Steshenko v. McKay et al

Filing 483

ORDER TO SHOW CAUSE RE POTENTIAL IMPOSITION OF SANCTIONS. Signed by Judge Seeborg on 9/20/2012. (rslc1, COURT STAFF) (Filed on 9/20/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GREGORY NICHOLAS STESHENKO,
Plaintiff,

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For the Northern District of California

United States District Court

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v.

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ORDER TO SHOW CAUSE RE
POTENTIAL IMPOSITION OF
SANCTIONS

THOMAS MCKAY, et al.,

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No. C 09-5543 RS

Defendants.
____________________________________/

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Plaintiff Gregory Steshenko moved to impose sanctions based on his allegations of

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evidentiary spoliation. By prior order, the motion was denied to the extent that it sought sanctions

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against the Hospital Defendants and to the extent it was based on certain specified instances of

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alleged spoliation by the College Defendants. The order, however, directed counsel for the College

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Defendants to conduct a reasonable investigation into the circumstances surrounding the deletion of

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the email account of defendant McKay, and to submit additional declarations addressing a number

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of specific questions.

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The College Defendants have filed a responsive brief, and supporting declarations. Putting

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aside for now the question of whether any plausible inference of intentional wrongdoing can be

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drawn from the record, the response shows that, at a minimum, (1) inadequate care has been

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exercised to ensure that all representations in prior discovery responses and court filings were

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accurate and complete, (2) the College Defendants did not take sufficient, timely, reasonable

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measures to comply with their duties to preserve evidence, (3) even after further investigation, the

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College Defendants are unable to state with certainty the circumstances and timing of email

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deletion, and (4) the College Defendants cannot provide assurances that no relevant material was

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destroyed.

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The following specific points emerge:

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• The College Defendants and their counsel were aware early in October of 2009 that

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Steshenko had initiated litigation. Key individuals, however, declare that they were first instructed

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to preserve emails regarding the matter in February of 2010.

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• Under the College’s system, employees are encouraged to delete emails regularly, to avoid
exceeding storage limits. Once an employee deletes an email at his or her desktop, it remains

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retrievable from the central server for only four weeks, at which time it is permanently deleted.

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For the Northern District of California

United States District Court

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• Although the College lacks the precise details, there is no dispute that defendant McKay’s

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desktop computer was reassigned to another employee sometime after his employment terminated in

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December of 2009. When a computer is reassigned, all prior user data is automatically removed.

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The College has confirmed that none of McKay’s data is now retrievable from that computer. There

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is no claim, however, that the College made any effort to preserve any of that data, or review it for

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materials potentially relevant to this action, prior to the time the computer was reassigned. The

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reassignment of the computer, and resulting destruction of McKay’s data, occurred at least two

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months after the duty to preserve arose.

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• The College Defendants are unable to determine exactly when McKay’s email account

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was deleted from the central server, thereby rendering unretrieveable any email that McKay had not

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previously deleted. There is no dispute, however, that it did not happen prior to May of 2010, long

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after the duty to preserve arose, and after Steshenko had made a specific demand to preserve

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evidence. That demand had been the subject of extended correspondence between Steshenko and

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Counsel, and at least some key personnel at the College had been advised of it.

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• Key individuals declare that they do not believe they had “many” email exchanges with

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McKay regarding Steshenko, but each of them acknowledge the possibility that such emails may

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have existed and may have been deleted between the time the duty to preserve arose and early

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February of 2010. Additionally, those declarations raise the very real possibility that other relevant

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email exchanges among named defendants and/or other College employees, to which McKay was

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not party, may also have been deleted between the time the duty to preserve arose and early

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February of 2010.
• Margaret Ard, former Vice President for Business Services declares that she was the “legal

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asserts she first became aware of a request by Steshenko to preserve evidence in February of 2010.

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Ard states she does not remember whether she notified the IT Department of that request. While the

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various declarations are vague, the most reasonable inference is that no one at the College was

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instructed to preserve evidence until February of 2010, and that they were only instructed to do so

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then because Steshenko had made a specific request. Even at that point in time, the IT Department

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For the Northern District of California

liaison” for the College at the time Steshenko filed suit and continuing until April of 2010. Ard

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United States District Court

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most likely was not notified. If the IT Department was notified, it was not given sufficient

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instructions to prevent it from deleting McKay’s email account sometime in May of 2010 or

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thereafter.

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On this record, it is clear that the College Defendants’ prior assurances that few, if any,

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responsive emails to or from McKay had been lost is wholly unreliable. Worse, it now appears quite

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possible that other relevant email exchanges, not involving McKay, were also irretrievably deleted.

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It is less clear, however, whether it is likely that a large volume of material, or especially critical

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material, was lost.
Steshenko’s motion for sanctions originally requested entry of summary judgment in his

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favor. The prior order observed it was unlikely such a sanction would ultimately prove appropriate

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in this action.1 At least at this juncture, the evidence does not so plainly support a conclusion of bad

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faith and intentional spoliation that case-dispositive sanctions are justified. Nevertheless, the

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College Defendants’ apparent inattention to their obligations to preserve evidence, and their

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carelessness toward ensuring accuracy and completeness in discovery responses and court filings,

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calls for some further inquiry and possible remedy.

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Even in an instance where dispositive sanctions against a defendant were warranted, it would
more likely be appropriate only to strike the answer and permit the plaintiff to apply for a default
judgment.

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Accordingly, within 30 days of the date of this order, the College Defendants shall file a

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brief, not to exceed 20 pages, and such further declarations as may be appropriate, showing cause

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why sanctions should not be imposed. The College Defendants should also address the type and

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scope of sanctions that would be appropriate, should the Court ultimately conclude some must be

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imposed. Within 15 days thereafter, Steshenko may file a response, also not to exceed 20 pages.

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The matter will then again be taken under submission.

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IT IS SO ORDERED.

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For the Northern District of California

United States District Court

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Dated: September 20, 2012

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RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE

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