UNITED STAT ES DIS TRICT COURT F OR THE DIS TRICT OF COLUM BIA ANDREA D AVIS as the P ersonal Repre sentative of the Estate of Raym ond B ender,

P laintif f,
v. GR ANT P ARK

NURSING HOME, LP et al .,

Defendan ts. Civil Action No.: 1:08- CV-01764 ( P LF/JM F )

MEMORAN DUM OP INION This case has bee n ref

err ed to me by

J udg e F riedman f

or the purpose of handling discovery disputes. Currently

pending befor e me a

re Plaintiff’s Motion for Sanc tions for Destruc tion of Electronic Communi cations by Def endants Coastal Administrative Servic es, L L C, Gra nt Park NursingHome L P, and Shoreline He althcar e Mana g ement, L L C [ #76] and Plaintiff’s 1 Supplemental Motion for Sanctions for De struction of Elec tronic Communications by Def endants Coastal Administrative Servic es, L L C, Grant Park N ursing Home, L P and Shoreline Hea lthcare Manag ement, L L C [ #89]. Upon reviewingthe re cord a nd briefingbefor e me at this time, Ihave de cided, sua sponte , to strike the plaintiff’s motion for sa nctions without prejudice, and to re quire supplementa l briefingat the conc lusion of the limit ed discove ry permitted by J udg e F riedman. Since plaintiff first moved f or sanc tions, I have ma de var ious rulings that have per mitted discovery to proce ed. The one loose e nd is for Gra nt Park to comply

with my most rece nt order
Docke t numbers re fer

to filings in the lea d case , 1:08-cv-01764 ( PL F/JMF). Parties ar e 1 reminded that case 1:09-cv-02188- PL F ha s not been re fer red to Judge F acc iola.perta ining to ce rtain docume nts (including e lectronic ally stored information) that are claimed to be privileg ed. Or der of

October 25, 2010 [#92]
. Assessing whether

sanctions ar e wa

rra nted for the loss of otherwise discove rable information is a func tion of whether a par ty has bee n prejudice d by

that loss. D'O nofrio v. SFX Sports Group, I nc., 06-c v-687, 2010 WL3324964 at *11 (D.D .C. Aug . 24, 2010) (“ I t is only afte r establishing the pre

judice the plaintiff suf

fer ed that any

resulting sanction will fairly addre ss that prejudice , consistent with this C ircuit' s insist ence that any sanction imposed be a

function of the pre judice done to a

party by its offending opponent.”) (citingBonds v. District of Columbi a, 93 F.3d 801, 808 ( D.C. Cir. 1996)). Prejudice to a par ty can only be examined by

looking at all the information that is ava ilable, for only in that context can the nature and extent of the loss suffe red be acc urate ly

g aug ed. See Rimkus Consulti ng Group, Inc. v.Cammarata, 688 F. Supp. 2d 598, 644-45 (S.D. Te x . 2010). Ac cording ly , it is premature to c onsider the que stion of sanctions until discovery

ends and the Court can a ssess acc urate ly what pre judice, if a

ny , the loss of the e lectronic ally

stored information has cause d. Iwill therefor e strike the pla intiff’s motion for sa nctions without prejudice. The importanc e of pla intiff’s establishingprejudice bear s on the showing Iexpect the parties to make . I f plaintiff de cides to re new he r motion for sanc tions after discove ry ends, I expect her submission to show as clea rly as possible the nature of the pre judice done to he r by the loss of the ele ctronica lly stored information. Iwill, of course , also expect the def endants to make a simil arly prec ise showing in oppositi on. Refer ence s to the rec ord yielded by discovery
are obviously

cruc ial. Iwill impos e on plaintiff’ s counsel the task of advising opposing c ounsel of her intention
2to file a re newe d motion for sanctions once discovery has ende d. I f plaintiff’s c ounsel so indicates, both counse l shall meet and c onfer by telephone a

nd propose f

or my consideration a schedule for br iefingof the motion to be filed. A sepa rate Orde r ac companies this Memora ndum Opinion.

_______________________ J OHN M. F ACCI OL A UNI TED STATES MAGI STRATE J UDGE

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