Gevas v. Hoskinson

Filing 215

ORDER denying 154 Motion for Sanctions and denying 186 Motion for Protective Order. Signed by Magistrate Judge Stephen C. Williams on 3/20/2013. (anj)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
DAVID GEVAS,
Plaintiff,
vs.
JOYCE HOSKINSON, HEATHER CECIL,
and CAROL HAHN,
Defendants.

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Case No. 11-cv-325-MJR-SCW

MEMORANDUM AND ORDER
WILLIAMS, Magistrate Judge:
Before the Court is Plaintiff’s Motion for Sanctions (Doc. 154) and Plaintiff’s Motion
for Protective Order (Doc. 186). Specifically, Plaintiff notes that mail receipts that he had requested
were destroyed and he believes that Defendants maliciously and deliberately destroyed the mail
receipts so that they could hide this information from Plaintiff. Plaintiff has also filed a motion for a
protective order to prevent Defendants from destroying any further documents related to this case.
Defendants have filed a Response (Doc. 171) and Supplemental Response to Plaintiff’s motion (Doc.
180). Plaintiff has filed a Reply (Doc. 184). Based on the following, the Court DENIES Plaintiff’s
motions.
This matter stems from a discovery request made by Plaintiff. Plaintiff sought to
discovery the total number of mail receipts issued on certain dates. On July 13, 2012, the Court
GRANTED Plaintiff’s motion to compel and Ordered the Defendants to provide Plaintiff with
information regarding the total number of mail receipts received by the Correctional Institution on
five separate dates (Doc. 136). Defendants responded to the Order on August 13, 2012 indicating
that they had spoken with Lawrence Correctional Center and that the documents Plaintiff sought had

already been destroyed per IDOC policy (Doc. 152). In response, Plaintiff filed the instant motion
for sanctions (Doc. 154) arguing that he believed that the documents had been destroyed on purpose.
On September 5, 2012, the Court issued an Order directing Defendants to provide information to the
Court as to when the documents were destroyed, who destroyed them, and identify who provided
defense counsel with this information (Doc. 165). Defendants responded that many of the receipts
from requested dates were destroyed prior to the Court’s July 13, 2012 Order. Specifically, the April
29, 2009 mail receipts were destroyed sometime on or after September 15, 2011, and the mail receipts
from July 20, 2009, September 10, 2009, September 16, 2009, and October 9, 2009, had been
destroyed sometime on or after March 2, 2012 (Doc. 171). Defendants response also indicated that
the February 11, 2010 mail receipts had been destroyed sometime on or after August 1, 2012, which
was after the Court’s Order for Defendants to hand over the mail receipts.
The Court held another hearing on September 19, 2012 (Doc. 173). At that time,
defense counsel indicated that she had contacted the litigation coordinator at Lawrence Correctional
Center shortly after the Court’s July hearing, on July 12, 2012, and that the coordinator did not get
back to her until August 9, 2012, at which time she was informed that the documents had been
destroyed. The Court Ordered Lawrence Correctional Center to explain to the Court why it
destroyed the February 11, 2010 mail receipts after the Court ordered them to be preserved and turned
over. Defense counsel provided Lawrence’s response on October 1, 2012 (Doc. 180) indicating that
litigation coordinator had sent a request to Defendant Heather Cecil in the Lawrence mailroom to pull
the documents and count them, in order to comply with the Court’s Order. When counsel did not
hear back from the coordinator, she again emailed him on August 6, 2012, at which time the litigation
coordinator again sent a request to Defendant Cecil and this time also included a request to Defendant
Carol Hahn. This was done on August 9, 2012. Again, the litigation coordinator instructed
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Defendants to pull the documents and count them. Defendant Hahn responded that same day,
indicating that she spoke with the Records Retention Officer and that she was informed by the Officer
that the documents had been destroyed. Defense counsel also spoke with Defendant Hahn who
indicated that she had been on vacation from July 11, 2012 until August 1, 2012 and had no knowledge
of the request made by the litigation coordinator until the August 9, 2012 request. Defendant Cecil
indicated that as Defendant Hahn was on vacation, she was the main staff person in the mail room and
so did not check on the request right away so that she could complete her other duties in a timely
fashion. She also stated that she did not know of the records retention schedule and thus did not
know that the documents would be destroyed.
In response to the Defendant’s supplemental briefing, Plaintiff filed a Reply brief
(Doc. 184) indicating that he believed that Defendant Cecil specifically waited until the documents
were destroyed before requesting them. He believes that this was done intentionally because
Defendants knew as early as March 25, 2012, that Plaintiff had requested these documents and defense
counsel had responded to that request indicating that the documents had been requested from
Lawrence Correctional Center.

Plaintiff also filed a Motion for Protective Order (Doc. 186)

requesting that the Court issue an Order preventing Defendants from destroying any further
documentation in this case.
Having reviewed all of the filings on this issue as well as holding several hearings on
the matter, the Court is now ready to enter its ruling on Plaintiff’s motion for sanctions. FEDERAL
RULE OF CIVIL PROCEDURE 37 allows the Court to sanction a party for failure to comply with an
order compelling disclosure from the Court or for failure to preserve and provide information to the
other party. See FED.R.CIV.P.27 (b)(2) and (c)(1). An award of discovery sanctions is in the
discretion of the Court. See Langley by Langley v. Union Elec. Co., 107 F.3d 510, 513 (7th Cir.
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1997); e360 Insight, Inc. v. Spamhaus Project, 658 F.3d 637, 642 (7th Cir. 2011). Dismissal of
the case can be a sanction under Rule 37 only if the Court finds the defaulting party’s actions to have
been wilfull, in bad faith, or their fault. Brown v. Columbia Sussex Corp ., 664 F.3d 182, 190 (7th
Cir. 2011); e360 Insight, Inc., 658 F.3d at 642 (the willfulness, bad faith, and fault standard
only applies when dismissal or default is imposed as a sanction).
Here, the Court finds that sanctions are not warranted at this time. Contrary to
Plaintiff’s arguments, the Court does not find at this time that Defendants acted intentionally or that
they allowed the requested documents to be destroyed in order to deny Plaintiff access to the mail
receipts. There is simply no evidence in the record at this time to indicate that Defendants acted
purposefully in allowing the documents to be destroyed or that there was any ill will or mischief on the
part of Defendants. At most, it appears to the Court that the documents were destroyed at the
negligence of Lawrence Correctional Center. Thus, the Court finds that sanctions are not warranted
in this case. The Court does note that it is concerned about Defendants’, specifically Defendants
Hahn’s and Cecil’s, admitted involvement in the events that led to the destruction of the requested
mail receipt. However, the Court finds that the issue of whether Defendants intentionally caused the
documents to be destroyed is a factual issue best explored at trial. Counsel for Plaintiff will be able to
cross-examine the Defendants about this issue. Additionally, Plaintiff could seek to have the jury
instructed as to the spoliation of such evidence if Plaintiff establishes that the mail receipts were
destroyed in bad faith See SEVENTH CIRCUIT PATTERN INSTRUCTION No. 1.20; see also Faas

v. Sears Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008) (adverse inference possible if party
was found to have intentionally destroyed documents in bad faith); Bracey v. Grondin , -- F.3d
--, 2013 WL 1007709, at * 4-5 (7th Cir. March 15, 2013)(moving party must establish that the
party destroyed the evidence in bad faith). However, at this time, the Court does not find that
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sanctions are warranted. Thus, the Court DENIES without prejudice Plaintiff’s motion for
sanctions (Doc. 154). The Court also DENIES Plaintiff’s motion for protective order (Doc. 186) as
he has not pointed to any specific discovery or documentation that he believes is in jeopardy of being
destroyed.

IT IS SO ORDERED.
DATED: March 20, 2013.
/s/ Stephen C. Williams
STEPHEN C. WILLIAMS
United States Magistrate Judge

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