PLAINTIFF’S FED. R. CIV. P. 37(e) MOTION
AUG 27, 2024 | REPUBLISHED BY LIT: SEP 5, 2024
SEP 5, 2024
Above is the date LIT Last updated this article.
TO THE HONORABLE YVONNE Y. HO:
COMES NOW, Plaintiff QUINCY JAMES GORDON (“Gordon”), and files this Fed. R. Civ. P. 37(e) Motion.
Accordingly, Plaintiff would show:
I. SUMMARY OF ARGUMENT
1. Defendants incurred in spoliation of evidence.
They failed to preserve the hotel’s surveillance video footage that would have corroborated Gordon’s version of events.
They also failed to preserve text messages that Defendant Noor Hasan (“Hasan”) had with a coworker concerning what happened to Gordon’s belongings, even after she was asked to do so.
Gordon now seeks Fed. R. Civ. P. 37(e) relief and requests a jury instruction and the denial of summary- judgment motions.
II. RELEVANT BACKGROUND
A. ALTHOUGH LIU FALSELY TESTIFIED OTHERWISE, POLICE BODYCAM VIDEO FOOTAGE SHOWS THEM ASKING HER TO PRESERVE A COPY OF THE HOTEL’S SURVEILLANCE VIDEOS
2. On May 20, 2020, during Gordon’s hotel stay, there was an incident at the hotel that necessitated police attention.
At her deposition, Defendant Wendy Liu (“Liu”) testified that the police never requested the videos.
Ex. 3, Pg. 149:17-18.
This was false.
Body camera video footage from HPD conclusively shows otherwise, and in at least three (3) ways.
First, Sergeant Stuart Red literally asked Liu if she had cameras, and she answered that the Defendants had cameras everywhere.
Doc. 168/169 Ex. 5 (20:30-20:42), Ex 6 (18:18-18:34), Ex. 7 (15:53-17:07); Ex. 5, Pg. 61:9-11, 92:4-9.
To be exact, there were forty-two cameras on site that day.
Ex. 3, Pg. 90:4-5.
Second, Liu is literally on video with Hasan personally pulling-up videos on their laptops for the police.
Doc. 168/169 Ex. 6 (21:17-21:20, 26:12-26:30, 27:35-27:46), Ex. 7 (24:47-25:00); Ex. 2, Pg. 137:4-15.
Third, Officer Gary Tyneway asked Liu for a copy of the videos, and she responded she would, but only with a warrant.
Doc. 168/169, Ex. 6 (53:22-53:30).
With those requests, IH WL Acquisition Manager, LLC’s (“Aimbridge”) SOP required Liu to “contact the Risk Management Team for further guidance.”
Ex. 16, Pg. 12.
Additionally, it also required that “all applicable CCTV video/photos of the incident… be collected.”
Ex. 16, Pg. 1.
There is no evidence that Defendants preserved this surveillance video evidence.
B. DEFENDANTS ALSO KNEW IN THE AFTERNOON OF MAY 21, 2020, THAT THE HOTEL’S VIDEOS SHOULD BE PRESERVED
3. The next day, at 4:51 PM, Liu wrote an email to the Defendants.
Ex. 8, Pg. 157:19- 158-1.
From her “wendy.liu@hyatt.com” email address, she sent an email filled with falsehoods, which read:
“Hi everyone, [Gordon] was arrested because he was running a prostitution ring at our hotel along with [four] other female guests who police believe… [were] involved with a nearby robbery…
Our camera footage shows Mr. Gordon driving in the same car as the female guests….
He then left his room, ran to the front desk and asked us for help…
I… had to give compensation to my in house guests who were disturbed by this…
The $1,000 disturbance [fee] is to cover the damages done to the property…
It will include compensation we had to provide to other guests…
Unless directed by Hyatt corporate, as GM of this hotel, I stand by the charges.”
See Ex. 15, Pg. 3 (05/21/2020 16:51:30).
To clarify, almost everything in this email can be shown as false.1
As summary, first, Gordon had not been running a prostitution ring, nor was he a prostitute.
Second, the hotel’s surveillance video could also show what Liu claimed since Gordon had not been driving in the same car as the female guests.
Third, the $1,000 disturbance fee supposedly imposed on Gordon was not to cover any damages to the property.
Fourth, the $1,000 cash-only fee was not to compensate guests either.
These four things are addressed and evidenced in Gordon’s other pending pleadings.
In any case, the fact Liu sent this email should have put her and the other Defendants’ on notice of the need to preserve said videos.
4. When confronted with that email specifically, Liu refused to state why she did not preserve the referenced video.
Ex. 36, Pg. 5-6 # 21.
To be exact, Gordon asked:
Interrogatory #21: If, as you wrote, the hotel’s camera footage showed Mr. Gordon driving in the same car as the female guests into the garage while being followed by police, as you claimed to your employer in writing, then why did you not preserve that video or any other videos related to the incidents made the basis of this lawsuit?”
See Ex. 36, Pg. 5-6 # 21.
Moreover, Gordon also explicitly asked Aimbridge the following:
Interrogatory #23: As it appears that Defendant Wendy Liu has put you on notice that a guest was allegedly “arrested for running a prostitution ring at [your] hotel” and that there is “camera footage show[ing] Mr. Gordon driving the same car as the female guests into the garage while being followed by police,” why did you not save or preserve those videos?
See Ex. 37, Pg. 15 # 23.
Liu and Aimbridge, however, wholly refused to respond to these interrogatories substantively.2
Ex. 36, Pg. 5-6 # 21; Ex. 37, Pg. 15 # 23.
Presumably, because the answer will clearly reveal bad faith.
1 Gordon does this in his response to Defendants’ motions for summary judgment.
2 Nor can they answer it now. Fed. R. Civ. P. 37(c)(1) (noting that if a witness fails to supplement a response, they cannot use that information in response to a motion).
Moreover, Defendants also totally failed to object to Gordon’s requests for production seeking these document retention policies and refused to produce any.
Ex. 40, Pg. 7 #73-74.
5. That said, there is conflicting testimony on how long these videos are kept.
According to Hasan, the Defendants had just gotten a new security footage, meaning that, if anything, they should have still had the footage.
Doc. 168/169 Ex. 11, Pg. 51:3-4.
Moreover, Hasan believes that the videos system the Defendants have can “keep them permanently.”
Doc. 168/169 Ex. 11, Pg. 50:15.
Nothing in Aimbridge’s interrogatory responses indicate that such is not the case.
Ex. 37, Pg. 13, # 20.
But, at Aimbridge’s corporate representative’s deposition, he testified that their DVRs will store videos for six (6) months.
Ex. 7, Pg. 148:11-13.
Whether permanently on the high end or six months on the low end, the Defendants knew these videos needed to be preserved. Infra.
C. POLICE REQUESTED VIDEOS THE NEXT DAY AS WELL
6. Later that night, police again were called to the hotel. Gordon had called them and Hyatt’s 1-800 help line because Defendants “refused to give him his items back,” and because he wanted “a refund or to be allowed to stay for the two nights he paid.”
Ex. 15, Pg. 3 (05/21/2020 19:57:33).
Gordon met with Officer Hamid, got on his knees and begged: “I called the police.”
168/169 Ex. 9 (4:25 to 4:35); Ex. 1, Pg. 148:8-13, 151:23-24.
Gordon added: “Look, I’m on my knees begging you as a man.”
168/169 Ex. 9 (4:41 to 4:50); Ex. 2, Pg. 209:17.
“You can… see it on camera… please help me.”
Doc. 168/169 Ex. 9 (7:10 to 7:34).
Gordon cried.
Ex. 2, Pg. 210:13:24.
“We’ll figure it out,” Hamid assured Gordon.
Doc. 168/169 Ex. 9 (13:05-13:06).
7. So, Hamid went back to Hasan, and asked: Do you have anything on video.”
Doc. 168/169 Ex. 9 (14:57-14:58).
With that request, as was the case with Liu the day before, Aimbridge’s SOP required Hasan to “contact the Risk Management Team for further guidance.”
Ex. 16, Pg. 12.
Additionally, it had also required that “all applicable CCTV video/photos of the incident… be collected.”
Ex. 16, Pg. 1.
Hasan did contact Aimbridge. To be exact, Hasan filed a written report.
Ex. 18.
The form for that report required Hasan to put Aimbridge on notice of the existence of “security cameras” as “witnesses.”
Ex. 18, DEF 000246.
D. AN AIMBRIDGE CORPORATE REPRESENTATIVE THEN VISITS
8. Following the events of May 20 and 21, an Aimbridge corporate representative showed up to the hotel to investigate.
Doc. 168/169, Pg. 33:12-19.
During that investigation, Aimbridge reviewed the surveillance videos.
Ex. 7, Pg. 147:3-12.
Pursuant to Aimbridge’s own SOP, during his visit, he should have had all applicable CCTV video/photos of the incident… be collected.”
Ex. 16, Pg. 1.
In other words, Defendants failures keep piling up.
E. SUBPOENAS ARE ISSUED AND THEN REFUSED
9. For the events of May 21, 2020 at Hasan’s insistence, Gordon was charged with making a terroristic threat.
The fact that Gordon did not make such a terroristic threat, and that Hasan had instigated a false arrest or imprisonment is heavily evidenced in Gordon’s other pending pleadings.
In any case, on June 22, 2020, Gordon’s criminal attorney applied for subpoenas for the videos.
Ex. 21, 22.
Said subpoenas were issued.
Ex. 23, 24.
Then, said subpoenas for the videos were served on June 25, 2020 and July 16, 2020.
Ex. 25, 26.
10. The only reason why such subpoenas would not be forwarded to Defendants’ risk or legal department was if the regional lead said not to do so.
Ex. 7, Pg. 150:6-13.
In other words, Defendants had been served with these subpoenas either a month or two months from the dates of incidents, which is well within the six (6) months that Aimbridge’s corporate representative testified that the DVR saves the videos.
Ex. 7, Pg. 148:11-13.
In any case, the subpoenas were refused, and the criminal case was dismissed.
Ex. 27.
F. HASAN WAS PUT ON NOTICE TO PRESERVE TEXT MESSAGES
11. In January 2022, six days after she was served with this lawsuit, Hasan was put on notice to “save” her “text messages.”
Doc. 168/169, Pg. 3:23-4:1, 69:2-14.
Hasan had been “texting” with “a coworker” who had been telling her “what happened to [Gordon’s] stuff.”
Doc. 168/169, Pg. 9:5-10.
Moreover, these text messages included details about Liu potentially having been fired for stealing cash from Hyatt.
Doc. 168/169 Ex. 11, Pg. 15:20-16:12.
And, they speak of “security camera” videos of Liu doing so.
Doc. 168/169 Ex. 11, Pg. 16:15-19.
Given this, Gordon later formally requested these, and they were not produced.
Ex. 39, Pg. 6 # 19, 8 # 29.
G. THE HONORABLE COURT’S ORDER, DATED JUNE 11, 2024
12. On June 11, 2024, the Honorable Court issued an order.
Doc. 154.
In it, the Honorable Court noted the hotel’s “videotape[s were] no longer available,” that Gordon had “raised spoilation allegations,” and that those “allegations would be resolved at a later juncture.”
Doc. 154, Pg. 6 fn 1.
Moreover, the Honorable Court also ruled as follows:
“Defendant Hasan has stated that she communicated via text message with a co-worker (Gisselle Griffin) about this incident after this suit was filed. Hasan’s counsel is ORDERED to obtain and review Hasan’s devise—imaging it, if necessary—and produce the referenced text message(s) by searching between January 13, 2022 and January 31, 2022.
If the message is not on Hasan’s device, counsel must obtain and search for it on the device’s cloud backup.
Absent a showing of good cause, production of Hasan’s text message must be completed by July 1, 2024.”
Doc. 154, Pg. 9 ¶ 1.
After this order was issued, Defendants hired a digital forensic examiner who attempted to retrieve said text messages but was unable to do so.
Now, Plaintiff seeks to have the spoilation allegations resolved and particularly seeks Fed. R. Civ. P. 37(e) relief.
III. STATEMENT OF ISSUE
13. Is Gordon entitled to Fed. R. Civ. P. 37(e) relief? (Yes).
IV. RELEVANT LEGAL STANDARD
14. This Court has previously stressed that a spoliator should not permitted to profit from a destruction.
BridgeTower Opco LLC v. Workforce Rsch. Grp. LLC, 2023 U.S. Dist. LEXIS 10768 *12 (S.D. Tex. 2023) (Ho, Yvonne).
A court like this one does justice by funding truth.
TLS Mgmt. & Mktg. Servs., LLC v. Mardis Fin. Servs., 2018 U.S. Dist. LEXIS 13784 *1 (S.D. Miss. 2018).
That search requires evidence. Id.
Destroying evidence, then, is more than a devious litigation strategy. Id.
It is a lethal attack on a court’s purpose and must be responded to in kind. Id.
That said, Fed. R. Civ. P. 37(e) supplies the standard for the lost electronically stored hotel surveillance footage that was on Liu’s laptop.
From it, the four (4) predicate elements are that a party was
(1) obligated to preserve the ESI,
(2) but did not do so,
(3) because they failed to take reasonable steps to preserve it,
and
(4) the ESI cannot be restored or replaced.
Balancecxi, Inc. v. Int’l Consulting, 2020 U.S. Dist. LEXIS 219993 *35 (W.D. Tex. 2020).
15. The obligation comes into being when there is notice that the evidence needs to be preserved.
Falkins v. Goings, 2022 U.S. Dist. LEXIS 218205 *10 (E.D. Lou. 2022);
see also Doc. 52, Pg. 15 ¶ 36 (citing Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010) and conceding that that is the law).
Moreover, “bad faith is determined by the when and how” the “data” was lost.
TLS Mgmt., *6.
Finally, Fed. R. Civ. P. 37(e)(1) does not place the burden of proving or disproving prejudice on one party or the other; instead, the rule leaves judges with discretion to determine how best to assess prejudice in particular cases.”
Estate of Esquivel v. Brownsville Indep. Sch. Dist., 2018 U.S. Dist. LEXIS 219332 *12 (S.D. Tex. 2018)
(noting that “the relevance and importance of the lost footage [was] undisputed” and that the “Plaintiffs [thus had] been prejudiced by the loss of the video”).
V. ARGUMENT
A. THE DEFENDANTS SHOULD NOT BENEFIT OR PROFIT FROM THE SPOLIATION OF THE HOTEL’S SURVEILLANCE VIDEOS
16. The Defendants’ obligation to preserve the hotel’s surveillance videos came into existence as soon as police told the Defendants that they needed the videos. Supra.
To that, the Defendants responded that a legal process would be required to obtain such copies of the videos. Supra.
At the very latest, it came into being when the subpoenas for the videos were served. Supra.
That said, bad faith is determined by when and how the data was lost.
The hotels’ surveillance videos appear to have been lost when the Defendants refused to comply with the subpoena, and Gordon’s case was dismissed. Supra.
Before then, the Defendants’ own SOP necessitated that they preserve the videos. Supra.
Several internal emails and reports have put them on notice of the necessity of safeguarding said videos. Supra.
Finally, according to the Defendants’ corporate representative, the videos should have still been on the DVR when the subpoenas were served. Supra.
A jury, therefore, could find bad faith.
Finally, Gordon is prejudiced by the loss of these videos as they would have corroborated his version of events.
B. THE DEFENDANTS SHOULD NOT PROFIT FROM HASAN DESTRUCTION OF TEXT MESSAGES
17. Hasan’s preservation obligation came into existence when she was explicitly told to preserve her text messages with another former employee, Giselle Griffith, and that there would be a subsequent formal request.
Hasan, however, failed to preserve the evidence that was electronically stored.
Hasan knew of the need to preserve them but did not do so is bad faith.
Consequently, Gordon is prejudiced because those text messages would have revealed what happened to Gordon’s converted personal belongings and the circumstances of Liu’s separation from Hyatt/Aimbridge. Supra.
Such evidence would have been valuable in impugning the credibility of Defendants.
VI. RELIEF SOUGHT
18. Similarly situated courts allow the jury to decide whether the Defendants’ evidence in bad faith.
See DeYoung v. Dillon Logistics, Inc., 2021 U.S. Dist. LEXIS 26947 * 9 (E.D. Tex. 2021);
Edwards v. 4JLJ, LLC, 2018 U.S. Dist. LEXIS 99788 * 37 (S.D. Tex. 2018).
Using such cases as an example, Gordon recommends the following proposed jury instructions:
Ladies and gentlemen of the jury, if you find that the Defendants willingly withheld, destroyed, or failed to preserve evidence, specifically the hotel’s video surveillance footage and text messages, you may infer that the Defendants did so because the evidence would have been damaging to its case.
In addition, Gordon seeks the denial of the Defendants’ pending summary-judgment motions as a sanction. Doc. 166, 167. Similarly situated courts have also found that an appropriate remedy should come in the “form of denial of summary judgment.”
Cleary v. Am. Airlines, Inc., 2022 U.S. Dist. LEXIS 184667 *22 (N.D. Tex. 2022) (finding the same);
Villalon v. Cameron Cty., 2017 U.S. Dist. LEXIS 222483 *15 (S.D. Tex. 2017)
(finding that the loss of a video should preclude the Defendants “from filing a summary-judgment motion alleging Plaintiff’s lack evidence to support their claim”).
The rationale for such a remedy here would be that the hotel’s surveillance videos would have entirely corroborated Gordon’s version of events and also captured the Defendants’ misdeeds on video.
Moreover, the lost text messages have frustrated Gordon’s ability to find out what happened to his things or why Liu and Hyatt/Aimbridge parted ways.
Before Gordon’s incident, employees have freely spoken negatively about Liu’s “racial… profil[ing]” of guests who are too “scared to speak up” over the phone in conversations with Hyatt.3
Ex. 10, DEF 000260.
Hence, the text messages could have contained the same and other information key to the summary-judgment dispute.
Thus, those motions should be denied, as sanctions.
3 Gordon did not have a chance to confront Liu about this at her deposition, since the Defendants resisted producing such until the Honorable Court ordered them to do so. Doc. 154, Pg. 7.
Even at that, the Defendants kept all the names and contact information redacted even though the Honorable previously found some guest names/contact information was discoverable. Id.
VII. PRAYER
WHEREFORE, Plaintiff requests that the Honorable Court GRANT the Motion.
Respectfully submitted,
The Shariff Law Firm
By: /s/ M. Obaid Shariff
M. Obaid Shariff
Federal I.D. No. 2827312
Texas Bar No. 24091135
2500 West Loop South, Ste 300
Houston, Texas 77027
eservice@sharifflawfirm.com
ATTORNEY FOR PLAINTIFF
CERTIFICATE OF CONFERENCE
TO: Clerk of the Court
I certify that we conferred with the Defendants regarding the subject matter of this motion, and they indicated they were opposed.
TO: Clerk of the Court
I hereby certify that on the date of this filing, I electronically filed the foregoing with the Clerk of the Court using the CM/ECF system and/or via email to the following:
MAYER LLP
Zach T. Mayer
zmayer@mayerllp.com
Virginia M. Pederson
vpederson@mayerllp.com
750 North St. Paul, Suite 700
Dallas, Texas 75201
Attorneys for Hyatt House Franchising, L.L.C., SRE 4610 TX OPCO GP Pledgor, LLC, IH WL Acquisition Manager, LLC, Houston H. Galleria OPCO, LP, and Wendy Liu
THOMPSON, COE, COUSINS & IRONS, L.L.P.
Sean R. Hicks
David A. McFarland
Thompson, Coe, Cousins & Irons, L.L.P.
Plaza of the Americas
700 North Pearl Street,
25th Floor Dallas, Texas 75201
Attorneys for Defendant Noor Hassan
By:
M. Obaid Shariff
Attorney for Plaintiff
Gordon v. Hyatt Corporation
(4:22-cv-00092)
District Court, S.D. Texas, Judge Al Bennett n’ MJ Yvonne Ho
JAN 10, 2022 | REPUBLISHED BY LIT: SEP 5, 2024
SEP 5, 2024
Above is the date LIT Last updated this article.
ORDER ON MOTIONS FOR SUMMARY JUDGMENT AND DISCOVERY ISSUES
On June 10, 2024, the Court held a hearing to address numerous procedural irregularities with the parties’ summary judgment briefing and to resolve a discovery issue raised by Plaintiff Quincy James Gordon.
The summary below details the Court’s rulings on these issues—and a few additional ones evident from the record.
I. Rule violations and summary judgment motions
Failures to review and comply with procedures. Attorneys on both sides have disregarded numerous procedures specified in the Local Rules as well as Judge Bennett’s rules.
This includes, but is not limited to, requirements for filing materials under seal; strict page limits on briefing; and certificates of conference for all motions requesting relief.
It is therefore ORDERED that all counsel must carefully review the Court’s procedures and rules. Non-compliant filings will be stricken.
Do not count on having another chance to file a compliant document.
Summary judgment briefing.
In the guise of a reply brief, Defendants requested a continuance of the Court’s ruling on their own motions for summary judgment.
Dkt. 147.
That request is procedurally improper, as all such requests for relief should be filed as a motion and must include a certificate of conference.
Regardless, a defendant has no good cause to request a continuance if it chose to file a motion for summary judgment prematurely.
Nevertheless, other legal and practical considerations warrant a fresh start on the summary judgment process.
Significantly, Plaintiff’s attorneys indicated that they wish to supplement the summary judgment record with new evidence obtained once additional document discovery and depositions have been completed.
Fairness therefore dictates that Defendants should also be entitled to supplement their arguments with additional evidence.
On the other hand, the piecemeal summary judgment filings have created a convoluted record with identical exhibits, including video and audio evidence, scattered throughout myriad filings.
Also, Defendants Hyatt House Franchising, LLC and Wendy Liu, despite sharing the same counsel, each filed two motions for summary judgment, when they should only be filing one.
See Dkt. 101 (Hyatt House); Dkt. 104 (Liu); Dkt. 103 (joining another MSJ).
To streamline the process and ensure all parties have a full and fair opportunity to raise issues and evidence on summary judgment,
it is therefore ORDERED that all pending motions for summary judgment (Dkt. 52, 101, 103, 104) are hereby TERMINATED in favor of allowing Defendants to file new motions for summary judgment.
The new briefing must proceed in accordance with the following procedures and deadlines:
· As stated in the current scheduling order, Dkt. 117, the motions deadline is September 30, 2024.
· All objections to summary-judgment evidence must be (1) raised in a separate motion to strike that complies with the Court’s requirements; and (2) filed by the deadlines stated below.
· Defendant Noor Hasan, who is represented by separate counsel, may file her own motion for summary judgment (“MSJ”). All other Defendants must file a single, consolidated MSJ.
· The deadline for Plaintiff’s summary judgment response and any motion to strike a defendant’s summary-judgment evidence is 20 days after a defendant’s MSJ is filed.
· Defendant Hasan and the remaining defendants may file both a reply brief (one for Hasan and another, collectively, for the other defendants) in support of summary judgment and a motion to strike Plaintiff’s summary judgment evidence (again, one for Hasan and another for the remaining Defendants) no later than 14 days after Plaintiff’s MSJ response is filed.
· No more than 14 days after a defendant’s MSJ and any motion to strike Plaintiff’s evidence is filed, Plaintiff may file: (1) a response to any defendant’s motion to strike; and (2) a motion to strike the defendant’s summary-judgment evidence. The corresponding defendant(s) may file a reply in support of its motion to strike Plaintiffs’ evidence 5 days after Plaintiff’s response is filed.
· If Plaintiff files a motion to strike a defendant’s evidence, that defendant’s response is due 14 days later. Plaintiff’s reply in support of the motion to strike would be due 5 days after the response is filed.
This chart summarizes the foregoing deadlines:
Secrecy, Sex and… Brisket.
Houston: Southern District Federal Bankruptcy Court’s Former Chief Judge David “Roasted” Jones facing Civil Racketeering Charges – Laws In Texas https://t.co/wfEJHSqYp7 https://t.co/Bu6cHnf8vF pic.twitter.com/2ZXAFGjcsl
— lawsinusa (@lawsinusa) June 26, 2024
Video and audio files for summary judgment record.
The parties must submit a joint appendix of all video files they wish to use in their summary judgment briefing.
The joint appendix must include a table of contents that (1) describes each file; and (2) states the total length (in hours/minutes/seconds) for each file.
The joint appendix must also include a (re-submitted) copy of the certified transcript of Hasan’s recorded phone call, which is currently included at Dkt. 109-2, PX-1D.
Citations to the video files, which are voluminous, must identify—by hour-minute-second—the exact location of the referenced information.
Cites to Hasan’s recorded phone call must reference the page of the certified transcript, not the audio file.
The Court may disregard all citations that lack or provide inaccurate page numbers or timestamps.
See, e.g., Malacara v. Garber, 353 F.3d 393, 405 (5th Cir. 2003)
(judges have no obligation to sift through the record in search of summary-judgment evidence;
“Judges are not like pigs, hunting for truffles”
) (internal quotation marks omitted).
Other instructions for summary judgment briefing.
A few additional rules merit emphasis.
First, the parties cannot submit a filing that exceeds Judge Bennett’s page limits without obtaining leave of court.
Only reasonable requests for extra pages will be granted.
The motion for leave must attach the proposed overlength filing and comply with all other requirements for motions.
If the motion for leave is opposed, any response must be filed within 3 days of the motion. No reply will be entertained.
Second, the Court will not permit a party to submit new evidence for the first time in a reply brief.
Nor will the Court allow supplementation of the summary-judgment record with additional evidence once briefing is complete.
Allowing such late submissions would undermine the objectives behind the Court’s decision to authorize a new round of summary judgment briefing.
II. Discovery issues
The following memorializes the Court’s rulings on Plaintiff’s request to compel certain documents.
Request for Production No. 31.
The Court DENIES Plaintiff’s request to compel information responsive to this request for all emails from May 20, 2020 onward that relate to Plaintiff or the underlying incidents and were sent or received by Defendants Wendy Liu or Noor Hasan from their work email accounts.
Defendants have stated that they have no such emails.
As a result, there is nothing to compel.1
Request for Production No. 44. The Court GRANTS IN PART and DENIES IN PART Plaintiff’s request to compel production of names and
1 The same is true of Plaintiff’s request for the hotel’s videotape of the incident. That videotape is no longer available, so Defendants cannot produce it. Indeed, Plaintiff has raised spoliation allegations. Those allegations will be resolved at a later juncture.
contact information of other guests who stayed at the subject hotel on the dates of the underlying incidents.
Because Defendants claimed that Plaintiff’s conduct caused other guests to cancel their reservations, they must produce the requested information about those specific guests.
The deadline for this production is June 24, 2024.
Plaintiff’s request for information about all other guests who stayed at the hotel, however, is overbroad and not proportional to the needs of this case.
Request for Production No. 54.
The Court GRANTS IN PART and DENIES IN PART Plaintiff’s request to compel production of recorded phone conservations to the corporate member services line that concern discrimination complaints. Defendants must produce such recordings only if
(1) they concern discrimination complaints by other customers about the specific hotel where Plaintiff stayed, and the calls were made during the two- year period leading up to and including May 20, 2020;
or
(2) they concern calls made by Plaintiff regarding the incidents underlying this suit.
If Defendants’ position is that they have no such recordings, Defendants must identify the repositories that were searched and any custodians whose data was searched.
By June 24, 2024, Defendants must either produce the recordings or, if they are not available, provide the foregoing information.
Plaintiff’s request for recordings that discuss all discrimination complaints, regardless of the hotel’s location or when the conversations took place, is overbroad and not proportionate to the needs of this case.
Requests for Production No. 55 and 56.
Plaintiff’s request to compel documents reflecting all complaints of racism or discrimination at Defendants’ hotels during a five-year period, whether concerning Defendant Wendy Liu or otherwise, is GRANTED IN PART and DENIED IN PART.
Defendants must produce all discrimination complaints, including but not limited to complaints about discrimination by Liu, but only about the hotel location where the underlying incidents occurred, and only for two-year period leading up to and including May 20, 2020.
The deadline for this production is July 1, 2024. Plaintiff’s request for complaints about other locations and for a longer timeframe is overbroad and not proportional to the needs of this case.
Specific text messages.
Plaintiff also raised the concern that Defendant Liu failed to produce any text messages, even though Defendant Hasan confirmed that she communicated with Liu about the incident via text message.
Defendant’s counsel is ORDERED to obtain and review Liu’s device—imaging it, if necessary—to pull and produce all responsive and non- privileged text messages that were sent or received from May 20, 2020 through June 20, 2020.
If the text messages are not on Liu’s device, counsel must obtain and search the device’s cloud backup.
Absent a showing of good cause, production of Liu’s text messages must be completed by July 1, 2024.
Similarly, Defendant Hasan has stated that she communicated via text message with a co-worker (Giselle Griffin) about the incident after this suit was filed. Hasan’s counsel is ORDERED to obtain and review Hasan’s device-imaging it, if necessary-and produce the referenced text message(s) by searching between January 13, 2022 and January 31, 2022.
If the message is not on Hasan’s device, counsel must obtain and search for it on the device’s cloud backup. Absent a showing of good cause, production of Hasan’s text 1nessage must be completed by July 1, 2024.
III. Answers to the Second Amended Complaint
The Court further notes that none of Defendants, except Noor Hasan, has filed an amended answer to the Second Amended Complaint. Although the Court granted them leave to file amended answers, see Dkt. 39, the pleadings themselves have not been docketed.
This omission needs to be rectified. By June 17, 2024, all Defendants (other than Hasan), must file their amended answers that the Court previously authorized them to file.
Signed on June 11, 2024, at Houston, Texas.
United States Magistrate Judge
No movement on docket and Home sale still under contract (for a very long time).
EXPIRED
Amended Pleadings due by 5/31/2024.
Pltf Expert Report due by 7/1/2024.
Deft Expert Report due by 7/31/2024.
Discovery due by 8/15/2024.
Mediation due by 8/30/2024.https://t.co/TgDvSIT0Zg— lawsinusa (@lawsinusa) September 4, 2024
The People’s Republic of China Trade Secrets Entrusted to US District Judge Alfred Bennett
On the other hand, the secrets of American businesses and citizens residing in the Republic of Texas are made public by default.
Bent Law: Raymond Washington Wants to Clean Up His Credit via Hill’s Illegal Reentry into Texas Court
Judge Al ‘Bent’ Bennett raises his hand to take this unlawful case from out of state law firm and unregistered with TX OCCC repeat offender.
US District Judge Alfred Homer “Bent” Bennett, S.D. Texas, Houston Division
US District Judge Alfred Homer “Bent” Bennett, S.D. Texas, Houston Division
