Nancy Nida v. Allcom, et al. Case No. 8:17-cv-02162-JLS (JDEx) United States District Court, C.D. California Filed March 11, 2020 Counsel Brodie Hugh Smith, Anthony L. Lanza, Lanza and Smith PLC, Irvine, CA, for Nancy Nida. Lawrence J. Dreyfuss, The Dreyfuss Firm PLC, Irvine, CA, for Allcom, et al. Early, John D., United States Magistrate Judge Proceedings: (In Chambers) Order Denying Plaintiff's Motion for Discovery Sanctions (Dkt. 130) I. INTRODUCTION *1 On December 18, 2019, Plaintiff Nancy Nida (“Plaintiff”) filed a Motion for Sanctions against Cery Perle (“Perle”) for Spoliation of Evidence pursuant to the Court's inherent powers and pursuant to Federal Rules of Civil Procedure Rules 45 (“Rule 45”) and 37 (“Rule 37”). Dkt. 130 (“Motion”). Plaintiff seeks $378,703 in sanctions, along with costs and attorney's fees incurred in bringing this Motion. Id. at 1, 13. On February 3, 2020, the Honorable Josephine L. Staton, United States District Court Judge, issued an order referring the Motion, described as a “Motion for Discovery Sanctions,” to this Court. Dkt. 133. Thereafter, this Court reset the Motion's hearing date to March 12, 2020. Dkt. 134. In addition, the Court directed that by February 10, 2020, Plaintiff shall show cause in writing why the Motion, which seeks sanctions under Fed. R. Civ. P. 37 and is characterized as a discovery motion by Judge Staton, should not be denied without prejudice for failure to comply with Local Rule 37.... Plaintiff may comply with this Order by withdrawing the Motion by February 10, 2020. Such withdrawal would be without prejudice to Plaintiff proceeding with a renewed motion under Local Rule 37 supported by a joint stipulation, or a renewed motion under Local Rule 6-1, 7-9, and 7-10 if supported by an appropriate declaration under Local Rule 37-2.4. No other submissions shall be permitted without prior authorization from the Court. Dkt. 134. Plaintiff did not file a response by February 10, 2020 and neither explained in writing why the Motion should not be denied without prejudice for noncompliance with Local Rule 37 nor withdrew the Motion by, or after, the specified deadline. Perle filed his Opposition to the Motion on February 11, 2020. Dkt. 135 (“Opp.”). Plaintiff filed her Reply in support of the Motion on February 27, 2020. Dkt. 136 (“Reply”). The Court finds the Motion appropriate for decision without oral argument and vacates the March 12, 2020 hearing. See Local Rule 7-15. For the reasons set forth below, the Court denies the Motion. II. FACTUAL BACKGROUND On December 12, 2017, Plaintiff filed the original complaint in this action against two individuals and three entities for breach of contract, fraud, fraudulent conveyance, RICO violations, breach of fiduciary duty, and common counts. See Dkt. 1. On February 14, 2018, Plaintiff filed the operative First Amended Complaint adding an additional claim for breach of fiduciary duty and adding Perle and Spare Backup, Inc. (“SPBU”) as defendants. See Dkt. 30. Plaintiff filed a proof of service reflecting that Perle was served with process on March 13, 2018. Dkt. 52. On April 20, 2018, Plaintiff applied for entry of default against SPBU, with the application renewed and default entered on May 31, 2018. Dkt. 69, 77, 78. In May 2018, Perle's counsel sent to Plaintiff's counsel documents relating to Plaintiff, defendant Bruce Boyd, and SPBU that Plaintiff had located. See Motion at 5; Opp. at 3; Dkt. 135-2 at 5-45 (CM/ECF pagination). About one month later, Plaintiff and Perle entered into a settlement agreement and release, effective on June 1, 2018, in which Perle agreed to be deposed and to provide a signed declaration under penalty of perjury. See Dkt. 130-1 at 109-12 (CM/ECF pagination), 135-2 at 52-56 (CM/ECF pagination). Plaintiff voluntarily dismissed Perle as a defendant with prejudice on June 6, 2018. See Motion at 3; Dkt. 80. *2 On May 8, 2019, about 11 months after the settlement and after entry of default against SPBU, and after Judge Staton had administratively closed the case (see Dkt. 128), Plaintiff served a subpoena on Perle to testify at a deposition and to produce 27 categories of documents. Motion at 1, 3; Dkt. 130-1 at 15-19 (CM/ECF pagination). According to Plaintiff, the “primary purpose” of deposing Perle was to “determine how and where, after dissolution, the assets of SPBU,” against which Plaintiff had obtained a default judgment, “were distributed.” Motion at 4. Plaintiff suggests that Perle would have such information because Perle was SPBU's “CEO, President, Director, and primary owner.” Motion at 1. On June 25, 2019, more than a year after the settlement and after Judge Staton had closed the case, Plaintiff's counsel deposed Perle. See Motion at 3. In response to the subpoena's request for documents, Perle provided Plaintiff the same documents he had given in May 2018 before the settlement. See Motion at 5; Reply at 4. At Perle's deposition, Plaintiff's counsel questioned Perle about documents that were requested in the subpoena as follows: Q (Plaintiff's Counsel): Okay. Under the heading “Documents Requested,” did you make an effort to search for each and every one of these 27 categories of documents? A (Perle): Yes. Q: And are the documents that you produced through counsel all that you were able to find in response to the subpoena? A: Yes. Q: How long did you spend looking for the—these 27 categories of documents? A: I don't recall. Q: Do you have a—do you maintain a file with respect to SPBU? A: No. Q: Do you maintain a file with respect to [Plaintiff]? A: No. Q: Where did you find the documents that you did find and produce? A: I don't recall; that was last year. Last year? Yeah. Q: You don't recall where you found the documents that you produced? A: That's correct. Q: Did you search on your computer for those records? A: I searched in my own personal boxes. Q: And are those boxes located at your residence? A: Yes. Well, not anymore. Q: Your prior residence? A: Yes Q: Where was that residence? A: In Miami. Q: And do you still have the boxes from which you retrieved the records that you did produce? A: No. Q: What happened to those boxes? A: Trashed. Q: When were they trashed? A: Last year. Q: At the time you moved? A: Yeah. No, not at the time I moved. Just cleaning the house. Just cleaning. Q: How many boxes were destroyed at the time? A: I don't recall. Q: As part of the process of looking for the documents in these 27 categories, did you call anyone, other than your counsel, to look for these records? A: No. Q: Did you call any accountants? A: No. Q: Did you call any former business associates? A: No. Q: Any former officers or directors of the company? A: No. Q: Any auditors? A: No. Dkt. 130-1 at 142 (CM/ECF pagination). Plaintiff filed the Motion roughly six months after Perle's deposition, based largely on Perle's deposition testimony. III. LEGAL STANDARD A. Local Rule 37 Local Rules 37-1 through 37-4 set forth the preferred procedures for the filing of a discovery motion in this Court. Under Local Rule 37-1: Before filing any motion relating to discovery under F.Rs.Civ.P. 26-37, counsel for the parties must confer in a good-faith effort to eliminate the necessity for hearing the motion or to eliminate as many of the disputes as possible. It is the responsibility of counsel for the moving party to arrange for this conference. If both counsel are located in the same county, the conference must take place in person at the office of the moving party's counsel unless the parties agree to meet someplace else. If both counsel are not located in the same county, the conference may take place telephonically. Unless relieved by written order of the Court upon good cause shown, counsel for the opposing party must confer with counsel for the moving party within ten days after the moving party serves a letter requesting such conference. The moving party's letter must identify each issue and/or discovery request in dispute, state briefly as to each such issue/request the moving party's position (and provide any legal authority the moving party believes is dispositive of the dispute as to that issue/request), and specify the terms of the discovery order to be sought. *3 Local Rule (“L.R.”) 37-1. “If counsel are unable to settle their differences, they must formulate a written stipulation unless otherwise ordered by the Court. The stipulation must be filed and served with the notice of motion.” L.R. 37-2. “The stipulation must contain all issues in dispute and, as to each such issue, the contentions and points and authorities of each party.” L.R. 37-2.1. Local Rule 45-1, entitled “Motions Relating to Discovery Subpoenas,” provides: “Except with respect to motions transferred to this district pursuant to [Rule] 45(f), L.R. 37 applies to all motions relating to discovery subpoenas served on (a) parties and (b) non-parties represented by counsel.” If a discovery motion is not accompanied by a L.R. 37-2 joint stipulation, counsel for the moving party must submit a declaration “establishing that the opposing counsel (a) failed to confer in a timely manner in accordance with L.R. 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in accordance with L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added.” L.R. 37-2.4. “The Court will not consider any discovery motion in the absence of a joint stipulation or declaration from counsel for the moving party establishing” the foregoing. L.R. 37-2.4 (emphasis added). Courts may deny discovery motions for failure to comply with the Local Rules' requirements for such motions. See L.R. 37-2.4; see also Pina v. Lewis, 717 F. App'x 739, 740 (9th Cir. 2018) (holding district court may properly deny “a motion to compel for failing to comply with local rules”); Tri-Valley CARES v. U.S. Dep't of Energy, 671 F.3d 1113, 1131 (9th Cir. 2012) (“Denial of a motion as the result of a failure to comply with local rules is well within a district court's discretion.”); Lumber Liquidators, Inc. v. Sullivan, 2012 WL 4464867, at *4 (C.D. Cal. Aug. 31, 2012) (denying discovery motion for failure to comply with L.R. 37-2); So v. Land Base, LLC, 2009 WL 2407954, at *2 (C.D. Cal. Aug. 4, 2009) (same). B. Sanctions for Spoliation of Evidence 1. The Standard for Spoliation “Spoliation is ‘the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence[,] in pending or reasonably foreseeable litigation.’ ” Jerry Beeman & Pharmacy Servs., Inc. v. Caremark Inc., 322 F. Supp. 3d 1027, 1034 (C.D. Cal. 2018) (quoting Reinsdorf v. Skechers U.S.A. Inc., 296 F.R.D. 604, 625-26 (C.D. Cal. 2013)). Generally, a party seeking sanctions for spoliation 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 [.]” Galicia, 2018 WL 6314191, at *4 (quoting Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011)); see Rockman Co. (USA) v. Nong Shim Co. 229 F. Supp. 3d 1109, 1121 (N.D. Cal. 2017) (same). Courts in the Ninth Circuit “generally agree” that “as soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 991 (N.D. Cal. 2012) (quoting In re Napster, Inc., 462 F. Supp. 2d at 1067); see also CTC Glob. Corp. v. Huang, 2019 WL 6357271, at *2 (C.D. Cal. July 3, 2019) (quoting In re Napster, Inc., 462 F. Supp. 2d at 1067, for same proposition). A claim of spoliation must rest on more than speculation. See Reinsdorf, 296 F.R.D. at 631 (“Mere speculation that other deleted documents may exist that might be helpful to a party's case is ... an insufficient basis for a finding of spoliation.”); see also Galicia, 2018 WL 6314191, at *4 (“The case law on [spoliation] is clear that the burden for showing [spoliation] occurred requires more than a mere suggestion or implication.”); Best Lockers, LLC v. Am. Locker Grp., Inc., 2013 WL 12131586, at *6 (C.D. Cal. Mar. 27, 2013) (denying spoliation sanctions because the moving party's request is “based upon speculative, unfounded assertions rather than specific evidence”). *4 “There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who ‘fails to obey an order to provide or permit discovery.’ ” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting Fed. R. Civ. P. 37(b)(2)(A)). A court may sanction spoliation of evidence by imposing monetary sanctions. See In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1078 (N.D. Cal. 2006); see also Galicia v. Nat'l R.R. Passenger Corp., 2018 WL 6314191, at *2 (C.D. Cal. July 20, 2018). 2. Rule 37 Spoliation Sanctions Are Not Available Against Nonparties A court may not impose Rule 37(b) sanctions against a nonparty for asserted noncompliance with a deposition subpoena issued under Rule 45.[1] See Sali v. Corona Reg'l Med. Ctr., 884 F.3d 1218, 1224 (9th Cir. 2018) (other than contempt, “[n]one of the other sanctions available under Rule 37 are available against the nonparty” who fails to comply with a Rule 45 subpoena); see also Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, 494 n.4 (9th Cir. 1983) (noting that Rule 37 does not authorize an award of expenses for a motion to compel nonparties to produce documents); Genx Processors Mauritius Ltd. v. Jackson, 2018 WL 5777485, at *9 (D. Nev. Nov. 2, 2018) (“The court may not use the enforcement remedies contemplated in Rule 37 for ... nonparties' failure to comply with a subpoena” (citing Pennwalt Corp., 708 F.2d at 494)); Jerry Beeman & Pharmacy Servs., Inc., 322 F. Supp. 3d at 1034 n.4 (explaining sanctions under Rule 37(b)(2) were not warranted as the moving party did not show “a particular discovery order that ha[d] been violated,” but approving inherent authority sanctions). 3. Rule 45 and Inherent Authority Sanctions Unlike Rule 37, which does not apply to spoliation sanctions against nonparties as explained above, a court may impose sanctions against a nonparty for failure to comply with a subpoena for document production pursuant to Rule 45. See Fed. R. Civ. P. 45(g); Pennwalt Corp., 708 F.2d at 494; McAllister v. St. Louis Rams, LLC, 2018 WL 6164281, at *2 n.4 (C.D. Cal. July 2, 2018) (“Rule 45 is only authority in the Federal Rules of Civil Procedure for the imposition of sanctions against a nonparty for failure to comply with a subpoena duces tecum” (citing Pennwalt Corp., 708 F.2d at 494)). Under Rule 45, a court may exercise its contempt powers when a person who has been served with a subpoena “fails without adequate excuse to obey the subpoena or an order related to it.” Fed. R. Civ. P. 45(g). Contempt sanctions are among a court's inherent powers. See Shillitani v. United States, 384 U.S. 364, 370 (1966); Ochoa v. Lopez, 2016 WL 9712071, at *1 (C.D. Cal. June 20, 2016) (“A court has inherent power to enforce its orders by holding those who violate those orders in civil contempt and issuing corresponding sanctions.” (citing Shillitani, 384 U.S. at 370)). Instead of providing a separate basis for imposing spoliation sanctions, Rule 45 thus allows a court to use its inherent powers to impose contempt sanctions on a party, or nonparty, for defying a subpoena by improperly destroying evidence. IV. DISCUSSION *5 The Motion fails because Plaintiff failed to comply with Local Rule 37, and the sanctions Plaintiff seeks are not warranted under the applicable authorities. A. Plaintiff Failed to Comply with Local Rule 37 The Motion is a discovery motion, as it seeks relief under Rule 37 and 45. See L.R. 37-1; 45-1. As such, the Motion must either be supported by a Local Rule 37-2 joint stipulation or a declaration from Plaintiff's counsel “establishing that the opposing counsel (a) failed to confer in a timely manner in accordance with L.R. 37-1; (b) failed to provide the opposing party's portion of the joint stipulation in accordance with L.R. 37-2.2; or (c) refused to sign and return the joint stipulation after the opposing party's portion was added.” L.R. 37-2.4 (emphasis added). As noted, “[t]he Court will not consider any discovery motion in the absence of a joint stipulation or declaration from counsel for the moving party establishing” the foregoing. L.R. 37-2.4 (emphasis added). Here, the Motion is not supported by joint stipulation or a declaration by Plaintiff's counsel attesting to one of the three failures by counsel set forth in L.R. 37-2.4. As a result, under the Local Rules, the Court “will not consider” the Motion. Id.; see also Pina, 717 F. App'x at 740; Tri-Valley CARES, 671 F.3d at 1131. Further, the Court will not overlook Plaintiff's failure to comply with the Local Rules here. First, as set forth further below, the Motion is substantively without merit, relation to actions taken six to eighteen months before the filing of the Motion. A proper meet and confer, started with a letter from Plaintiff's counsel setting forth her position, with legal authority (L.R.37-1), followed by an in-person meeting with Perle's counsel (id.), whose office address appears to be just a few blocks from the offices of Plaintiff's counsel, in which the parties engaged in a “good faith effort to eliminate the necessity for the motion or to eliminate as many of the disputes as possible” may very well have resulted in Plaintiff's counsel recognizing the defects in the Motion. Further, when the Court alerted Plaintiff to the failure to comply with Local Rule 37 on February 5, 2020 and ordered Plaintiff to show cause in writing why the Motion should not be denied on that basis by February 10, 2020, Plaintiff ignored the Court's order and did not file any response, much less show cause by February 10. Plaintiff further flouted the order by failing to address the issue or acknowledge the order in her Reply filed February 27, 2020. Had Plaintiff heeded the February 5, 2020 order, she could have completed a proper Local Rule 37 meet and confer and joint stipulation process in time to file a proper motion for hearing on March 12, 2020 were those meet and confer efforts unsuccessful. Instead, Plaintiff chose to ignore the Court's order and the dictates of Local Rule 37. The Motion is properly denied for failure to comply with Local Rule 37. B. The Sanctions Sought by Plaintiff Are Not Warranted In addition to violating the Local Rules, the Motion fails substantively as well. The sanctions requested by Plaintiff are unavailable under Rule 37 against Perle in this case. Further, as Plaintiff has not met her burden to show by admissible evidence, as opposed to speculation, that Perle committed an act of spoliation, sanctions are unwarranted under Rule 45 and the Court's inherent power. 1. The Requested Sanctions Are Not Available Under Rule 37 *6 Plaintiff argues in part that the Court should impose spoliation sanctions pursuant Rule 37. But contrary to Plaintiff's contention, Rule 37 does not offer a basis for imposing such sanctions in this case. First, as noted above: (i) Rule 37(a) does not provide sanctions for spoliation, as opposed to an award of reasonable attorney's fees and expenses incurred in a discovery motion to a prevailing party; and (ii) Rule 37(e) applies only to a failure to preserve ESI, which is not at issue here. Second, to impose sanctions pursuant to Rule 37(b), the only other potentially applicable provision in Rule 37, a party must have violated a discovery order. See Fed. R. Civ. P. 37(b). Here, the alleged act of spoliation—the “trashing” of boxes—took place a year before the subpoena to Perle was issued. Thus, there was no subpoena or order that even arguably could have been violated by the “trashing” of the boxes. Further, although he had been a defendant, as he was dismissed “with prejudice” more than a year before his deposition, Perle was not a party at the time of the deposition. Nor has Plaintiff proven Perle was a party at the time he “trashed” the boxes. In fact, the timeline makes it unlikely, as Perle was served in March 2018, provided the documents at issue to Plaintiff in May 2018, and was dismissed on June 6, 2018. Lastly, although not a basis for denying the Motion, the Court notes that the “deposition” of Perle, taken in June 2019 after the case was administrative closed by Judge Staton (see Dkt. 128), appears to have been taken in violation of Judge Staton's operative Scheduling Order, by which all fact discovery was to be concluded by October 19, 2018 and all expert discovery was to be concluded by December 29, 2018. See Dkt. 105, 112 (orders denying requests to extend pretrial dates). Plaintiff did not obtain a writ of execution under Fed. R. Civ. P. 69 and the deposition does not appear to have been conducted as a post-judgment debtor or third-party examination. As Perle is currently not a party and was not a party at the time of the deposition, and as Plaintiff has not offered evidence that any “spoliation” took place when Perle was a party to this action, sanctions for spoliation are not available under Rule 37 against Perle. See Sali, 884 F.3d at 1224. 2. Sanctions Are Not Warranted Under Rule 45 or the Court's Inherent Power Assuming that spoliation sanctions could be imposed against a non-party who had not violated a prior court order (cf. Poturich v. Allstate Ins. Co., 2015 WL 12766048, at *2 (C.D. Cal. Aug. 11, 2015) (stating that it would be premature to find a nonparty in contempt under Rule 45(g) where there was no prior court order compelling discovery in place)), Plaintiff has not met her burden of demonstrating that Perle destroyed any evidence. As a result, sanctions under Rule 45 or the Court's inherent authority is unavailable. See Lund v. 3M Co., 2016 WL 6208399, at *2-3 (C.D. Cal. Oct. 24, 2016); see also Rockman Co. (USA), 229 F. Supp. 3d at 1121-22. Although Plaintiff bases the Motion on “destroyed records” of SPBU that Perle “admitted” during his deposition, the evidence offered by Plaintiff proves no such thing. At his June 2019 deposition, Perle testified that in 2018, he located documents related to the lawsuit in his “personal boxes” stored at his home and provided those documents to his counsel, who provided them to counsel for Plaintiff. Those documents located in 2018 constituted all the documents he could find that were responsive to the subpoena. In 2018, some unspecified time after he removed the documents from the boxes, Perle “trashed” those “personal boxes” as part of a house cleaning. There is no evidence of what was in the boxes at the time they were “trashed.” Plaintiff's counsel apparently did not ask Perle at his deposition what else was in those “personal boxes” at the time they were trashed. There is no evidence that any documents relevant to the litigation were in the personal boxes at the time they were trashed as part of a housecleaning. *7 Although counsel did not ask Perle at his deposition what was in those personal boxes at the time they were trashed, Plaintiff asks the Court to speculate that there were unproduced, relevant documents in those boxes at the time they were trashed. However, “[m]ere speculation that other deleted documents may exist that might be helpful to a party's case is ... an insufficient basis for a finding of spoliation.” Reinsdorf, 296 F.R.D. at 631; see also Galicia, 2018 WL 6314191, at *4 (“The case law on [spoliation] is clear that the burden for showing [spoliation] occurred requires more than a mere suggestion or implication.”); Best Lockers, LLC, 2013 WL 12131586, at *6 (denying spoliation sanctions because the moving party's request is “based upon speculative, unfounded assertions rather than specific evidence”). Thus, Plaintiff has not shown that relevant evidence was destroyed, or even likely destroyed, a necessary requirement for a claim of spoliation.[2] Further, in addition to there being no evidence of actual destruction of relevant evidence, Plaintiff has offered no evidence, as opposed to argument, that Perle acted with a sufficiently “culpable state of mind” for sanctions in the non-ESI context. As noted, Plaintiff relies primarily on Perle's deposition testimony. After Perle testified that he “trashed” his “personal boxes” as part of a housecleaning, Plaintiff apparently asked no further questions on the topic, not asking, for instance, whether Plaintiff inspected his personal boxes to determine their contents before “trashing” them. Thus, in addition to there being no evidence that Perle destroyed relevant evidence, there is also no evidence that in “trashing” his personal boxes, whose contents are unknown to the Court, Perle acted intentionally, recklessly, or even negligently. Had Plaintiff inquired further, or were there other evidence of Perle's intent at the time, perhaps a showing of negligence or worse could have been made. But on this record, Plaintiff has not shown a sufficiently culpable state of mind to support the spoliation sanctions she seeks. Lastly, Plaintiff again offers only speculation to tie the speculative missing records with a “loss” of nearly $400,000. Plaintiff speculates that the personal boxes Perle destroyed “likely” stored “almost the entirety of SPBU's corporate records, from inception to dissolution[,]” that “likely ... demonstrate[ ] fraudulent conveyance liability for the missing assets of SPBU.” Motion at 3, 9. Indeed, Plaintiff's insistence that the boxes “could have included” a laundry list of corporate records—“balance sheets, income statements, tax returns, payroll records, corporate formation binders, investor relations, stock ledgers, bank records, check registers, accounts payable, accounts receivable, vendor files, and much more”—underscores the lack of specific evidence on what relevant documents, if any, were in the boxes Perle discarded. Motion at 9. On top of this speculation, Plaintiff adds another level of speculation, that is, that armed with these unknown records, she would have been able to recover computer equipment allegedly worth, in 2012, $378,703, owned at one time by SPBU. Perle disputes the valuation. But even if SPBU owned equipment worth $378,703 in 2012, Plaintiff concedes she does not know how, or presumably when, the computer equipment at issue was disposed of by SPBU. See Motion at 8. Despite conceding she does not know how the equipment was disposed of, Plaintiff simply asserts that Perle “should therefore be responsible for the damages resulting from his illegal actions.” Id. However, Plaintiff offers no evidence how, at the time of Plaintiff's deposition in June 2019, or even as of May 2018 when Perle's counsel initially produced records to Plaintiff's counsel (Dkt. 135-2 at 7), Plaintiff would have been able to recover the equipment that was disposed of at some unknown time in some unknown manner. Plaintiff's claim for “damages” allegedly suffered as a result of the speculative destruction of evidence is equally speculative and unsupported by evidence of causation. *8 Mere speculation is insufficient to support a claim of spoliation of evidence. See Reinsdorf, 296 F.R.D. at 631. Here, Plaintiff's claims are based entirely on speculation. Sanctions for alleged spoliation are not warranted under any theory here. V. CONCLUSION AND ORDER For the foregoing reasons, the Court DENIES the Motion (Dkt. 130). IT IS SO ORDERED. ___ : ___ Initials of Clerk: mba Footnotes [1] Rule 37(a)(5) permits the imposition of an award of reasonable expenses, including attorney's fees, incurred in successfully making or defeating a discovery motion to any person or entity, including a non-party, without requiring a proof of a violation of a court order. However, Rule 37(a)(5) does not authorize separate sanctions for spoliation. Separately, Rule 37(e) provides a process for determining the appropriate response for an alleged failure to preserve electronically stored information (“ESI”), which is not at issue here. [2] To the extent Plaintiff relies on Perle's lack of knowledge as to the disposition of records or assets of SBPU, such a lack of knowledge does not itself constitute spoliation of evidence. To the extent Plaintiff asserts Perle is feigning such a lack of knowledge, she again offers only speculation.