MARLON MACK, Plaintiff, v. FOOD LION, LLC, Defendant No. 5:23-CV-327-M United States District Court, E.D. North Carolina Filed August 29, 2024 Jones Jr., Robert B., United States Magistrate Judge ORDER *1 This matter is before the court on Plaintiff Marlon Mack's motion for sanctions for discovery abuses and request for damages, [DE-14], motion for protective order, [DE-17], and motion for extension of deadlines, [DE-18]. No responses were filed and the time to do so has expired. For the reasons that follow, the motion for sanctions and motion for protective order are denied and the motion for extension of deadlines is allowed. I. Statement of the Case Plaintiff Marlon Mack filed a complaint against Defendant Food Lion, LLC for race discrimination in violation of 42 U.S.C. §§ 1981 and 1983, alleging that he was discriminated against when he attempted to use his EBT card at a Food Lion grocery store. Mack seeks declaratory and injunctive relief and compensatory and punitive damages in excess of $13,000,000.00. Compl. [DE-1] at 1–5. Food Lion filed an answer, [DE-8], and Mack moved for default judgment, [DE-9], which was denied initially and on reconsideration, [DE-11, -22]. The parties served discovery requests, which resulted in Mack filing the instant two discovery related motions and motion for an extension of case deadlines. [DE-14, -17, -18]. II. Discussion A. Motion for Discovery Sanctions and Damages [DE-14] Mack served interrogatories and requests for production to Food Lion on March 13, 2024, and granted Food Lion's informal request for a thirty (30) day extension of time to respond. Pl.'s Mot. [DE-14] at 3. Food Lion responded on May 17, 2024. [DE-14-3]. Mack contends that Food Lion's responses were evasive and obstructed by unsubstantiated objections to 90% of the discovery requests. Pl.'s Mot. [DE-14] at 3. Mack seeks sanctions under Fed. R. Civ. P. 37, specifically asking the court to limit the scope of Food Lion's future discovery requests, award monetary sanctions in the amount of $1,300,000,[1] strike Food Lion's defenses, or enter a default judgment against Food Lion. Id. at 4–6. Rule 37(b) provides that when a party fails to obey an order to provide or permit discovery, the court “may issue further just orders” that may include the following sanctions: (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; *2 (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A)(i)–(vii). Rule 37(d) provides for sanctions where a party fails to respond to discovery. “A district court has wide discretion ... to impose sanctions for failure to comply with discovery orders.” Jackson v. Vance Cnty., No. 5:97-CV-103-BO, 1997 WL 906015, at *1 (E.D.N.C. Nov. 26, 1997) (quoting Mut. Fed. Sav. & Loan Ass'n v. Richard & Assocs., 872 F.2d 88, 92 (4th Cir. 1989)). “[I]n ‘determining what sanctions to impose under Rule 37,’ a district court must consider four factors: ‘(1) whether the non-complying party acted in bad faith, (2) the amount of prejudice that noncompliance caused the adversary, (3) the need for deterrence of the particular sort of non-compliance, and (4) whether less drastic sanctions would have been effective.’ ” S. States Rack & Fixture, Inc. v. Sherwin-Williams Co., 318 F.3d 592, 597 (4th Cir. 2003) (citations omitted). Further, the court “must order the disobedient party ... to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C), (d)(3). Food Lion responded to Mack's discovery requests and has not failed to comply with a court order related to discovery. Mack's motion for sanctions is premature where he has not first moved to compel under Rule 37(a), which provides that “[o]n notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery,” and “[t]he motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.” Furthermore, Mack's correspondence with opposing counsel indicates that he did not satisfy his obligation to meet and confer with opposing counsel in an attempt to resolve the perceived deficiencies prior to filing his motion. See Local Civ. R. 7.1(c)(2) (requiring parties to confer in a good faith attempt to resolve a discovery dispute prior to filing any discovery motion). The good faith communication requirement is not merely technical but promotes the orderly resolution of discovery disputes, Lloyd v. New Hanover Reg'l Med. Ctr., No. 7:06-CV-130-D, 2009 WL 674394, at *1 (E.D.N.C. Mar. 11, 2009), and the court expects Mack and opposing counsel to fully exhaust efforts to resolve such disputes where they are able prior to filing discovery motions.[2] Accordingly, the motion for sanctions is denied as premature and for failure to comply with the court's Local Rules. *3 The court also addresses Mack's discovery issue raised in his motion for summary judgment, on which the undersigned recently issued a memorandum and recommendation forecasting that the issue would be addressed in this order along with the other discovery disputes. See [DE-21]. Mack contends that Food Lion failed to provide video footage of the incident and later admitted that the footage no longer exists. Id. at 2. Mack argues that “Food Lion's deficiency letter dated June 11, 2024, acknowledging the non-existence of the requested video footage, despite my timely preservation intentions and request made on May 6, 2023.” Id. Mack seeks monetary sanctions and an order that Food Lion produce the missing video footage or be barred from asserting certain defenses. Id. at 3. “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.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). “The imposition of a sanction (e.g., an adverse inference) for spoliation of evidence is an inherent power of federal courts—though one limited to that action necessary to redress conduct which abuses the judicial process.” Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 449 (4th Cir. 2004). However, a sanction for spoliation “cannot be drawn merely from [a party's] negligent loss or destruction of evidence.” Id. at 450. “[T]he conduct must be intentional,” and “the alleged destroyer must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence's loss or destruction.” Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013). “Generally, it is the filing of a lawsuit that triggers the duty to preserve evidence.” Id. However, one's responsibility to “preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Silvestri, 271 F.3d at 591 (citation omitted); Turner, 736 F.3d at 282 (“[t]he duty to preserve material evidence arises ... during litigation” and it “extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”). “Once a party reasonably anticipates litigation, it is obligated to suspend its routine document retention/destruction policy and implement a litigation hold to ensure the preservation of relevant documents.” Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 511 (D. Md. 2009) (internal quotation marks and citation omitted). Plaintiff bears the burden of proving that sanctions are warranted by clear and convincing evidence. See Atanassova v. Gen. Motors LLC, No. 2:20-CV-01728-RMG, 2023 WL 2734233, at *3 (D.S.C. Mar. 30, 2023); Paul v. W. Express, Inc., No. 6:20-cv-00051, 2022 WL 838121, at *3 (W.D. Va. Mar. 21, 2022); GMS Indus. Supply, Inc. v. G&S Supply, LLC, No. 2:19-CV-324 (RCY), 2022 WL 853626, at *3 (E.D. Va. Mar. 22, 2022) (explaining that while the burden of proof on a motion for spoliation sanctions is unsettled, “the general approach of courts in the Fourth Circuit has been to apply the clear and convincing evidence standard, especially where a relatively harsh sanction like an adverse inference is sought”) (quoting Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 104 (E.D. Va. 2018) (explaining that some courts apply a “preponderance of the evidence standard”)). Food Lion's discovery response to Mack's request for surveillance footage of the incident at issue states as follows: A request will be made for any such surveillance footage and, if available, the same will be provided pursuant to a protective order or agreement limiting the dissemination and use of those documents to the parties, their counsel and staff, witnesses, and for use in this litigation only. Please note, Defendant's in-store video surveillance does not record audio. *4 [DE-14-3] at 4. Mack filed, as an exhibit to the motion for sanctions, a July 5, 2023 letter from an entity that provides claim handling and risk management services for Food Lion acknowledging receipt of Mack's ESI preservation request and stating that video surveillance, if available, would be preserved. Id. at 1. The court has been unable to locate in the record the June 11, 2024 deficiency letter referenced by Mack purportedly acknowledging the non-existence of the requested video footage. If in fact the footage no longer exists, that does not necessarily mean that it was spoliated. Mack has failed to demonstrate, under either a clear and convincing or preponderance standard, that Food Lion destroyed or failed to preserve the evidence under circumstances that would warrant sanctions for spoliation. See Tyson v. Gay, No. 5:19-CT-3315-M, 2022 WL 1097345, at *3 (E.D.N.C. Apr. 7, 2022) (declining to award sanctions for spoliation where the plaintiff failed to show any evidence that Defendants willfully destroyed video footage evidence). If, after meet and confer efforts, Mack elicits further support for his spoliation claim, he may renew his motion. B. Motion for Protective Order [DE-17] Mack seeks a protective order, pursuant to Fed. R. Civ. P. 26(c), limiting the scope of Food Lion's discovery requests, to protect his sensitive information from unnecessary disclosure, and to ensure fairness where Food Lion's own discovery responses were perceived by Mack to be insufficient. [DE-17]. Mack also contends he emailed his discovery responses to Food Lion on May 20, 2024, but received a letter from Food Lion on May 31, 2024, indicating they had not received his responses. Id. As explained above, the parties must meet and confer regarding a protective order to govern the disclosure of confidential information. See supra n.2. Mack apparently has already answered Food Lion's discovery, did not seek a protective order as to the scope before doing so, Food Lion has not moved to compel further responses, and Mack has not certified that he satisfied the meet and confer requirements outlined above, Local Civ. R. 7.1(c)(2), prior to filing his motion. Accordingly, the motion for protective order is denied. C. Motion for Extension of Deadlines [DE-18] Mack seeks additional time to complete discovery in this matter. [DE-18]. Due to an administrative error, the parties' discovery plan, [DE-13], was only recently submitted to the court for entry of a scheduling order. To the parties' credit, they have proceeded with discovery as proposed under their plan but require additional time to resolve the issues raised in the motions. Accordingly, the court allows Mack's motion for additional time to complete discovery and will enter a separate scheduling order setting out the case deadlines. III. Conclusion For the reasons stated herein, the motion for sanctions and motion for protective order are denied, the motion for extension of deadlines is allowed, and a separate scheduling order will be entered. So ordered, this the 28 day of August, 2024. Footnotes [1] Mack's “Breakdown of Expenses by Plaintiff” includes, among other things, $70,000 in legal research and administrative expenses, travel expenses of $6,000 for travel from Maryland for court appearances (there have been no court hearings in this matter and Mack's address with the court is in North Carolina) and other case-related travel, $30,000 in costs related to motion filing, and $190,000 in costs for holistic treatments, therapy sessions and wellness programs. [DE-14-1]. To the extent Mack purports to have expended these funds, he is cautioned that by presenting the court with a filing, under Fed. R. Civ. P. 11 (b), he is certifying that his factual contentions have evidentiary support and are not being presented for any improper purpose, and importantly that the violation of Rule 11 is sanctionable, Fed. R. Civ. P. 11(c). [2] Many of Food Lion's responses state that it will produce the requested information pursuant to a protective order, [DE-14-3], but Food Lion has not sought a protective order to govern the disclosure of confidential information. As part of their meet and confer discussions, the parties should attempt to agree to a protective order, pursuant to Rule 26 (c), to present to the court in order to move discovery forward.