Mick v. Stanforth et al

Filing 40

OPINION AND ORDER re 31 MOTION for Order to Preserve Evidence. Plaintiff motion is DENIED without prejudice to renewal if otherwise appropriate. Signed by Magistrate Judge Norah McCann King on 06/15/2009. (sr)

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION NANCY EILEEN MICK, Plaintiff, vs. VERNON P. STANFORTH, et al., Defendants. OPINION AND ORDER This is a civil rights action under 42 U.S.C. §1983 in which plaintiff, the administratrix of the Estate of Lori Bailey, alleges that defendants' actions in connection with their failure to enforce a civil protection order obtained by the decedent against her husband resulted in the latter's kidnaping and murder of the decedent, as well as property damage to the residence. On April 27, 2009 Plaintiff's Motion to Preserve Evidence, Doc. No. 31 ("Plaintiff's Motion"), was filed. Plaintiffs ask this Court Civil Action 2:08-CV-990 Judge Frost Magistrate Judge King

to issue an order preserving any and all evidence in the Fayette County Sheriff's Office's possession that in any way relates to (1) the kidnaping/terrorizing of Lori A. Bailey on November 1, 2006; (2) the murder-suicide that occurred on November 1, 2006, involving John and Lori Bailey; and (3) "the service of the Civil Protection Order on October 25, 2006 at the Bailey residence." 2. Plaintiff's Motion, pp. 1-

Plaintiff represents that this evidence is critical to her claims Id. at 2. Defendants have not responded to Plaintiff's

in this case. Motion .

As a party to this action, defendants, including Vernon P.

Stanforth, the Sheriff of Fayette County, Ohio, have an obligation to preserve evidence that is relevant to the litigation. See, e.g.,

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D. N.Y. 2003) (quoting Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001)). There is nothing before the Court to suggest that

defendants have not or will not comply with this obligation and that destruction of relevant documents is imminent. Moreover, in the event

that evidence is purposely destroyed, plaintiff may seek appropriate sanctions. Under these circumstances, the Court concludes that

plaintiff's request is unnecessary at this time.

WHEREUPON, Plaintiff's Motion to Preserve Evidence, Doc. No. 31, is DENIED without prejudice to renewal if otherwise appropriate.

June 15, 2009

s/Norah McCann King Norah McCann King United States Magistrate Judge

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