Stevens v. Brigham Young University - Idaho et al

Filing 246

MEMORANDUM DECISION AND ORDER - IT IS HEREBY ORDERED, that the motion to compel deposition (docket no. 241 ) is GRANTED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jd)

Case 4:16-cv-00530-BLW Document 246 Filed 06/01/20 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
LORI STEVENS

FOR THE DISTRICT OF IDAHO

Plaintiff,

Case No. 4:16-CV-530-BLW

v.
BRIGHAM YOUNG UNIVERSITY –
IDAHO dba BYU-Idaho, a Utah corporation
and SUSAN STOKES, personal
representative of the Estate of Stephan
Stokes,

MEMORANDUM DECISION
AND ORDER

Defendants.
INTRODUCTION
The Court has before it a motion by BYU-I to take the deposition of opposing
counsel Deann Casperson. The motion is fully briefed and at issue. For the reasons
expressed below, the Court will grant the motion.
LITIGATION BACKGROUND
Plaintiff Stevens, a former BYU-I student, alleges that Robert Stokes, a former
BYU-I professor, initiated an unwanted relationship with her while she was a student and
Stokes was a professor at BYU-I. Stevens alleges that this relationship ultimately
became sexually and emotionally abusive. She further asserts that she, along with
another student, Danielle Spencer, reported Stokes’ inappropriate and abusive behavior to
several BYU-I professors and officials, who failed to take any action. The relationship
ended when Stokes died on July 1, 2016, from complications during heart surgery.
Memorandum Decision & Order – page 1

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Stevens originally sued BYU-I and the Stokes estate. She later settled her claims
against the Stokes estate. The LDS Church intervened for “the limited purpose of
protecting its claims of privilege. . . .” See Order (Dkt. No. 89). There are now four
claims in this case against BYU-I:
1. Teacher-on-student hostile environment/sexual harassment actionable under
Title IX of the Education Amendments Act;
2. Teacher-on-student quid pro quo sexual harassment;
3. Hostile learning environment in violation of the Rehabilitation Act and the
Americans with Disabilities Act; and
4. Violation of the Idaho Human Rights Act.
To support her claim of harassment and describe her relationship with Stokes,
Stevens intends to introduce selected text messages between her and Stokes. She had
about 800 of those texts printed out and stored in binders. It is undisputed, however, that
Stevens selectively and intentionally deleted a large amount of texts between the two.
After filing this lawsuit, Stevens claims that her phone (containing the remaining texts)
stopped working. She took the phone to the AT&T store where a clerk erased all data on
the phone.
BYU-I complained that the text deletions and phone erasure made it impossible to
verify or rebut Stevens’ claim that the texts she saved accurately represented her
relationship with Stokes. To address this problem, BYU-I filed a motion for sanctions,
asking the Court to find that Stevens’ conduct was intentional and to impose sanctions
including a dismissal of the case.
In an analysis of that motion, the Court found substantial questions of fact that
could not be resolved as a matter of law. See Memorandum Decision (Dkt. No. 233). It
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was unclear whether Stevens was deleting texts at a time when her duty to preserve
evidence was in place. While that duty was clearly in place when the phone was erased
(because she had filed suit by that time), there were discrepancies between Stevens’
account of the erasure and her counsel’s account. While these issues precluded a final
ruling on the motion for sanctions, the Court held that (1) it would allow a “full inquiry”
into these issues; (2) depending on the outcome of that inquiry, BYU-I could raise the
sanctions motion again; and (3) regardless of whether sanctions would be imposed, the
text deletions, phone erasure, and discrepancies between accounts of the erasure, were all
relevant to Stevens’ credibility.
To prepare for that trial, BYU-I now seeks to take the deposition of Stevens’
counsel DeAnn Casperson. Stevens objects, claiming the motion is just a ruse to
disqualify her counsel.
LEGAL STANDARDS
Both sides agree that to take the deposition of opposing counsel, BYU-I “must
show that the information sought (1) cannot be obtained through other means; (2) is
relevant and not covered by privilege or the work-product doctrine; and (3) is necessary
in preparing their case.” Shelton v. Am. Motors Corp., 805 F.2d 1323, 1327-28 (8th Cir.
1986). In addressing this burden of proof, the Court has held that “[i]t is rare for this
standard to be satisfied.” Stewart Title Guar. Co. v. Credit Suisse, 2013 WL 4763949, at
*1 (D. Id. Sept. 4, 2013).
ANALYSIS

Memorandum Decision & Order – page 3

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As the Court pointed out in its earlier decision, there are discrepancies between
Stevens’ account of the phone erasure and her counsel’s account. Stevens’ states that he
went to the AT&T store without ever telling her counsel what she was doing. Id. at p. 4.
Ms. Casperson states that she “directed” Stevens to go to a “Verizon” store. Id.
Stevens has now made new allegations in her response to the motion for sanctions.
She alleges, for the first time, that she used three different phones (one after another)
during her relationship with Stokes. See Declaration of Stevens (Dkt. No. 242-1) at ¶ 22.
She alleges she printed out all the texts from the first phone, but notes that it was “reset
and given to my son” in 2015. Id. That would be about a year before she filed this
lawsuit.
With regard to the second phone, she gave that phone to her current counsel who
downloaded any texts remaining after Stevens’ deletions. Id. at ¶ 25. Stevens got her
third phone about a month before Stokes passed away and she continued her process of
deleting texts and “taking screen shots of what I wanted to save.” Id. at ¶¶ 27, 33, 34.
She alleges that because of the short time she had the phone and her deletions, there were
“not a lot of text messages still on the phone” when it was reset and erased by the errant
clerk at the AT&T store. Id at ¶ 27.
Stevens also includes new allegations about her trip to get her phone (now
identified as her third phone) repaired after it stopped working. She made her first trip to
the AT&T store without contacting counsel, and the clerk’s reset made the phone
functional but left it “unclear at that time whether the contents of my phone were
completely gone and irretrievable.” Id. at ¶ 40. Returning from this first visit, she then
Memorandum Decision & Order – page 4

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contacted her counsel and told her about the possible loss of data and was advised to “go
to the AT&T store or another computer store to see if there was any possible way to
restore the materials on my phone . . . .” Id. at ¶ 41. She returned to that store but was
advised they could do nothing for her and recommended she go to another store – PC
Metro – for help. Id. at ¶ 42. She visited that store but they could not restore her data.
Id. at ¶ 43.
Ms. Casperson argues that nothing relevant can be gained from taking her
deposition. The Court disagrees. As the Court discussed in its prior decision, intent is an
important element in determining whether sanctions for spoliation are warranted. BYU-I
is entitled to discovery on the question of intent, and Ms. Casperson’s compliance with
the duty to preserve evidence will be directly relevant to whether there was an intent to
erase the phone. Moreover, as the Court discussed in its earlier decision, it appears there
is some discrepancy between Stevens’ account of the phone erasure and that of her
counsel. While Stevens attempts to explain that discrepancy by including additional
details about the three phones, her initial account remains and is contrary to her counsel’s
account. BYU-I is entitled to explore those accounts because they are relevant to
Stevens’ credibility.
BYU-I has established each of the Shelton factors. Ms. Casperson’s deposition
will inquire into relevant evidence that is necessary to resolve (1) the motion for
sanctions and (2) Stevens’ credibility. Moreover, the evidence is not available by other
means and is not privileged (as both Ms. Casperson and Stevens have revealed their
discussions about the phone erasure without claiming any privilege).
Memorandum Decision & Order – page 5

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For these reasons, the Court will grant the motion to take Ms. Casperson’s
deposition.
ORDER
In accordance with the Memorandum Decision above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion to compel
deposition (docket no. 241) is GRANTED.

DATED: June 1, 2020
_________________________
B. Lynn Winmill
U.S. District Court Judge

Memorandum Decision & Order – page 6