PITTSBURGH – An individual among a group of class action plaintiffs opposes an attempt by Giant Eagle grocery stores to sanction him for missing two appointments to take his deposition.
Kimberly Pletcher first filed suit in the U.S. District Court for the Western District of Pennsylvania on May 26, 2020 versus Giant Eagle, Inc. After Pletcher’s complaint was consolidated with those of 34 other plaintiffs, two other amended complaints were filed on June 29, 2020 and Aug. 21, 2020.
The plaintiffs had brought similar lawsuits against the Giant Eagle grocery store chain for its mandatory mask-wearing policy, which plaintiff counsel called “illegal and unjustifiable” and violating the Americans with Disabilities Act.
Subsequent to consolidation, the suit sought a preliminary injunction that prohibits Giant Eagle from excluding customers with disabilities that prevent them from wearing masks to shop at Giant Eagle stores in the same manner as non-disabled customers, and for the store to permit those who physically cannot wear masks to shop inside its stores, according to state guidelines from Dr. Rachel Levine, now-former Secretary of the Commonwealth’s Department of Health.
Giant Eagle responded with a motion to dismiss the consolidated case on Sept. 2, 2020 for failure to state a claim – and commenting that the case “seeks to impose disproportionate risk on those most susceptible to serious consequences from the virus, including the elderly, the immunocompromised, and of course, individuals with a disability.”
“Plaintiffs’ claims fail for three reasons. First, the ADA permits legitimate safety requirements – such as Giant Eagle’s neutral face-covering policy – even if the requirement screens out individuals with disabilities. Second, the ADA does not require Giant Eagle to abandon its Policy in the face of a direct threat to the health and safety of its customers and team members,” the dismissal motion read, in part.
“Third, plaintiffs do not state a claim under the ADA because their proposed modification – allowing them to shop in stores without any face covering – is neither reasonable nor necessary. In fact, Giant Eagle already reasonably accommodates customers who cannot or will not wear masks by allowing them to wear face shields and offering curbside and home delivery services.”
Nearly one year later, counsel for the defendants filed a first motion for sanctions on Aug. 4, 2021, arguing that multiple plaintiffs have engaged in misconduct by not complying with prescribed discovery procedures.
“Plaintiffs have generally failed to provide complete, non-evasive discovery, but eight of those plaintiffs have engaged in misconduct that defendants believe warrant sanctions. Those eight plaintiffs repeatedly withheld relevant documents, spoliated evidence, and provided evasive or false discovery responses, all in defiance of the Court’s orders. The misconduct involved a central issue to the case – namely, these plaintiffs’ claimed inability to wear face coverings,” the first sanctions motion stated.
On April 13, came a second motion for sanctions from the defense on similar grounds.
“Pursuant to Federal Rule of Civil Procedure 37, defendants move for an order sanctioning 12 recently deposed plaintiffs. These plaintiffs have acknowledged that they either failed to search for and preserve responsive materials, failed to timely produce significant responsive materials, withheld information about wearing face coverings for significant periods of time (on flights or to shop at Giant Eagle), or all three of these things. One of the plaintiffs purposefully destroyed his phone days before a third-party vendor could collect the data from it. The Court already sanctioned two plaintiffs for this kind of misconduct,” the motion stated.
“Plaintiffs devoted much of their recent filing on the issue of jurisdiction to staking out an untenable position: They appear to say that an earlier Court order absolves them of any responsibility for discovery misconduct. In fact, the Court merely adopted the Special Master’s recommendation to give Giant Eagle the option to forensically search plaintiffs’ phones at its own expense. The Court never relieved plaintiffs of their discovery obligations or said that they should not be held accountable for yet unknown discovery misconduct. In issuing her recommendation, the Special Master took the majority of plaintiffs at their word that they had in fact already conducted a reasonable search for responsive materials, produced responsive materials, and provided truthful and complete discovery responses. The record now shows that many plaintiffs did otherwise.”
Based on the substance of recent depositions, Giant Eagle now seeks sanctions against plaintiffs Lisa Brannigan, Nathanael Dollar, Kristie Harnish, Tommy Wynkoop, Nicholas Conley, Kerry Palladino, Jefrey Coulson, Sharon Burton, Stephen McRae, Molly Shirk, Carol Stevanus and Robert Ree – for various offenses which they say constitute discovery misconduct.
“Some failed to preserve, search for or produce responsive materials. Others falsely answered written discovery aimed at the heart of their claims – whether or not they could comply with Giant Eagle’s face covering policy by wearing some type of face covering. By ducking targeted discovery designed to simplify this action and forcing Giant Eagle to take depositions in order to identify their misconduct, these plaintiffs turned Federal Rule of Civil Procedure 1 on its head,” the motion explained.
Counsel for plaintiff Pletcher replied to the second motion for sanctions in opposing fashion on May 17.
“Defendants’ filings in support of their second motion for sanctions fail to meet their burden under the legal standard for imposition of sanctions pursuant to Rule 37(e). Defendants have not established (1) that any electronically stored information was lost, (2) any lost electronically stored information cannot be restored or replaced through additional discovery, (3) prejudice to the defendants, or (4) a ‘bad faith’ intent of the plaintiffs to deprive the defendants of information. Without these basic elements, the defendants’ motion lacks a proper foundation,” plaintiff counsel stated, in part.
“This Honorable Court has explained that ‘inadvertence, negligence, inexplicable foolishness, or part of the normal activities of business or daily living’ do not constitute bad faith spoliation of electronic information. Defendants have certainly established no evidence of bad faith on the part of any plaintiff, nor could they, because none exists. Additionally, defendants have not established any prejudice by the loss of any important information/evidence such that their ability defend themselves in the presentation of the case has been hindered, nor have defendants established any substantial unfair deprivation of evidence by the plaintiffs. Therefore, defendants’ motion for sanctions should be denied.”
According to the plaintiff, the defendant is a “crybully” who has “tried to harass and intimidate several of the plaintiffs though manufactured discovery disputes and frivolous motions for sanctions”, with the defendants allegedly having targeted plaintiffs Wynkoop and Conley “from the start, culminating with harassing and vexatious deposition interrogations in a thinly veiled effort to intimidate these plaintiffs into submission.”
Giant Eagle’s counsel filed a motion for sanctions against plaintiff Gregory Mandich on May 27 for failure to attend his own deposition for the second time.
“On March 18, 2022, the Court ordered Mr. Mandich’s scheduled deposition to proceed on April 19, 2022. On April 19, 2022, less than five hours before the scheduled start time of 1 p.m., Mandich ‘cancelled’ his deposition because of purported ‘work issues.’ The court reporting service, Planet Depos, charged Giant Eagle a late fee because of the late cancellation, which Giant Eagle asked Mandich to pay. At Mandich’s counsel’s request, Giant Eagle asked Planet Depos to waive the late cancellation fees as a courtesy to Giant Eagle, given the significant fees Giant Eagle has paid in this case for depositions. Planet Depos agreed, and Giant Eagle passed on the courtesy to Mandich,” according to the most recent sanctions motion.
“Giant Eagle and Mandich rescheduled his deposition for May 26, 2020, at 1 p.m. Giant Eagle’s counsel, the court reporter, videographer and technician logged onto the Zoom platform for the deposition at its scheduled start time. About 15 minutes after the deposition was scheduled to begin, Mandich’s counsel informed Giant Eagle that Mandich would not appear for his deposition because of ‘work.’ Giant Eagle offered Mandich the opportunity to withdraw his claims to avoid facing a sanctions motion. Mandich did not respond.”
According to Giant Eagle’s counsel, the Court “previously ordered that any plaintiffs who were unwilling to meet their discovery obligations were required to dismiss their claims” – but despite this, Mandich has now failed twice to appear for his deposition.
“Under Federal Rule of Civil Procedure 37, the Court has wide latitude in imposing sanctions against a Party failing to attend his own deposition. In addition to these discretionary sanctions, when a party fails to attend his own deposition, the Court ‘must require the party failing to act, the attorney advising the party, or both, 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 expense unjust,” the motion stated.
“Mandich has offered no reason substantially justifying his repeated failure to appear for his own deposition or excusing his failure to obey the Court’s orders. Accordingly, Giant Eagle asks the Court to dismiss his claims and order Mandich to pay Giant Eagle’s reasonable costs and fees in connection with his second deposition at which he did not appear.”
UPDATE
On June 7, Mandich’s counsel filed an opposing response to the defense’s attempt to sanction him for missing his deposition appointments.
“Plaintiff does not dispute that he should have appeared at the scheduled time for his deposition on May 26, 2022. Plaintiff was called into work and did not notify anyone such that everyone appeared virtually, including plaintiff’s counsel, only to learn that Mandich was unavailable. Plaintiff’s counsel apologized to all present for the inconvenience and promised to promptly reschedule and explain to plaintiff in no uncertain terms that failure to appear would be unacceptable,” plaintiff counsel stated.
“Instead of rescheduling the deposition, defendants’ counsel immediately sent the email attached to defendants’ motion. Defense counsel demanded dismissal otherwise a motion for sanctions would be filed. Before plaintiff’s counsel was even able to confirm with plaintiff that he did not want to dismiss his claims and explain to him that if he did not want to dismiss the claims the deposition would need to be rescheduled and conducted without cancellation, defendants filed their motion for sanctions the next day on May 27.”
Mandich’s counsel pointed out when his deposition was previously canceled and rescheduled after April 19, the defendants incurred no cancellation fee and the deposition was rescheduled at no additional expense to the defendants. If defendants have incurred any cancellation fee related to the deposition that did not occur on May 26, Mandich’s attorney stated that opposing counsel has not advised plaintiff’s counsel and no cancellation fee is referenced in the pending motion for sanctions.
“Plaintiff respectfully suggests that under the circumstances the relief requested is out of line with the inconvenience incurred due to the late cancelation of the deposition. Admittedly, plaintiff’s failure to appear without notice should not have happened. Plaintiff has been advised that when the deposition is rescheduled, he must appear, and that being called into work even at the last minute is not an acceptable excuse,” the reply motion stated.
“Defendants have not been prejudiced by the cancellation of plaintiff’s deposition. If, the defendants have incurred costs related to the cancellation, plaintiff’s counsel has voluntarily agreed to pay the charges. Plaintiff requests that the motion for sanctions be denied and this Honorable Court issue an alternative order stating that any additional failure to appear (with the exception of some extraordinary circumstance) at a rescheduled deposition will result in the imposition of sanctions.”
The plaintiffs are represented by Thomas B. Anderson of Thomson Rhodes & Cowie, in Pittsburgh.
The defendants are represented by Jeremy D. Engle and Jonathan D. Marcus of Marcus & Shapira, also in Pittsburgh.
U.S. District Court for the Western District of Pennsylvania case 2:20-cv-00754
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com