Sines v. Kessler

Sines v. Kessler

Opinion

MEMORANDUM OPINION & ORDER

This matter is before the Court on Plaintiffs' [*9]  renewed request for evidentiary sanctions against Defendant Matthew Heimbach under Rule 37 of the Federal Rules of Civil Procedure. Pls.' Supp'l Br., ECF No. 1006; Pls.' Mot. Evid. Sanctions, ECF No. 457; see Mem. Op. of Aug. 9, 2019, ECF No. 539; Order of June 21, 2019, ECF No. 508. In April 2019, Plaintiffs asked the Court "to instruct the jury that [Heimbach] 'chose to intentionally withhold' responsive documents" in violation of multiple court orders directing him to provide or permit discovery "'and that the jury may draw adverse inferences from that fact,' including that [Heimbach] 'chose to withhold such documents because [he was] aware such documents contained evidence that [he] conspired to plan racially motivated violence at the Unite[] the Right event'" in August 2017. Mem. Op. of Aug. 9, 2019, at 24-25 (quoting Pls.' Mot. Evid. Sanctions Ex. 1, ECF No. 457-1); see id. at 4-6, 32-34 (evaluating the motion under Rule 37(b)(2)(A)).¹ That June, I took the request under advisement to give Plaintiffs the opportunity to depose Heimbach about his efforts to preserve and produce any information and materials that are potentially relevant to this litigation. See id. at 2, 27-28, 33-35; Order of June 21, 2019, at 1, 4. Plaintiffs' counsel deposed [*10]  Heimbach on August 9, 2019, and June 3, 2020. Pls.' Supp'l Reply 2, ECF No. 1079.

Plaintiffs now renew part of their original motion for evidentiary sanctions.² They ask the Court to "impose mandatory adverse inferences at trial that Heimbach intentionally spoliated" one laptop, two cell phones, and three social media accounts, "and that he did so because he was aware that each device, account, and document contained damaging information against Heimbach relating to Plaintiff[s'] claims" generally. Pls.' Supp'l Br. 30 (citing Fed. R. Civ. P. 37(e)(2)(B)). The motion has been fully briefed, ECF Nos. 457, 463, 475, 1006, 1054, 1079, 1087, and may be resolved without another hearing, ECF No. 504; see Fed. R. Civ. P. 78(b); W.D. Va. Civ. R. 11(b). Plaintiffs' request for adverse inferences against Heimbach will be GRANTED AS MODIFIED, and subject to the presiding District Judge's final approval, as detailed below. See Mem. Op. & Order of June 23, 2021, at 1, 17-18, 26-27 (conditionally granting Plaintiffs' request for permissive adverse-inference instruction tailored to § 1985(3) conspiracy claim against Defendant National Socialist Movement), ECF No. 982; Mem. Op. & Order of Mar. 30, 2021, at 1-2, 23-24 (same, Defendant Vanguard America), ECF No. 936; Mem. Op. & Order [*11]  of Mar. 24, 2021, at 1-2, 18, 22-24 (same, Defendant Robert "Azzmador" Ray), ECF No. 933; Mem. Op. & Order of Nov. 30, 2020, at 30, 37-39, 42 (same, Defendant Elliott Kline), ECF No. 910.

I. The Legal Framework

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