Magistrate Judge John M. Facciola recently struck down, without prejudice, a motion for sanctions for the alleged destruction of electronic communications, finding it “premature to consider the question of sanctions until discovery ends and the Court can assess accurately what prejudice, if any, the loss of the electronically stored information has caused.” Davis v. Grant Park, No. 08-cv-1764 (PLF/JMF), 2010 U.S. Dist. (D.D.C. Nov. 9, 2010). Deeming the assessment of prejudice the critical issue, and citing D’Onofrio v. SFX Sports Group, Inc., No. 06-cv-687 (JDB/JMF), 2010 U.S. Dist. LEXIS 86711, at *11 (D.D.C. Aug. 24, 2010) (Facciola, J.), Judge Facciola determined that “the nature and extent of the loss suffered” could not be “accurately gauged” until “all the information that is available” is gathered, which occurs at the close of discovery. Id. at *3. As such, the court directed plaintiff to decide whether to renew the motion after discovery ended, noting further that a renewed motion should “show as clearly as possible the nature of the prejudice,” and that defendant’s submission should “make a similarly precise showing in opposition.” Id. at *4. The decision is consistent with D’Onofrio, wherein Judge Facciola instructed, “[i]t is only after establishing the prejudice the plaintiff suffered that any resulting sanction will fairly address that prejudice, consistent with this Circuit’s insistence that any sanctions imposed be a function of the prejudice done to a party by its offending opponent.” 2010 U.S. Dist. LEXIS 86711, at *11 (citing Bonds v. District of Columbia, 93 F.3d 801, 808 (D.C. Cir. 1996)). Judge Facciola’s directive serves as an important reminder to litigants that any sanctions imposed should ultimately bear a relationship to the prejudice suffered by the other party, and that such prejudice may not be discernable until the close of discovery in a contested matter.
