United States District Court, D. Utah, Central Division
MEMORANDUM DECISION AND ORDER
SAM SENIOR JUDGE.
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.
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.
Sanctions - Court's Inherent Powers
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(unpublished).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.
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 Opportunity Commission v. Jetstream
Ground Services, Inc., 878 F.3d 960, 964
(10th Cir. 2017) (same).
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
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)], *3-4, n. 28 (finding duty to
preserve was triggered upon filing of charge with assistance
of attorney and citing numerous cases supporting the same).
101, p. 9.
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
Sanctions - Rule 37(e)
37(e) of the Federal Rules of Civil Procedure also provides a
framework for analyzing spoilation of electronically stored
information. 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 ...