Denson v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, The et al
Filing
121
MEMORANDUM DECISION AND ORDER granting Defendant's 120 Emergency Motion to Enforce Order. Signed by Magistrate Judge Dustin B. Pead on 7/14/2020. (eat)
Case 2:18-cv-00284-DAK-DBP Document 121 Filed 07/14/20 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
CENTRAL DIVISION
MCKENNA DENSON,
Plaintiff,
vs.
THE CORPORATION OF THE PRESIDENT
OF THE CHURCH OF JESUS CHRIST OF
LATTER-DAY SAINTS, a Utah corporation;
and JOSEPH L. BISHOP,
MEMORANDUM DECISION AND
ORDER GRANTING DEFENDANT’S
EMERGENCY MOTION
Case No. 2:18-cv-00284
Judge: Dale A. Kimball
Chief Magistrate Judge: Dustin B. Pead
Defendants.
This matter is referred to the undersigned pursuant to 28 U.S.C. § 636 (b)(1)(A) from
District Court Judge Dale A. Kimball. (ECF No. 21.) Pending before the court is Defendant’s
Corporation of the President of The Church of Jesus Christ of Latter-day Saints (COP)
Emergency Motion to Enforce Order. (ECF No. 120.) The court finds the exigency of this
matter, including the possible loss of data that is critical to the issues in this case, warrants the
immediate entry of this order in an effort to preserve data. Defendant’s motion is granted as set
forth below. The court also orders Plaintiff to file a response to the representations COP makes
in its motion.
On June 29, 2020, the court granted three motions concerning discovery in this case.
(ECF No. 119.) The court does not repeat the full factual and procedural background that is set
forth in that order. Briefly however, Plaintiff alleges she was sexually assaulted by an individual
that was placed in a position of trust and authority by Defendant, despite Defendant’s knowledge
of this individual’s history of questionable sexual behavior. The court has held multiple status
Case 2:18-cv-00284-DAK-DBP Document 121 Filed 07/14/20 Page 2 of 4
conferences and hearings regarding the production of discovery. Plaintiff has represented that
some evidence, such as a recording she made of a visit with Ronald Leavitt, and a draft of a book
she was writing about her experiences, have gone missing. The court in response, ordered
Plaintiff to provide an affidavit concerning the circumstances behind the evidence that has gone
missing.
On June 29th, the court entered an additional order requiring Plaintiff to provide a
supplemental affidavit setting forth in explicit detail the circumstances behind the loss of
evidence. Based upon the circumstances of this case, the court further ordered Plaintiff to
“perform a new extensive and thorough search” for the missing items, and granted Defendant’s
request for an independent third-party, Xact Data Discovery, Inc. (XDD), to collect data from
Plaintiff and make an image of her devices. The court also specifically ordered Plaintiff to “not
destroy any evidence or electronic devices.” June 29, 2020 order p. 10. XDD began the
collection process on Friday, July 10, 2020.
Some concerns have now developed with the court ordered collection of data. XDD, who
is an independent third-party, provided a report of its efforts. The following concerns are raised
in the Emergency Motion: (1) Plaintiff now claims that she lost her phone about three weeks ago
and purchased a new phone, electing to switch carriers and phone numbers; (2) The login
information for Plaintiff’s Facebook and Twitter accounts she provided to XDD were incorrect.
XDD attempted to work with Plaintiff to recover passwords for those accounts, yet they are
connected to her old phone number, so recovery thus far has been unsuccessful; and (3)
Plaintiff’s Facebook page is no longer accessible on-line meaning it has been marked private,
deactivated, or deleted. According to Facebook, a deleted account can be restored for up to 30
days, after which, the account and all information will be permanently deleted.
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The court is very concerned by this turn of events and the difficulties that have arisen in
complying with it prior order. Once again the court reminds all parties, including Plaintiff, of
their duties under the Federal Rules concerning discovery. A failure to comply with such duties
may be the basis for serious sanctions, including the imposition of fees and the dismissal of a
case. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992) (discussing factors courts
consider when entering sanctions); Klein-Becker USA, LLC v. Englert, 711 F.3d 1153, 1159
(10th Cir. 2013) (outlining when default judgment is appropriate as a sanction). The court does
not address sanctions at this time because it is more concerned with the preservation of
information that is critical to the remaining issues in this case. Accordingly, the court HEREBY
ORDERS as follows.
Plaintiff is ORDERED to immediately take all steps necessary to recover her cellular
phone data and access to all her accounts. Plaintiff is to contact her prior phone provider within
one (1) day of this order, to obtain a new phone with her old phone number and recover any data
that can be salvaged. Many modern smart phones, such as Apple’s iPhone, offer cloud services
with a backup of prior data. Plaintiff is ORDERED to use any and all such services to recover
lost data.
Plaintiff is ORDERED to immediately contact Facebook, Twitter and any other social
media providers to recover and or reset her passwords so XDD may have access to her accounts.
Plaintiff is to comply with this requirement within one (1) day from the date of this order.
Plaintiff is again ORDERED to preserve all accounts and data. Willful destruction of
evidence may be the basis for sanctions.
Plaintiff is FURTHER ORDERED to provide a sworn declaration or affidavit within
seven (7) days from the date of this order, detailing the circumstances surrounding her missing
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cellular phone. Plaintiff is to provide the date on which she lost her phone, where she was when
she realized it was missing, where she believes it was lost, all efforts she has made to recover it,
and other details regarding its loss.
Plaintiff is ORDERED to provide a sworn declaration or affidavit within seven (7) days
detailing the steps taken in compliance with this order to recover her cellular phone data and
access to all her accounts. This is to include the specific efforts taken to ensure XDD has access
to Facebook, Twitter, Reddit, and any other social media accounts.
Finally, Plaintiff is ORDERED to respond within seven (7) days to the representations
and allegations set forth in the Emergency Motion.
IT IS SO ORDERED.
DATED this 14 July 2020.
Dustin B. Pead
United States Magistrate Judge
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