154 F. Supp. 3d 1146
D. Colo.2015Background
- Shannon Zbylski sued Douglas County School District (DCSD), Principal Patricia Dierberger, and Assistant Principal James McMurphy alleging Title IX and Section 1983 claims based on teacher Richard Johnson’s sexual relationship and later criminal convictions for sexual assaults of Zbylski.
- During 2010–2012 multiple students, parents, and school staff reported rumors and observed troubling interactions between Johnson and female students; school administrators met with students and parents and disciplined rumor-spreaders but did not meaningfully investigate Johnson.
- In March 2012 DCSD confronted Johnson over a disturbing video incident and he resigned shortly thereafter; the Special Victims Unit contacted DCSD in June 2012 and a criminal investigation of Johnson ensued.
- Principal Dierberger testified she habitually kept handwritten notes in a personal file but shredded those personal files at home about six to seven weeks after her June 2012 retirement; certain disciplinary records and statements (e.g., from students disciplined in April 2011) were not produced in discovery.
- Zbylski moved for spoliation sanctions alleging DCSD destroyed or failed to preserve relevant records; the magistrate judge found by a preponderance that certain records likely existed and were not produced, that DCSD’s duty to preserve arose no later than March 15, 2012, and that Zbylski was prejudiced but the destruction did not show bad faith.
- Relief: the Court granted the motion in part, awarded Zbylski 50% of her reasonable fees and costs for bringing the spoliation motion, denied an adverse-inference sanction (no bad faith), and left potential evidentiary preclusion issues to the presiding judge at summary judgment/trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of missing documents | Dierberger’s notes, student statements, and meeting notes existed and were destroyed or not produced | Defendants dispute whether many notes ever existed or were kept | Court: Preponderance shows some documents (student statements, meeting notes, Dierberger’s notes) likely existed and are missing; insufficient evidence for other categories tied to March 2012 investigation |
| Duty to preserve — when triggered | Duty arose when DCSD knew or should have known that documents could be relevant to reasonably foreseeable litigation (earlier than formal suit) | Duty did not arise until litigation was pending or until DCSD knew of the sexual relationship/criminal allegations | Court: Duty arose no later than March 15, 2012 (administrative leave/resignation process); DCSD unreasonably failed to preserve/notify staff thereafter |
| Prejudice from loss of records | Missing contemporaneous notes and personnel records impede proving DCSD’s actual knowledge and deliberate indifference (Title IX) | Any prejudice is speculative; records may never have existed or may be immaterial | Court: Plaintiff suffered actual prejudice re: proving knowledge/deliberate indifference because contemporaneous evidence is gone |
| Appropriate sanctions for spoliation | Seeks adverse inference, evidence preclusion, fees | Defendants contend destruction was not in bad faith and severe sanctions are unwarranted | Court: No bad faith shown, so no adverse inference; awarded partial monetary sanction — 50% of reasonable fees/costs for this motion; other remedies reserved to the presiding judge |
Key Cases Cited
- West v. Goodyear Tire & Rubber Co., 167 F.3d 776 (2d Cir. 1999) (spoliation defined as destruction or significant alteration of evidence)
- Coletti v. Cudd Pressure Control, 165 F.3d 767 (10th Cir. 1999) (trial court has discretion to impose sanctions under Rule 37)
- Turner v. Public Service Co. of Colorado, 563 F.3d 1136 (10th Cir. 2009) (spoliation sanction standards: duty to preserve and prejudice; bad-faith requirement for adverse inference)
- Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (notice to preserve may arise before litigation when parties anticipate litigation)
- Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013 (10th Cir. 2007) (prejudice must be actual, not speculative, for spoliation sanctions)
- Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987) (violation of EEOC record-retention regulation can support spoliation inference)
- Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93 (2d Cir. 2001) (duty to preserve usually arises when a party has notice that evidence is relevant to litigation)
- Greyhound Lines, Inc. v. Wade, 485 F.3d 1032 (8th Cir. 2007) (focus for spoliation sanctions is intentional destruction to suppress the truth)