UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

TIMIKA KEATHLEY, Case No. 15-cv-11888

Plaintiff, Paul D. Borman

United States District Judge

v.

Mona K. Majzoub

GRANGE INSURANCE United States Magistrate Judge

COMPANY OF MICHIGAN,

Defendant.

___________________________/

OPINION AND ORDER DENYING PLAINTIFFS’ AMENDED

(AND RENEWED) MOTION FOR SANCTIONS (ECF NOS. 60, 65)

This is a property loss case in which Plaintiff argues that Defendant Grange

Insurance Company of Michigan (“Grange”) destroyed photographs of the damage to

Plaintiff’s home caused by frozen and burst pipes that allegedly were taken by

Grange’s insurance adjuster, Jason May. In compliance with an Order of this Court

issued in response to Plaintiff’s first motion for spoliation sanctions, Grange produced

an information technology employee from Grange for deposition regarding the

allegedly missing photographs. Still unsatisfied with Grange’s explanation regarding

the allegedly missing photographs, Plaintiff renewed her motion for spoliation

sanctions. (ECF No. 60, Amended Renewed Motion for Spoliation Sanctions.) The

1
Court held a hearing on the spoliation motion on September 13, 2017, and ordered that

Grange comply with further limited requests for additional information regarding

Grange’s claims handling and equipment retention policies. Grange has complied

with the Court’s instructions issued at the September 13, 2017 hearing, but Plaintiff

remains unsatisfied with Grange’s response and has filed a Second Renewed Motion

for Sanctions. (ECF No. 65.) Grange responded to the renewed motion (ECF No. 66)

and Plaintiff has filed a reply (ECF No. 67). For the reasons that follow, the Court

DENIES the motion for spoliation sanctions.

I. BACKGROUND

This is an insurance loss case involving Plaintiff’s claim under her Grange

policy for an alleged loss suffered by claimed water damage to her home in or about

late January or early February, 2014. Although discovery has closed, the parties

continue to debate whether Plaintiff is entitled to spoliation sanctions based upon

Grange’s conduct in allegedly destroying or failing to preserve photographs allegedly

taken by its insurance adjuster, Jason May. Plaintiff claims that these allegedly

spoliated photographs would have established the existence of numerous “burst pipes”

and would have substantiated her claim of extensive damage in her home. 

As relevant to the motion for spoliation sanctions, Jason May testified that

when he first spoke to Plaintiff’s public adjuster, Margie Banks, sometime in April,

2
2014, regarding Plaintiff’s claim, Ms. Banks explained that Plaintiff had suffered

water damage at her home, that the drying and mitigation of the home was complete,

and that repairs were nearly complete. (ECF No. 67, Pl.’s Reply Ex. EE, March 22,

2016 Deposition of Jason May 14:13-17:5.)1

 Mr. May did visit the home on May 28,

2014 and photographed every room. He testified that he met Plaintiff at the home

along with Margie Banks, Plaintiff’s public adjuster, and Joe Tison, Plaintiff’s

contractor. They walked through every room and Tison explained the work that had

already been performed on the home. The home appeared to have been remodeled

and any damage allegedly relating to Plaintiff’s claim had been repaired. May noted

in his claim file notes that he could not do a preliminary estimate due to “no

observable damage.” (May Dep. 28:11-30:5, 73:4-10, 74:1-3, 77:24-79:3.) May

testified that he uploaded all of the photographs from his digital camera to Grange’s

claims handling system, the “CHIP” system. He testified that he would routinely

upload his claim notes and any photographs he did take to the CHIP system. (May

Dep. 37:23-39:14.) Mr. May recalled viewing the photographs he had taken at

Plaintiff’s home and uploaded to CHIP after the upload. (May Dep. 39:22-40:3.) 

Following his inspection at the home, Mr. May recalled that Grange was unable to

1 It is undisputed that the loss occurred sometime in late January or early February,

2014, but Plaintiff did not report the loss to Grange until early April, 2014. (Pl.’s

Reply Ex. EE, May Dep. 42:3-7, 57:18-22.) 

3
verify the damage based on Mr. May’s inspection and needed more information on the

claim, including the mitigation documents, repair estimates, photographs of the

damage and any information that Mr. Tison could provide regarding the repairs that

had been performed because Grange was not given the opportunity to inspect the

claim prior to the repairs. (May Dep. 40:4-41:21.) Mr. May acknowledged that he

was told by Banks that pipes had burst but he testified repeatedly that he did not see

evidence of burst pipes and specifically did not see a pile of burst pipes in the

basement and therefore did not take any photographs of burst pipes or “a pile” of burst

pipes. (May Dep. 47:12-24, 83:12-19.)

Contrary to Mr. May’s testimony, Mr. Tison, Plaintiff’s contractor who

performed the remediation work and gave Mr. May a history of the repairs, testified

that he always left burst pipes on site and in this case he made a “big pile” of pipes in

the Plaintiff’s basement and covered it up “so the adjustor could see it.” (Pl.’s Reply,

Ex. FF, March 16, 2016 Deposition of Joseph Tison 18:4-10.) Mr. Tison also testified

that he specifically recalled Mr. May taking a lot of photographs, “doing his job,” and

specifically recalled that Mr. May took photographs of the visqueened pile of

“contaminated” debris that included burst copper pipes. (Tison Dep. 53:5-55:8.) 

After Mr. May’s visit, Mr. Tison testified, he removed the “debris” including the burst

pipes and put it all in a dumpster. (Tison Dep. 55:9-18.)

4
Plaintiff’s theory of spoliation appears to be that Mr. Tison’s testimony

establishes that Mr. May did indeed photograph a pile of burst pipes and that those

photographs were uploaded to the Grange claims handling system by Mr. May and

later deleted by Grange in an effort to sabotage Plaintiff’s claim. The Court has

supported Plaintiff’s attempt to develop this theory, giving Plaintiff an opportunity

(despite the fact that discovery had closed) to depose an information technology

representative from Grange and subsequently requiring Grange to provide additional

information requested by Plaintiff that appeared not to have been conclusively

established to Plaintiff’s satisfaction by the information technology representative’s

deposition testimony. The matter is now ready for resolution by the Court.

II. STANDARD OF REVIEW

Spoliation of evidence is an evidentiary issue and is governed by federal law

in this Circuit. Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009) (en banc). 

“[T]he authority to impose sanctions for spoliated evidence arises not from substantive

law but, rather, from a court’s inherent power to control the judicial process.” Id.

(internal quotation marks and citation omitted). To be entitled to an adverse inference

instruction based on the destruction of evidence, Plaintiffs “must establish: (1) that

the party having control over the evidence had an obligation to preserve it at the time

it was destroyed; (2) that the records were destroyed with a culpable state of mind; and

5
(3) that the destroyed evidence was relevant to the party's claim or defense such that

a reasonable trier of fact could find that it would support that claim or defense.”

Beaven v. United States DOJ, 622 F.3d 540, 553 (6th Cir. 2010) (quoting Residential

Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)). “‘The test

prescribed in Beaven is conjunctive; thus, so long as the district court did not err in

determining that [the party seeking an adverse inference instruction] had not satisfied

at least one of the prongs, its determination that a spoliation sanction was not

warranted should not be upset.’” Ross v. American Red Cross, 567 F. App’x 296, 302

(6th Cir. 2014) (quoting Adkins v. Wolever, 692 F.3d 499, 504 (6th Cir. 2012)). 

Where material is destroyed in the normal course of business and without evidence

of a culpable motive, spoliation sanctions generally are not appropriate. Parrish v.

Dollar Gen’l Corp., 680 F. App’x 423, 427 (6th Cir. 2017). 

III. ANALYSIS

As Ordered by this Court, Grange produced an information technology

administrator for deposition. (ECF No. 58, March 30, 2017 Order Requiring

Discovery.) Grange produced Mr. James Stewart, Grange’s lead programmer analyst,

for a deposition on April 24, 2017. (ECF No. 59-2, April 24, 2017 Deposition of

James W. Stewart.) Mr. Stewart testified about Grange’s Claims Handling

Information Program (the “CHIP” system) onto which Grange adjusters upload data,

6
including photographs, related to claims investigation and processing. (Stewart Dep.

9:20-10:10.) CHIP is a client server technology that is present on individual

employees’s work stations, either their laptops or their desktops. Entries made into

CHIP by a claims adjuster like Jason May, the Grange employee assigned to

investigate Plaintiff’s claim, are stored on a central server that is backed up nightly

and weekly. Data that is stored on the central server is only retained for about 30

days, so something that was placed on the central server through CHIP by Mr. May

in 2014 would no longer be in existence on CHIP. (Stewart Dep. 14:7-16:2, 18:1-

19:11.) 

Once data is logged into CHIP by a claims adjuster, it cannot be deleted from

CHIP. Photographs that are inputted into CHIP are not stored in CHIP. Photographs

are stored in a product called a Content Manager. (Stewart Dep. 21:13-23:18.) The

Content Manager which stores the photographs is maintained on a server running an

IBM software database. Every photograph that is placed into the Content Manager

through CHIP creates a “pointer” – which is like a hyperlink to that photograph. A

claims adjuster like Jason May would upload a photograph from their digital camera

or their phone, then drag and drop that photograph wherever they want it to appear in

their claim file on CHIP, click “save,” and then CHIP will commit the photograph to

the Content Manager and save a pointer to that photograph on CHIP. (Stewart Dep.

7
23:19-24:13.) A photograph that is uploaded to the Content Manager remains there

for a period of eight years, unless it is deleted. (Stewart Dep. 58:25-59:15.)

The Content Manager is an imaging system and once a photograph is put into

the Content Manager, only one individual at Grange, Richard Gruly, the Content

Manager Administrator, is able to delete material from the Content Manager. (Stewart

Dep. 22:25-23:12.) While Mr. Gruly has the ability to delete a photograph from the

Content Manager, he does not have the ability to delete the pointer to that photograph

in CHIP that was created when it was logged. (Stewart Dep. 23:13-22.) If a

photograph is deleted from the Content Manager, a pointer will still exist in CHIP but

will no longer be an operable link – i.e. if clicked on the pointer will give an error

message indicating that the pointed-to photograph no longer exists in the Content

Manager. A pointer that is created in the CHIP system cannot be deleted from the

CHIP system without the deletion appearing in a file called “logical deletes,” which

keeps a permanent record of every deletion of a pointer in CHIP. (Stewart Dep. 21:22-

23:18.) “Logical deletes” are typically done by business managers who delete spam

and other irrelevant materials. (Stewart Dep. 31:15-32:25.) 

 Mr. Stewart does not interface with the Content Manager, and cannot delete

materials from the Content Manager, but he was able to personally do a search of the

Content Manager for photographs related to the Keathley claim by policy number and

8
claim number. His search revealed no photographs that were not already part of the

claim file, with pointers that had been identified in CHIP. (Stewart Dep. 25:1-18.) 

Mr. Stewart testified that he spoke with Mr. Gruly while he was doing his search of

the Content Manager to discuss generally Mr. Gruly’s procedure for deleting

photographs from the Content Manger. Mr. Stewart understood from Mr. Gruly that

he only deleted photographs once a year in an annual “purge,” and Mr. Stewart had

no reason to believe that Mr. Gruly would ever have specially deleted photographs

from an individual claim file. But Mr. Stewart never told Mr. Gruly that they were

looking for photographs from the Keathley file, never specifically asked Mr. Gruly

whether he had deleted any photographs from the Keathley file, and Mr. Gruly did not

participate in the search for the missing photographs. (Stewart Dep. 29:10-31:1.)

With regard to Grange’s procedures for dealing with a departing employee’s

equipment, Mr. Stewart did not speak with anyone specifically about what was done

with Mr. May’s computer back in 2014 when he left Grange, but he did investigate

and was able to testify regarding the procedure that is generally followed with regard

to a departing employees laptop, camera or other equipment. Cameras are turned in

to Angie White at Grange’s home office for her to reuse or dispose of – to this day,

Ms. White has never reused a camera. Ms. White did not recall Mr. May or what

happened to his camera but it would have been dealt with in the usual manner. 

9
(Stewart Dep. 34:20-36:7.) Ms. White has never examined a used camera to

determine its contents before making the decision to recycle the camera of dispose of

it. Mr. Carr was present in the office with Mr. Stewart and Ms. White when Ms.

White explained the process for dealing with cameras. (Stewart Dep. 36:8-20, 39:16-

41:25.)

With regard to personal computers, Mr. Stewart spoke with Aaron Metheny,

from Grange’s information technology department about the process for dealing with

departing employee’s personal computers. Personal computers are put on a shelf for

a 30-day hold period and then after that period a determination is made whether the

hardware is reusable or needs to be recycled. Mr. Stewart did not ask Mr. Metheny

specifically about Mr. May’s computer or laptop and did not determine what exactly

happened to Mr. May’s computer when he returned it to the IT department. (Stewart

Dep. 37:14-39:15.) Mr. Stewart’s responsibilities do not include tracking assets so he

has no knowledge of what exactly happened to Mr. May’s laptop, PC, or camera when

Mr. May left Grange. (Stewart Dep. 53:5-55:9.)

Mr. Stewart was able to verify through his investigation that for every

photograph he identified in the Content Manager, he was able to identify a

corresponding pointer in the CHIP. Also, it was established through Mr. Stewart’s

testimony that pointers cannot be deleted without a trace being left in the logical

10
deletes and there were no such traces relevant to the Keathley claim. Seemingly left

unanswered by Mr. Stewart’s testimony was whether every pointer in CHIP had a

corresponding photograph in the Content Manager. As discussed supra, if a

photograph has been deleted from the Content Manager, the pointer (a type of

hyperlink) in CHIP will not activate and will display an “error” message. As part of

his search for the missing photographs, Mr. Stewart did not actually click on the

pointers in CHIP to determine whether or not they were active and pulled up a

corresponding photograph in the Content Manager. Accordingly, at the conclusion

of the September 13, 2017 hearing, Grange agreed to confer with Plaintiff’s counsel

and make arrangements to attempt to address any lingering unanswered issues. 

Plaintiff thus was afforded another opportunity, although discovery had closed, to

direct targeted questions to Grange, to which Grange agreed to attempt to respond.

Grange has now produced evidence that answers this question. First, Grange

has produced undisputed evidence that Mr. Stewart located each and every pointer that

was generated when Mr. May uploaded a document or a photograph to CHIP from

May 24, 2014 (just days before Mr. May inspected the Plaintiff’s property and took

photographs) through the end of his employment in October, 2014. (ECF No. 66,

Def.’s Resp. to Renewed Mot. for Sanctions Ex. 1, October 31, 2017 Affidavit of

James W. Stewart ¶ 4.) Grange has produced a spreadsheet identifying each pointer

11
by document identification number and the claim number to which the pointer relates. 

(Id. ¶ 5, Ex. A.) Second, Grange has produced the Affidavit of Joshua Durbin, a

Grange Claims Services Manager, who personally tested the functionality of each

pointer listed on the spreadsheet compiled by Mr. Stewart and confirmed that each of

the pointers functioned properly and did retrieve the corresponding documents and/or

photographs. (Defs.’ Resp. Ex. 2, October 31, 2017 Affidavit of Joshua Durbin ¶ 3.) 

Mr. Durbin further reviewed each document and photograph retrieved and provided

the descriptions of each item listed in the “Description” column on the spreadsheet.

(Durbin Aff. ¶ 4.) Mr. Durbin was able to determine that the pointers and

corresponding documents and/or photographs described in rows 58 to 74 of the

spreadsheet relate to Plaintiff’s claim. (Durbin Aff. ¶ 5.) Mr. Durbin attaches each

of the documents and/or photographs corresponding to the pointers in CHIP that

pertain to the Plaintiff’s claim. (Durbin Aff. ¶ 6, Ex. B.) Each of the documents

attached as Exhibit B to Mr. Durbin’s Affidavit contains a Bates number because of

each of these documents and/or photographs was previously produced to the Plaintiff

by Grange in this litigation. (Defs.’ Resp. Ex. C, Nov. 13, 2017 Correspondence from

Jason Walker to Anthony Brouzas at 2.) 

Thus, if Mr. Gruly (the only Grange employee who can delete photographs

from the Content Manager) had deleted a photograph from the Keathley claim file that

12
had been uploaded by Mr. May, the pointer corresponding to that claim would have

been non-functional and would not have retrieved a corresponding photograph or

document. Mr. Durbin’s Affidavit establishes that each pointer in CHIP that was

created as a result of a document or photograph placed in CHIP by Mr. May was

active, and did retrieve a corresponding photograph or document when activated. This

corroborates the evidence revealed by Mr. Stewart’s initial investigation that revealed

no notes in the Keathley claim log identifying a photograph as deleted and no pointer

in the “doc deleted document” list indicating that a photograph had been deleted. 

Taken together, Grange has submitted undisputed proof that Grange did not delete or

destroy any photographs that Mr. May uploaded to CHIP. Absent evidence of such

a deletion, either through a notation in the doc deleted file or a non-functional pointer,

then it follows that the photographs that Plaintiff claims Mr. May took were not

deleted or were never uploaded to CHIP. In either case, there is no evidence that

Grange intentionally deleted the allegedly damaging photographs from CHIP. Indeed,

the evidence affirmatively establishes that no photographs that were uploaded by Mr.

May were deleted by anyone at Grange.

Not satisfied with this follow-up evidence, Plaintiff continues to press for

spoliation sanctions, arguing that this evidence “still does not legitimately explain the

absence of May’s photos from the claims system.” (ECF No. 67, Pl.’s Reply 1.) 

13
Plaintiff continues to point to May’s deposition testimony in which he testifies that he

did upload the photos that he took at Plaintiff’s home to Grange’s electronic claims

filing system. (Id. at 2, PgID 3612.) And Plaintiff refers the Court back to Mr.

Tison’s testimony that Mr. May did take photographs of the pile of burst of pipes in

Plaintiff’s basement. (Id. at 3, PgID 3613.) While this may be sufficient evidence to

create a genuine issue of material fact regarding whether May did in fact take

photographs of a pile of burst pipes and whether he did attempt to upload those

photographs to CHIP, it is now undisputed that no such photographs appeared in

CHIP and that no photographs successfully uploaded by Mr. May were deleted from

CHIP. This is not evidence suggesting Grange’s culpable mental state in allegedly

intentionally deleting from CHIP photographic evidence of a pile of burst pipes or any

photographs of alleged damage to Plaintiff’s home that had been taken and uploaded

to CHIP by Mr. May.

Plaintiff also speculates in her Reply that evidence of the missing photographs

may have remained on May’s digital camera and/or laptop, which May turned in to

Grange’s Southfield, Michigan office according to company policy when he left

Grange in the latter part of September. There is no evidence establishing or for that

matter suggesting that the allegedly missing photographs remained on Mr. May’s

equipment – the only evidence regarding the whereabouts of the photographs is Mr.

14
May’s testimony that he uploaded them to CHIP, as was his standard practice. But

Plaintiff asserts that Grange should have offered further evidence specifically

establishing that May’s camera and laptop were “turned in and destroyed according

to Grange’s claims retention policy.” (Reply 4, PgID 3614.) But it is the Plaintiff’s

burden to establish Grange’s culpable destruction of evidence – not Grange’s burden

to affirmatively defend its handling of Mr. May’s equipment. Grange has already

submitted that Mr. May’s camera and laptop would have been reformatted and/or

destroyed according to standard company practices when Mr. May surrendered the

equipment to Grange’s Southfield office upon departing Grange. Plaintiff was aware, 

at the time of the September 13, 2017 hearing on Plaintiff’s spoliation motion, that

Mr. Stewart’s deposition testimony did not specifically address how Grange handled

the exact pieces of equipment surrendered by Mr. May. The parties agreed at that

hearing, and the Court approved the arrangement, that Plaintiff’s counsel could submit

specific requests for information to Grange to address what Plaintiff believed were

still unanswered questions and Grange would respond. There is no evidence that

Plaintiff sought and was denied further information from Grange regarding the

specifics of the disposition of Mr. May’s camera and laptop. This is unsurprising as

Plaintiff’s central claim has been that photographs uploaded by Mr. May onto the

CHIP system subsequently were intentionally deleted by Grange. That scenario has

15
now been foreclosed by the testimony of Mr. Stewart and Mr. Durbin and Plaintiff

now pivots her focus to the alternative argument that Mr. May perhaps did not

successfully upload the photos to CHIP and the photographs perhaps remained on Mr.

May’s camera and/or laptop, and that Grange must have intentionally destroyed the

“burst pipe” evidence on that equipment. Mr. Stewart has already testified regarding

the normal retention and destruction protocols for departing employee’s laptops and

cameras and Plaintiff has produced no evidence suggesting that those normal

protocols were not followed with regard to Mr. May’s camera and laptop. When

material is destroyed in the normal course of business and without evidence of a

culpable motive, spoliation sanctions are not appropriate. Parrish, 680 F. App’x at

427. 

IV. CONCLUSION

Plaintiff, her public adjuster, and her contractor, each had the opportunity

(indeed Mr. Tison testified it was part of his job) to photograph the damage that

Plaintiff claims is so central to her claim. Yet, none of them thought it important

enough to document and retain this evidence for themselves. This is noteworthy!

The Court has been very lenient in affording Plaintiff every opportunity to

establish her claim that Grange possessed such evidence and intentionally destroyed

it in an effort to defeat Plaintiff’s claim. The Court now concludes that Plaintiff has

16
failed to carry her burden to come forward with sufficient evidence establishing that

Grange spoliated evidence. Accordingly, the Court DENIES Plaintiff’s Amended

(and Renewed) Motion for Sanctions. (ECF No. 60.) The Court also DENIES AS

MOOT Plaintiff’s Motion for Status on Pending Motion for Sanctions. (ECF No. 68.)

The Court will issue a new scheduling order setting forth dates for mandatory

facilitation and the filing of dispositive motions in the event that facilitation is

unsuccessful in resolving the case. 

IT IS SO ORDERED.

s/Paul D. Borman 

PAUL D. BORMAN

UNITED STATES DISTRICT JUDGE

Dated: March 21, 2018

CERTIFICATE OF SERVICE

The undersigned certifies that a copy of the foregoing order was served upon each attorney or party

of record herein by electronic means or first class U.S. mail on March 21, 2018.

s/Deborah Tofil 

Case Manager

17