Motion for Sanctions Denied Absent Evidence of Timing of Destruction to Establish Bad Faith

Sokn v. Fieldcrest Cmty. Unit School Dist. No. 8, No. 10-cv-1122, 2014 WL 201534 (C.D. Ill. Jan. 17, 2014)

Plaintiff argued that spoliation sanctions were warranted for Defendants’ destruction of relevant audio recordings of closed-session school board meetings in violation of the Illinois Open Meetings Act (“OMA”), the school board’s own document retention policies, and Illinois common law, but could not establish the timing of the at-issue destruction.  The court reasoned that the OMA did not impose a specific duty to preserve for purposes of litigation (“and certainly not for this specific litigation”) and declined to impose sanctions where bad faith could not be established absent evidence of when the tapes were destroyed.

Summarizing broadly, Plaintiff, a former elementary school principal, filed a discrimination suit against the school district and sought production of audio recordings of closed-door school board sessions in which matters relevant to Plaintiff’s causes of action were discussed.  The court acknowledged that it appeared that relevant discussions occurred in an unknown number of meetings “[b]etween May 1, 2007 and January 1, 2009.”  According to the court, Defendants should have anticipated a potential lawsuit on March 24, 2010, when Plaintiff notified them that she believed she had been the victim of disparate treatment based on her gender.

Per the school district’s own policy, the at-issue tapes were to be maintained for at least eighteen months and could be destroyed only after a vote by the school board to approve the destruction.  “The Policy seems to [have been] designed to fulfill the requirements of the Illinois Open Meetings Act . . . .” Despite the policies for preservation, an unknown number of recordings were destroyed without a vote.  The exact date of the destruction was unknown.

Plaintiff contended that the destruction occurred when litigation was “either on file [or] reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit” and that the recordings may also have been destroyed less than eighteen months after their creation.  Plaintiff sought default sanctions.

The court’s analysis initially focused on the question of whether violations of the OMA and the district’s own retention policy were sufficient to impose sanctions.  Regarding violation of Illinois common law, the court noted that the issue was not argued before the magistrate judge (who denied Plaintiff’s motion initially), and addressed the common law obligation to preserve only briefly, as discussed below.  Regarding the question of the duty to preserve pursuant to the OMA, the court reasoned:

The existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court though. The duty to preserve at issue must relate directly to the litigation itself. See Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir.2008) (“[C]ourts have found a spoliation sanction to be proper only where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent.”). This is important. The OMA imposes a general duty to preserve audio recordings of closed session meetings, not a specific duty to preserve evidence for litigation, and certainly not for this specific litigation. ^FN8

“Moreover,” the court reasoned, “bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” (Emphasis added.)  The court went on to explain:

Regardless of the general duties to preserve provided by the OMA and the school district’s policy, for purposes of sanctioning conduct, the Court must be able to determine whether the Defendants destroyed the tapes in order to hide information from the Plaintiff. If the tapes were destroyed before the Defendants had a reasonable indication of potential litigation with Plaintiff, then it is substantially less likely the destruction was done to hide discoverable information from the Plaintiff. In such a case, the Court will not infer bad faith. If, however, the tapes were destroyed after the Defendants had a reasonable indication of potential litigation with Plaintiff, then it is substantially likely the destruction was done to hide information from the Plaintiff. If this were the case, the Court would infer bad faith.

As stated previously, however, it could not be established when the tapes were destroyed.

Plaintiff argued that “she should not be burdened with showing when the actual destruction of the tapes occurred” and cited two cases in support of her position.  The court distinguished those cases, however, and explained that “Plaintiff must be able to point to something for which the court can conclude not just that general duties were violated, but that specific duties to preserve were violated in bad faith.”

The court also distinguished those cases upon which Plaintiff relied for the proposition that “destroying records in violation of the OMA in and of itself constitutes bad faith.”  The court concluded that absent evidence of when the tapes were destroyed it would be “improper to award sanctions for the spoliation of evidence based upon the mere speculation that the evidence must have been adverse to Defendants.”

Addressing Plaintiff’s arguments regarding Illinois common law, the court reasoned that the issue of the timing of the destruction would again be a key factor in the analysis where the common law duty to preserve was “not some generalized duty to preserve, such as the duty provided by the OMA, but a duty to preserve that arises in direct relation to the pendency of potential litigation.”  Thus, absent such evidence, the court concluded that sanctions were “not appropriate under these circumstances.”