Nkemakolam et al v. St. John's Military School et al
Filing
54
MEMORANDUM AND ORDER granting in part and denying in part 39 Motion for Preliminary Injunction; denying 50 Motion for Protective Order. Signed by Magistrate Judge Kenneth G. Gale on 5/24/2012. (df)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
YOLANDA NKEMAKOLAM, as Parent
and Next Friend of minor K.N., et al.
)
)
)
Plaintiff,
)
)
vs.
) Case No. 12-cv-2132-JWL-KGG
)
ST. JOHN’S MILITARY SCHOOL, et al., )
)
Defendants.
)
___________________________________ )
ORDER ON PLAINTIFFS’
MOTION FOR A PROTECTIVE ORDER
AND DEFENDANTS’ MOTION FOR
AN INTERLOCUTORY PROTECTIVE ORDER
This case is before the Court on two motions addressing the use and
protection of evidence – Plaintiffs’ Motion for Preliminary Injunction and
Appointment of A Special Master (Doc. 39) and Defendant’s Motion for
Interlocutory Protective Order (Doc. 50).
BACKGROUND
Defendant St. John’s Military School is a private boarding school for
minors. In this action, a number of former students claim damages for personal
injuries suffered as a result of alleged physical and mental abuse by other students.
Plaintiffs claim that in some instances the acts were performed at the direction or
under the observation of school employees. Plaintiffs allege negligent supervision,
intentional failure to supervise, intentional infliction of emotional distress or
outrage, negligent infliction of emotional distress, breach of fiduciary duty
(alleging failure to discharge loco parentis responsibilities), and civil conspiracy of
assault and battery. The allegations of abuse are generally and specifically denied
by Defendants.
Early in this litigation, Defendants moved for “gag order,” asking the Court
to bar counsel, parties, and witnesses from any “public communication and/or
extrajudicial commentary” regarding the lawsuit or the allegations or predicate
events. (Doc. 4). Defendants cited as concerns articles from the press, some of
which allegedly cited comments or used interviews from Plaintiffs’ counsel.
Defendants expressed concern that the press coverage would compromise their
ability to receive a fair trial. After a hearing on the issue, Judge Lungstrum denied
the motion for a “gag order.” (Doc. 13).
DISCUSSION
A.
PLAINTIFFS’ MOTION
Plaintiffs filed a motion styled “Plaintiffs’ Motion for Preliminary Injunction
and Appointment of A Special Master.” (Doc. 39.) In this motion, Plaintiffs ask
the Court to take action to preserve evidence in this case. Plaintiffs request an
“injunction” demanding that Defendants preserve all evidence and refrain from
deleting electronic data, and that the school order its students not to delete
information relating to the school on any electronic device. Plaintiffs also request
that the Court appoint a special master, at the cost of Defendants, to recover and
maintain evidence from electronic devices. In support of this request, Plaintiffs
allege that Defendants’ agents have confiscated student cell phones and deleted
“hundreds” of pictures and videos, including some which depicted abuse to
students, including Plaintiffs. Defendants’ response to this factual claim, after a
general denial, is that St. John’s “acted in accordance with its long standing policy
regarding cell phones and cell phone usage.” Defendants deny deleting or
destroying any information relevant to this litigation or to any of Plaintiffs or that
they “acted in bad faith.”
The Court held a telephone conference on this motion on May 3, 2012.
(Doc. 48.) At this hearing, the Court was informed by Plaintiffs’ counsel that his
information that is the basis of this claim originated from a confidential source (or
sources) within the school, and that counsel is not currently willing to disclose the
identity of the source. Plaintiffs’ counsel admitted that this fact would, at least at
present, make proving his allegations in an evidentiary hearing impossible.
Defense counsel did not deny that cell phones had been inspected and material
deleted, but denied that any material was relevant to the issues in this case.
Defense counsel also informed the Court that at least some of the cell phones at
issue are the property of the school and were issued to students.
As a preliminary matter, it should be noted that Plaintiffs’ motion is miscast
as a request for a Preliminary Injunction, which is a request for substantive
provisional relief. Fed.R.Civ.P. 65. However, a party has a duty to preserve
evidence that it knows or should know is relevant to imminent or ongoing
litigation. Ordinarily, a specific order from a court is not required. However, a
court has inherent authority to make such an order when necessary. Lykins v.
Certainteed Corp., No. 11-2133-JTM-DJW, 2011 WL 6337631 (D. Kan. Dec. 19,
2011); United States v. The Boeing Company, 05-1073-WEB, 2005 WL 2105972
(D. Kan. Aug. 31, 2005). Factors to be considered in determining whether a
protection order should be entered include (1) the level of concern the court has for
the continuing existence and maintenance of the integrity of the evidence in
question in the absence of an order; (2) any irreparable harm likely to result to the
party seeking the preservation of evidence absent an order; and (3) the capability of
an individual, entity or party to maintain the evidence sought to be preserved and
any burdens of ordering preservation. Capricorn Power Co., Inc. v. Seimens
Westinghouse Power Corp., 220 F.R.D. 429, 433-34 (W.D. Pa. 2004), cited with
approval in Lykins v. Certainteed Corp., supra, at n.6, and in United States v. The
Boeing Company, supra, at *2.
The seriousness of the allegations in this motion, and the qualified denial by
the Defense, raise the Court’s concern sufficiently to justify the imposition of an
order. (The breach of the duty to preserve evidence would not, for example, be
excused by a “policy” allowing or requiring destruction.) The harm to the
Plaintiffs of the loss of the described evidence would be substantial, and this Order
will not impose substantial burdens on the Defendants. The Court, therefore,
Orders the following:
1. Defendants and their agents, officers and employees, shall not, from and
after the date of this Order, delete, or cause or ask to be deleted, or consent to the
deletion of, any photographic, video, audio, or other data from cell phones or other
electronic storage devices currently or previously in the possession of any person,
including but not limited to present or past students, or agents or employees of the
school, which depicts any event or activity occurring at the school, or any current
or former students or any school activity.
2. This Order applies equally to cell phones or other storage devices which
are owned by private individuals or by Defendants.
3. This Order does not limit the duty of Defendants to preserve evidence
that they know or should know is relevant to this litigation.
Plaintiffs have also requested the appointment of an expert to examine and
preserve electronic evidence at the expense of the Defendants. The Court declines
to order this or other relief in the absence of proof of Plaintiffs’ claim of
spoliation.
Plaintiff’s motion (Doc. 39) is, therefore, GRANTED in part and DENIED
in part.
B.
DEFENDANTS’ MOTION.
Defendants’ Motion for Interlocutory Protective Order (Doc. 50) asks the
Court to enter a Protective Order to limit the dissemination of photographic and
video information depicting students to the press. The basis for the motion is an
expressed concern about the privacy of the minors, and a claim that someone, the
Defendants do not know whom, is providing such to the press. This request does
not involve the limitation of discovery provided from the Defendants to the
Plaintiffs, and does not even claim that the dissemination is occurring from the
Plaintiffs. In any event, these alleged events are beyond the scope of the present
case and not the proper subject of an order by this Court. Any unlawful use of
images of minors may subject parties or persons unknown to liability, but there are
no grounds alleged by Defendants sufficient to support an Order from this Court in
this case.
Defendants’ motion (Doc. 50) is, therefore, DENIED.
IT IS THEREFORE ORDERED that Plaintiff’s Motion (Doc. 39) is
GRANTED in part and DENIED in part as more fully set forth above.
IT IS FURTHER ORDERED that Defendants’ Motion (Doc. 5) is DENIED.
IT IS SO ORDERED.
Dated this 24th day of May, 2012, at Wichita, Kansas.
S/ KENNETH G. GALE
HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?