Carlock v. Sangamon County IL et al

Filing 478

OPINION: The Court has given Plaintiff substantial leeway to conduct searches for relevant evidence. At this point in the litigation, the Court finds little to be gained by appointing a special master. Therefore, for all these reasons, Plaintiff's Renewed Motion for Sanctions and Motion for Appointment of a Special Master (d/e 401 ) is DENIED. Entered by Judge Sue E. Myerscough on 9/6/2012. (MJ, ilcd)

E-FILED

Thursday, 06 September, 2012 03:06:17 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
ESTATE OF AMON PAUL CARLOCK,
JR., Deceased, by Mary L.
Andreatta-Carlock, Executor,

)
)
)
)
Plaintiff,
)
)
v.
)
)
NEIL WILLIAMSON, AS SHERIFF OF
)
SANGAMON COUNTY; ANTHONY
)
SACCO, CHIEF DEPUTY; TERRY DURR, )
JAIL SUPERINTENDENT; WILLIAM
)
STRAYER, ASSISTANT JAIL
)
SUPERINTENDENT; LT. RON BECKNER,)
ADMINISTRATOR OF SANGAMON
)
COUNTY JAIL; LT. CANDACE CAIN;
)
LT. TAMMY POWELL; SGT. TODD GUY; )
CO KEVIN FURLONG; NURSE LEE
)
ANNE BRAUER, R.N.; NURSE NIECEY
)
WEST, L.P.N.; NURSE LUCY RAMSEY,
)
L.P.N.; JOSEPH MAURER, M.D.; and )
CHAUNCEY C. MAHER, III, M.D.,
)
)
Defendants.
)

No. 08-3075

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Plaintiff’s Renewed Motion for
Sanctions and Motion for Appointment of a Special Master (d/e 401).

The Court held hearings on the Motion on March 23, 2012, April 2,
2012, April 4, 2012, July 23, 2012, and August 22, 2012. The Court has
also considered the briefs and exhibits submitted by the parties (see d/e
402, 424, 425-434, 436-438, 472, 473, 474, and 475) as well as the
litigation hold letters (filed under seal at d/e 465). For the reasons that
follow, the Motion is DENIED.
I. ANALYSIS
In February 2011, Plaintiff filed the Refiled Motion for Sanctions
for Spoliation of Evidence (d/e 336). In that Motion, Plaintiff asserted:
(1) Defendants lost, destroyed, or failed to recover audio, video, and
electronically stored information (ESI) evidence; (2) Defendants failed to
preserve video of Paul Carlock in the jail; and (3) Defendants destroyed,
altered, and discarded ESI. Plaintiff sought an adverse inference
instruction, reasonable attorney fees incurred in connection with the
motion for sanctions, and at least one-half of the search and recovery
costs incurred by Plaintiff.
In response, Defendants asserted that they preserved and produced

Page 2 of 10

all relevant discovery , including video from the only camera that
recorded relevant images, and over 5,000 pages of documents.
written reports. On April 18, 2011, after a hearing, this Court denied
Plaintiff’s Refiled Motion for Sanctions (d/e 336) without prejudice and
with leave to renew the motion if Plaintiff found additional evidence of
bad faith spoliation or discovery abuse.
In February 2012, Plaintiff filed the Renewed Motion for Sanctions
at issue herein asserting that Plaintiff “has discovered more proof that
Defendants knowingly and deliberately (in bad faith) failed to preserve
Carlock-related (relevant) evidence.” Mem., p. 6 (d/e 402). According
to Plaintiff, this new evidence includes the following: (1) relevant e-mails
that were found, proving that several Defendants lied in affidavits
claiming no relevant e-mails existed; (2) that Defendants are still
withholding computers of key custodians who sent and/or received
Carlock-related e-mails; (3) that Defendants preserved relevant ESI from
another case because that ESI was helpful to them; and (4) e-mails have
been generated from jail personnel regarding specific inmates, despite

Page 3 of 10

Defendant Durr’s affidavit to the contrary. Mot., p. 2-3 (d/e 401).
“An employer's destruction of or inability to produce a document,
standing alone, does not warrant an inference that the document, if
produced, would have contained information adverse to the employer's
case.” Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir.2002).
Before this Court will draw the inference that the missing documents
contained information adverse to Plaintiff, Plaintiff must demonstrate
that Defendants “intentionally destroyed the documents in bad faith.”
Norman-Nunnery v. Madison Area Technical College, 625 F.3d 422,
428-29 (7th Cir. 2010) (“The crucial element in a spoliation claim is not
the fact that the documents were destroyed but that they were destroyed
for the purpose of hiding adverse information”).
Having reviewed the transcripts of the hearings and the submitted
materials and briefs, the Court stands by its previous finding that no bad
faith was shown regarding the audiotapes and videotapes. With regard to
the ESI, this Court has a few concerns.
Specifically, despite having notice to preserve in November 2007

Page 4 of 10

(from Carlock’s family) and January 2008 (from Carlock’s family’s
attorney), Defendants did not take steps to preserve ESI (as opposed to
videos) until March 2008, the date of the litigation hold meeting, at the
earliest. See Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218
(S.D.N.Y. 2003) (“Once a party reasonably anticipates litigation, it must
suspend its routine document retention/destruction policy and put in
place a ‘litigation hold’ to ensure the preservation of relevant
documents”). However, the failure to take steps to preserve ESI affected
only the preservation of the e-mails, because the County’s 180-day
deletion policy applied only to the County e-mail server. The documents
on the jail server were not deleted.
Wayne Rovey, the Information Systems Director for Sangamon
County, testified that the first time he became aware of the litigation
hold was May 23, 2008 (which is more than 180 days after Carlock’s
death). At that time, he knew of the 180-day deletion policy and knew
the e-mails would be deleted. When asked what action he took to
preserve the e-mails, Rovey testified that he made sure people were aware

Page 5 of 10

of the e-mail archive features. According to Rovey, he could not search
the e-mail server for e-mail because only each individual could search his
or her own e-mail. Rovey thought each Defendant received the litigation
hold letter.
The litigation hold letters submitted to this Court under seal
demonstrate that Defendants Williams, Durr, Strayer, Beckner, Sacco,
Powell, Cain, Guy, and Brauer received notice of the litigation hold by
March 20, 2008. Defendants Furlong, Ramsey, and West did not receive
notice of the litigation hold until May 23, 2008, more than 180 days
after Carlock’s death and, therefore, after the 180-day deletion policy had
deleted any e-mails on the server.
Regardless, the Court found the defense witnesses credible when
they testified that e-mail was used for procedural issues, such as directing
employees’ attention to omissions in daily activity reports for the
purposes of correcting a problem, and not to communicate about
inmates. See Beckner Testimony, pp. 8-10 (d/e 470) (testifying that
daily activity reports were used to communicate about things happening

Page 6 of 10

with inmates during a shift); Durr Testimony, p. 45 (d/e 470); see also
Strayer Testimony, pp. 70-71 (d/e 470) (testifying that major incidents
in the jail are not handled by e-mail but in a “in a report form that’s
generated and saved”). Moreover, correctional officers did not have
access to e-mail in the jail at that time. See Beckner Testimony, pp. 9-10
(d/e 470); Strayer Testimony, pp. 69-70 (those with access to e-mail in
the jail were people in administrative and speciality positions as well as
shift supervisors) . Further, the e-mails Plaintiff argues are Carlockrelated do not actually relate to Carlock or incidents regarding Carlock in
the jail but instead referenced procedural matters (cell checks, the fact
that Powell could not print her report, Furlong’s email regarding a
personal matter that also stated “Carlock, I am dealing with”). See July
23, 2012 Hearing Exhibit CCC-1 (filed under seal). The references to
Carlock therein was merely incidental. See, e.g., Furlong Testimony
(testifying that what he meant by “Carlock, I am dealing with” was to let
Strayer know he would not be using the counseling or employee
assistance program). “Spoliation of evidence occurs when one party

Page 7 of 10

destroys relevant evidence.” Bryant v. Gardner, 587 F. Supp. 2d 951,
967 (N.D. Ill. 2008); see also Zubulake, 220 F.R.D. at 222 (where
spoliation is negligent or reckless but not wilful, the plaintiff seeking an
adverse inference instruction must demonstrate that the destroyed
evidence would have been favorable to her). The Court does not find
that relevant evidence was destroyed.
Additionally, the Court doubts relevant e-mails existed.
Defendants submitted an e-mail transaction log showing the date,
sender/receiver, and subject line for e-mails sent by those individuals who
could send or receive e-mail in the jail, including Strayer, Guy, Cain,
Brauer, Powell, West, and Beckner. See E-Mail Transaction Log for
September 28, 2007 through January 28, 2008 (d/e 346, 364-1). The
only e-mail subject lines that refer to Carlock were e-mails sent to or
received from Defendants’ attorneys. This is strong evidence that no
relevant e-mails were actually deleted. See, e.g., YCB Intern., Inc. v. UCF
Trading Co., Ltd., 2012 WL 3069683, at 9 (N.D. Ill. 2012) (noting that
to be entitled to relief, the defendant had to “establish that discoverable

Page 8 of 10

information has been lost”), report and recommendation adopted by
2012 WL 3069526 (N.D. Ill. 2012). Moreover, this Court finds that the
failure to suspend the 180-day deletion policy and the resultant deletion
of any e-mails from the relevant time period was mere negligence and not
bad faith, wilfulness, or fault rising to the level of flagrant disregard to the
duty to preserve. Jacobeit v. Rich Township High School Dist. 227,
2011 WL 2039588, at *6 (N.D. Ill. 2011) (identifying the standard
under which sanctions are appropriate).
This Court is also concerned that certain hard drives (removed from
individual computers when the hard drive broke and needed to be
replaced) have never been searched. However, the parties have expended
a large amount of time and money searching for any relevant, deleted
evidence and have found nothing. Given this Court’s doubt that any
relevant e-mails ever existed, the Court finds that there is nothing to be
gained by searching those hard drives.

Page 9 of 10

II. CONCLUSION
The Court has given Plaintiff substantial leeway to conduct
searches for relevant evidence. At this point in the litigation, the Court
finds little to be gained by appointing a special master. Therefore, for all
these reasons, Plaintiff’s Renewed Motion for Sanctions and Motion for
Appointment of a Special Master (d/e 401) is DENIED.
ENTERED: September 6, 2012
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

Page 10 of 10