Pietrangelo v. Refresh Club, Inc

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JAMES E. PIETRANGELO, II,

Plaintiff,
v. No. 18-cv-1943-DLF-ZMF
REFRESH CLUB, INC. (d/b/a THE
WING), et al.,

Defendants.

MEMORANDUM OPINION

Pending before the Court are Plaintiff James E. Pietrangelo, II’s Motion for Sanctions, see

Pl.’s Mot. for Sanctions (“Pl.’s Mot.”), ECF No. 101; Plaintiff’s Supplemental Motion for

Sanctions, see Pl.’s Suppl. Mot. for Sanctions (“Pl.’s Suppl. Mot.”), ECF No. 115; Plaintiff’s

Second Supplemental Motion for Sanctions, see Pl.’s 2d Suppl. Mot. for Sanctions (“Pl.’s 2d

Suppl. Mot.”), ECF No. 118; and Plaintiff’s Third Supplemental Motion for Sanctions, see Pl.’s

3d Suppl. Mot. for Sanctions (“Pl.’s 3d Suppl. Mot.”), ECF No. 120, all of which the Court will

DENY in an accompanying order.

I. BACKGROUND1

On July 27, 2022, Plaintiff moved for sanctions under Federal Rules of Civil Procedure

(“Rules”) 37(b)(2) and 37(e). See Pl.’s Mot. On August 10, 2022, Defendants filed their

opposition. See Defs.’ Mem. in Opp’n to Pl.’s Mot. for Sanctions (“Defs.’ Opp’n”), ECF No. 107.

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The Court assumes familiarity with the factual background of this case. See Pietrangelo v.
Refresh Club, Inc., No. 18-cv-1943, 2022 WL 4245486, at *1 (D.D.C. Sept. 15, 2022).

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On August 12, 2022, Plaintiff filed his reply. See Pl.’s Reply in Supp. of Mot. for Sanctions (“Pl.’s

Reply”), ECF No. 108.

On October 16, 2022, Plaintiff filed a supplemental motion for sanctions, which centered

on Interrogatory No. 23. See Pl.’s Suppl. Mot. On October 31, 2022, Defendants filed their

opposition, asking for additional time to provide a second supplemental answer. See Defs.’ Mem.

in Opp’n to Pl.’s Suppl. Mot. for Sanctions 2, ECF No. 116. On November 1, 2022, Plaintiff filed

his reply. See Reply to Defs.’ Opp’n to Pl.’s Suppl. Mot. for Sanctions, ECF No. 117. On

November 16, 2022, Defendants produced their second supplemental answer. See Pl.’s 2d Suppl.

Mot., Ex. 1, Defs.’ Objections and 2d Suppl. Answers to Pl.’s 4th Set of Interrogs. (“Defs.’ 2d

Suppl. Answers”), ECF No. 118-1. On November 22, 2022, Plaintiff filed a second supplemental

motion for sanctions, arguing that Defendants’ second supplemental answer was inadequate

because it was unverified. See Pl.’s 2d Suppl. Mot. at 6. On November 22, 2022, Defendants

produced a verification statement to Plaintiff. See Pl.’s 3d Suppl. Mot., Ex. 2, Verification of Defs.’

2d Suppl. Answers to Pl.’s 4th Set of Interrogs. (“Verification”), ECF No. 120-2. On November

24, 2022, Plaintiff filed a third supplemental motion for sanctions, arguing that Defendants

committed perjury in their second supplemental response to Plaintiff’s Interrogatory 23. See Pl.’s

3d Suppl. Mot. at 1. On December 6, 2022, Defendants filed their opposition to Plaintiff’s second

and third supplemental motions for sanctions. See Defs.’ Mem. in Opp’n to Pl.’s 2d & 3d Suppl.

Mots. for Sanctions, ECF No. 121. On December 7, 2022, Plaintiff filed his reply. See Pl.’s Reply

to Defs.’ Mem. in Opp’n to Pl.’s 2d & 3d Mots. for Sanctions, ECF No. 122.

II. LEGAL STANDARD

“[J]udges enjoy wide discretion in managing the discovery process.” 3E Mobile, LLC v.

Global Cellular, Inc., 222 F. Supp. 3d 50, 53 (D.D.C. 2016) (cleaned up). “When this discovery

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process is abused, courts are permitted under Federal Rule of Civil Procedure 37 to award

sanctions.” Smith v. Ergo Sols., LLC, No. 14-cv-382, 2018 WL 5810836, at *3 (D.D.C. Nov. 6,

2018). “[T]he central requirement of a Rule 37 sanction is that it be just.” Arias v. Dyncorp Aero.

Operations, LLC, 677 F. Supp. 2d 330, 332 (D.D.C. 2010) (citing Bonds v. District of Columbia,

93 F.3d 801, 808 (D.C. Cir. 1996)).

Rule 37(b)(2) empowers courts to sanction a party that “fails to obey an order to provide

or permit discovery.” Fed. R. Civ. P. 37(b)(2)(A). Courts may consider “a wide array of sanctions,

including staying the proceedings pending compliance with a court order, taking certain facts as

established, prohibiting a party from introducing certain matters into evidence, finding a party in

contempt of court, and dismissing the action or any part thereof.” Peterson v. Hantman, 227 F.R.D.

13, 15 (D.D.C. 2005). “‘District courts enjoy substantial discretion in deciding whether and how

to impose sanctions under Rule 37.’” Gluck v. Ansett Australia Ltd., 204 F.R.D. 217, 220–21

(D.D.C. 2001) (quoting Alexander v. FBI, 186 F.R.D. 78, 88 (D.D.C. 1998)) (emphasis omitted).

“However, the court's discretion is not without limits . . . [as] any sanctions awarded must be

proportional to the underlying offense.” Caldwell v. Ctr. for Corr. Health & Pol'y Stud., Inc., 228

F.R.D. 40, 42 (D.D.C. 2005) (citing Bonds, 93 F.3d at 808).

III. ANALYSIS

A. Alleged Violations of this Court’s Discovery Order

Parties “may obtain discovery regarding any nonprivileged matter that is relevant to any

party's claim or defense and proportional to the needs of the case.” Fed R. Civ. P. 26(b)(1).

Requests for production (“RFPs”) may seek any material discoverable under Rule 26(b). Fed. R.

Civ. P. 34(a). “Responses to [RFPs] must be complete, explicit[,] and responsive.” Nasreen v.

Capitol Petroleum Grp, LLC, 340 F.R.D. 489, 493 (D.D.C. 2022) (cleaned up).

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 Plaintiff’s RFPs sought “a plethora of information about The Wing.” Pietrangelo v. Refresh

Club, Inc., No. 18-cv-1943, 2021 WL 1209300, at *2 (D.D.C. Mar. 31, 2021). Plaintiff’s requests

sought “to prove that [the Wing was] a place of public accommodation and had discriminatory

policies.” Id.; see Pl.’s Mot. to Compel 54–75, ECF No 28. This Court reduced the timeframe of

Plaintiff’s discovery by almost half, limiting Plaintiff’s requests to June 4, 2017 through June 4,

2019. See Pietrangelo, 2021 WL 1209300, at *5. Defendants have produced over 18,000 pages in

response to Plaintiff’s requests. See Defs.’ Opp’n. at 4. Nonetheless, Plaintiff moves for sanctions

under Rule 37(b)(2), alleging that Defendants violated this Court’s discovery order. See Pl.’s Mot.

at 18–19.

1. Plaintiff’s RFPs 1–5 (Financial Records)

RFPs 1–4 asked Defendants to produce all receipts and invoices for café, retail, service,

and membership fees. See Defs.’ Opp’n, Ex. B., Defs.’ Suppl. Resps. and Objs. to Pl.’s Reqs. for

Produc. of Docs. (“Defs.’ RFP Resps.”) 6–9, ECF No. 107-2. RFP 5 asked Defendant to produce

all documents and electronically stored information (“ESI”) reflecting revenue or income. See id.

at 10. This Court previously limited the scope of RFPs 1–5 to “high-level statements of gross

revenue or sales,” including “what percentage of sales were made to members vs. non-members,

total customers and purchases, categories of sales and services, and the sex or gender identity of

any customers if known.” Pietrangelo, 2021 WL 1209300, at *6.

Defendants “twice produce[d] to Plaintiff high-level statements of gross revenue.” Pl.’s

Mot. at 20. Defendants’ attorneys have stated that Defendants have produced “the information in

[their] possession.” Defs.’ Opp’n at 5. The Court relies on such statements given that attorneys

“are officers of the court who cannot lie to the Court as part of their duty of candor.” Menashe v.

Covington & Burling LLP, 552 F. Supp. 3d 35, 44 n.4 (D.D.C. 2021). Conversely, Plaintiff lacks

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any factual support for his theory that these productions were insufficient. See Pl.’s Mot. at 20.

Because Defendants’ “productions accurately represent the universe of [requested] documents . . .

no further supplementation is necessary.” Garner v. Amazon, Inc., No. C21-0750, 2022 WL

16744319, at *2 (W.D. Wash. Nov. 7, 2022).

Moreover, the information Plaintiff still requests—about certain categories of sales and

services, and the sex/gender identity of the purchasers—is not proportional to the needs of the

case. See Fed. R. Civ. P. 26(b)(1). This Court previously determined that these materials were

relevant to The Wing’s “status as a place of public accommodation under the [D.C. Human Rights

Act (‘DCHRA’)]” at the time of Plaintiff’s application. Pietrangelo, 2021 WL 1209300, at *6. But

Defendants rendered that issue moot via stipulation. See Defs.’ Opp’n, Ex. A., Stipulations of Fact

“Stipulations” 2, ECF No. 107-1. Thus, Plaintiff has failed “to justify why the substantial time and

expense required to adequately respond to [this] RFP [would be] worth it[.]” Wall v. Reliance

Standard Life Ins. Co., 341 F.R.D. 1, 9 (D.D.C. 2022).

2. Plaintiff’s RFP No. 14 (Application Information)

RFP 14 sought all applications for membership to The Wing. See Defs.’ RFP Resps. at 14–

15. On June 15, 2021, Defendants produced spreadsheets summarizing applicants’ information

from June 4, 2017 to June 4, 2019. See Defs.’ RFP Resps. at 16; Pl.’s Mot. at 21. Plaintiff argues

that the “Excel spread-sheets [containing the information are] insufficient” due in part to

“imperfect or irregular” line formatting. Pl.’s Mot. at 21. However, Rule 34 “does not require a

party to produce [ESI] in the form it [sic] which it is ordinarily maintained, [so] long as it is

produced in a reasonably usable form.” Fed. R. Civ. P. 34(b) advisory committee’s notes to 2006

amendment. Again, Defendants have represented that they made a fulsome disclosure to Plaintiff.

See Defs.’ Opp’n at 6; Defs.’ RFP Resps. at 16. Thus, Defendants have sufficiently responded to

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RFP 14. See Porter v. Gore, No. 18-cv-1221, 2020 WL 1493615, at *4 (S.D. Cal. Mar. 27, 2020)

(agreeing with a defendant that it has sufficiently responded to an RFP where the documents

identified and produced [were] straightforward and sufficiently specific”).

Additionally, given that Plaintiff did not append Defendants’ response to RFP 14 as an

exhibit and did not cite any supporting legal authority, the Court cannot readily assess the validity

of Plaintiff’s assertions. See Pl.’s Mot. at 21. As such, “the imposition of . . . sanctions is not

warranted[.]” Hedgeye Risk Mgmt., LLC v. Heldman, 412 F. Supp. 3d 15, 35 (D.D.C. 2019).

3. Plaintiff’s RFP Nos. 20–23 (Policies)

RFPs 20–23 asked Defendants to produce The Wing’s membership policies and

procedures. See Defs.’ RFP Resps. at 18–22. Plaintiff concedes that Defendants “produce[d]

a significant number of responsive documents[.]” Pl.’s Mot. at 22. Yet, Plaintiff now contends—

without evidence—that Defendants did not produce “an equally-significant number of responsive

documents.” Id.

“A court cannot order a party to produce documents that do not exist.” Porter, 2020 WL

1493615, at *5 (citing Unilin Beheer B.V. v. NSL Trading Corp., No. 14-cv-2210, 2015 WL

12698382, at *5 (C.D. Cal. Feb. 26, 2017)). Allowing discovery after a party has denied a

document’s existence “would amount to nothing more than a fishing expedition.” Bastin v. Fed.

Nat’l. Mortg. Ass’n, 104 F.3d 1392, 1396 (D.C. Cir. 1997). Again, Defendants represent that they

produced all documents in response to RFPs 20–23. See Defs.’ Opp’n at 6–7. Thus, this Court

“does not abuse its discretion when it denies [Plaintiff’s sanctions] request[.]” Bastin, 104 F.3d at

1396. Nor does a court abuse its discretion in denying a sanctions request when the defendant

“make[s] a good-faith effort to obtain the requested [materials]” and the plaintiff “put forth

insufficient evidence to the contrary.” Battle v. Mineta, 387 F. Supp. 2d 4, 10 (D.D.C. 2005). Thus,

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Plaintiff’s unsubstantiated and speculative claims, see Pl.’s Mot. at 22, do not warrant sanctions

here. See Battle, 387 F. Supp. 2d at 10.

4. Plaintiff’s RFP No. 29 and 31–32 (Press, Social Media, and Website)

RFP 29 asked Defendants to produce all material related to the press and The Wing’s

publicity. See Defs.’ RFP Resps. at 26–28. RFPs 31–32 seek all pages and postings from The

Wing’s social media accounts and website. See id. at 29–30. Again, Plaintiff concedes that

Defendants produced “some press/publicity material,” “a smattering of postings by The Wing on

one or more of its social-media accounts,” and the “website as it existed at various times[.]” Pl.’s

Mot. at 24–25. Nonetheless, Plaintiff asserts that Defendants did not produce press or publicity

materials from before January 2019 or a full history/archive of The Wing’s social media accounts

and website. See id. In response, Defendants claim that they “produced all responsive documents

in [their] custody and control[.]” Defs.’ Opp’n at 7.

“The duty to preserve begins ‘when a party should have known that the evidence may be

relevant to future litigation.’” Mannina v. District of Columbia, 437 F. Supp. 3d 1, 10 (D.D.C.

2020) (quoting Gerlich v. U.S. Dep’t of Just., 711 F.3d 161, 170–71 (D.C. Cir. 2013)). Is it

surprising that Defendants had no potentially relevant materials to preserve between receiving

notice of the litigation on August 20, 2018 and January 2019? Yes. But Defendants have

represented that they complied with their duty to preserve. See Defs.’ Opp’n at 7. And there is no

reason to doubt that. See Menashe, 552 F. Supp. 3d at 44 n.4. Moreover, “Plaintiff[’s] motion . . .

consists of conclusory and general statements regarding [D]efendants’ purported noncompliance

with their discovery obligations. Such generalities are an insufficient basis on which the Court can

impose sanctions[.]” Biosafe-One, Inc. v. Hawks, 639 F. Supp. 2d 358, 370 (S.D.N.Y. 2009).

Concurrently, the Court reminds Defendants that a party who has responded to a “request for

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production . . . must supplement or correct its disclosure or response [] in a timely manner if the

party learns that in some material respect the disclosure or response [was] incomplete or

incorrect[.]” Fed. R. Civ. P. 26(e)(1)(A).

5. Plaintiff’s RFP No. 42 (Government Submissions)

RFP 42 asked Defendants to produce all written submissions to the government and

communications between The Wing and the government. See Defs.’ RFP Resps. at 36. Plaintiff

asserts that Defendants “produced only two such documents, both U.S. Trademark Office service-

mark-grant certificates.” Pl.’s Mot. at 25. Defendants responded that they “have produced

responsive documents in their possession” and that no other documents are necessary because they

stipulated to being “a place of public accommodation under D.C. law.” Defs.’ Opp’n at 8. Again,

Defendants’ representation satisfied their discovery obligation. See Porter, 2020 WL 1493615, at

*4; Garner, 2022 WL 16744319, at *2. Like other RFPs, this request was largely related to The

Wing’s “status under the DCHRA.” Pietrangelo, 2021 WL 1209300, at *7. As stated above, the

Stipulations mooted this issue. See Stipulations at 2. Hence, the information Plaintiff seeks is not

proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1).

6. Plaintiff’s RFP No. 43 (NYCCHR Investigation) and RFP No. 45 (Diversity
Policies)

RFP 43 sought any documents and ESI relating to the New York City Commission on

Human Rights’ investigation of The Wing. See Defs.’ RFP Resps. at 37. RFP 45 asked Defendants

to produce documents and ESI related to The Wing’s diversity policies and procedures, see id. at

39, which the Court previously clarified should include all diversity policies created “prior to the

relevant time period but still in effect,” Pietrangelo, 2021 WL 1209300, at *7. Plaintiff notes that

Defendants “did produce some responsive documents[,]” but not others that he sought. Pl.’s Mot.

at 27. Defendants assert that they “have nothing further to produce.” Defs.’ Opp’n at 8. And

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Plaintiff has failed to substantiate why or how Defendants’ responses are anything other than

“complete, explicit[,] and responsive.” Nasreen, 340 F.R.D. at 493 (cleaned up). Thus, Defendants

have met their discovery obligations. See id.

7. Plaintiff’s Interrogatory 23 (Accommodating Men at The Wing)

Interrogatory 23 asked “whether The Wing ever stated or indicated . . . that . . . The Wing

or any of its spaces would be . . . denied [to] a person because they are men[.]” Pietrangelo, 2022

WL 4245486, at *8. Originally, “Defendants objected to the interrogatory . . . and offered the

answer, ‘no responsive information.’” Id. “In their supplemental response, Defendants again

objected to the interrogatory and directed Plaintiff to ‘see Defendants’ Stipulations of Fact, dated

December 3, 2021.’” Id. On September 15, 2022, this Court ruled that “Defendants’ answer[s]

[were] incomplete,” and ordered Defendants to supplement their response. Id. at *9.

On November 16, 2022, Defendants provided a second supplemental response, stating in

part that “[p]rior to August 30, 2018, The Wing had an informal membership policy to admit as

members only women and non-binary individuals.” Defs.’ 2d Suppl. Answers at 5. Defendants

also referred Plaintiff to two previously produced documents. See id. at 6. Defendants further stated

that “to the best of [their] knowledge, [The Wing] did not make any statements to third parties

‘that the full and equal enjoyment of the goods, services, facilities, privileges, advantages, and

accommodations of The Wing or any of its spaces would be . . . denied a person because they are

men[.]’” Defs.’ 2d Suppl. Answers at 5.

Defendants’ second supplemental answer sufficiently responds to Interrogatory 23. See id.

Plaintiff alleges that Defendants’ response “is woefully inadequate” because Plaintiff is in disbelief

that no statements exist. Pl.’s 2d Suppl. Mot. at 4. However, “Plaintiff[] offers no reason to suspect

Defendants’ response . . . is anything less than truthful.” Gevas v. Dunlop, No. 18-cv-6556, 2020

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WL 814875, at *2 (N.D. Ill. Feb. 19, 2020). Thus, Plaintiff has failed to carry his “burden of

showing that [Defendants’] responses are incomplete.” Porter v. Sebelius, No. 11-cv-1546, 2014

WL 12768504, at *2 (D.D.C. Apr. 8, 2014).

To be properly verified, interrogatory answers must be answered “fully in writing under

oath” and signed by “[t]he person who [] answers [] them[.]” Fed. R. Civ. P. 33(b). Defendants’

second supplemental answer—served on November 16, 2022—lacked a verification that the

statements were made under oath. See Defs.’ 2d Suppl. Answers; see also L. Civ. R. 11.2

(verification requires a statement that the writing “is subscribed as true under penalty of perjury”).

In such cases, courts typically order the offending party to supplement with a proper signature.

See, e.g., Escamilla v. Nuyen, No. 14-cv-00852, 2015 WL 4245868, at *9 (D.D.C. July 14, 2015);

Ormeno v. 3624 Georgia Ave., Inc., 309 F.R.D. 29, 33 (D.D.C. 2015); see also Antoine v. J.P.

Morgan Chase Bank, No. 08-cv-615, 2009 WL 10694779, at *2 (D.D.C. June 26, 2009) (ordering

party to redo signature because electronic signature was invalid). However, that is unnecessary

here. On November 22, 2022, Defendants served their signature page on Plaintiff. See Verification.

This “moot[ed]” the prior signature problem. Tequila Centinela, S.A. de C.V. v. Bacardi & Co.,

242 F.R.D. 1, 7 (D.D.C. 2007). Thus, Defendants’ verification satisfied Rule 33.

Plaintiff offers no authority in support of his outlandish contention that Defendants’

November 22nd verification constitutes “outright perjury.” Pl.’s 3d Suppl. Mot. at 3. Plaintiff’s

“allegations do not warrant imposing sanctions” where Plaintiff “has shown no violation . . . of

any discovery order . . . nor has he shown any basis for disregarding” the signed verification. U.S.

ex rel. Westrick v. Second Chance Body Armor, Inc., 893 F. Supp. 2d 258, 268 (D.D.C. 2012); see

infra III.E.

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 B. Defendants’ Privilege Logs

The Rules require the party who is claiming privilege to expressly make the claim and

“describe the nature of the documents . . . not produced . . . and do so in a manner that, without

revealing information itself privileged or protected, will enable other parties to assess the claim.”

Fed. R. Civ. P. 26(b)(5)(A)(ii). “Privilege logs are the most common vehicle by which parties

attempt to comply with these rules in claiming privilege.” Lurensky v. Wellinghoff, 271 F.R.D.

345, 355 (D.D.C. 2010).

Defendants provided privilege logs to Plaintiff on July 15, 2021; October 11, 2021;

December 3, 2021; and December 27, 2021. See Defs.’ Opp’n at 11. Plaintiff argues that

Defendants waived privilege for failure to submit the privilege logs in a “timely manner.” Pl.’s

Mot. at 28. Plaintiff also asserts that the privilege logs were too vague. See id. at 29.

First, Plaintiff’s “waiver” argument comes rather late. It was not made in Plaintiff’s

December 24, 2021 motion for sanctions. See Pl.’s Mot. to Compel Answers to Interrogs. and for

Sanctions, ECF No. 86. Nor did Plaintiff raise it in a meet and confer or status conference over the

past year-and-a-half. See generally Docket. “Surely, a central principle of American jurisprudence

is that a court will not consider a belated argument that could and should have been made sooner.”

Banks v. Off. of the Senate Sergeant-at-Arms & Doorkeeper, 226 F.R.D. 113, 115 (D.D.C. 2005).

Second, “privilege logs [are] on the whole useless[,]” and “dispute[s] over the sufficiency

of descriptions in a privilege log” waste “judicial resources[.]” Lurensky, 271 F.R.D. at 355–56.

As such, “[a] court should use common sense when examining a privilege log, and in so doing,

may draw inferences from a less-than specific entry [to] rescue[] the entry from its possible

inadequacy[.]” Id. at 356. Here, Defendants’ privilege logs are “adequate considering the

circumstances of the case[.]” Nat’l Labor Relations Bd. v. Jackson Hosp. Corp., 257 F.R.D. 302,

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308 (D.D.C. 2009). They “contain[] all the information needed to adequately describe the

documents at issue,” including the “date, name of [the] sender, name of [the] recipient, and

description of [the] document, including . . . [the] basis upon which a particular privilege is

claimed[.]” Slaughter v. McDonough, 18-cv-1318, 2022 WL 2817836, at *3 (D.D.C. July 19,

2022). Specifically, the document descriptions consist of the documents’ names, which are

sufficiently detailed to shed light on their contents. See Pl.’s Mot., Ex. 2, Privilege Log 7/13/2021,

ECF No. 101-3; Pl.’s Mot., Ex. 4, Privilege Log 12/3/2021, ECF No. 101-5. For example, one of

the documents is labeled, “PRIVILEGED AND CONFIDENTIAL Wing Q&As.” Privilege Log

7/13/2021 at 4. Another is entitled, “FOR MANAGERS_MEMBERSHIP POLICIES

FAQS_TALKING POINTS KF Comments.” Privilege Log 12/3/2021 at 2. Thus, “[t]he Court

finds that the privilege log[s are] reasonably detailed[.]” Slaughter, 2022 WL 2817836, at *3.

C. Spoliation of Evidence

“‘Spoliation’ is ‘defined as the destruction or material alteration of evidence or the failure

to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’”

Clemmons v. Acad. For Educ. Dev., 70 F. Supp. 3d 282, 309 (D.D.C. 2014). A sanction “is

warranted only when (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, to the extent that a

reasonable factfinder could conclude that the lost evidence would have supported the claims or

defense of the party that sought it.” Id. (citing Mazloum v. D.C. Metro. Police Dep’t, 530 F. Supp.

2d 282, 291 (D.D.C. 2008). The party alleging spoliation bears the burden of proof. See, e.g., Ball

v. George Wash. Univ., No. 17-cv-0507, 2018 WL 4637008, at *1 (D.D.C. Sept. 27, 2018).

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 Rule 37(e) governs a court’s inquiry in deciding whether to impose sanctions for the

spoliation of ESI. See Fed. R. Civ. P. 37(e). When “[ESI] that should have been preserved in the

anticipation of litigation is lost because a party failed to take reasonable steps to preserve it, and it

cannot be restored or replaced through additional discovery,” a court may (1) “order measures no

greater than necessary to cure the prejudice,” or, only upon finding “that the party acted with the

intent to deprive another party of the information's use in the litigation,” (2) “presume that the lost

information was unfavorable to the party; instruct the jury that it may or must presume the

information was unfavorable to the party; or dismiss the action or enter a default judgment.” Id.

Plaintiff moves for sanctions for the spoliation of evidence under Rule 37(e), arguing that

Defendants failed to preserve ESI. See Pl.’s Mot. 32–34; Fed. R. Civ. P. 37(e).

1. Laptop

First, Plaintiff argues that Defendants failed to preserve “the corporate laptop on which

Plaintiff’s application [to the Wing] had allegedly been reviewed.” Id. at 32. Without evidence,

Plaintiff alleges that a review of the laptop would have “shown that Plaintiff’s application was not

really reviewed at all beyond Plaintiff’s name and sex/gender as a man.” Id. However, Plaintiff

concedes that Defendants produced copies of his application—the only relevant evidence he

claims to seek on the laptop’s hard drive. See id. Thus, “[t]he Court is not persuaded that . . .

[Defendants] should have reasonably known that [the laptop] needed to be preserved.” Mahaffey

v. Marriott Int’l, Inc., 898 F. Supp. 2d 54, 60 (D.D.C. 2012). Moreover, “destruction . . . has no

effect except when the circumstances of destruction provide a basis for attributing bad faith to the

[party] involved.” More v. Snow, 480 F. Supp. 2d 257, 274 (D.D.C. 2007) (citation omitted).

Because Plaintiff fails to establish that any relevant evidence was “destroyed or altered” or that

Defendants acted in bad faith, sanctions are not warranted. Clemmons, 70 F. Supp. 3d at 309.

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 2. Historical/Archived Social Media Accounts and Website

Second, Plaintiff contends that Defendants failed to preserve “[t]he historical/archived

versions of Defendants’ social-media accounts and website[.]” Pl.’s Mot. 33. As discussed above,

Defendants assert that they have produced all the archived social media and website material in

their possession. See infra III.A.4. Defendants further argue that they had no obligation to preserve

evidence before August 20, 2018—the date they received notice of the instant litigation. See Def.’s

Opp’n at 7 n.9. Given that Plaintiff has failed to “put forth any evidence that any such [historical

or archived materials] ever existed,” he cannot prove that such evidence “was destroyed[.]”

Mahaffey, 898 F. Supp 2d at 61. And even if such “[materials] existed . . . [P]laintiff has not

demonstrated that [Defendants] allowed such destruction with the requisite culpable state of

mind.” Id. Thus, no sanctions are merited. See id.

D. Vexatious Discovery

A vexatious lawsuit arises when a plaintiff initiates legal proceedings without “an objective

good faith expectation of prevailing” and with an intent to “harass[]” the defendant. 1250 24th St.

Assocs. Ltd. P’ship v. Brown, 684 F. Supp. 326, 331 (D.D.C. 1988) (quoting Safir v. U.S. Lines,

Inc., 792 F.2d 19, 24 (2d Cir. 1986)). Plaintiff claims that Defendants engaged in “vexatious

discovery” by deliberately subjecting Plaintiff to “years of discovery all the while knowing that

his complaint had merit.” See Pl.’s Mot. at 34. In turn, Defendants assert that Plaintiff has “over-

litigate[d] this case—including the filing of the instant motion.” Defs.’ Opp’n at 2.

Plaintiff’s claim that Defendants have engaged in vexatious discovery is meritless. There

is no indication that Defendants have acted in bad faith. Indeed, Defendants largely complied with

Plaintiff’s discovery requests. See Defs.’ Suppl. Resps. Moreover, this Court had to limit many of

Plaintiff’s (arguably vexatious) discovery requests. See generally Pietrangelo, 2021 WL 1209300,

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at *1. Thus, Defendants’ “conduct does not meet the high standard required to warrant sanctions.”

Doe #1 v. Am. Fed’n of Gov’t Emps., No. 20-cv-1558, 2022 WL 4182223, at *16 (D.D.C. Sept.

13, 2022); see also Huthnance v. District of Columbia, 793 F. Supp. 2d 177, 182 (D.D.C. 2011)

(finding that evidence did not support sanctions against counsel for unreasonably and vexatiously

multiplying proceedings).

E. Perjury

Perjury is false testimony concerning a material matter with the willful intent to provide

false testimony. See United States v. Singer, 963 F.3d 1144, 1164 (11th Cir. 2020); see also Chavez

v. City of Albuquerque, 402 F.3d 1039, 1046 (10th Cir. 2005) (upholding dismissal of a civil

lawsuit as a sanction for perjury). Plaintiff asserts that Defendants have repeatedly committed

perjury in deposition testimony. See Pl.’s Mot. at 41. Specifically, Plaintiff alleges that The Wing’s

former CFO Diedre Nelson, former CEO Audrey Gelman, and former COO Lauren Kassan

perjured themselves during their depositions, making statements contradictory to information on

The Wing’s website and shared with the press. See id. at 41–45. Defendants deem this assertion

“outlandish” and disagree with “Plaintiff’s estimation [that] perceived minor inconsistencies in

testimony are the functional equivalent of perjury.” Defs.’ Opp’n. at 2 n.5.

Defendants are correct. Plaintiffs’ obscure examples from slices of Defendants’ testimony

fail to establish the requisite inconsistency in a material matter. See Pl.’s Mot. at 41; Singer, 963

F.3d at 1164. Indeed, “even if the testimony is inconsistent, an inconsistency . . . does not by itself

support an inference [of perjury.]” United States v. Harrison, 103 F.3d 986, 989 (D.C. Cir. 1997).

Rather, it is a “long-standing practice” to defer determinations of “minor inconsistencies and

credibility challenges” to “the trier of fact.” Angstadt v. Fed. Aviation Admin., 348 Fed. App’x

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589, 590 (D.C. Cir. 2009). Accordingly, Plaintiff’s proper remedy is to address the allegedly

perjurious testimony through examination at trial.

IV. CONCLUSION

For the reasons stated above, Plaintiff’s Motion for Sanctions, Supplemental Motion for

Sanctions, Second Supplemental Motion for Sanctions, and Third Supplemental Motions for

Sanctions will be DENIED in an accompanying order.
2022.12.13
16:10:07
Date: December 13, 2022 -05'00'
___________________________________
ZIA M. FARUQUI
UNITED STATES MAGISTRATE JUDGE

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