Transcript Doe v. Norwalk Community College, 248 F.R.D. 372 (D. Conn

DOE V. NORWALK COMMUNITY
COLLEGE,
248 F.R.D. 372 (D. CONN. 2007)
Decided July 16, 2002
PARTIES:
PLAINTIFF: Jane Doe filed a Motion for Sanctions
for Discovery Misconduct and Spoliation of
Evidence against the defendants. She seeks an
adverse evidentiary inference as to electronic
files which the defendants destroyed.
DEFENDANT(S): Norwalk Community College
(“NCC”), Board of Trustees of Connecticut
Community Colleges (“Board”), and Ronald Masi
FACTS:
Doe filed her negligence Complaint on November 22,
2004 and moved to compel inspection of certain
electronic records possessed by NCC.
 On July 20, 2006, the court granted her Motion to
Compel and permitted an inspection of NCC’s computer
records.
 On August 15 and 18, 2006, Delay performed the
inspection and found the following:

That one of NCC’s computers was replaced in December
2004, 1 month after Doe filed suit, and the old computer
had been wiped clean of data.
 Emails for four individuals in Microsoft Outlook PST files
had been altered, destroyed or filtered.
 The State Library’s retention policy required NCC to retain
e-correspondence for 2 years.

E-DISCOVERY LEGAL FRAMEWORK:

Fed.R.Civ.P. 37(e): Absent exceptional circumstances, a court may
not impose sanctions under these rules on a party for failing to
provide electronically stored information lost as a result of the
routine, good-faith operation of an electronic information system.


Commentary: “[w]hen 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.”
A party seeking an adverse inference instruction must prove (37(e)
comment):
(1) That the party having control over the evidence had an obligation to
preserve it at the time it was destroyed;
 (2) That the records were destroyed with a culpable state of mind; and
 (3) That the destroyed evidence was relevant to the party’s claim or
defense such that a reasonable trier of fact could find that it would
support that claim or defense.

E-DISCOVERY ANALYSIS:

(1) Duty to Preserve:



(2) Culpable State of Mind:


Defendants argue: DTP did not trigger until February 18, 2005 when
Doe indicated her need for E-discovery in her Rule 26(f) Report (long
after she filed suit in November 2004).
Defendants also tried to argue that they had no choice but to continue
with routine deletion of their backup server because this is a Jane Doe
Plaintiff and they would otherwise have had to reveal her identity.
Defendants claim that everything was destroyed and/or replaced as
part of a neutral retention system with limited resources.
(3) Relevance:

A finding of gross negligence satisfies the “relevancy” requirement.
However, a finding of ordinary negligence requires proof that the
destroyed evidence was relevant and favorable to the plaintiff.
E-DISCOVERY ISSUES:

(1) When did the duty to preserve arise

Court rejected defendant’s argument and held that DTP arose on February
13, 2004 when NCC Dean met with two professors to discuss the Doe
incident (when they could’ve reasonably anticipated litigation).


(2) Whether NCC possessed a culpable state of mind when
destroying relevant information



At the latest, DTP arose in September 2004 when Doe’s counsel sent demand
letter to NCC indicating her intent to sue.
Court held: “a culpable state of mind is established by ordinary negligence.”
Here, NCC was grossly negligent, if not reckless, by failing to place a
litigation hold and preserve emails and hard drives relevant to Doe’s claim
and also by replacing one computer a month after suit was filed.
(3) Whether the destroyed evidence was relevant, and favorable, to
the Plaintiff’s claim


Once the duty to preserve attaches, any destruction of documents is, at a
minimum, negligent. – Zubulake
Because the court has already found gross negligence, the “relevancy”
requirement is satisfied.
CONCLUSION:
Court walks through each of the 3 steps to
determine that Plaintiff Jane Doe is entitled to
an adverse inference instruction with respect to
the destroyed evidence.
The court also awards Doe the costs that she
incurred with her motion (including fees paid to
Delay for inspecting NCC’s computers).
QUESTIONS:
(1)
Are there any ambiguities in the Commentary
to Fed.R.Civ.P. 37(e) that could be problematic
in proving when a DTP is triggered?
(1)
Along these lines, is it appropriate/reasonable
for the court to determine that NCC should’ve
reasonably anticipated litigation when several
of their employees met to discuss the “Doe
situation” on 2/14/04 (Doe filed in Nov. 2004)?