In Mitcham v. Americold Logistics, LLC, No. 17-cv-00808-WJM-NYW, 2017 WL 4163359 (D. Colo. Sept. 20, 2017), a sex discrimination action, the plaintiff twice responded that she had produced all documents pursuant to a discovery request for “handwritten note[s], recorded communications, calendars, journals, [and] diaries.” But at the plaintiff’s deposition, the defendant learned that plaintiff had kept a journal, in which she had recorded her own accounts of alleged improper conduct.  The plaintiff testified that she had scanned the journal, turned the scan over to her lawyer, and then shredded the original. The plaintiff produced the scanned copy of the journal two days after the deposition, and the defendant sought sanctions for the plaintiff’s delay in producing the scanned copy. The court awarded sanctions, finding that the plaintiff’s duty to preserve the original journal was triggered when she hired a lawyer the day after her termination – facts that gave her “notice” that the journal might be “relevant to a reasonably-defined future litigation.” The court “respectfully disagree[d]” that “the scanned copy is just as good as the original” because the scan could not show whether all pages of the original journal were included, and the scan would give “no opportunity . . . to determine from the handwriting, the ink, or otherwise if there are timing differences as to when certain entries were written.” Based on the defendant’s inability to review the original journal, the court found that the defendant had been prejudiced. The court ordered the plaintiff to pay attorneys’ fees and costs associated with the reopening of the plaintiff’s deposition to clarify issues related to the journal, but denied an adverse inference instruction because the record was “insufficient” to “determine the scope and extent of any prejudice” to the defendant. Significantly, the plaintiff disputed whether she had even destroyed the journal because she kept her journal “in the ordinary course of business and transferred it to a computerized form as a matter of routine,” such that she should be able to produce the scanned copy under Federal Rule 34(b)(2)(E). But the court found that the original journal was not ESI, so Rule 34(b)(2)(E) was inapplicable.