaintiff did not request to hear the recordings after he was terminated, Defendants should have saved the recordings pending possible litigation. See Jones, 2010 WL 2106640, at *5. Second, the protracted dispute over Plaintiff's unemployment claim put Defendants on notice that the recordings could be relevant to possible litigation. The local employment security office determined on December 9, 2008, that Plaintiff was eligible for unemployment compensation, finding that he was not discharged for misconduct. (IDES Hr'g Tr. 3.) CashNet promptly appealed this decision, contending that Plaintiff was discharged because he had been rude to a customer. (Id.) Thus, when CashNet appealed this decision on January 8, 2009 (id.), a month before the recordings were deleted, Defendants knew that they were relevant to potential litigation. Accordingly, it would have been reasonable for Defendants to save the recordings until, at a minimum, the unemployment compensation dispute played itself out. CashNet argues that it had no reason to retain the audio tapes because it “was successful in refuting Plaintiff's claim without the recordings.” (Defs.' Mem. 8.) However, just because Defendants were successful does not mean it was reasonable to delete the recordings. Moreover, around the time that the unemployment compensation dispute was concluding, Defendants acknowledge receiving notice of the EEOC charge. (Defs.' Mem. Ex. B.) Receipt of this charge put Defendants on further notice to preserve the audio tapes. Thus, long before the Complaint was filed in this action and certainly before the telephone recordings were routinely deleted in February 2009, the Court finds that Defendants had a duty to preserve the recordings. And by routinely deleting them, Defendants breached their duty. C. Culpability To determine whether sanctions are appropriate and which level of sanctions should be applied, the Court must determine whether Defendants acted willfully, in bad faith, or if they were merely at fault. Jones, 2010 WL 2106640, at *8. “To find bad faith, a court must determine that the party intended to withhold unfavorable information.” Id.; see Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1155 (7th Cir. 1998) (Bad faith generally means that the destruction occurred “for the purpose of hiding adverse information.”). “Thus, the crucial element is not that evidence was destroyed but rather the reason for the destruction.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008) (citation omitted). *5 On the other hand, “[f]ault does not refer to the noncomplying party's subjective motivation, but rather describes the reasonableness of the conduct. Fault may be evidenced by negligent actions or a flagrant disregard of the duty to preserve potentially relevant evidence.” Krumwiede, 2006 WL 1308629, at *9 (citing Langley v. Union Elec. Co., 107 F.3d 510, 514 (7th Cir. 1997)); see Jones, 2010 WL 2106640, at *8 (“Gross negligence of the duty to preserve material evidence is generally held to be fault.”); Marrocco, 966 F.2d at 224 (“ ‘Fault’ ... describes the reasonableness of the conduct–or lack thereof–which eventually culminated in the violation.”). Plaintiff contends that Defendants' failure to preserve the audio recordings was reckless. (Pl.'s Mem. 5–6.) Plaintiff argues that “CashNet either knew or should have known that the purged audio recordings would be relevant in a potential claim and/or lawsuit.” (Id. 6.) Defendants argue otherwise, contending that there is no evidence that the loss of the telephone recordings was the result of their willfulness, bad faith or fault. (Defs.' Mem. 6–9.) The Court concludes that Plaintiff has not carried his burden to establish that Defendants acted in bad faith. There is no evidence that Defendants deleted the telephone recordings for the purpose of hiding adverse information. And, without evidence that Defendants “intended to withhold unfavorable information,” Jones, 2010 WL 2106640, at *8, the Court cannot conclude that Defendants acted in bad faith. See Mathis, 136 F.3d at 1155; cf. Coates v. Johnson & Johnson, 756 F.2d 524, 551 (7th Cir. 1985) (“[B]ad faith destruction of a document relevant to proof of an issue at trial gives rise to a strong inference that production of the document would have been unfavorable to the party responsible for its destruction.”) (citation omitted). Nevertheless, Defendants are clearly at fault for deleting the recordings when they did. Indeed, the failure to preserve the telephone recordings reflects “extraordinarily poor judgment” and evinces “gross negligence” of Defendants' duties to preserve relevant evidence in the wake of Plaintiff's termination. See Marrocco, 966 F.2d at 224; see also Jones, 2010 WL 2106640, at *8 (finding “no evidence that defendant willfully chose its document retention system as a way to minimize exposure of potentially relevant documents for future lawsuits ... [but] defendant was grossly negligent in its attempts to secure relevant documents”); Larson, 2005 WL 4652509, at *13 (“Bank One's conduct evinces fault, but not willful destruction of documents or bad faith. The destruction or loss of several categories of documents reflects ‘extraordinarily poor judgment’ and the failure to create and disseminate an ample document retention policy evinces ‘gross negligence’ of Bank One's duties to preserve documents in the face of the Larson litigation.”) (citation omitted); Danis, 2000 WL 1694325, at *39–40 (finding no evidence of willful or intentional destruction of documents but failure to implement document preservation program exhibited “extraordinarily poor judgment” and “gross negligence”); Jain v. Memphis Shelby County Airport Auth., No. 08–2119, 2010 WL 711328, at *1, 3–4 (W.D. Tenn. Feb. 25, 2010) (finding that inadvertent failure to preserve video capturing Plaintiff's fall at the airport, “while something less than intentional, Defendants' conduct nevertheless [was more than mere negligence and] warrants sanctions for spoliation”); Brown v. Chertoff, 563 F.Supp.2d 1372, 1381 (S.D. Ga. 2008) (while the Government's failure to preserve Plaintiff's case file did not amount to bad faith, the Government was clearly culpable for violating its own policies and EEOC regulations and for failing to take notice that litigation was likely). D. Prejudice *6 While not an element to imposing sanctions, the Seventh Circuit has implied that prejudice to the nonoffending party should nevertheless be considered by the court. In re Kmart Corp., 371 B.R. 823, 842 (Bankr. N.D. Ill. 2007). “The prejudice suffered from the destruction of documents can take many forms, the most severe of which occurs when the evidence destroyed is the only proof available on an issue or defense in the case.” Danis, 2000 WL 1694325, at *35. “A party suffers [substantive] prejudice due to spoliation of evidence when the lost evidence prevents the aggrieved party from using evidence essential to its underlying claim.” Krumwiede, 2006 WL 1308629, at *10 (citing Langley, 107 F.3d at 515); see Larson, 2005 WL 4652509, at *13 (“To suffer substantive prejudice due to spoliation of evidence, the lost evidence must prevent the aggrieved party the use of an essential or ‘crucial’ piece of evidence to their underlying claim.”) (citation omitted). “While prejudice is not an essential precondition to an award of sanctions, the choice of sanctions is a function of the prejudice suffered.” Am. Family Mut. Ins. Co. v. Roth, No. 05 C 3839, 2009 WL 982788, at *14 (N.D. Ill. Feb. 20, 2009). “In cases where spoliation is the result of ‘fault,’ as opposed to willfulness or bad faith, courts often use prejudice as a ‘balancing tool’ to tip the scales in favor of or away from severe sanctions.” In re Kmart Corp., 371 B.R. at 842; see Larson, 2005 WL 4652509, at *13 (“In several cases involving spoliation of evidence as a result of fault, courts have used prejudice as a ‘balancing tool’ to tip the scales in favor of or away from severe sanctions.”) (citation omitted); Danis, 2000 WL 1694325, at *34 (“[I]n cases where the noncompliance is the result of fault rather than a more culpable mental state, courts often have used prejudice as a balancing tool or fulcrum upon which the scales may tip in favor of default or against it.”). In this case, Plaintiff has not demonstrated substantive prejudice from the destruction of the audio tapes. He will not be deprived from introducing evidence on the issue of the telephone recordings. Indeed, Plaintiff has testified that he did not hang up on the customer. (IDES Bd. of Review Decision 2; IDES Hr'g Tr. 14–15.) He posits that any disconnection of the customer's phone calls was caused by an issue with CashNet's phone system. (IDES Hr'g Tr. 14–15.) Further, Plaintiff could have taken the depositions of all the persons who contemporaneously listened to the audio recordings, but he chose not to do so. Nevertheless, Plaintiff has suffered some prejudice. The audio recordings could have corroborated Plaintiff's testimony that he did not hang up on the customer and any perception otherwise was caused by CashNet's faulty phone system. E. Remedy A court has broad discretion to fashion a sanction appropriate to the unique factual circumstances of each case.Nat'l Hockey League, 427 U.S. at 642–43. Nevertheless, a court considering the imposition of sanctions “must be guided by a certain measure of restraint,” Barnhill, 11 F.3d at 1368, and any sanction leveled must adhere to “the norm of proportionality,” Newman v. Metro. Pier & Exposition Auth., 962 F.2d 589, 591 (7th Cir. 1992). Thus, “a court should always impose the least harsh sanction that can provide an adequate remedy.” Pension Comm., 685 F.Supp.2d at 469. “If the Court finds that sanctions are appropriate, it must determine whether the proposed sanction can ameliorate the prejudice that arose from the breach; if a lesser sanction can accomplish the same goal, the Court must award the lesser sanction.” Jones, 2010 WL 2106640, at *5. “The choices include–from least harsh to most harsh–further discovery, cost-shifting, fines, special jury instructions, preclusion, and the entry of default judgment or dismissal (terminating sanctions). The selection of the appropriate remedy is a delicate matter requiring a great deal of time and attention by a court.” Pension Comm., 685 F.Supp.2d at 469 (citations omitted). *7 Here, Plaintiff asks the Court to sanction Defendants with an adverse inference instruction to the jury. (Pl.'s Mem. 7–9.) However, the Seventh Circuit proscribes an adverse inference instruction unless bad faith or willfulness is found. See Faas, 532 F.3d at 644 (“In order to draw [a mandatory] inference that the Leadership Overviews contained information adverse to Sears, we must find that Sears intentionally destroyed the documents in bad faith.”). And, as discussed above, there is no evidence that Defendants deleted the recordings for the purpose of hiding adverse information. Thus, Plaintiff has not established that Defendants acted willfully or in bad faith, and an adverse instruction is not appropriate. Under these circumstances, the Court will exercise its discretion to fashion a remedy proportional to the unique circumstances of this case. The Court finds it more appropriate to sanction Defendants by a presumption at the summary judgment stage of a factual dispute as to whether Plaintiff hung up on the customer.[5] This presumption is proportional to Defendants' level of fault and can remedy any prejudice suffered by Plaintiff. Moreover, if the case proceeds to trial, the Court finds that a “spoliation charge” to the jury is appropriate. Unlike an adverse inference charge–where the jury is directed to presume that the missing evidence would have been adverse to the spoliating party–a spoliation charge (sometimes known as a “permissible inference instruction”) “permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party.” Pension Comm., 685 F.Supp.2d at 470; see id. at 471. Even if the jury makes this presumption, it must consider the spoliating party's rebuttal evidence before determining whether to draw an adverse inference. Id. at 470. Nevertheless, “[t]his sanction still benefits the innocent party in that it allows the jury to consider both the misconduct of the spoliating party as well as proof of prejudice to the innocent party.” Id. at 470–71. A spoliation charge is proportional to the Defendants' level of fault and is the least harsh sanction to remedy the prejudice suffered by Plaintiff. The spoliation charge has been used by other courts under circumstances similar to this case. For example, in Jain, the defendant inadvertently destroyed a video capturing the plaintiff's slip and fall, despite a clear obligation to preserve the video. 2010 WL 711328, at *1, 3. The court found that while the defendant's conduct was something less than intentional, it still warranted sanctions for spoliation. Id. at *4. Accordingly, the court found that a permissible inference instruction was appropriate. Id. at *5 (“The proposed instruction carefully instructs the jury on the factors they may consider and does not require the jury to draw any inferences at all.”). Similarly, in Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 640 (S.D.Tex.2010), the plaintiff argued that the defendants intentionally deleted adverse emails after the duty to preserve arose. The defendants responded that the emails were destroyed before the duty to preserve arose and, in any event, “would be merely cumulative of evidence already produced.” Id. at 641 (citation omitted). Because of this conflicting evidence, the court concluded that a permissible inference instruction was appropriate. Id. at 620. F. Summary In sum, the Court concludes that Defendants had a duty to preserve the audio recordings and were grossly negligent in failing to do so. The Court also concludes that Defendants' actions prejudiced Plaintiff by depriving him of the opportunity to corroborate his contention that he did not hang up on the customer and any perception otherwise was caused by CashNet's faulty phone system. Accordingly, it is appropriate to sanction Defendants by a presumption at the summary judgment stage of a factual dispute as to whether Plaintiff hung up on the customer. Moreover, if the case proceeds to trial, a spoliation charge against Defendants is warranted.[6] The “precise contours” of the spoliation charge are best left for the District Judge after input from the parties. See Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 523 n.17 (D. Md. 2009); Chan v. Triple 8 Palace, Inc., 2005 WL 1925579, at *10 (S.D.N.Y. Aug. 11, 2005). Footnotes [1] During subsequent hearings, the Court ruled on the other issues in the Motion to Compel. [2] Without seeking leave of Court, Plaintiff filed his memorandum five days late, and included claims unrelated to the spoliation issue. Because these other issues are not properly before the Court, they will not be addressed. [3] Defendants searched for Jabber communications but were unable to locate any from November 2008. (O'Neill Aff. ¶ 9.) In any event, there is no evidence that CashNet supervisors used Jabber to discuss the events leading up to Plaintiff's termination. [4] No explanation has been proffered by Defendants for the delay in receiving notice of the EEOC charge. [5] Defendants have indicated an intention to file a summary judgment motion. [6] For examples of spoliation instructions, see Pension Committee, 685 F.Supp.2d at 496–97; Jain, 2010 WL 711328, at *5; see also Rimkus Consulting, 688 F.Supp.2d at 646–47.