Shredding of Notes

Shredding of Notes Leads to Adverse Inference Instruction Sanctions: eDiscovery Case Law

In Sanders v. Univ. of Idaho, Coll. of Law, No. 3:19-cv-00225-BLW (D. Idaho Oct. 7, 2022), Idaho District Judge Lynn B. Winmill, finding the defendants “had an obligation to preserve the evidence”, granted the plaintiff’s motion for sanctions for spoliation of evidence over the shredding of notes taken during interviews to investigate gender bias and sex discrimination claims.

Case Discussion

In this case involving gender and racial bias and sex discrimination claims against the University of Idaho (UI)’s law school, after multiple complaints about the climate, culture, and work environment at the law school, the UI Provost ordered a climate & culture review be conducted at the law school.

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As part of that review, Jennifer Cossel interviewed 32 of the law school’s faculty and staff members, including the plaintiff and two other people of color. During these interviews, which were to be kept confidential, employees shared their personal perceptions and experiences working within the law school. Several of the participants identified potential racial bias within the law school, and provided examples of times that they believed exhibited bias.

After the interviews were completed, Cossel drafted the College of Law Climate & Culture Review (CCR), which was finalized on April 17, 2018. The CCR acknowledged the severity of some of the allegations of race and/or gender discrimination raised during Cossel’s interviews. Cossel took notes during the 32 interviews and turned those notes over to UI’s Human Resources Director after Cossel finalized the CCR on April 17, 2018. Those notes were apparently shredded approximately one week after the finalization and distribution of the CCR, leading to a spoliation motion filed by the plaintiff.

Judge’s Ruling

Regarding whether the defendants had an obligation to preserve the evidence, Judge Winmill stated: “Here, the CCR provided notice to Defendants that litigation should reasonably be anticipated. The CCR states:

Human Resources is aware of the possibility that some of the concerns raised during the course of the Climate & Culture Review could rise to the level of what is considered discrimination, retaliation, gender or sex discrimination.”

He also noted that the plaintiff expressed concerns during her interview over hostility by defendant Mark Adams and belief that the hostility was based on discrimination and retaliation after inquiries about adverse employment decisions and stated: “as Plaintiff points out, Defendants’ privilege log includes communications from April 2018…This indicates that there were communications between Defendants and counsel relevant to this case in April 2018, when the CCR was issued and the interview notes destroyed. The privilege log thus provides further support to the conclusion that Defendants reasonably anticipated litigation at the time the notes were destroyed.”

Judge Winmill also found that the defendants “had a ‘culpable state of mind’” in the shredding of notes, stating: “Defendants were on notice that the information in the CCR was based on interviews, and this in turn gave notice to Defendants that any notes from those interviews would be relevant to the concerns raised in the CCR.” He also found that “the notes from the underlying interviews were presumably relevant to Plaintiff’s case and, further, that such evidence was presumably adverse to Defendants. The Court therefore finds that Defendants spoliated evidence when they destroyed the notes.”

Judge Winmill also rejected the defendants’ contention that the plaintiff’s motion was untimely, stating: “Defendants did not inform Plaintiff that they had shredded the notes until September 2020, and did not confirm in writing that the notes had been shredded until three days after discovery closed in November 2020.”

Judge Winmill also stated: “Plaintiff requests a sanction of an adverse inference instruction. The Court finds that sanction to be appropriate… the CCR is not a substitute for the notes themselves, which had more complete details of what was said and who said it (including their gender and race). Moreover, the preparation of any report based upon the author’s notes inherently calls for some culling in the drafting and editing process. The original notes would have been relevant to the issues of discrimination and retaliation, general discriminatory animus, and the culture of the workplace in general…The Court finds, under these circumstances, that Defendants had notice that the notes were potentially relevant to litigation they reasonably should have known would be forthcoming and thus that the destruction of the notes was willful.”

Judge Winmill found that “a permissive, rather than mandatory, adverse inference instruction is appropriate” for the shredding of notes and gave both parties an opportunity to propose an appropriate instruction.

So, what do you think? Should the defendants have been sanctioned for the shredding of notes and, if so, was the sanction appropriate? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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