Yu v. Idaho State University et al

Filing 154

MEMORANDUM DECISION AND ORDER. IT IS HEREBY ORDERED: Plaintiff's Motion in Limine Re: Spoliation of Evidence and Adverse InferenceInstruction (Dkt. 84 ) is GRANTED. Defendant's Motion to Strike (Dkt. 112 ) is DENIED. Signed by Judge Ronald E. Bush. (alw)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO
JUN YU,
Plaintiff,

Case No.: 4:15-cv-00430-REB
MEMORANDUM DECISION AND
ORDER RE:

vs.
IDAHO STATE UNIVERSITY,
Defendant.

PLAINTIFF’S MOTION IN LIMINE
RE: SPOLIATION OF EVIDENCE
AND ADVERSE INFERENCE
INSTRUCTION (DKT. 84)
DEFENDANT’S MOTION TO
STRIKE EXHIBIT F (DKT. 112)

This decision resolves Plaintiff’s Motion in Limine Re: Spoliation of Evidence and
Adverse Inference Instruction (Dkt. 84) and Defendant’s Motion to Strike raised in its
memorandum opposing the instant motion in limine (Dkt. 112).
BACKGROUND
Plaintiff Jun Yu alleges that Defendant Idaho State University (hereafter “Defendant” or
“ISU”) deliberately and unlawfully discriminated against him due to his national origin in
violation of Title VI of the 1964 Civil Rights Act, 42 U.S.C. §§ 2000d et. seq. FAC ¶ 353 (Dkt.
41). In his motion, Plaintiff argues that Defendant has failed to preserve relevant evidence and
therefore the jury should be instructed that it may presume that the destroyed evidence, if
produced, would have been adverse to Defendant. In Defendant’s motion, it seeks to strike an
exhibit Plaintiff filed in support of its motion in limine.
LEGAL STANDARDS
“Spoliation of evidence is the destruction or significant alteration of evidence, or the
failure to properly preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” Balla v. Idaho State Bd. of Corr., 119 F.Supp. 3d 1271, 1282 (D. Idaho

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Aug. 11, 2015). A party seeking sanctions for spoliation must establish that the opposing party
(1) destroyed relevant evidence and (2) had an obligation to preserve the evidence when it was
destroyed or altered. Harmon v. United States, 2017 WL 1115158 at *2 (D. Idaho, Mar. 24,
2017) (citing Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015)).
“A federal trial court has the inherent discretionary power to make appropriate
evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v.
BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). “When considering the appropriate sanction,
courts consider the: (1) willfulness or bad faith of the party responsible for loss of evidence; (2)
degree of prejudice sustained by opposing party; and (3) what is required to cure prejudice.”
Harmon, 2017 WL 1115158 at *6 (citation and internal quotation marks omitted).
DISCUSSION
1. Destruction of Evidence.
Plaintiff’s motion focuses on Defendant’s failure to produce certain student records.
Defendant initially refused1 to produce the records sought in Plaintiff’s initial discovery request.
Plaintiff moved to compel discovery. The Court granted the motion (Dkt. 40) and ordered
Defendant to provide the student records under a protective order designed to protect the privacy
of the students involved, while still allowing Plaintiff and his counsel to access information
relevant to Plaintiff’s claim against the university. In summary, the records were ordered to be
produced, but with only the nationality and ethnic origin of the student unredacted. In other
words, the identifying information other than nationality and ethnic origin continued to be
confidential and not disclosed. (Dkt. 46.) Specifically, the Protective Order required:
That the Defendant, Idaho State University, will provide to Plaintiff the student
1

Defendant’s refusal was based on its position that the Family Educational Rights and
Privacy Act (FERPA), 20 U.S.C. § 1232g(b)(2), prohibited producing records of other students.

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records of all students who were enrolled at Idaho State University pursuing a
doctorate degree in Clinical Psychology between 2008 and 2015. The information
disclosed will include each student's transcript containing grades, test scores and
courses taken, official letters regarding the student's status at ISU, including any
academic probation or suspension records maintained by the Office of Academic
Affairs. The information disclosed will also include all material and any related
data on each students' externships and internships applied for, approved,
disapproved, suspended or curtailed, and taken with all related documentation to
include rationale for approval or disapproval or curtailment; and, the contracts and
or agreements governing the approved internships whether in the state of Idaho or
elsewhere in the United States or abroad.
Prot. Order 1–2 (Dkt. 46).
On July 20, 2017, Defendant provided Plaintiff with student records under the Protective
Order. Plaintiff’s counsel promptly notified Defendant’s counsel the production was incomplete
because it did not include “all material and any related data on each students’ externships and
internships.”
On February 22, 2018, Defendant supplemented its production, but Plaintiff again
questioned the accuracy and completeness of the production. As described by Plaintiff’s counsel
in a letter to Defendant’s counsel, “the documents provided were contracts, affiliation
agreements, contract amendments, services agreements and extern agreements governing
positions for externships or service learning positions but nothing regarding internships.”
Coulter Aff. Ex. B (Dkt. 84-3).
In a further letter exchange about Plaintiff’s contention that the document production was
inadequate, Defendant’s counsel responded that “feedback from internship sites regarding
student progress is variable. Mid-year progress reports are normally not provided to the
Department. Some internship sites provide the Department with a letter at the completion of the
internship noting that a student completed the internship. If such letters were received by the
Department, they were maintained in the respective student’s file previously provided.” Coulter

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Aff. Ex. D (Dkt. 84-5).
In support of his argument that the requested documents were either not preserved or not
produced, Plaintiff points to language contained in several annual versions of a Clinical Student
Handbook used by the ISU Department of Psychology. The submitted excerpts state that “[t]he
student’s internship ‘contract’ letter is filed with the ISU Registrar prior to internship onset,
providing evidence of the full-time nature of the internship requirement. The student’s
internship training director will file periodic evaluations of intern’s performance throughout the
year with the DCT.”2 Coulter Aff. Ex. E (Dkt. 84-6). Moreover, although not specifically
referenced by Plaintiff’s counsel, the Handbook excerpts also state that “[a] copy of the
internship completion letter (or certificate) is filed with the ISU Registrar” and that “[t]he
internship is a degree requirement, an accreditation requirement, a licensure requirement, and
educational in nature, rather than simply a job.” Id.
Plaintiff contends that the Defendant’s explanations for the missing pieces of the
discovery productions are completely at odds with the language in the Psychology Department’s
own Handbooks requiring that certain internship-related records be obtained and retained.
Plaintiff argues that because internships are required to receive a degree, for accreditation and
licensure, and because internship completion letters/certificates must be filed with the ISU
Registrar, then Defendant’s explanation to Plaintiff that “[s]ome internship sites provide the
Department with a letter at the completion of the internship noting that a student completed the
internship” rings hollow. Coulter Aff. Ex. D (Dkt. 84-5) (emphasis added). Similarly,
Defendant’s explanation that “[m]id-year progress reports are normally not provided to the
Department” (id.) contradicts the Handbook’s requirement that a “student’s internship training
2

“DCT” refers to the Director of Clinical Training.

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director will file periodic evaluations of intern’s performance throughout the year with the DCT.”
(Emphasis added.)
The Court cannot reconcile Defendant’s explanations with the plain and unambiguous
language of Defendant’s own Handbooks. Neither the justifications made in the letters
exchanged with opposing counsel, nor the explanations offered during the hearing upon this
motion, gave either a cogent or defensible explanation for the Defendant’s failure to produce
documents which were required to be produced pursuant to prior order of the Court and which
the Psychology Department in its own Handbook requires be obtained and retained.
There is a disconnect between the requirement that such documents be obtained and
maintained, and ISU’s explanation for the fact that such documents were not produced. Plaintiff
contends that they were purposefully not produced and are either being hidden from Plaintiff or
have been destroyed. The Court is not convinced that such a nefarious explanation is accurate.
However, the Court is also alarmed that ISU did not locate and produce records that are essential
evidence of the university’s own degree requirements in the doctoral psychology program and
cannot offer any sensible explanation for the failure to produce such records. The Defendant
flatly has failed to justify its failure to produce student internship records.
2. Duty to Preserve.
The prior Protective Order in this case required Defendant to provide Plaintiff “the
student records of all students who were enrolled at Idaho State University pursuing a doctorate
degree in Clinical Psychology between 2008 and 2015.” (Dkt. 46.) Defendant argues that May
3, 2013, the day Plaintiff was dismissed from ISU, is the earliest date its obligation to preserve
evidence may have been triggered. Def.’s Opp’n 7 (Dkt. 112). It also argues that, whenever it
may be that a duty to preserve arose, such duty did not apply to internship evaluations regarding

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other students. Id. But Plaintiff implies that as soon as Defendant was on notice of his Title VI
claim alleging race and national origin discrimination, Defendant had a duty to preserve relevant
evidence regarding other students because the claim requires comparing Plaintiff’s treatment to
the treatment of similarly-situated students.
The Court is persuaded that Defendant had a duty to preserve internship records of other
students in its Department of Psychology. The Court acknowledges that Defendant’s purported
explanation creates a vacuum of sorts – in other words, ISU contends on one hand that someone
looked for such records and couldn’t find any and then contends on the other hand that there may
never have been such records. But those explanations are inadequate when there is no sensible
reason that such records would have been discarded in the absence of some precisely drawn,
factually defensible, and carefully followed document retention policy for student records.3 The
records in question are, after all, not akin to sign-in sheets for grad student lunch meetings or
something similarly innocuous. They are records of contracts for student internships, evaluations
of a student’s work in such internships, and certification of students’ successful completion of
such internships – all of which relate directly to essential degree requirements. As described
above, the Psychology Department’s own handbook prescribes that “[t]he internship is a degree
requirement, an accreditation requirement, a licensure requirement, and educational in nature,
rather than simply a job.”
As to the date on which such a duty arose, it is not necessary to decide upon a particular
date other than to rule that the duty arose no later than October 2, 2013, when Plaintiff’s final
appeal was denied and he was dismissed from Idaho State University. At that point, litigation
3

Of significance here is the fact that ISU has not suggested in any way that such records
were obtained and maintained, but then discarded for some legitimate reason, such as a
prescribed, implemented and defensible record retention policy.

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was reasonably foreseeable and it was or should have been apparent to Defendant that records
regarding other students in the Clinical Psychology program would be relevant evidence.
Because the Protective Order required Defendant to produce student records as late as 2015, and
Defendant was subject to a duty to preserve by 2013, some student records would necessarily
have been generated after Defendant’s duty to preserve arose. Therefore, Plaintiff has
established that – at least as to internship records for other doctoral psychology students –
Defendant failed to produce relevant evidence that was subject to a duty to preserve.
3. The Spoliation Remedy.
“A federal trial court has the inherent discretionary power to make appropriate
evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v.
BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). “When considering the appropriate sanction,
courts consider the: (1) willfulness or bad faith of the party responsible for loss of evidence; (2)
degree of prejudice sustained by opposing party; and (3) what is required to cure prejudice.”
Harmon, 2017 WL 1115158 at *6 (citation and internal quotation marks omitted).
There is nothing before the Court in the form of an affidavit, declaration, or deposition
testimony explaining the nature of any search that may have been performed for the records in
question. Nor is there any explanation, in any such form, of why records which are patently
significant to evidencing completion of the necessary degree requirements cannot be found.
As described earlier, Plaintiff’s counsel contends that there has been an intentional act to destroy
or withhold such records. As stated earlier, the Court is not persuaded of such an intentional act.
But it is not necessary to conclude that the failure to produce such records was intentional
because – even giving the circumstances the most innocent explanation that could possibly be
applied – the Defendant either made a less than adequate search for the records, or the University

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did not obtain or did not preserve such records in the ordinary course as called for in its own
program rules. Wherever the failure lies, it is inexplicable and indefensible that the records were
not produced. Because they were not produced, Plaintiff was deprived of evidence that should
exist, regardless of whether such evidence (had it been produced) would have supported or not
supported Plaintiff’s case.
In such circumstances, the Court cannot say that Defendant intentionally “lost” the
evidence. However, the Court can conclude that Defendant was, at a minimum, negligent in the
failure to produce such evidence. The records were required to be obtained and kept both to
ensure the student fulfilled the doctoral program requirements and for the university to confirm
and make a record of the successful completion of the program requirements. Yet, Defendant
says they either never did exist, or they cannot be found.
Turning to the next factor, the Court is persuaded that Plaintiff’s prejudice due to the lack
of this evidence is significant. This is a discrimination case. One of Plaintiff’s burdens at trial is
to persuade the jury that he was treated differently than similarly-situated students – here, other
doctoral students. The absent evidence – internship records for other doctoral students – is of
obvious and important relevance. Plaintiff’s ability to present his case, and the jury’s ability to
evaluate it, are substantially undermined by the lack of evidence as to how similarly-situated
students were treated. This is especially so because the record indicates that Defendant contends
that Plaintiff was dismissed from the doctoral program in no small part because of his difficulty
in satisfactorily completing an internship. Examining and comparing how other students fared in
their internships and the University’s response to any difficulties they may have had therefore
implicates the comparison Plaintiff seeks to make.
That leaves the question of how best to cure the prejudice visited upon Plaintiff by

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Defendant’s failure to produce the internship records. For Plaintiff, such records would have
been crucial evidence as to whether Defendant discriminated against him. Perhaps such records
would support his claim; perhaps they would not. But he will never know for certain, because
they were not provided to him.
The most sensible means of seeking to cure the prejudice, in these circumstances, is to
give the jury a permissive adverse inference instruction, i.e., the jurors will be instructed that
they may draw an inference that the missing records would have supported Plaintiff’s claim of
discrimination. This is less than what Plaintiff seeks, but the Court is not entirely persuaded
Defendant’s failure to produce the records at issue was willful or in bad faith. Correspondingly,
however, the failure of Defendant to produce such records, even if from negligence rather than
willfulness or in bad faith, would effectively be condoned if there was not some sanction for its
failure.
The precise language of the adverse inference instruction may be subject to change at
trial,4 but the Court’s present intention is to give an instruction in substantially the following
form:
To prove his claim of discrimination, one element Plaintiff Jun Yu must prove is
that the Defendant, Idaho State University, intentionally treated him differently
from similarly-situated students who were not members of his protected class.
Defendant was required by its own graduate program rules to collect certain records
for all doctoral psychology students. Those included records proving that the
student had obtained and successfully completed a psychology clinical practice
internship, which is one of the requirements for graduation. Such records were to
include a copy of the contract between the student and the entity providing the
internship, and to include periodic evaluations of the student’s performance in
completing the internship. In this lawsuit, the Plaintiff made a proper request to the
4

Although the record is clear that not all internship records described by the graduate
student handbooks were provided to Plaintiff, it is not entirely clear whether any such records
were provided. If the details in the record regarding that subject change in material fashion
before the jury is instructed, then the Court may consider revising or not giving the permissive
adverse instruction.

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Defendant to provide such records. The Court ordered the Defendant to produce
the records, so that Plaintiff could examine how other doctoral students’ internships
were handled in comparison to the Defendant’s circumstances. The Defendant did
not provide records relating to internships of other students, and it said that such
records had either never been obtained or could not be located. Because Defendant
did not provide such records, you may infer that if such records had been produced,
they would have supported Plaintiff’s claim of discrimination.
4. Defendant’s Motion to Strike Is Denied as Moot.
Plaintiff’s motion includes argument based on a letter from his retained expert Dr. Naya
A. Fouad, who has served as Director of Clinical Training in the Department of Psychology at
the University of Wisconsin-Milwaukee. Plf.’s Mem. ISO Mot. in Limine re: Spoliation of Evid.
4 (Dkt. 84-1). Attached to the affidavit of Plaintiff’s counsel are Dr. Fouad’s curriculum vitae
and a letter drafted by Dr. Fouad regarding record-keeping practices in a university Department
of Psychology setting. Coulter Aff. Exs. F, G (Dkts. 84-7, 84-8).
Defendant moves to strike Dr. Fouad’s statements,5 arguing that she is not a psychology
student record expert, she was not disclosed as a student record expert, and her testimony was
not provided under oath. Def.’s Opp’n 2 (Dkt. 112.)
In deciding Plaintiff’s instant motion in limine, the Court did not rely on Dr. Fouad’s
statements or on Plaintiff’s argument regarding them. Rather, in deciding Plaintiff’s motion the
Court has relied entirely on Defendant’s own documents, primarily the Handbooks, the letter of
Defendant’s counsel letter to Plaintiff’s counsel dated March 14, 2018, and statements of
Defendant’s counsel during the hearing upon this motion. Because the Court has not relied on
Dr. Fouad’s statements, Defendant’s motion to strike such statements is denied as moot.

5

Defendant’s motion to strike refers to “Exhibit F” as “regarding the compilation of
psychology student records at universities generally,” Def.’s Opp’n 2 (Dkt. 112), but Exhibit F is
actually Dr. Fouad’s curriculum vitae and not her letter. Regardless, the Court need not
scrutinize the precise scope of the motion.

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ORDER
For the reasons stated above, IT IS HEREBY ORDERED:


Plaintiff’s Motion in Limine Re: Spoliation of Evidence and Adverse Inference
Instruction (Dkt. 84) is GRANTED. A permissive adverse inference instruction
regarding Defendant’s failure to produce certain records pertaining to other doctoral
students will be given to the jury.



Defendant’s Motion to Strike (Dkt. 112) is DENIED.

DATED: February 13, 2019

________________________
Honorable Ronald E. Bush
Chief U. S. Magistrate Judge

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