Court Grants and Denies Sanctions for Loss of Audio Recordings and Interview Notes: eDiscovery Case Law

In Root v. Montana Dep’t of Corrections, CV 18-164-BLG-SPW-TJC (D. Mont. Apr. 23, 2021), Montana Magistrate Judge Timothy J. Cavan granted and denied the plaintiff’s request for sanctions for spoliation of evidence, finding that the plaintiff should be permitted to present evidence and argument at trial concerning the loss of audio recordings by the defendant (while not finding intent to deprive), but denied the plaintiff’s request for sanctions on the loss of interview notes, finding the plaintiff was not prejudiced by the loss of the information.

Case Background

In this case regarding claims of retaliation relating to the plaintiff’s employment as a correctional officer at the Montana Women’s Prison (MWP), after the plaintiff presented a grievance under his union contract, Cynthia Davenport was ultimately assigned to investigate the handling of the grievance. As part of her investigation, Davenport conducted phone interviews with several witnesses, which she recorded by audiotape. The audiotapes were not produced in discovery, and the defendant was not able to locate any of them.  The plaintiff argued he was prejudiced by the loss of audio recordings for two reasons: (1) the recordings detail the circumstances of known retaliatory conduct by his supervisor that is a central fact of Root’s claims; and (2) the word choice and tone of the interviews would provide information and context that cannot be transmitted via notes alone.


In November 2017, the plaintiff applied for an open lieutenant position at the MWP, was interviewed for the position in January 2018, but was not selected. Handwritten notes from the January 2018 interview panel were produced to the plaintiff through the course of discovery in this suit.

On November 18, 2018, the plaintiff filed this lawsuit, alleging retaliation claims under Title VII of the Civil Rights Act of 1964 (among other rules and regulations).  On December 4, 2019, the plaintiff interviewed for an open lieutenant position at the MWP, and again was not selected. He was interviewed by a six-person panel, who took notes during the interview. The notes were not provided to the plaintiff in discovery. The defendant explained that the notes were shredded immediately after the interview, purportedly in accordance with HR procedure. The plaintiff did not amend the Complaint to include any claims based on the December 2019 hiring decision.

Judge’s Ruling

Regarding loss of audio recordings, Judge Cavan stated: “The Court finds Root is prejudiced by the loss of the audio recordings. Contrary to the DOC’s argument, the events in May 2017 remain a part of Root’s claims in this litigation. Summary judgment based upon failure to timely exhaust administrative remedies has only been granted with respect to Root’s MHRA claim in Count II of his Complaint…The Defendants did not move for summary judgment based on failure to timely exhaust Root’s Title VII claim in Count I. Therefore, the May 2017 events, including the investigation of the May 26, 2017 grievance are at least still relevant to Root’s retaliation claim in Count I. Moreover, the audio recordings made during that investigation would likely have supplied probative evidence of what occurred, including providing context and tone to the witness statements. This type of contextual information cannot be restored or replaced through additional discovery. The loss of the audio recordings is, therefore, prejudicial to Root. As such, sanctions are appropriate under Rule 37(e)(1).”


Continuing, he said: “As a sanction for the DOC’s spoliation, the Court finds Root should be permitted to present evidence and argument at trial concerning the lost audio recordings, and the DOC’s intent with regard to the lost evidence. The jury should be permitted to draw whatever reasonable inferences may follow from the evidence presented. Root may also request the District Court give a jury instruction to assist the jury in its evaluation of such evidence. The propriety of such an instruction will be determined by Judge Watters following the presentation of evidence at trial. The Court finds these measures are sufficient, but not “greater than necessary to cure the prejudice” resulting from the DOC’s spoliation of the audio recordings. Rule 37(e)(1).”

Judge Cavan did not find intent to deprive the plaintiff the ability to use the audio recordings, but did state: “That being said, if further information develops through trial that shows the DOC intended to deprive Root of the recordings, Root may request the District Court consider giving an adverse inference instruction, should the Court determine it is warranted.”

Regarding the lost interview notes, Judge Cavan stated in denying the request for sanctions here: “Here, the lost interview notes are not relevant or material to the claims in this case because Root has not amended the Complaint to bring any retaliation claims based on the 2019 hiring decision. Moreover, the notes from the December 2019 interview would not be material or probative of whether retaliation occurred during the January 2018 interview. The loss of the interview notes, therefore, has not undermined the “search for the truth” of what happened at any of the times relevant to the claims in this case…As a result, the Court finds Root is not prejudiced by the loss of the information.”

So, what do you think?  Are you surprised that the Court didn’t find intent to deprive for the loss of audio recordings?  Please share any comments you might have or if you’d like to know more about a particular topic.

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