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IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT LEE WEATHERED, §

Plaintiff,

§

§

§

V. § No. 3:22-cv-2409-K-BN

FAMILY DOLLAR STORES OF 

TEXAS LLC,

§

§

§

§

Defendant. §

MEMORANDUM OPINION AND ORDER DENYING MOTION FOR LEAVE

Background

Under the Court’s November 10, 2022 Scheduling Order, “[b]y July 7, 2023 all 

discovery, including discovery concerning expert witnesses, shall be completed,” and 

“[a]ll motions that would dispose of all or any part of this case (including all motions 

for summary judgment), shall be filed by August 7, 2023”; and “[t]his case is set for 

JURY trial on the Court’s three-week docket beginning January 16, 2024.” Dkt. No. 

7 at 2, 3.

On August 7, 2023 (the deadline for filing a dispositive motion), Defendant

Family Dollar Stores of Texas LLC filed a motion for summary judgment. See Dkt. 

No. 45.

As a supplement to the Court’s Initial Scheduling Order [Dkt. No. 7], under 

Federal Rule of Civil Procedure 16(b), the Court entered a Supplemental Scheduling 

Order on summary judgment providing that Plaintiff Robert Lee Weathered must file 

a written response to the motion by September 6, 2023; that a motion for continuance 

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under Federal Rule of Civil Procedure 56(d) must be filed separately and may not be 

included in the response to the motion for summary judgment, brief in support 

thereof, or any other document; and that Defendant Family Dollar Stores of Texas 

LLC may file a reply brief, but no additional evidence, by September 21, 2023. See

Dkt. No. 48.

Briefing on the summary motion closed on September 21, 2023 with Family 

Dollar’s reply. See Dkt. No. 54. That same day, Family Dollar filed a request for oral 

argument, which the Court granted and set for October 12, 2023 but then reset for 

November 15, 2023 on the parties’ joint motion for continuance. See Dkt. Nos. 55-60.

At the November 15, 2023 oral argument, Weathered’s counsel announced that 

he intended to file discovery motions related to Family Dollar’s Federal Rule of Civil 

Procedure 30(b)(6) corporate representative Jacqueline Mercedes Bassett’s deposition 

taken on July 5, 2023 and for sanctions related to spoliation of evidence. Family 

Dollar’s counsel protested that these motions, related to matters that Weathered’s 

counsel had known and complained about for months, are coming too late.

The undersigned then, on November 27, 2023, entered Findings, Conclusions, 

and Recommendation of the United States Magistrate Judge, recommending that the 

Court should grant Family motion for summary judgment [Dkt. No. 45]. See Dkt. No. 

64. The undersigned also explained that, “[a]t the November 15, 2023 oral argument, 

Weathered’s counsel announced that he intended to file discovery motions related to 

Family Dollar’s Federal Rule of Civil Procedure 30(b)(6) corporate representative’s 

deposition taken on July 7, 2023 [but actually on July 5, 2023] and to spoliation of 

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evidence”; that “Family Dollar’s counsel protested that these motions, related to 

matters that Weathered’s counsel had known and complained about for months, are 

coming too late”; that “[t]hese motions still have not been filed, and the trial setting 

is fast approaching”; and that “[t]he undersigned will separately address these 

motions if and when Weathered files them.” Id. at 13.

On December 11, 2023, Weathered filed a Motion for Leave to File a Motion to 

Compel and for Sanctions against Family Dollar, see Dkt. No. 67, explaining that he 

“seeks leave of court to file a Motion to Compel and for Sanctions against Defendant 

in connection with corporate representative testimony and spoliated evidence

concerning photographs and video footage,” id. at 1 (footnote omitted).

Weathered’s Motion for Leave reports that, “[p]rior to the instant motion, 

Plaintiff made countless efforts to confer with Defendant’s counsel and submit a Joint 

Report pursuant to the Standing Order on Discovery and Non-Dispositive Motions 

[Doc. 22]”; that “[c]ounsel for Plaintiff engaged in several attempts to confer with 

Defendant’s counsel within three days of requesting a conference regarding the issues 

at hand, in accordance with the Standing Order on Discovery and Non-Dispositive 

Motions”; and that “[t]he parties finally conferred on the afternoon of September 1, 

2023, after which the clock to prepare a joint report began to tick”; that, “[h]owever, 

counsel for Plaintiff was then unexpectedly placed on parental leave due to pregnancy 

complications with his spouse and the early birth of counsel’s child”; that 

“[u]ndersigned counsel ultimately shared drafts of the motion and joint report with 

Defendant’s counsel on November 14 and 16, 2023”; and that, “[a]s of now, Defendant 

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has not provided its stance as to the joint report and merely stated that it disagrees 

with the positions asserted by Plaintiff.” Dkt. No. 67 at 1-2 (footnotes omitted).

According to Weathered, 

this behavior by Defendant is just the latest example of dilatory tactics 

and bad faith discovery.

An example of Defendant’s dilatory and bad faith tactics is that 

on November 22, 2023 – well after the close of discovery period –

Defendant for the first time disclosed two colored photographs 

concerning this case. Despite repeated requests for clarification as to the 

reason such photographs were not timely produced, Defendant’s counsel 

has failed to address the issue. Previously, Defendant provided Plaintiff 

crucial evidence concerning Defendant’s employees after close of the 

briefing period regarding another discovery motion [Doc. 25, 26, and 27]. 

In fact, to date Defendant also has not verified its discovery responses 

as required by Fed. R. Civ. P. 33(b)(5).

This behavior by Defendant highlights its persistent, obstructive

discovery tactics and underscores the importance of addressing 

discovery concerns prior to any dispositive ruling in the instant matter.

....

Plaintiff maintains that leave of court to submit a reply is 

necessary in light of the procedural posture of the case and dilatory 

tactics employed by Defendant, such as failure to address the joint 

report and late production of colored photographs.

Dkt. No. 67 at 2 (cleaned up).

That same day, Weathered filed a Motion for Reconsideration and Objections 

to Findings, Conclusions, and Recommendation of the United States Magistrate 

Judge and explained that, 

[b]efore ruling on Defendant’s motion for summary judgment, it is vital 

that the Court address Plaintiff’s Motion for Leave to File a Motion to 

Compel and for Sanctions to prevent manifest injustice based on dilatory 

and bad faith discovery tactics employed by Defendant. See Dkt. 67 and 

68. Such tactics are self-evident by the fact that Defendant for the first 

time produced two colored photographs on November 22, 2023, long 

after the close of discovery and oral arguments on the motion for 

summary judgment. See Dkt. 67 at 2 and Dkt 68 at 5-7. As of this motion, 

Defendant has failed to provide other crucial photographic and video 

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evidence that inter alia showed the water spill and movement within the 

aisle where Plaintiff fell. The claim file notes maintained by Sedgwick 

clearly reference photographic evidence that showed the water spill and

documented it to be “not overly obvious in the photos.” See Dkt. 53-1 at 

44. Such photos, which would address the conspicuity of the substance, 

have never been produced to Plaintiff. Further, the absent video 

evidence is vital for understanding the movement of Plaintiff, the 

veracity of Defendant’s assertions such as that the area had been 

mopped shortly before Plaintiff’s fall, actions of Defendant’s employees 

before and after the incident, and movement of other store visitors. All

these details would inform the parties’ claims and defenses concerning 

actual or constructive knowledge of the substance, length of time the 

substance was present on the floor, and conspicuity of that substance. 

See Dkt. 53-1 at 38, 40, 45, and 46. Sedgwick notes show that the 

incident is not on video, but other aspects of the aisle were sufficiently 

covered to allow Defendant’s employees to presumably conclude that 

other persons walked through the aisle without falling, that Plaintiff

supposedly saw the water before his fall, that the top of Plaintiff’s head 

can be seen moving through the aisle. Id. (emphasis added). Defendant’s 

failure to preserve and disclose such evidence prejudices Plaintiff’s 

prosecution of the instant case and places the Defendant at an unfair

advantage because it relates to the “time-notice rule” cited in the 

Magistrate Judge’s recommendation. See Dkt. 64 at 18. To that end, 

Plaintiff objects to the Magistrate Judge’s conclusions concerning 

spoliation of evidence and asks the Court to reconsider its position. See

Dt. 64 at 12.

Dkt. No. 69 at 1-2.

Legal Standards and Analysis

The Court finds that Weathered’s Motion to Compel and for Sanctions comes

too late and denies the Motion for Leave for that reason.

Weathered’s references to Federal Rule of Civil Procedure 15(a)(2) and leave 

to submit a reply do not properly to his request for leave. See Dkt. No. 67 at 2-3.

Rather, as the Court has explained in another case,

“[n]either the Local Rules of this district nor Rule 37 of the Federal Rules 

of Civil Procedure, which governs motion to compel discovery, provide a 

deadline for the filing of [motions to compel discovery].” Garcia v. City 

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of Amarillo, Texas, No. 2:18-cv-95-Z-BR, 2019 WL 11250160, at *2 (N.D. 

Tex. Sept. 26, 2019) (citing FED. R. CIV. P. 37). But, under Federal Rule 

of Civil Procedure 16(b), courts can issue scheduling orders limiting the 

time for, among other things, completing discovery. See id. Here, at the 

parties’ request, the Court issued an amended scheduling order and set 

the discovery deadline on February 26, 2021 – a month before Home 

Depot filed its present request. See Dkt. No. 24.

When “determining whether a motion to compel filed after the 

discovery deadline is untimely ... or should be permitted,” courts 

consider “a number of factors ... including (1) the length of time since the 

expiration of the deadline, (2) the length of time that the moving party 

has known about the discovery, (3) whether the discovery deadline has 

been extended, (4) the explanation for the tardiness or delay, (5) whether 

dispositive motions have been scheduled or filed, (7) the age of the case, 

(8) any prejudice to the party from whom late discovery was sought, and 

(9) disruption of the court’s schedule.” Days Inn Worldwide, Inc. v. Sonia 

Invs., 237 F.R.D. 395, 398 (N.D. Tex. 2006).

Here, almost every factor weighs against finding Home Depot’s 

motion to compel timely. Home Depot filed the motion a month after the 

discovery deadline, despite knowing for almost a year that the photos 

lacked meta data. See id. at 399 (denying motion to compel filed two 

weeks after discovery deadline and nine and a half months after 

documents were produced). The discovery deadline was already 

extended by six months at the request of the parties. And Home Depot 

filed its motion to compel after its motion for summary judgment was 

fully briefed, see Gault v. Nabisco Biscuit Co., 184 F.R.D. 620, 622 (D. 

Nev. 1999) (“Absent unusual circumstances, [a motion to compel] should 

be filed before the scheduled date for dispositive motions.”), and just two 

months before the trial was set to begin, see Buttler v. Benson, 193 

F.R.D. 664, 665-66 (D. Colo. 2000) (denying motion to compel filed three 

months before trial).

Home Depot’s explanation for why it filed its motion after the 

deadline does not overcome those factors. Home Depot contends that the 

question of who took the photos first became an issue on February 4, 

2021, when Ballou – who Shuweb had identified as the person who took 

the photos – testified that he did not take any photos of the tent. See

Dkt. No. 42 at 2. Home Depot asserts that it then requested Shuweb 

produce the original photos with the meta data on February 8, 2021, and 

again on March 16, 2021, but Shuweb failed to respond. See id. at 2-3. 

But this does not explain Home Depot’s almost year-long delay. Had 

Home Depot immediately moved to compel after receiving the photos, it 

could have learned the information it now seeks before the depositions 

of Shuweb and Ballou, giving it an opportunity to ask questions about 

the origin of the photos well before the discovery deadline and trial. “[I]f 

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the conduct of a respondent to discovery necessitates a motion to compel, 

the requester of the discovery must protect himself by timely proceeding 

with the motion to compel. If he fails to do so, he acts at his own peril.”

Wells v. Sears Roebuck and Co., 203 F.R.D. 240, 241 (S.D. Miss. 2001).

Shuweb v. Home Depot U.S.A., Inc., No. 3:19-cv-3019-BN, 2021 WL 1662479, at *2 

(N.D. Tex. Apr. 28, 2021); see also McCollum v. Puckett Mach. Co., 628 F. App’x 225, 

228 (5th Cir. 2015) (“Even if we were to accept McCollum’s contention that the 

discovery he sought by means of his motion to compel might have enabled him to 

survive summary judgment, our precedent suggests that a district court is within its 

discretion to deny a motion to compel filed on or after the court-ordered discovery 

deadline – regardless of the requested discovery’s value to the party’s case.” (footnoted 

omitted)). 

And courts have held that, although Federal Rule of Civil Procedure “37 does 

not impose a specific time limit for filing motions for sanctions,” “an unreasonable 

delay may render a motion for sanctions under Rule 37 untimely.” Citgo Petroleum 

Corp. v. Odfjell Seachem, No. CIV.A. H-07-2950, 2013 WL 2289951, at *11 (S.D. Tex. 

May 23, 2013).

Weathered seeks leave to file his Motion to Compel and for Sanctions over five

months after the discovery deadline, over four months after the dispositive motions 

deadline, and over two months after briefing closed on the summary judgment 

motion; and just over one month before the case is set for a jury trial.

That Weathered reports he has been waiting for Family Dollar’s counsel to 

respond for the required joint report does not change the analysis. See generally Dkt. 

No. 22 at 16-17 (“Parties or counsel cannot block another party from filing a nonCase 3:22-cv-02409-K-BN Document 70 Filed 12/12/23 Page 7 of 14 PageID 858
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dispositive motion by refusing or failing to make themselves available for a premotion conference on request or by failing to cooperate in the joint report’s 

preparation or failing to sign the joint report or provide for signature by permission. 

After a reasonable effort, a party may file a non-dispositive motion with a joint report 

that includes whatever is available to the filing party and an explanation of the filing

party’s efforts to obtain the cooperation and input of the party or parties affected by

the discovery-related or other non-dispositive motion.”). Weathered’s counsel 

acknowledges that he shared drafts of the motion and joint report with Family 

Dollar’s counsel on November 14 and 16, 2023 – still several months after the 

discovery deadline and the dispositive motions deadline and two months before the 

case is set for a jury trial. And Weathered acknowledges that he has known about the 

discovery matters that he now complains of for months, including since the July 5, 

2023 corporate representative deposition of Jacqueline Mercedes Bassett. 

With the summary judgment motion briefed and the undersigned’s 

recommendation entered 14 days before Weathered filed his Motion for Leave, 

considering these motions now and possibly allowing additional discovery – in effect, 

reopening discovery – would disrupt the case’s schedule and prejudice Family Dollar.

And Weathered’s explanation for why he filed these motions at this late date 

does not overcome those factors, where the deposition at issue occurred on July 5, 

2023 and Weathered’s counsel conferred with Family Dollar’s counsel on September 

1, 2023.

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And, even if the Court were to liberally construe the Motion for Leave or the 

would-be Motion to Compel and for Sanctions as a late-filed Rule 56(d) motion to defer 

or deny the pending summary judgment motion, the Motion for Leave should be 

denied.

As the presiding judge in this matter explained in another case, 

Federal Rule of Civil Procedure 56(d) provides that “if a nonmovant 

shows by affidavit or declaration that, for specified reasons, it cannot 

present facts essential to justify its opposition, the court may: (1) defer 

considering the motion or deny it; (2) allow time to obtain affidavits or 

declarations or to take discovery; or (3) issue any other appropriate 

order.” FED. R. CIV. P. 56(d). This rule is intended to protect parties from 

premature summary judgment motions. In seeking such relief, the 

nonmovant may not simply rely on vague assertions that additional 

discovery will produce needed, but unspecified facts. The nonmovant 

must set forth a plausible basis for believing that specified facts, 

susceptible of collection within a reasonable time frame, probably exist 

and indicate how the emergent facts, if adduced, will influence the 

outcome of the pending summary judgment motion. The district court 

has discretion in deciding whether to grant this relief.

Plaintiff did not file an affidavit or declaration as required by Rule 

56(d) in seeking this relief. ....

Plaintiff does not satisfy his burden in seeking relief under Rule 

56(d). Plaintiff fails to meet the threshold requirement of Rule 56(d) that 

he “shows by affidavit or declaration that, for specified reasons” he 

cannot present facts essential to his opposition of the Motion. FED. R.

CIV. P. 56(d) (emphasis added). Additionally, Plaintiff’s vague assertions 

of additional discovery that Defendant Armstrong may disclose are 

wholly insufficient. For those reasons alone, the Court denies Plaintiff’s 

requested relief.

Even if the Court were to look past those glaring deficiencies, the 

Court would nevertheless deny relief under Rule 56(d) for other reasons. 

The Fifth Circuit recently emphasized that “[a] party who fails to pursue 

discovery with diligence is not entitled to Rule 56(d) relief[.]” Lillie v. 

Off. of Fin. Insts. of State of La., 997 F.3d 577, 586 (5th Cir. 2021) 

(collecting cases). Although this case has been pending almost 2 years 

and the Court’s Scheduling Order entered almost 1 year ago, it appears 

Plaintiff has not pursued discovery until this Motion was filed. Even 

though he infers Defendant Armstrong was not disclosing evidence, 

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related issues. See, e.g., Pl.’s Am. Mot. at 1; cf. Lillie, 997 F.3d at 587 

(even if a party is “stonewalling” discovery efforts, “the Federal Rules of 

Civil Procedure place the onus on the discovery-seeker to invoke the 

judicial process.”). On this record, the Court finds that Plaintiff failed to 

diligently pursue discovery.

Finally, Rule 56(d) is intended to protect parties from premature 

summary judgment motions. Defendant Armstrong filed this Motion for 

Summary Judgment on February 24, 2022, approximately one month 

before the dispositive motion deadline of March 30, 2022. Scheduling 

Order (Doc. No. 38). This Motion certainly cannot be considered 

premature thereby necessitating this relief.

Gonzales v. Hunt Cnty. Sheriff’s Dep’t, No. 3:20-cv-3279-K, 2022 WL 2345752, at *3-

*5 (N.D. Tex. June 29, 2022) (cleaned up); accord Staten v. City of Dallas, No. 3:19-

cv-843-L-BN, 2021 WL 3556671, at *7 (N.D. Tex. July 21, 2021) (“Further, Rule 56(d) 

requires a party requesting additional discovery as to facts essential to its opposition 

of a motion for summary judgment to present an affidavit or declaration. This 

affidavit or declaration must state with some precision the materials the party 

opposing summary judgment hopes to obtain with further discovery, and exactly how 

he expects those materials will assist him in opposing summary judgment.” (cleaned 

up)), rep. & rec. adopted, 2021 WL 3550586 (N.D. Tex. Aug. 11, 2021).

Similarly, here, Weathered has not filed the required affidavit or declaration; 

did not seek the Court’s intervention earlier on these discovery matters, although 

discovery closed on July 7, 2023; did not file a proper Rule 56(d) in response to the 

summary judgment motion (which was filed on the dispositive motion deadline) at 

the time that Weathered’s summary judgment response was due under the Court’s 

Supplemental Scheduling Order (which itself addressed possible Rule 56(d) motions);

instead filed a response to the summary judgment without addressing Rule 56(d);

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and has not set forth a plausible basis for believing that specified facts, susceptible of 

collection within a reasonable time frame, probably exist and indicate how the 

emergent facts, if adduced, will influence the outcome of the pending summary 

judgment motion. See Dkt. Nos. 67 & 68.

Construed as a Rule 56(d) motion, the Court denies the Motion for Leave.

Even when looking at the substance of the Motion to Compel and for Sanctions

that Weathered seeks to file, see Dkt. No. 67, the requests for relief that Weathered 

seeks to press do not weigh in favor of granting leave to file at this late date.

Weathered’s would-be Motion to Compel and for Sanctions is “based on upon 

Defendant’s corporate representative’s failure to adequately testify regarding topics

identified in a properly noticed Fed. R. Civ. P. 30(b)(6) deposition, along with 

unsubstantiated and bad faith discovery responses and spoliation of evidence.” Dkt. 

No. 68 at 5 of 151.

Weathered contends that, “[d]uring the course of the deposition [on July 5, 

2023], ... it became evident that Defendant’s corporate representative was either 

unqualified or unprepared to testify on these matters”; that, “[f]urther, the corporate 

representative’s testimony made clear that written discovery responses served by 

Defendant were made without supporting information, demonstrating that such 

responses were served in bad faith”; and that, “[b]ased on the inadequate testimony 

and discovery tactics employed by Defendant, Plaintiff asks this Court to compel 

Defendant to produce another corporate representative and sanction Defendant’s 

misconduct.” Dkt. No. 68 at 5-6 of 151.

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But Weathered took this deposition more than five months ago and two days 

before the deadline to complete discovery, at which time his counsel could (and 

apparently did) assess the adequacy of the testimony and the deponent’s preparation. 

And Weathered’s would-be Motion to Compel and for Sanctions provides no 

explanation for the nature and basis under the Federal Rules (or otherwise) for any 

relief that he seeks as to Family Dollar’s allegedly baseless, unsubstantiated, and bad 

faith discovery responses. See Dkt. No. 68 at 5-15 of 151.

Weathered’s would-be Motion to Compel and for Sanctions also “asserts that 

Defendant spoliated critical video and photographic evidence in this case, which 

merits a spoliation inference at trial” and that “[s]uch evidence relates directly to 

crucial elements of Plaintiff’s claim, including actual or constructive knowledge,

conspicuity, and length of time.” Dkt. No. 68 at 6 of 151. According to Weathered, 

[t]he notes maintained by Sedgwick suggest that the video footage from 

the store showed Plaintiff entering the premises, walking around the 

store with his child, and at least the top of Plaintiff’s head could be seen 

as he walked through the aisle where he fell. Further, Defendant failed 

to preserve the photographic evidence in its original format. Notes 

maintained by Sedgwick confirm that Defendant’s employees took

potentially several photos of the area and shared it with Sedgwick, but 

none of those photos have been provided to Plaintiff in the native format. 

During the deposition, Ms. Bassett testified that she did not know what 

happened to the original photo or could not identify the photographer 

for the sole photo produced in Defendant’s discovery responses. 

Defendant failed to preserve crucial video and photographic evidence in 

this matter.

....

In regard to video and photographic evidence, Plaintiff contends 

that Defendant spoliated critical evidence that Plaintiff is entitled to a 

spoliation inference. Spoliation comprises of “destruction or material 

alteration of evidence or... the failure to preserve property for another’s

use as evidence in pending or reasonable foreseeable litigation.” Ashton 

v. Knight Transp., Inc., 772 F.Supp.2d 772, 799 (N.D. Tex. 2011). 

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Allegations of sanction-worthy spoliation are considered in light of a 

duty to preserve information, a culpable breach of that duty, and 

resulting prejudice to the innocent party. Id. at 800. This is a factintensive analysis requiring the court to determine inter alia a party’s 

compliance with its preservation duty, degree of culpability involved,

relevance of the lost evidence, and the prejudice to the party deprived of 

the evidence. T&E Inv. Group, LLC v. Faulkner, No. 11-CV-0724-P, 

2014 WL 550596 (N.D. Tex. 2014). In evaluating a motion of sanctions, 

the court may consider facts and circumstances pertinent to those issues

beyond the motion itself. Id. at 5. As Plaintiff has established in other 

filings, Defendant has engaged in evasive, shifting arguments regarding 

the liquid substance, source of that substance, and Defendant’s 

knowledge of the substance. On one hand Defendant’s investigator 

revealed that the water came from a roof leak whereas Defendant’s 

stance now appears to be that it has no information as to the source of 

the water. Similarly, Defendant’s interrogatory responses claim that 

Plaintiff slipped because he disregarded wet floor signs in an area that 

had been mopped but Defendant has now ditched that theory and shifted 

to a position that Plaintiff slipped on a puddle of water. Further, 

Defendant’s interrogatory responses claim that the area where Plaintiff 

slipped had been mopped shortly before the incident, indicating that at 

least one of its employees was in the aisle soon beforehand, but now 

Defendant argues it has no knowledge as to the last time one of its 

employees entered that aisle. Such flip-flopping assertions, combined 

with destroyed video and photographic evidence in the face of a clear 

obligation to preserve evidence, demonstrates Defendant’s culpable 

state of mind and Plaintiff’s entitlement to a spoliation inference at trial.

Dkt. No. 68 at 13, 14-15 of 151.

But, insofar as the materials that Weathered alleges that Family Dollar failed 

to preserve were electronically stored information, Federal Rule of Civil Procedure 

37(e) would govern and require “a finding that [Family Dollar] acted with the intent 

to deprive [Weathered] of the information’s use in the litigation” before the Court 

could impose as a sanction any “jury instructions that permit or require the jury to 

presume or infer that lost information was unfavorable to the party that lost it” or 

“that directs or permits the jury to infer from the loss of information that it was in 

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fact unfavorable to the party that lost it.” Jim S. Adler, P.C. v. McNeil Consultants, 

LLC, No. 3:19-cv-2025-K-BN, 2023 WL 2699511, at *8, *10 (N.D. Tex. Feb. 15, 2023)

(cleaned up).

And, insofar as the allegedly spoliated materials were not electronically stored 

information, “for many years, decisions of the United States Court of Appeals for the 

Fifth Circuit have held that courts may impose such an adverse inference against the 

spoliator or sanctions against the spoliator only upon a showing of ‘bad faith’ or ‘bad 

conduct’” – where “[b]ad faith, in the context of spoliation, generally means 

destruction for the purpose of hiding adverse evidence,” and “[m]ere negligence is not 

enough to warrant an instruction on spoliation.” Id. at *11, *12 (cleaned up).

But Weathered does not assert that he can present facts to show that Family 

Dollar intended to deprive him of any video’s or photo’s use in this case.

Conclusion

The Court DENIES Plaintiff Robert Lee Weathered’s Motion for Leave to File 

a Motion to Compel and for Sanctions [Dkt. No. 67].

SO ORDERED.

DATED: December 12, 2023

__________________________________________

DAVID L. HORAN 

UNITED STATES MAGISTRATE JUDGE

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