Sanctions Not Warranted for Failure to Preserve Voicemail Messages

Burrell v. Anderson, 353 F.Supp.2d 55 (D. Me. 2005)

Plaintiff sued county and various employees of police department and attorney general’s office alleging due process, equal protection, First Amendment, and civil rights conspiracy claims stemming from incidents involving either plaintiff and his former girlfriend, or their daughter. Plaintiff contended that the defendant employees improperly responded or unacceptably failed to respond to these incidents because of gender-discriminatory attitudes and policies pertaining to domestic abuse.

Defendants moved for summary judgment, and plaintiff filed a motion for sanctions in addition to his opposition to the motions. Plaintiff claimed that several of the individual defendants had failed to preserve voicemail messages left by plaintiff which, plaintiff adamantly contended, they should have known plaintiff would need “to prove that he was not being abusive in leaving the messages and that he was indeed complaining of matters of great public concern.”

The court summarily denied the motion for sanctions, stating: “Apropos Burrell’s contention that any of the defendants had a duty to keep recordings of his voicemail messages in order to preserve evidence favorable to Burrell in this civil litigation, I outright reject this notion.” The court noted that plaintiff’s pleadings gave “a pretty thorough picture” of what plaintiff’s concerns were at the time he left the messages and what he deemed to be matters of “‘great public concern.'” The court also dropped a footnote observing: “If Burrell thought that it should have been so evident to the defendants that Burrell would need a copy of Burrell’s one-sided messages it should have been evident to Burrell himself. In view of the recordings of conversations that Burrell has submitted it is a wonder to me that he did not record his messages on his own.”