Town Sanctioned for Prejudicial Breaches of Duty to Preserve in Alleged Sexual Assault Case; Court Also Addresses Use of Personal Email by Council Members

In Doe v. Vanderpool, 2024 WL 4881928 (D. Md. Nov. 25, 2024)(Sullivan, J.), the Court held that the Town of Fairmount Heights breached its preservation duty.

Ms. Doe claimed that, after arrest, a Town police officer sexually assaulted her.  She sued officers and the Town.  Discovery had been conducted for almost a year and the deadlines extended three times.  Ms. Doe complained of alleged piecemeal document production and, after deposition, “grew concerned” that relevant documents had not been produced.

Plaintiff filed the Motion on September 30, 2024….  She alleges that Fairmount Heights is responsible for spoliation of (1) [former officer] Vanderpool and Dupree’s personnel files, (2) the email accounts of several former Fairmount Heights police officers and former Town Council members, and (3) emails related to Town Council business that were sent to or from the former members’ private email accounts. Plaintiff seeks limited discovery regarding the missing documents and a negative inference jury instruction regarding the contents of Vanderpool’s and Dupree’s personnel files and the missing emails.

The Court set out the standard formula for spoliation – – there must be a duty to preserve, breach with a culpable state of mind, and prejudice, i.e., loss of “relevant” evidence that would have supported the claims or defenses of the discovering party. Id. at *2; see Fed.R.Civ.P. 37(e)(for ESI).

First, the Court described the elements of spoliation.  Then, it applied the standard to the facts.

TRIGGER & SCOPE OF THE DUTY TO PRESERVE

“The first element that a party seeking spoliation sanctions must prove is a duty to preserve the potentially relevant evidence….  Once a party reasonably anticipates litigation, it is obligated to implement a ‘litigation hold’ to ensure that potentially relevant evidence under its control is identified, located, and preserved for use in the anticipated litigation….”  Id. The Court added that:

This duty includes the duty to preserve any documents or tangible things (as defined by [Fed. R. Civ. P. 34(a))] made by individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” The duty also includes documents prepared for those individuals, to the extent those documents can be readily identified (e.g., from the “to” field in e-mails). The duty also extends to information that is relevant to the claims or defenses of any party, or which is “relevant to the subject matter involved in the action.” Thus, the duty to preserve extends to those employees likely to have relevant information—the “key players” in the case.

Id. (citation omitted). As to “trigger,” see generally Is Marking Documents as “Work Product” an Admission that the Duty to Preserve is Triggered? (Nov. 5, 2024); Discovery About Discovery – When Was Duty to Preserve Triggered? (Jul. 23, 2024); Designation of “Work Product” Supports Inference of Intentional Spoliation (Jun. 27, 2024)  Duty to Preserve Triggered in Administrative Appeal of Employment Decision(Jul. 4, 2023);  Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered (Jan. 17, 2021);  Triggering the Duty to Preserve ESI (Dec. 27, 2020)

CULPABLE STATE OF MIND

“The second element that the moving party must prove is culpability.”  Id. at *2.  The Court wrote that, in the Fourth Circuit, “any fault” suffices.

“In the context of spoliation, ordinary negligence is the failure to identify, locate, and preserve evidence, where a reasonably prudent person acting under like circumstances would have done so.”  Id.  Gross negligence is simply a greater degree of fault; however, “bad faith” requires intentional or deliberate conduct with the intent of depriving the opponent of evidence. Id.  “Willfullness” is a slightly lesser standard. It “only requires a demonstration of intentional or deliberate conduct resulting in spoliation.”  Id.

RELEVANCE & PREJUDICE

Relevance is a term of art in spoliation analysis: “The test for relevance for purposes of establishing the third element is somewhat more stringent than merely meeting the standard provided in Federal Rule of Evidence 401….  In the context of spoliation, lost or destroyed evidence is relevant if a reasonable trier of fact could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.”  Id. at *3 (citations omitted; cleaned up); see generally There Is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions  (Aug. 1, 2021).

However, trigger and culpability, plus relevance, are not enough:

In addition, for a court to impose sanctions, the absence of the evidence must be prejudicial to the party alleging spoliation….  Put another way, a finding of “relevance” for purposes of spoliation sanctions is a two-pronged finding of relevance and prejudice….  A party is prejudiced by the spoliation of evidence where the party’s ability to present its case is compromised as a result of the missing evidence.

Id. at *3 (citations and quotations omitted; cleaned up).

The party seeking sanctions bears the burden of establishing “a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the lost material would have produced evidence favorable to his cause.”  Id.  Where the alleged spoliator acted either willfully or in bad faith, relevance is presumed; however, the presumption is rebuttable. Id.; see generally Burden of Proof: Sanctions for Intentional Deletion of Text Messages (Jul. 21, 2021); Burden of Proof of Spoliation (Dec. 20, 2020)

APPLICATION AND ANALYSIS

Plaintiff asserted that the Town was aware of the incident within days of the occurrence and that triggered the duty.  The Town questioned whether the notice letter, sent roughly a year later, was sufficient.  The Court’s analysis is important:

Fairmount Heights should have reasonably anticipated Plaintiff’s litigation even before receiving the Notice Letter. Fairmount Heights knew about [former officer] Vanderpool’s misconduct on September 6, 2019, through internal reports, a criminal indictment, and press coverage. As Plaintiff pointed out, “Any reasonable municipality should know that, when one of its police officers arrests a woman and then rapes her at city hall, it should expect to be sued.” … But if that was not sufficient, the Town Manager Dorris Sarumi admitted in her deposition that she and Watkins were aware even before September 6, 2019, that Vanderpool “had a practice of extorting sex from people he pulled over in exchange for the return of their vehicles.” … Watkins also wrote to Prince George’s Police Department (“PGPD”) on September 17, 2019, asking them to investigate “a possible scheme that involves the impounding of vehicles during a traffic stop and releases them without monetary cost, but possibly receiving sexual favors in return.” …  Fairmount Heights therefore had actual notice of a possible pattern or practice of the constitutional violations that underpin Plaintiff’s Complaint. [emphasis added].

Id. at *4.  The Court noted that the Town also took action to address related institutional shortcomings.  Thus, the duty was triggered “when the Town began taking action to remedy what it apparently recognized as institutional failures. The Town had a duty to preserve evidence that was potentially relevant to Plaintiff’s claims against Vanderpool and Dupree beginning when it became aware of the incident, i.e., when Watkins reported the incident to the Town Manager and Lieutenant Ivey in September 2019.”

The Town turned its personnel files over to the police to investigate.  It did not keep a copy. Deponents testified that they expected other documents to be present, but they were not produced. Id. at *4.  When the police were done, they returned the files to the Town, which then turned them over to the US DOJ, without keeping a copy.  Id. at *5.  Describing a “Pink Pather-like”[1] chain of events, the Court wrote:

In May 2024, Fairmount Heights produced to Plaintiff a copy of Vanderpool and Dupree’s personnel documents that the Department of Justice (“DOJ”) had obtained from Fairmount Heights, which counsel for Fairmount Heights had received from the U.S. Attorney’s Office… Importantly, this version of the personnel file contains documents that were different from and additional to those included in the PGPD copy. Plaintiff alleges that one document in particular “would likely be part of Dupree’s personnel file”: a memorandum stating the Town’s intention to terminate Dupree’s employment…. The discrepancies between PGPD and DOJ’s copies of the personnel files raised Plaintiff’s suspicions that other documents may have been lost or destroyed.

The Court held that the Town was on notice of its duty, but failed to preserve personnel records, breaching its duty.  It is not clear if the records were paper or ESI.

However, the Town also breached its duty to preserve potentially relevant email accounts. Id. at *5.  “The reason that Fairmount Heights was unable to produce emails from these accounts is that the accounts had all been deleted (along with their contents) when each of the officers was terminated. Because the officers’ emails had been deleted, Fairmount Heights was only able to produce emails located in current employees’ email accounts.”   Id.  The Court found and held that three former officers’ email accounts were deleted after the duty was triggered, thereby breaching the duty.  Two council members’ accounts were also deleted after the trigger date.

Failure to preserve the personnel files was culpable: “An ordinarily prudent person would have retained copies of the original files before turning them over to PGPD and DOJ.”  However, there was no evidence that the failures were deliberate, intentional, or purposeful.  “The Court therefore finds that Fairmount Heights’ failure to locate and preserve the personnel files while they were in the Town’s control was ordinary negligence.”  Id. at *6.

Similarly, the failure to preserve email was culpable, but to a greater degree.

Fairmount Heights deliberately, intentionally, and purposefully deleted the email accounts of Vanderpool, Dupree, Watkins, Ivey, Morris, and Ukkundo’Oohwaka. An objectively reasonable person in Fairmount Heights’ position would have taken steps to preserve these accounts. The accounts were deleted soon after Fairmount Heights learned of the alleged misconduct and at a time when it should have anticipated litigation. And the accounts belonged to former employees and officers involved in the September 6, 2019 incident and the investigation that followed. Given the timing and potential importance of these custodians’ email accounts, Fairmount Heights had a duty to preserve them. Still, Fairmount Heights destroyed the email accounts and their contents.

The Town made what I would call a frivolous argument that appears to echo the defunct, former “safe harbor” rule: “Fairmount Heights argues that it was merely acting in accordance with its usual business practice in deleting the accounts of its former employees and officials.”  Id. at *7. The Court, however, held that the Town had a duty to institute a litigation hold.

Nevertheless, the Court wrote:

Plaintiff has not demonstrated, however, that Fairmount Heights acted with the intent to deprive her of the evidence. There is no evidence, direct or circumstantial, that Fairmount Heights deviated from its normal practices to delete these emails, nor is there evidence that it complied with its normal practices in order to keep the emails out of the hands of future litigants. Therefore, this Court finds that Fairmount Heights’ destruction of Vanderpool, Dupree, Watkins, Ivey, Morris, and Ukkundo’Oohwaka’s emails was willful.

Applying the burden of proof, because the spoliation of the personnel files was negligent, plaintiff carried the burden of proving relevance and prejudice.   The files would have shown, among other things, what the supervisors did and how they responded.  Doe was prejudiced because they would have been probative.  Id. at *7.

With the missing email, however, “the relevance of those accounts is presumed” and the Town failed to rebut the presumption.  Id. at *8.  Further, “Plaintiff has been prejudiced by this spoliation because she has no way of knowing the contents of the emails or cross-examining the defendants about them. Vanderpool and Dupree’s emails could have contained important “  information about their strategies for carrying out their alleged scheme and avoiding detection. Watkins’ and Ivey’s emails could have revealed what they knew of the alleged scheme and when they knew it, as well as information regarding their investigation of and response to Plaintiff’s assault.” Id. at *8.

The Court then held that “[s]poliation sanctions should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.”

Where electronically stored information is concerned, a court must find that a party “acted with the intent to deprive another party of the information’s use in litigation” before it may “(A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.” Fed. R. Civ. P. 37(e)(2).

It held that an adverse inference was inappropriate. Id. at *8.  It then wrote:

Some sanction, however, is warranted. It is the Court’s intention to permit Plaintiff to present evidence at trial regarding the original contents of the spoliated personnel files and email accounts. The Court also intends to permit Plaintiff to present evidence that the Town had a duty to maintain the personnel files, former Town Council members’ email accounts, and former police officer email accounts, and that it failed to do so. The Court will not instruct the jury on these matters, and the jury will make of the evidence what it will.

The Doe Court also rejected Ms. Doe’s request for “additional limited discovery on the spoliation issue.” Id. at *9.  It noted that she “waited until the discovery deadline to seek relief from the Court. See Goodman v. Praxair Servs., Inc., 632 F. Supp 2d 494, 508 (D. Md. 2009) (noting the importance of timely filing spoliation motions).”

But more importantly, the Court does not believe that allowing additional discovery would be fruitful. The four former police officers’ accounts have been destroyed. … Plaintiff has had ample opportunities to conduct discovery on the missing documents. Any additional discovery would not be proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). Due to Plaintiff’s delay and the fact that discovery has already been ongoing for over a year, Plaintiff’s request for limited discovery is denied.

Id. at *9.

USE OF PERSONAL EMAIL ACCOUNTS

The Doe Court also addressed the use of personal email accounts by Town Council members.  Id at *6.

Some council members also used their personal email accounts to conduct Town Council business. Id. Plaintiff alleges that Fairmount Heights was aware of this practice because the Town Council members communicated with other Fairmount Heights officials from their personal emails.… Mr. Morris stated in his deposition that he no longer has those emails because he has “traded phones several times and things have been deleted.” … Ms. Ukkundo’Oohwaka stated in her deposition that she deleted all the emails in her personal account related to Fairmount Heights. Id. at 12 (“I trashed and I just got rid of any and everything Fairmount Heights”). Even assuming that emails from these personal accounts were deleted after the time when Fairmount Heights was aware of the prospect of litigation, the deletion cannot be imputed onto Fairmount Heights. Fairmount Heights never possessed the council members’ personal emails and the former council members deleted them after leaving office. Accordingly, the Court cannot find that Morris and Ukkundo’Oohwaka’s destruction of their emails is imputed onto  Fairmount Heights as spoliation of evidence.

In note 3, the Court added:

Plaintiff argues that Fairmount Heights had a duty to warn Morris and Ukkundo’Oohwaka not to delete potentially relevant emails. ECF No. 91 at 11-12. However, Plaintiff has not presented sufficient evidence to demonstrate that Fairmount Heights knew that these email accounts contained potentially relevant evidence. Moreover, Fairmount Heights’ failure to warn the former Town Council members would amount to ordinary negligence at most, and Plaintiff has failed to meet her burden to show that she was prejudiced by this instance of spoliation.

Compare Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024).

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[1] The Pink Panther was a series of movies released beginning in 1963.  They featured an inept inspector.