Russell v. Nebo School District et al
Filing
166
MEMORANDUM DECISION AND ORDER-denying 91 Motion for Sanctions. See Order for details. Signed by Judge David Sam on 9/26/18. (jmr)
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
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COLLETTE RUSSELL,
)
MEMORANDUM DECISION
Plaintiff,
)
AND ORDER
vs.
NEBO SCHOOL D DISTRICT,
ET AL.,
)
)
)
Defendants.
Case No. 2:16-CV-00273- DS
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I. INTRODUCTION
Defendants Nebo School District and Angie Killian move for sanctions under the
Court’s inherent powers due to alleged spoilation of evidence. (ECF No. 91). Plaintiff
Collette Russell is a former employee of Nebo who worked as a Resource Technician at
Mount Loafer Elementary School in Salem, Utah. She alleges that Defendant Bruce Moon,
who worked as a custodian at the same school, subjected her to various acts of sexual
harassment. Ms. Russell generally alleges that while employed by Nebo School District
she was subjected to sexual harassment and discrimination, and ultimately retaliated
against because of her complaints of harassment and discrimination in violation of federal
law.1
Ms. Russell’s Amended Complaint (ECF No. 5) lists five federal law claims for relief
against either Nebo and/or Ms. Killian: (1) Title VII Sexual Harassment against Nebo; (2)
Title VII Sexual Discrimination against Nebo: (3) Title VII Retaliation against Nebo; (4) §
1983 Equal Protection/Free Speech Violation against Nebo and Killian; and (5) Title IX
Violation against Nebo. The Amended Complaint also lists two state law claims against
Mr. Moon: (6) assault and battery; and (7) intentional infliction of emotional distress.
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Ms. Russell contends that Moon’s advances were unwelcome, and Defendants
contend that Russell welcomed and consented to Moon’s advances. Asserting that
Russell destroyed key evidence of her consent in the form of text messages, Defendants
move the Court to sanction Russell by dismissing her claims. Alternatively, they seek a
spoilation instruction that the deleted text messages reflected Russell’s consent to Moon’s
advances.
II. DISCUSSION
A. Sanctions - Court’s Inherent Powers
Federal courts have inherent powers to manage their own affairs and to impose
appropriate sanctions, including sanctions for spoilation of evidence. Jordan F. Miller Corp.
v. Mid-Continent Aircraft Service, Inc., 1998 WL 68879, No.97-5089 (10th Cir. Feb. 20,
1998) (unpublished). Defendants contend that “[h]aving reported sexual harassment,
plaintiff owed the Nebo Defendants a duty to preserve and produce relevant evidence
supporting her claim.” ECF No. 91, p. 8.
“A spoilation sanction is proper where (1) a party has a duty to preserve evidence
because it knew, or should have known, that litigation was imminent, and (2) the adverse
party was prejudiced by the destruction of the evidence.” Burlington Northern and Santa
Fe Ry. Co. v. Grant, 505 F. 3d 1013, 1032 (10th Cir. 2007); see also Equal Employment
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Opportunity Commission v. Jetstream Ground Services, Inc., 878 F. 3d 960, 964 (10th Cir.
2017) (same). 2
The Court agrees with Russell that Defendants offer no evidence that litigation was
imminent at the time Russell deleted the text messages at issue, sometime prior to
December 27, 2013. Simply reporting sexual harassment in the workplace, without more,
does not reflect that litigation is imminent as Defendants suggest. In contrast, Russell
offers the following factual allegations which reflect that litigation was not imminent.
Here, it is undisputed that Russell had not retained an attorney,
submitted a demand letter, or filed a charge of discrimination by December
27, 2013, the last possible date she could have retained any text messages.
She was still employed by NSD [Nebo], had not yet been subjected to
retaliation or been constructively terminated by NSD [Nebo], and had made
no affirmative effort to assert claims against NDS [Nebo] or Killian at any
point in 2013. As noted above, by December 28, 2013 she didn’t even know
if she wanted to make a sexual harassment complaint against Moon or NSD
[Nebo]. See Ex. 3, Email to Killian. Her charge of discrimination with the
UALD/EEOC was not filed until March 3, 2014, months later. See Ex. 4.
Accordingly, at the earliest, her duty to preserve would have commenced
upon the filing of her charge against NSD [Nebo]. See Fox [v. Steepwater
LLC, No. 2:16-cv-796 BCW, 2018 WL 2208308 (D. Utah May 14, 2018)], *34, n. 28 (finding duty to preserve was triggered upon filing of charge with
assistance of attorney and citing numerous cases supporting the same).
ECF No. 101, p. 9.
“But if the aggrieved party seeks an adverse inference to remedy the spoilation, it
must also prove bad faith. ‘Mere negligence in losing or destroying records is not enough
because it does not support an inference of consciousness of a weak case.’ Aramburu,
112 F.3d at 1407.” Turner v. Public Service Co. of Colorado, 563 F. 3d 1136, 1149 (10th
Cir. 2009).
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Based on the record before it, the Court cannot conclude that Russell had a duty
to preserve the deleted text messages at the time of deletion. In the absence of any duty
to preserve, Defendants’ Motion for Sanctions must be denied.3
B. Sanctions - Rule 37(e)
Rule 37(e) of the Federal Rules of Civil Procedure also provides a framework
for analyzing spoilation of electronically stored information.4 Defendants insists that their
Motion invokes the Court’s inherent power to impose sanctions, and not Rule 37(e) of the
Federal Rules of Civil Procedure, which Russell asserts is the proper framework for the
court’s analysis.
Application of one framework over the other does not alter the Court’s conclusion
that Russell had no duty to preserve the text messages at the time they were deleted.
Existing common law controls when a duty to preserve attaches. See Marten Transport,
Having found no duty to preserve the subject evidence, the Court need not, and
does not, address whether Nebo was prejudiced by its destruction.
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Rule 37(e) states:
If electronically stored information that should have been preserved
in the anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced
through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to cure
the prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information’s use in the litigation may
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information
was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
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Ltd. V. Plattform Advertising, Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 *8 4-5 (D.
Kan. Feb. 8, 2016) (footnotes omitted) (emphasis added).
Although the 2015 amendments significantly changed Rule 37(e), the
amended Rule 37(e) does not alter existing federal law concerning when
the duty to preserve attaches. The advisory committee’s notes are
illustrative of this point, stating “Rule 37(e) is based on th[e] common-law
duty; it does not attempt to create a new duty to preserve. The rule
does not apply when information is lost before a duty to preserve
attaches.” Thus case law in existence prior to the newly amended Rule
37(e), regarding when the duty to preserve attaches, still controls.
A litigant has a duty to preserve evidence that it knows or
should know is relevant to imminent or ongoing litigation.,” and this duty
to preserve evidence extends to electronically stored information.
As noted, “a party has a duty to preserve evidence because it knew, or should have
known, that litigation was imminent, and (2) the adverse party was prejudiced by the
destruction of the evidence.” Burlington Northern and Santa Fe Ry. Co. , 505 F. 3d at
1032. Because Defendants have failed to show that Russell knew, or should have known,
that litigation was imminent, the Court cannot find that Russell had a duty to preserve, and
Defendants’ motion for sanctions due to spoilation, likewise, must be denied under Rule
37(e)
III. CONCLUSION
For the reasons stated, as well as generally for the reasons set forth in Russell’s
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opposition, the Motion for Sanctions of Defendants Nebo School District and Angie Killian
(ECF No. 91) is denied.
IT IS SO ORDERED.
Dated this 26th day of September, 2018
BY THE COURT:
DAVID SAM
SENIOR JUDGE
UNITED STATES DISTRICT COURT
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