Oliver v. Amazon.com Servs.

1

JASMINE OLIVER, Plaintiff, v. AMAZON.COM SERVICES, LLC, Defendant.

No. 22-CV-149

United States District Court, E.D. Wisconsin

May 23, 2023

DECISION AND ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION

NANCY JOSEPH, UNITED STATES MAGISTRATE JUDGE

Jasmine Oliver, who is representing herself, sues her former employer, Amazon.com Services, LLC, alleging failure to accommodate and retaliation in violation of the Americans with Disabilities Act, 42 U.S.C. § 12112, et seq.; discrimination based on sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and discrimination based on race in violation of 42 U.S.C. § 1981. After multiple discovery disputes between the parties Oliver moved for sanctions for Amazon's alleged failure to comply with this Court's order to compel production of discovery and for spoliation sanctions based on Amazon's alleged destruction of surveillance video and job applications that Oliver contends are vital to proving her case. On May 8, 2023, I denied Oliver's motion. (Docket # 60.) Presently before me is Oliver's expedited non-dispositive motion pursuant to Fed.R.Civ.P. 59(e) for reconsideration of the spoliation decision. (Docket # 61.)

LEGAL STANDARD

Although Oliver moves for reconsideration of the spoliation decision under Fed.R.Civ.P. 59(e), Rule 59 address motions to alter or amend a judgment. No judgment has yet been entered in this case. Rather, what Oliver appears to request is for reconsideration under Rule 54(b). Rule 54(b) allows a court to exercise its inherent authority to reconsider nonfinal orders. See Civix-DDI, LLC v. Hotels.com, LP, 904 F.Supp.2d 864, 866 (N.D. Ill. 2012) (citing Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 (1983) (“Every order short of a final decree is subject to reopening at the discretions of the . . . judge.”).

A motion for reconsideration serves a very limited purpose in federal civil litigation; it should be used only “to correct manifest errors of law or fact or to present newly discovered evidence.” Rothwell Cotton Co. v Rosenthal & Co., 827 F.2d 246, 251 (7th Cir. 1987) (quoting Keene Corp. v. Int'lFid. Ins. Co., 561 F.Supp. 656, 665-66 (N.D. Ill. 1982), aff'd, 736 F.2d 388 (7th Cir. 1984)). While “[a] court has the power to revisit prior decisions of its own,” courts “should be loathe to do so in the absence of extraordinary circumstances such as where the initial decision was ‘clearly erroneous and would work a manifest injustice.'” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988) (quoting Arizona v. California, 460 U.S. 605, 618 n.8 (1983)). In general, “litigants must fight an uphill battle in order to prevail on a motion for reconsideration.” United Air Lines, Inc. v. ALG Inc., 916 F.Supp. 793, 795 (N.D. Ill. 1996).

ANALYSIS

Oliver's motion appears to be two-fold. First, Oliver argues that she raised facts which were the foundation of her spoliation claim that the Court failed to address, namely, the alteration of accommodation records and two inconsistent termination dates. (Docket # 61 at 1-3.) Oliver argues that these facts prove Amazon's intent to deprive her of the surveillance footage. Second Oliver argues that the spoliation decision was based on Amazon's false declaration that video surveillance footage is deleted after fourteen days pursuant to the company's regular retention policy. (Docket # 61 at 2.) Oliver appends to her motion Exhibit A, which she contends provides proof that Amazon does not automatically delete video surveillance footage after fourteen days, thus proving Amazon's intent by its selective deletion of files. (Id. at 2-3.)

As an initial matter, Amazon states that the email correspondence Oliver marks as Exhibit A in her motion for reconsideration was produced to her in discovery on November 3, 2022. (Docket # 63 at 2.) Reconsideration is not the proper vehicle in which to present facts or arguments that were available to a party in her initial motion. Rather, it is for “newly discovered evidence.” Ordinarily, to constitute “new evidence,” the moving party must show not only that the evidence was newly discovered, but also that it could not have been timely discovered “with reasonable diligence.” United States v. Spectrum Brands, Inc., 218 F.Supp.3d 794, 803-04 (W.D. Wis. 2016). Oliver fails to do so.

Even setting aside the fact that this is not “newly discovered evidence,” in the spoliation decision, I concluded that Oliver indeed demonstrated that ESI was lost because Amazon failed to take reasonable steps to preserve it, thus meeting the threshold requirement of Fed.R.Civ.P 37(e). (Docket # 60 at 6-10.) Where Oliver's motion fell short, however, was in the remedy she was requesting. Once the threshold requirements of Rule 37(e) are met, Rule 37(e)(1) and (2) provide the appropriate remedies. These include: (1) upon a finding of prejudice from the loss of the information, a measure no greater than necessary to cure the prejudice and (2) upon a finding of intent to deprive another party of the information's use in the litigation, an adverse inference or dismissal of the action. Fed.R.Civ.P. 37(e)(1) and (2). I found that Oliver failed to demonstrate how she was prejudiced by the loss of the information in order to warrant a remedy under Rule 37(e)(1), and failed to show Amazon's intent to deprive her of the information's use in the litigation, to warrant a remedy under Rule 37(e)(2). (Docket # 60 at...