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Fox v. Sleepwater LLC

United States District Court, D. Utah, Central Division

May 14, 2018

REGINA J. FOX, an individual, Plaintiff,


          Brooke Wells Magistrate Judge

         Pending before the court are two motions from Defendant Steepwater LLC dba Sushi Blue (Sushi Blue). First, Sushi Blue seeks sanctions for the failure by Plaintiff Regina Fox, to provide handwritten notes of conversations held with Sushi Blue employees about her alleged sexual harassment.[1] Ms. Fox testified she accidently threw the notebook away that contained these notes and Sushi Blue seeks spoliation sanctions. Second, Sushi Blue seeks discovery sanctions for Ms. Fox's inability to support her damage calculations with proper documentation.[2]Ms. Fox deducts $24, 000 from her annual earnings to arrive at her net lost earnings, but did not keep any documentation supporting this amount.

         The court heard arguments on Defendant's motions. Michael Smith represented Plaintiff and Mark Tolman represented Defendant. As set forth below, the court will grant in part and deny in part these motions.


         This case is brought under Title VII of the Civil Rights Act of 1964.[3] Ms. Fox alleges sexual harassment, discrimination and retaliation against her former employer Sushi Blue. Plaintiff worked as a server for Sushi Blue and began her employment on approximately March 15, 2015.[4] Mike Hohl was Ms. Fox's supervisor and or manager. Ms. Fox alleges that during her employment Mr. Hohl made “sexual jokes and comments” to her and her co-workers during work hours.[5] In May 2015 Mr. Hohl allegedly took things a step further and “sexually assaulted plaintiff by grabbing her breast while they were on store premises during her work shift”[6]

         Ms. Fox complained of Mr. Hohl's behavior to other management personnel including Lauren Drolet, Mike Lewis, Mary Potts and Matt McMillen. Despite these complaints, supposedly nothing changed. Mr. Hohl then retaliated at Ms. Fox by instructing others not to speak to her because “she was sexual harassment crazy.”[7] In August of 2015, Sushi Blue refused to terminate or reassign Mr. Hohl and gave Plaintiff the options of “working very limited part-time hours only two days per week, ” or “transferring to a different restaurant” affiliated with Sushi Blue.[8] Finding the response of Defendant unacceptable, Plaintiff left Sushi Blue and later filed a charge of discrimination with the Equal Employment Opportunity Commission. This suit followed.


         I. Defendant's Motion for Spoliation Sanctions due to the lost notebook

         Ms. Fox alleges a meeting was held in July 2015 with a supervisor, Lauren Drolett, and a coworker who accompanied Ms. Fox, Tara McDonald. At this meeting Ms. Fox complained about sexual harassment, the working environment and her treatment by Mr. Hohl. During her deposition Ms. Fox testified she took notes about this meeting. According to Ms. Fox's testimony, these notes included details of the meeting and “would have reflected the conversation” held with Ms. Drolett in July 2015.[9] Ms. Fox testified that near the end of the year in 2016 she threw away the notebook, which contained these handwritten notes, when she moved.[10] Ms. Fox's explanation for discarding the notes is that she “didn't see those as documents.”[11] And, Ms. Fox stated she was not aware that parties to a lawsuit have an obligation to preserve relevant documents.[12]

         Defendant seeks sanctions for the loss of these notes. Specifically, Defendant seeks dismissal or, in the alternative, an order precluding testimony from Ms. Fox about alleged complaints to management prior to August of 2015. Ms. Fox is the only person who had notes from this July meeting and her throwing out those notes is prejudicial to Defendant's defenses.[13]In support of these arguments Defendant attaches declarations from Lauren Drolett and Tarra McDonald, both of whom were allegedly involved in this meeting. Ms. Drolett and Ms. McDonald do not recall the July meeting and both declare they do not have any recollection of Sushi Blue employees-including Ms. Fox-complaining about sexual harassment.[14]

         In response, Plaintiff contends there is evidence from all the parties that attended this meeting and whether there are notes about it should not preclude testimony from those individuals. Further, this case is not on the eve of trial and given its current posture, it is not proper to raise what is in essence a motion in limine. In addition, the notes are irrelevant for strict liability purposes and such an undue burden of preservation should not be placed on Plaintiff due to her age and the fact that, “it was about me surviving” not conspiring for litigation purposes.[15]

         Courts have inherent powers to control the judicial process and litigation.[16] This includes power to impose sanctions for a failure to abide by court orders or for spoliation of evidence.[17]Spoliation of evidence is “‘the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'”[18] Thus, spoliation is both the destruction of evidence and/or the failure to preserve evidence.

         “If spoliation has occurred, a court may impose a variety of sanctions including dismissal, judgment by default, preclusion of evidence, imposition of an adverse inference, or assessment of attorney's fees and costs.”[19] “The severity of the sanction selected should be a function of and correspond to the willfulness of the spoliator's destructive act and the prejudice suffered by the non-spoliating party.”[20] Thus, a finding of bad faith is needed for the extreme sanction of dismissal.[21] Lessor sanctions, however, are available without a showing of bad faith.[22] Spoliation sanctions are proper when “(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.”[23]

         (i) Plaintiff had a duty to preserve the evidence

          “[L]itigants have a duty to preserve documents or materials ... that may be relevant to ongoing and potential future litigation.”[24] Usually, “the duty to preserve is triggered by the filing of a lawsuit, but that duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.”[25] For future litigation to be considered imminent there must be “more than a mere possibility of litigation.”[26]

         Here, Defendant asserts the duty to preserve arose no later than March 2016 when Ms. Fox retained an attorney and filed an EEOC charge. The court agrees. Based on the facts of this case, [27] the filing of an EEOC charge coupled with the assistance of an attorney at that time created a duty to preserve the notebook.[28] If it were otherwise counsel would have a perverse incentive to tell clients not to preserve evidence upon filing an EEOC charge. The court concludes Ms. Fox had a duty to preserve the notebook and failed to do so.

         (ii) Defendant is prejudiced by the destruction of the evidence

         The court likewise concludes Defendant was prejudiced by Ms. Fox's failure to keep the notebook. Ms. Fox is the only person who had notes from the alleged July meeting and others who supposedly attended have no recollection of it occurring. The destruction of these notes is prejudicial to Defendant's ability to raise a Faragher/Ellerth defense.[29] If Ms. Fox had the notes Defendant could test their validity and the parties could present arguments as to their probative value. Without ...

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