Doe v. County of Milwaukee et al

Filing 38

ORDER signed by Judge Rudolph T. Randa on 4/22/2014 DENYING 8 Motion to Preserve Evidence. (cc: all counsel) (cb)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
JANE DOE,
Plaintiff,
v.

Case No. 14-C-200

COUNTY OF MILWAUKEE;
DAVID A. CLARKE, JR.;
individually and in his official capacity,
XAVIER D. THICKLEN;
and JOHN and JANE DOE, unknown
Milwaukee County Jail employees and Officers;
Defendants.

DECISION AND ORDER

This Decision and Order addresses the Civil Local Rule 7(h) motion filed by
Plaintiff Jane Doe (“Doe”) in this civil rights action pursuant 42 U.S.C. § 1983
commenced against the Defendants County of Milwaukee (“County”); David A.
Clarke, Jr., individually and in his official capacity; Xavier D. Thicklen; and John and
Jane Doe, unknown Milwaukee County Jail employees and officers.
Doe‟s expedited non-dispositive motion, filed before any Defendant appeared
in this action, requests an order requiring the County to preserve all tangible evidence
relating to the incidents placed at issue by Doe‟s Complaint and specifically identifies
eleven categories of evidence that are the subject of her request.
The County asserts the motion should be denied because Doe did not comply

with the requirements of the Rule 37(a)(1) of the Federal Rules of Civil Procedure that
she certify she made a good faith effort to obtain the disclosure or discovery from the
County before filing the motion; she has not shown that the County has violated or
may violate its obligations to preserve evidence; and she has not shown that the
County should be singled out and treated unlike the other parties in this action.
The duty to preserve evidence relevant to litigation is well recognized. See
Norman-Nunnery v. Madison Area Technical Coll., 625 F.3d 422, 428-29 (7th Cir.
2010); Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672 (7th Cir. 2008). The
duty to preserve “may arise from many sources, including common law, statutes,
regulations, or a court order in the case.” Fed. R. Civ. P. 37(f) Advisory Committee
Note. The Advisory Committee Notes to the 2006 Amendments to Federal Rule of
Civil Procedure 37(f), state as follows: “When a party is under a duty to preserve
information because of pending or reasonably anticipated litigation, intervention in the
routine operation of an information system is one aspect of what is often called a
„litigation hold.‟” Norman-Nunnery, 625 F.3d at 428-29, can be read as indicating that
the duty to preserve arises when a party “knew or should have known that litigation
was imminent.” Id. at 429.
The County acknowledges that all parties have certain obligations imposed by
the Federal Rules of Civil Procedure. In support of her motion, Doe has presented no
facts to suggest that the County has engaged in or will engage in the spoliation of
evidence. In short, Doe has not established any actual need for a prophylactic order of
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a sort not contemplated by the federal rules of civil procedure. Therefore, Doe‟s
motion is denied.
NOW, THEREFORE, BASED ON THE FOREGOING, IT IS HEREBY
ORDERED THAT:
Doe‟s expedited non-dispositive motion (ECF No 8) is DENIED.
Dated at Milwaukee, Wisconsin, this 22nd day of April, 2014.

BY THE COURT:

__________________________
HON. RUDOLPH T. RANDA
U.S. District Judge

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