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Russell v. Nebo School D District

United States District Court, D. Utah, Central Division

September 26, 2018

COLLETTE RUSSELL, Plaintiff,
v.
NEBO SCHOOL D DISTRICT, ET AL., Defendants.

          MEMORANDUM DECISION AND ORDER

          DAVID SAM SENIOR JUDGE.

         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 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 v. Mid-Continent Aircraft Service, Inc., 1998 WL 68879, No.97-5089 (10th Cir. Feb. 20, 1998) (unpublished).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 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)], *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).

         ECF No. 101, p. 9.

         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 ...


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