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govinfo:USCOURTS-tnwd-2_22-cv-02338-6
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION
ALFREDO TERAN, ELIBERTO PEREZ )
AMBROSIO, BALTAZAR CALDERON )
JR., ISMAEL GUEL, PATRICIO )
MARTINEZ, RICARDO TERAN, )
TRINIDAD TERAN, and XAVIER )
TERAN, on behalf of themselves )
and all others similarly situated, )
) Case No. 2:22-cv-02338-JTF-tmp
Plaintiffs, )
) FLSA Opt-In Collective
)
v. )
)
)
)
LAWN ENFORCEMENT, INC., )
JAMIE WALKER, individually, )
and JASON BRADEN, individually, )
)
Defendants. )
ORDER DENYING PLAINTIFFS’ RENEWED MOTION FOR SPOLIATION
SANCTIONS
Before the Court is Plaintiffs’ Renewed Motion for Spoliation Sanctions, filed on August
9, 2025. (ECF No. 146.) Defendants Lawn Enforcement, Inc., Jamie Walker, and Braden Jason
Walker1 (collectively “Lawn Enforcement”) responded in opposition on September 5, 2025 , and
Plaintiffs filed a reply on September 6, 2025. (ECF Nos. 152, 153.) For the following reasons,
Plaintiffs’ motion is DENIED.
1 Defendant Braden Jason Walker was misidentified in Plaintiffs’ initial pleading as “Jason Braden.” (ECF No. 152,
3 n.1.) Mr. Walker clarified his correct legal name during his March 14, 2024 deposition. (ECF No. 83 -3, 6.)
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I. BACKGROUND
In June 2022, Plaintiffs initiated this collective action against their former employer Lawn
Enforcement, alleging violations of the Fair Labor Standards Act (“FLSA”), 29 U.S.C. § 201, et
seq. (ECF Nos. 1, 7.) The complaint asserts that Defendants willfully failed to pay statutorily
required overtime compensation to Plaintiffs and similarly situated employees. (ECF No. 7, ¶¶ 87-
90.) On May 18, 2023, the Court granted Plaintiffs’ Motion to Conditionally Certify the Class .
(ECF No. 41.) Thereafter, each of the above -named plaintiffs filed their consent to join as party
plaintiffs on July 6, 2024. (ECF Nos. 87-94.)
A. First Motion for Sanctions
The instant motion is Plaintiffs’ second request for sanctions. In October 2022, Plaintiffs
served several discovery requests related to Defendants’ methods of timekeeping and
corresponding records for hourly employees. (ECF Nos. 62-1, 62-2.) Rather than producing copies
of physical timecards, Defendants produced payroll timesheets purporting to reflect Plaintiffs’
weekly hours worked and wages paid , as well as payroll schedules summarizing these weekly
totals. (Id.; see also ECF No. 67 -2.) Plaintiffs moved to compel production of the original
timecards on March 11, 2024. (ECF No. 62.) However, during his deposition on March 14, 2024,
Jason Walker revealed that Lawn Enforcement no longer had Plaintiffs’ relevant timecards, despite
Defendants’ notice of a litigation hold since at least June 8, 2022. (ECF No. 67-1, 2, 5-6.) Plaintiffs
then moved for sanctions on May 21, 2024 . The Court referred the motion to Chief Magistrate
Judge Tu M. Pham for determination. (ECF Nos. 67, 72.) In response to the motion, Defendants
alleged that they began discarding timecards in good -faith reliance on the advice of Lawn
Enforcement’s bookkeeper and accountant in early 2022. (ECF Nos. 75, 4-5; 75-1, 2.) They also
claimed that the payroll timesheets and schedules produced to Plaintiffs were created
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“contemporaneously” and thus reflect the exact data contained in the discarded timecards. (ECF
No. 75, 4-5.)
Magistrate Judge Pham granted the motion in part on December 13, 2024. (ECF No. 120.)
With respect to Defendants’ post -litigation spoliation, Judge Pham agreed that Defendants
breached their duty to preserve evidence by continuing to discard employees’ physical timecards
after a litigation hold was in place . (Id., 14.) With re spect to the pre-litigation destruction of
timecards, Plaintiffs argued that such conduct could serve as the basis for sanctions because of
Defendants’ regulatory duty to preserve records, even if Defendants had no notice of forthcoming
litigation. (Id., 10-11.) However, Judge Pham could not determine whether Defendants breached
a regulatory duty based on the limited evidentiary record before him. (Id., 13.) He denied sanctions
for pre-litigation spoliation on those grounds. (Id.)
B. Second Motion for Sanctions
Plaintiffs filed the instant motion on August 9, 2025 . (ECF No. 146.) They seek the
following sanctions for Defendants’ alleged pre-litigation destruction of payroll records:
1. Adverse inference instruction permitting the jury to infer that the destroyed
timecards—created prior to the filing of this lawsuit—would have shown hours
favorable to Plaintiffs and unfavorable to Defendants;
2. Exclusion of Defendants’ payroll summaries as rebuttal evidence regarding
hours worked;
3. An award of reasonable attorneys’ fees and costs incurred in investigating and
briefing this renewed motion; and
4. Any other relief the Court deems just and proper to remedy the prejudice caused by
Defendants’ conduct and to deter similar misconduct in the future.
(Id., 11-12.)
Plaintiffs offer “newly discovered, material evidence” that they assert resolves the
“evidentiary gap” identified in Judge Pham’s order. (Id., 2, 8); see Fed. R. Civ. P. 60(b)(2). This
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newly discovered evidence consists of several photographs of timecards stored on Plaintiffs’ old
cellphones. The pictured timecards are undated and several are unnamed. Plaintiffs explain that,
at the time of arguing Plaintiffs’ First Motion for Sanctions , the photographs offered “limited
evidentiary value .” (ECF No. 146 , 4 n.1.) However, Plaintiffs allege that they “[o]nly
recently . . . realize[d] that the images could be printed with metadata showing the date each photo
was taken.” (Id.) Using the metadata and declarations from several Plaintiffs corroborating the
timecards’ authenticity, Plaintiffs identify discrepancies in hours recorded on the timecards versus
in Defendants’ summary payroll documents . (Id., 4-5.) Plaintiffs argue that these discrepancies
offer proof of Defendants’ systematic underreporting of overtime and noncompliance with FLSA
recordkeeping requirements.2 (Id., 4-5.)
Plaintiffs offer two additional declarations of former employees whose timecards were not
recovered. The first is from named Plaintiff and former Lawn Enforcement Operations Manager
Trinidad Teran. (ECF No. 146 -4.) Teran declares that, contrary to the deposition testimony of
Jason Walker, he never observed Defendants discarding timecards throughout his five years of
employment with Lawn Enforcement . (Id., 1.) Instead, Teran “believe[s] that any destruction of
timecards occurred only after the filing of this lawsuit .” (Id.) Second, Plaintiffs submit the
declaration of former employee Kenneth Tidwell as evidence of an apparent racial discrepancy in
Black and Hispanic crew members’ compensation. (ECF No. 146-5.) According to Mr. Tidwell,
Black employees routinely recei ved overtime compensation in their paychecks , while Hispanic
employees were often not credited for overtime or paid in cash when they were . (Id.) Plaintiffs
2 Plaintiffs also attach five photographs of timecards recovered from Plaintiff Alfredo Teran’s cellphone. (ECF No.
146-3.) All but one appear to be missing metadata dating the timecards. Mr. Teran believes that the five timecards are
from 2018, before Lawn Enforcement began compiling payroll summaries. (Id.) Plaintiffs argue that, while these 2018
records cannot be used to show discrepancies in Defendants’ payroll summaries, they nevertheless demonstrate that
“substantial overtime work was commonplace at Lawn Enforcement.” (ECF No. 146, 6.)
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rely on Mr. Tidwell’s testimony as evidence of Defendants’ “willfulness, if not bad faith,” arguing
that “[t]his targeted disparity undermines any claim of a uniform retention or destruction policy.”
(ECF No. 146, 10.)
Defendants responded on September 5, 2025. (ECF No. 152.) They raise three arguments
against the motion. First, Defendants maintain that the summary payroll documents they produced
reflect the exact data contained in Plaintiffs’ timecards. (Id., 4-5.) Thus, Defendants maintain that
they have complied with the requirements of 29 C.F.R. § 516.6, which mandates that employers
subject to the FLSA preserve time and earnings records for at least two years. (Id.) Second,
Defendants argue that Plaintiffs should be barred from relying on the “newly discovered” timecard
images for failure to comply with Federal Rule of Civil Procedure 37(c) . (Id., 5-6.) Defendants
assert that Plaintiffs failed to either produce or supplement their initial disclosures with the images
as required by Rule 37(c). (Id.) Third, Defendants attack the sufficiency of Plaintiffs’ evidence.
Defendants argue that the photographs Plaintiffs rely on are undated, of poor quality, and contain
handwritten markings of questionable authenticity. (Id., 6 -7.) Defendants also argue that this
evidence supports the accuracy of Defendants’ records because some of the information reflected
on the pictured timecards appears to correlate with Defendants’ summary documents. (Id., 7.)
Plaintiffs filed a reply on September 6 , 2025 . (ECF No. 153.) They repeat several
arguments regarding Defendants’ admitted d iscarding of timecards and purported willfulness in
selectively underreporting overtime hours for Hispanic employees. Plaintiffs also respond that,
because Plaintiffs properly disclose d possession of “paychecks and pictures of timecards ” at the
start of this litigation, no grounds exist to exclude the photographs under Rule 37. (Id., 2.)
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II. LEGAL STANDARD
“Spoliation is defined as the intentional destruction of evidence that is presumed to be
unfavorable to the party responsible for its destruction.” McCarty v. Covol Fuels No. 2, LLC, 644
F. App’x 372, 378 (6th Cir. 2016) (quoting United States v. Copeland, 321 F.3d 582, 597 (6th Cir.
2003)). Districts courts have broad discretion in fashioning a proper sanction, which may include
dismissing a case, granting summary judgment, or instructing a jury that it may infer a fact based
on lost or destroyed evidenc e. Id. at 652-53 (citations omitted). “Generally, ‘ a party seeking an
adverse inference instruction based on the destruction of evidence must establish (1) that the party
having control over the evidence had an obligation to preserve it at the time it was destroyed; (2)
that the records were destroyed with a culpable state of mind; and (3) that the destroyed evidence
was relevant to the party's claim o r defense such that a reasonable trier of fact could find that it
would support that claim or defense.’” Ouza v. City of Dearborn Heights, 969 F.3d 265, 285 (6th
Cir. 2020) (quoting Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010)).
III. DISCUSSION
A. Use of Newly Discovered Evidence
Before weighing the merits of Plaintiffs’ motion, the Court first addresses Defendants’
argument under Federal Rules of Civil Procedure 26 and 37. Rule 26(a) instructs that a party,
without awaiting a discovery request, must provide to other parties “a copy —or a description by
category and location —of all documents, electronically stored information, and tangible things
that the disclosing party has in its possession . . . and may use to support its claim s or defenses.”
Fed. R. Civ. P. 26(a)(1)(A)(ii). Later, “if the party learns that in some material respect the
disclosure or response is incomplete or incorrect, and if the additional or corrective information
has not otherwise been made known to the other parties during the discovery process or in writing,”
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Rule 26(e) requires that the party supplement or correct its disclosure. Fed. R. Civ. P. 26(e)(1).
Failure to disclose or supplement under either provision may be grounds to bar a party’s use of
that information as evidence on a motion or at trial. Fed. R. Civ. P. 37(c)(1).
In their reply brief, Plaintiffs contend that their initial disclosures did “expressly identif[y]
‘paychecks & pictures of timecards.’” (ECF No. 153, 2.) Indeed, a copy of Plaintiffs’ disclosures
attached to their response to Defendants’ Motion for Summary Judgment states that “pictures of
timecards” for five of the above -named plaintiffs “[were] in Plaintiffs’ custody.” ( See ECF No.
101-1, 4.) According to Plaintiffs, the disclosure of the existence of the timecard photographs was
not incomplete or incorrect; rather, “only their evidentiary weight became clearer when metadata
later tied them to specific pay periods.” (ECF No. 153, 2.) Plaintiffs argue that this change in the
perceived weight of the photographs did not trigger a duty to supplement, and thus Defendants’
argument under Rule 37(c) must fail. (Id.)
The Court agrees . Under Rule 26(a), Plaintiffs were obligated to provide either “a
copy . . . or a description by category and location” of all documents in their possession that could
be used to support Plaintiffs’ claims. Fed. R. Civ. P. 26(a)(1)(A)(ii). Contrary to Defendants’
assertion, Plaintiffs were not required to produce these files, so long as a sufficient description was
provided. Plaintiffs did so provide by expressly disclosing possession of “pictures of timecards”
belonging to named Plaintiffs Alfredo Teran, Eliberto Ambrosio Perez, Ricardo Teran, Patricio
Martinez, and Ismael Guel. (ECF No. 101 -1, 4.) Plaintiffs’ discovery of the new metadata may
have necessitated supplementation if the y originally produced the photographs without this
information. But as Plaintiffs note, Defendants declined to seek production of the timecard
photographs, despite knowledge of their existence following Plaintiffs’ initial disclosures. (See
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ECF No. 153, 2.) Under these circumstances, the Court finds no grounds to exclude the timecard
photographs from its spoliation analysis below.
B. Spoliation Analysis
Plaintiffs identify two bases for the Court to consider imposing additional sanctions. First,
Plaintiffs offer the testimony of Trinidad Teran to rebut Defendants’ assertion regarding when the
destruction of the contested timecards began. Defendants maintain—in their response to Plaintiffs’
First Motion for Sanctions and again here —that they began discarding and substituting physical
timecards with payroll summary documents several months before they had notice of imminent
litigation. (ECF No. 152, 5; see also ECF No. 75-1 (declaring that Defendants had followed this
practice since at least the first quarter of 2022).) It was for Defendants’ continued destruction of
timecards after Plaintiffs requested a litigation hold in June 2022 that Judge Pham found sanctions
were warranted. (ECF No. 120, 14.) Through the testimony of Trinidad Teran, Plaintiffs now
attempt to refute Defendants’ timeline. Teran writes that, based on his knowledge of the company’s
operations during his five years of employment, he “believes that any destruction of time cards
occurred only after the filing of this lawsuit, and that such destru ction was deliberate.” (ECF No.
146-4, 1.) Plaintiffs seem to argue that this testimony support s imposing additional sanctions
because “[Teran’s] account supports a reasonable inference that Defendants began destroying
timecards only after litigation commenced.” (ECF No. 146, 4.) Thus, destruction of any timecards
produced prior to the June 2022 litigation hold had to be a deliberate act.
The Court declines to impose sanctions on this basis. As Defendants note, Jamie and Jason
Walker have consistently testified that Lawn Enforcement’s destruction of timecards began pre -
litigation, and prior to its knowledge of the litigation hold. (ECF No. 152, 5.) Plaintiffs offer a
single declaration to rebut this testimony . Even though Teran claims familiarity with the
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company’s recordkeeping practices, his primary responsibly appear s to be “overs[eeing] the
company’s work crews.” (ECF No. 146-4, 1.) The Court finds his declaration to be insufficient to
justify sanctions beyond those already imposed for Defendants’ post -litigation spoliation.
Moreover, Plaintiffs do not suggest that the adverse inference instruction previousl y determined
to be appropriate by Magistrate Judge Pham is in any way inadequate. Pursuant to Judge Pham’s
Order, Plaintiffs are entitled to “a permissive jury instruction as to the timecards destroyed after
the lawsuit began.” (ECF No. 120, 16.) Whether all or only a portion of the timecards fall into this
category is a question of fact best reserved for the jury.
Second, Plaintiffs renew their argument that Defendants, before having notice of this
litigation, violated a regulatory duty to preserve the discarded timecards. (ECF No. 146, 8.) As
explained above, Judge Pham denied in part Plaintiffs’ First Motion for Sanctions because he could
not determine, from the limited record at that time, whether Defendants violated a duty to preserve
evidence before this litigation began. (See ECF No. 120, 12-13.)
In most circumstances, a party’s obligation to preserve evidence arises “when a party
should have known that the evidence may be relevant to future litigation.” Goodale v. Elavon, Inc.,
No. 23-5013, 2023 WL 9111441, at *4 (6th Cir. Dec. 12, 2023) (quoting Beaven, 622 F.3d at 553).
Although the Sixth Circuit has yet to directly address the issue, several courts have recognized that
“the failure to preserve evidence in violation of a regulation requiring its retention can give rise to
an inference of spoliation, even if litigation involving the records is not reasonably foreseeable at
the time the records are made.” Johnson v. Metro. Gov't of Nashville & Davidson Cnty., No. 3:07-
0979, 2010 WL 3342211, at *18 (M.D. Tenn. Aug. 24, 2010), aff'd., 502 F. App'x 523 (6th Cir.
2012) (citing Byrnie v. Town of Cromwell Bd. of Educ. , 243 F.3d 93, 109 –10 (2nd Cir. 2001);
Latimore v. Citibank Fed. Savs. Bank , 151 F.3d 712, 716 (7th Cir. 1998); Favors v. Fisher , 13
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F.3d 1235, 1239 (8th Cir. 1994); Hicks v. Gates Rubber Co. , 833 F.2d 1406, 1419 (10th Cir.
1987)); (see also ECF No. 120, 12-13 (relying on Johnson for pre-litigation spoliation analysis)).
Plaintiffs here cite to 29 C.F.R. Part 516, which requires that employers subject to the FLSA
“preserve for a period of at least 2 years . . . all basic time and earning cards ” for individual
employees. 29 C.F.R. § 516.6(a)(1). Plaintiffs also assert that, pursuant to 29 C.F.R. § 516.1(a),
“[t]hese records must be maintained on their original form.” (ECF No. 146, 8.)
The Court finds as an initial matter that Defendants ’ payroll summary documents , if
accurate, appear to comply with the relevant FLSA regulations. Contrary to Plaintiffs’ assertion,
Section 516.1(a) specifically instructs that “no particular order or form of records is prescribed by
[Part 516] ,” so long as the records “contain[] the information and data required by specific
sections.” 29 C.F.R. § 516.1(a). The summaries produced by Defendants purport to contain the
precise information required by Section 516.6(a)—namely the amounts of work accomplished and
applicable wage rates per pay period for hourly employees.3 (See ECF No. 67-2.)
To establish Defendants’ breach of duty under the FLSA, Plaintiffs must therefore prove
that Defendants’ payroll summaries are not accurate substitutions for the destroyed timecards.
Plaintiffs argue that they have done so, offering not only discrepancies between Defendants’
summaries and Plaintiffs’ preserved timecards, but also the testimony of former employees that
overtime was common and routinely paid in cash at Lawn Enforcement. (See ECF No. 146, 7.)
Taken together, Plaintiffs contend this evidence “show[s] a consistent pattern: in weeks exceeding
forty hours, Defendants’ payroll summaries underreported actual hours by omitting overtime
3 Given their relevance to the instant motion, and in light of the parties’ reference to the documents in their briefs, the
Court has relied on the payroll summaries submitted as exhibits to Plaintiffs’ First Motion for Sanctions . (ECF No.
67.)
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entirely, while in week s with fewer than forty hours, the summaries match the original[]
[timecards].” (Id.)
The Court notes that of the nine new timecards Plaintiffs offer in support of their motion,
only three—two for Patricio Martinez dated April 8 and May 13, 2022, respectively, and one for
Ismael Guel dated May 14, 2022 —appear to reflect discrepanc ies from Defendants’ payroll
summaries. (ECF Nos. 146, 5; 146-1; 146-2.) The timecards corresponding with the May 20, 2022,
pay date show ten and eighteen hours of overtime that are not recorded on Defendants’ payroll
summaries, while Martinez’s April timecard reflects only one unrecorded hour. (Id.; see also ECF
No. 67-2.) Although these discrepancies may be significant, the Court finds that reliance on the
timecard photographs would be misplaced at this point in the ligation . The Court agrees with
Defendants that some of t he data recorded on the timecards is difficult to read , and despite the
metadata, the timecards themselves are undated. (ECF Nos. 146 -1, 146-2; see ECF No. 152, 6.)
Also, all three conflicting timecards contain at least some handwritten entries. This is in contrast
to the machine-generated timestamps that appear on these same timecards, and others, submitted
by Plaintiffs. (See ECF Nos. 146-1; 146-2; 146-3.)
Based on this, some evidence could exist that infers Defendants may have breached a pre-
litigation duty to preserve Plaintiffs’ original timecards. Nevertheless, the Court finds this evidence
insufficient to warrant further sanctions. Despite Plaintiffs’ additional submission, the record
remains limited to somewhat unreliable and conflicting evidence regarding Defendants’ pre -
litigation recordkeeping practices. Even if Plaintiffs’ submission s were reliable, photographs
suggesting discrepancies for just two pay periods, as opposed to dozens reported on Defendants’
payroll summaries, is insufficient to justify additional sanctions. Again, weighing this proof is a
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responsibility best reserved for a jury. Plaintiffs’ renewed request for sanctions is DENIED
accordingly.
IV. CONCLUSION
For the foregoing reasons, Plaintiffs’ Renewed Motion for Spoliation Sanctions is
DENIED.
IT IS SO ORDERED this 8th day of October, 2025.
s/ John T. Fowlkes, Jr.
JOHN T. FOWLKES, JR.
UNITED STATES DISTRICT JUDGE
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