PAULA BAILEY v. MICHIGAN DEPARTMENT OF CORRECTIONS (2022)

ORDER GRANTING DEFENDANTS' MOTION FOR PROTECTIVE ORDER [ECF NO. 122]

A.

Plaintiffs Paula Bailey, Krystal Clark, and Hope Zentz sue the Michigan Department of Corrections (MDOC) and various MDOC employees, alleging Eighth and Fourteenth Amendment violations of inmates' rights at Huron Valley Correctional Facility for Women (WHV). ECF No. 73. Defendants now move for a protective order under Federal Rule of Civil Procedure 26(c)(1) to address plaintiffs' demands related to the duty to preserve evidence. ECF No. 122. Defendants assert that they have met their preservation duties but that plaintiffs continue to make oppressive demands. Id., PageID.1883. The Honorable Victoria A. Roberts referred the motion to the undersigned for hearing and determination under 28 U.S.C. § 636(b)(1)(A). ECF No. 126. The Court held a hearing on October 27, 2022 and now grants defendants' motion.

B.

Plaintiffs filed their initial complaint in November 2019, but Judge Roberts dismissed it in September 2020. ECF No. 1; ECF No. 71. In plaintiffs' amended complaint, filed later in September 2020, they allege that WHV has been a breeding ground of mold and fungi because of its roof leaks, damp carpets and ceilings, and inadequate ventilation and exhaust systems. ECF No. 73. They claim to “suffer ongoing exposure to harmful varieties of mold,” which have caused “respiratory infections, coughing, wheezing, rashes, dizziness, and fatigue.” Id., PageID.1073. In damp and poorly ventilated areas, mold spores “can be released into the air where they become easy to inhale,” causing adverse health effects. Id., PageID.1087.

In their motion for protective order, defendants argue that have met their duty to preserve evidence but that plaintiffs “continue to make oppressive, burdensome preservation demands that are not proportionate to the needs of this case and not in accord with the law.” ECF No. 122, PageID.1876.

In December 2019, plaintiffs' counsel sent a letter to defendants stating that they had learned that WHV was “making repairs and/or alterations to the facility to address mold and other dilapidated conditions.” ECF No. 122-2, PageID.1894. Plaintiffs asked defendants to “ensure that no alterations or work is performed at WHV that could in any way destroy and/or alter the evidence related to” their claims and to give them “advance notice” of any necessary work so that they could inspect the premises beforehand. Id. But as the parties agree, plaintiffs' ability to inspect WHV was delayed because the COVID pandemic caused a prison lockdown. See ECF No. 122-13, PageID.1952; ECF No. 123, PageID.2012.

In June 2020, plaintiffs' counsel heard that “portions of the unit's ceiling fell down, exposing tiles covered in mold.” ECF No. 122-5, PageID.1910. Counsel sent a letter by email the day after the ceiling leak asking defendants to retain the ceiling tiles; photograph and video record the fallen tiles, the resulting hole in the ceiling, and the cleanup processes; and preserve any video capturing the ceiling's collapse. Id. Defendants responded to plaintiffs' letter almost a month later stating that they repaired the ceiling the day after it collapsed as part of routine maintenance and observed no mold. ECF No. 122-6, PageID.1910. Defendants took photos of the water-stained and collapsed tiles but did not preserve the titles. Id., PageID.1910-1916.

Afterward, counsel exchanged email correspondence to try to agree on a preservation protocol. ECF No. 122-7. Plaintiffs asserted that the lack of observable mold on the tiles did not mean that no mold was present. Id., PageID.1922. They later asked defendants to preserve debris from vents that had recently been vacuumed and for advance notice on future work on the ventilation system. Id. Defendants then inquired about whether plaintiffs wanted them to preserve evidence from all routine maintenance, and plaintiffs said that was not their position. Id., PageID.1919-1921. The parties reached no agreed protocol.

In November 2021, plaintiffs also asked defendants to “preserve a portion of the tiling and subflooring” from WHV repairs. ECF No. 122, PageID.1867; ECF No. 122-8. Defendants complied despite their claim that the repairs were “routine maintenance․that had nothing to do with water damage or mold.” ECF No. 122, PageID.1867.

Plaintiffs' counsel and their expert, James Strobridge, then performed six days of inspections in December 2021 and February 2022, taking air and surface samples, and taking thousands of photographs. ECF No. 122, PageID.1867-1869; ECF No. 122-19, PageID.1992; ECF No. 123, PageID.2017; ECF No. 123-3, PageID.2045-2046. MDOC administrative assistant Steve Horton states in a declaration that Strobridge failed to inspect preserved floor tiles in December 2021. ECF No. 122-19, PageID.1992. Horton claims that Strobridge found no mold on the preserved floor tile during his February 2022 visits. Id.

Judge Roberts ordered the parties to jointly notify her if more inspections or photographs would be needed after the February 2022 visits. ECF No. 115. Defense counsel sent an email to plaintiffs' counsel to confirm a discussion in which plaintiffs' counsel denied needing more inspection and photography. ECF No. 112-15, PageID.1959.

The next week, plaintiffs' counsel sent an email agreeing that “MDOC may proceed with its planned painting project at the WHV,” but “insist[ing] that Defendants document all maintenance, including routine maintenance, at WHV moving forward.” ECF No. 122-10, PageID.1936. Plaintiffs suggested that counsel meet and confer if defendants were unsure about whether a project qualified as routine maintenance. Id. And in April 2022, plaintiffs demanded “a schedule of routine maintenance projects at WHV,” including, “but not limited to, air filter changes, vent vacuuming, small painting projects, minor ceiling/floor tile replacement, drain cleaning, regrouting, and HVAC inspections and maintenance.” ECF No. 122-13, PageID.1953. For larger projects, plaintiffs expected to be alerted and to confer about preservation of the interior areas “frequented by inmates” if the projects:

1. Involve structural changes (e.g. retrofitting buildings into housing units);

2. Alter indoor air quality (e.g. HVAC, air handler, temperature, or other ventilation projects);

3. Address water intrusion (e.g. roofing, window, grading, or gutter projects);

4. Include removal of ceiling/floor tiles and/or carpeting, which could uncover evidence of water intrusion and/or mold; or,

5. Involve painting or removal of paint.

Id., PageID.1954.

Plaintiffs narrowed their demands in their response to defendants' motion for protective order, but they continued to insist that defendants preserve debris from any maintenance or repair involving paint, tiles, and construction materials that contain mold or water damage. ECF No. 123, PageID.2029-2030. Plaintiffs said that the parties could confer before deciding whether materials from a routine project should be photographed and preserved. Id. Plaintiffs did not specify in their response whether they continue to demand advance notice of WHV's maintenance and repairs. Id.

Defendants argue that plaintiffs' demands are too burdensome. In a declaration, Kevin Kotzian, a physical plant supervisor at WHV, described WHV as having 24 housing units and housing 1,600 prisoners. ECF No. 124-1. “Due to its size, WHV requires constant maintenance and repair, and, like all working facilities, has emergent issues requiring immediate attention.” Id., PageID.2129. From January to July 2022, Kotzian received more than 3000 work orders for WHV. Id., PageID.2030. He said that plaintiffs' demands to approve work assignments and have a staff member photograph the work has delayed the completion of the work; that preserving all the physical debris plaintiffs demand “would become a full-time job for a staff member”; and that WHV does not have space for all the debris that plaintiffs want preserved. Id., PageID.2131-2132. In sum, the process plaintiffs have demanded “interferes with [his] ability and [his] staff's ability to properly maintain WHV.” Id.

Plaintiffs provide no evidence that the delays and interference described by Kotzian are warranted. Their briefing before the October 2022 hearing lacked (1) any evidence of continuing contaminated air at WHV; and (2) any evidence that Strobridge's inspections and the thousands of photographs taken during those inspections were insufficient for his expert analysis. Plaintiffs argue in their brief that they “could not, while inspecting, simply bore into the ceiling and floor to find evidence of concealed mold or leaks.” ECF No. 123, PageID.2022. But plaintiffs' claim in their amended complaint that mold has contaminated the air quality, causing “respiratory infections, coughing, wheezing, rashes, dizziness, and fatigue.” ECF No. 73, PageID.1073. They provide no proof that boring into the ceiling or floor would be necessary for Strobridge to render an opinion about whether WHV's air quality is unsafe.

The August 2022 declaration from Strobridge attached to plaintiffs' response said nothing about the air quality during his inspections at WHV. ECF No. 123-3. Instead, Strobridge detailed his observations of WHV having conducted cleaning, painting, and roof and air filter replacements.¹ Id.

Plaintiffs filed a post-hearing notice with a new declaration from Strobridge about his October 2022 inspection of three ceiling tiles that WHV removed when conducting repairs. ECF No. 128-1. He said that two tiles had visible water marks and moderate fungal containment levels even though no sign of mold or fungus was visible to the naked eye. ECF No. 128-1, PageID.2164. Defendants countered with a declaration from their expert, Matthew Koche, disputing Strobridge's suggestions that the levels of mold spores were atypical or that the bio-tape surface samples Strobridge took could provide evidence of occupant risk. ECF No. 129-2. According to Koche, “Airborne mold spore concentrations are an effective measure of occupant exposure and are the best tool to measure occupant risk.” Id., PageID.2179-2180. And he claimed that airborne samples collected in February 2022 were consistent with a healthy building. Id.

B.

Rule 26(c)(1) allows a party from whom discovery is sought to move for a protective order to protect it from “annoyance, embarrassment, oppression, or undue burden.” The movant bears the burden of showing good cause for a protective order. Nix v. Sword, 11 F. App'x 498, 500 (6th Cir. 2001). “To show good cause, a movant for a protective order must articulate specific facts showing ‘clearly defined and serious injury’ resulting from the discovery sought and cannot rely on mere conclusory statements.” Id. (cleaned up). Courts enjoy “broad discretion to decide when a protective order is appropriate and what degree of protection is required.” Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984) (cleaned up). In exercising that discretion, a court must balance the competing interests and hardships of the parties. Am. Gen. Life Ins. Co. v. Harshman, 299 F.R.D. 157, 158 (E.D. Ky. 2014).

Defendants have met their burden of showing good cause for a protective order to limit plaintiffs' preservation demands. Kotzian's declaration detailed how plaintiffs' preservation demands burden WHV's efforts to conduct both routine and emergency maintenance of the large facility. And when balancing the interests of the parties, the Court is mindful that unduly burdening WHV's maintenance efforts conflicts with the “substantial deference” courts owe “to the professional judgment of prison administrators.” Beard v. Banks, 548 U.S. 521, 528 (2006) (cleaned up).

Plaintiffs assert that they have an interest in ensuring that defendants fulfill their duty to preserve evidence. The duty to preserve evidence “arises when a party has notice that the evidence is relevant to litigation or should have known that the evidence may be relevant to future litigation.” Franklin v. Shelby Cnty. Bd. of Educ., No. 20-CV-02812-JPM-TMP, 2021 WL 6066673, at *4 (W.D. Tenn. Sept. 28, 2021), adopted in part, No. 220CV02812JPMTMP, 2021 WL 5449005 (W.D. Tenn. Nov. 22, 2021) (cleaned up). “The scope of a party's duty to preserve is the same as the scope of discovery articulated in [Federal Rule of Civil Procedure] 26(b)(1).” Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408, 416 (S.D. Cal. 2018). Thus, parties must preserve evidence that is relevant to a claim or defense and proportionate to the needs of the case. Rule 26(b)(1).

Plaintiffs cite no authority suggesting that the duty to preserve requires a party to submit to indefinite oversight of the maintenance and repairs of an occupied facility. See ECF No. 123, PageID.2026-2027. In fact, one opinion plaintiffs cite, Stewart v. Michigan Pontiac, LLC, notes that the duty to preserve “does not continue indefinitely.” No. 16-10434, 2017 WL 633798, at *11 (E.D. Mich. Feb. 16, 2017). Other courts agree. Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 458 (2d Cir. 2007) (“[W]e did not hold that such an obligation [to preserve evidence] continues indefinitely.”); Fanning v. Honeywell Aerospace, No. 3:14-1650, 2016 WL 7017465, at *2 (M.D. Tenn. Dec. 1, 2016) (“The scope of the duty to preserve evidence is not boundless. Simply put, a potential spoliator need do only what is reasonable under the circumstances.”) (cleaned up).

And plaintiffs have failed to show that most of their demands are proportionate to the needs of the case. The proportionality factors are “the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit.” Id. The importance of the issues at stake here are high. Cratty v. City of Wyandotte, 296 F. Supp. 3d 854, 860 (E.D. Mich. 2017) (“Generally, an action to vindicate a citizen's civil rights is considered of high importance.”).

As far as the parties' relative access to relevant information, defendants undoubtedly have better access to WHV. And the COVID pandemic dealt an unfortunate blow to plaintiffs' efforts to inspect WHV near the time that they filed their complaints. But now plaintiffs' and their expert have had ample access to inspect WHV and they denied needing to conduct more inspections. They also have shown no evidence that their inspections revealed evidence that the air quality in WHV continues to be unhealthy or that water-damaged debris without observable mold is likely to affect the air quality. Without that evidence, the Court cannot conclude that plaintiffs having notice of work projects and a chance to confer about whether debris needs to be preserved would be important to resolving the case. And the burden on WHV from requiring defendants to comply with plaintiffs' requested protocol exceeds its likely benefit.

C.

The Court's findings here do not suggest that plaintiffs' serious allegations about the air quality in WHV lack merit. Rather, the Court finds that plaintiffs have not shown the utility of requiring defendants to comply with their preservation demands more than two years after they filed their amended complaint. Plaintiffs' own filing suggests that WHV has undergone many improvements since 2020, including cleaning, painting, and the replacement of roofing and air vents, and they show no evidence that the air at WHV continues to be polluted. Plaintiffs also provide no legal precedent for the indefinite oversight of WHV's maintenance that they have demanded.

The Court thus GRANTS defendants' motion, ECF No. 122. Defendants need not notify plaintiffs about work projects nor preserve or photograph building materials unless any official with MDOC knows that the material contains mold or observes that the materials might contain mold. If any official with MDOC knows or observes that any building materials might contain mold of any kind, defendants must immediately notify plaintiffs and photograph those materials, and must ensure that the materials are properly preserved.² Plaintiffs must inspect the materials with known or suspected mold as soon as practicable. The Court will impose no specific requirement of how long defendants must preserve and store any materials with known or suspected mold, but the parties share a duty to ensure that any inspection occurs before the evidentiary value of the materials is spoliated. Any decision about whether defendants have properly preserved materials or whether a party failed to ensure that the material is timely inspected will depend on the proofs provided by the parties.

IT IS SO ORDERED.

NOTICE TO PARTIES ABOUT OBJECTIONS

Within 14 days of being served with this order, any party may file objections with the assigned district judge. Fed. R. Civ. P. 72(a). The district judge may sustain an objection only if the order is clearly erroneous or contrary to law. 28 U.S.C. § 636. “When an objection is filed to a magistrate judge's ruling on a non-dispositive motion, the ruling remains in full force and effect unless and until it is stayed by the magistrate judge or a district judge.” E.D. Mich. LR 72.2.

CERTIFICATE OF SERVICE

The undersigned certifies that the foregoing document was served upon counsel of record and any unrepresented parties via the Court's ECF System to their respective email or First Class U.S. mail addresses disclosed on the Notice of Electronic Filing on November 10, 2022.

MARLENA WILLIAMS Case Manager

FOOTNOTES

1.   Plaintiffs describe Strobridge's declaration and other evidence as showing potential spoliation. See ECF No. 122-2; ECF No. 123, PageID.2018. But plaintiffs do not now ask for sanctions for spoliation. ECF No. 123; PageID.2011, n.2. Thus, this Court makes no finding about plaintiffs' spoliation allegations; the inquiry here is limited to whether WHV has a continuing duty to preserve evidence and to what extent.

2.   At the hearing, defense counsel said that they keep preserved materials in a garage-like building with no temperature or humidity control. The Court warns defendants that they must properly store materials found to have observable mold.

ELIZABETH A. STAFFORD United States Magistrate Judge