1. Whether exercise of supervisory control is necessary and proper in this case?
2. Whether the District Court abused its discretion in imposing default judgment as an evidence spoliation sanction pursuant to M. R. Civ. P. 37(b)-(c) and (e) ?
FACTUAL AND PROCEDURAL BACKGROUND
¶ 2 In 2006, MSU hired Shuichi Komiyama as a teaching professor in the Music Department of the MSU College of Arts and Architecture (A&A). At pertinent times, Komiyama was also the Director of the MSU Orchestra and Jazz Band. Incident to those duties, Komiyama developed and administered an informal group of hand-picked students known as his Assistant Conductors group. Komiyama often worked
¶ 3 In 2008, Cepeda was an MSU music student when she became a member of Komiyama's Assistant Conductors group. Like other members of the group, Cepeda subsequently developed a relatively close and informal relationship with Komiyama in the various educational and incidental social settings that were typical of the group.
¶ 4 Evidence exists that, in 2009, a male member of the group (Student M) fell out of favor with Komiyama. In or about November 2009, in response to perceived negative treatment from Komiyama, Student M ultimately complained to the Head of the Music Department (Alan Leech) who recommended that he submit a written complaint to Assistant A&A Dean Heather Bentz. Evidence exists that, in December 2009, upon receipt of an email complaint, Bentz interviewed Student M and then consulted about the matter with Glenn Puffer,
¶ 5 Soon after resolution of the Student M complaint, Leech became aware of additional unprofessional conduct by Komiyama toward music students and faculty. A timeline subsequently prepared by Leech
a California case in which a person named Komiyama was accused of some sort of sexual transgression with a high school student. There was no statement as to whether there was a conviction contained in the notice and [Leech] could find nothing further online at the time.
Leech recounted that "[i]t seemed likely that this was our [Komiyama], but since it was just an Internet reference, and from about 20 some years in the past, I could not really act on it in clear conscience."
about a couple of female students who had talked with her about uncomfortable situations with [Komiyama]. The students wanted to remain anonymous and would not come directly to [Leech] with the accusations, so [Leech] suggested that [Biber] take them to the MSU attorney's office where they could talk directly with [MSU's] female attorneys ... [Biber later advised] that unfortunately, they refused to go.
Leech's timeline further reflects that he had also heard unconfirmed rumors of Komiyama offering alcoholic beverages to students at his home. Leech recalled that, on February 18, 2011, Student M's father called Leech and advised that he had personally observed Komiyama offer alcoholic beverages to students in his home when the father was there in the company of his son during a visit. Leech further recalled that, in late February 2011, he also:
heard from a high school teacher in Bozeman that [Komiyama] had been accused of 'sexting' high school girls while engaged in public school coaching in Billings [earlier that month]. The Billings high school administration would not allow him to come into their schools again. [Leech] called the Billings MusicSupervisor, Rob Wells[,] to discuss this and asked him if he would please send [Leech] a letter outlining the accusation. ... [Leech] subsequently also made a phone call to the Orchestra Director at the Billings school where the incident took place.
On February 23, 2011, Leech met with MSU's in-house legal counsel (Leslie Taylor and Pam Merrell)
¶ 7 Leech's timeline reflects that, on March 8 or 9, 2011, he again spoke with Komiyama about his continuing concerns regarding Komiyama's unprofessional conduct. Leech recalled that Komiyama rebuffed him, which Leech subsequently reported "to the Dean." Leech's timeline notes that, in mid-March 2011, he first heard "rumors" of Komiyama "partying in a semi-undressed condition in his room with students" at an educational convention in Missoula on October 10, 2010, but that "no student had, or would, come forward with personal testimony about the actual events." However, in late March 2011, "[s]everal students finally came forward ... willing to testify about the problems they were having" with Komiyama. Leech interviewed those students and kept notes of the interviews.
¶ 8 According to Leech's timeline, Cepeda contacted him on April 1, 2011, while on a break from student teaching in Denver. Leech recounted that Cepeda "verbally described [Komiyama's] offensive actions and [an] eventual rape" and "promised to send a signed letter." Leech advised her to call the police, and promised that he would "act with MSU legal office backing as soon as [Leech] had her letter in hand." The timeline notes that on April 6, 2011, Leech separately received a letter from the Billings School District Human Resource Officer confirming that the District had banned Komiyama from Billings schools following its investigation of the February 2011 sexting incident. On April 8, 2011, Leech received a follow-up email from Cepeda documenting her complaints about Komiyama, specifically including the allegation that he subjected her to non-consensual sexual intercourse at his home in or about November 2010. Both Leech's timeline and the affidavit of MSU counsel Leslie Taylor reflect that Leech immediately delivered the entirety of his compiled
¶ 9 Leech's timeline further reflects that, on April 14, 2011, the Music Supervisor of the Bozeman Public Schools emailed him a link to an Internet story "about a [Shuichi] Komiyama in California who had been charged with sexual" misconduct. The timeline notes that Leech immediately forwarded the email to counsel Taylor and that the link was to the same Internet story that he first saw in late February 2011.
¶ 10 After receiving the Leech materials on April 8, 2011, Taylor excluded Komiyama from campus the next business day pending further investigation. At Taylor's direction, MSU's information technology (IT) personnel immediately preserved Komiyama's MSU email account, deleted his access to the MSU system, and later removed and preserved the hard drive from Komiyama's office computer for imaging. On April 14, 2011, the President of MSU directed MSU Title IX Officer Diane Letendre to investigate the various allegations and issues raised by the Leech materials. Letendre and associate MSU legal counsel Merrell subsequently conducted a comprehensive internal investigation culminating in a thirty-page Investigation Report, dated July 22, 2011. The report recounts that the investigators interviewed Cepeda, Komiyama, seven MSU staff and faculty members, three public witnesses, a parent of an MSU student, and a number of students who had been Komiyama music students (including Assistant Conductors), who had complained about Komiyama, who had requested interviews, or who MSU investigators identified as possible witnesses. The report noted that investigators also obtained copies of emails from Cepeda regarding communications between her and Komiyama and that the Billings School District had similarly "provided copies of interview notes and text messages"
¶ 11 During the pendency of MSU's internal investigation, Cepeda served a written notice on the Tort Claims Division of the Montana Department of Administration stating her intent to file a legal claim for damages against MSU based on Komiyama's conduct toward her.
save all correspondence (including voicemail, email, videos, etc.) you or others in the college or music department may have with Komiyama or his students, and that you take steps to assure it is not destroyed. You must treat any other documents related to Komiyama and his students similarly and make sure that you and all others with such documents retain the documents and that they are not destroyed.
This includes electronic correspondence or documents of any type, including email, word processing, calendars, voice messages, videos, photographs, information in your cellphones, including texts, etc. ... If you have any such documents you may send them to [Merrell] for safekeeping, if you wish. 10
¶ 12 On August 11, 2011, Cepeda filed a quid pro quo sexual harassment claim (i.e., gender discrimination claim) against MSU with the Human Rights Bureau of the Montana Department of Labor and
DISCUSSION
¶ 13 1. Whether exercise of supervisory control is necessary and proper in this case?
¶ 14 We have "general supervisory control over all other" Montana courts. Mont. Const. art. VII, § 2 (2). We generally exercise this control only by discretionary writ under extraordinary circumstances including, where a lower court is proceeding under a mistake of law which, if left uncorrected prior to final judgment, will result in significant injustice for which ordinary appeal will not be an adequate remedy. M. R. App. P. 14(3) ; Park v. Mont. Sixth Judicial Dist. Court ,
¶ 15 Because they are in the best position to assess the nature and effect of discovery abuses, district courts have broad discretion to impose discovery sanctions under M. R. Civ. P. 37(b)-(f). Richardson v. State ,
¶ 17 Because the remaining course of litigation dramatically pivots on a discovery sanction, the issue in this case is not akin to a typical assertion of error on a summary judgment ruling where the losing party had a full and fair opportunity to either preclude summary judgment or prevail by making a sufficient factual or legal showing on the available evidence. It similarly varies from a typical assertion of an evidentiary error that may or may not be significant in the hindsight of the trial evidence. Here, a trial truncated to adjudication of causation and damages will invariably involve presentation of the evidence pertinent to liability in order to prove the necessary chain of causation and damages. In addition to altering the scope of trial and the parties' presentation for trial, the court's ruling will also dramatically affect the parties' settlement negotiations by significantly tipping the scales to one side on discretionary procedural grounds rather than on the merits.
¶ 18 We have previously found exercise of supervisory control necessary and proper where the ruling at issue dramatically affects the cost and scope of trial preparation and presentation and also significantly alters the dynamic of settlement negotiations. See Stokes v. Mont. Thirteenth Judicial Dist. Court (Stokes I ),
¶ 19 2. Whether the District Court abused its discretion in imposing default judgment as an evidence spoliation sanction pursuant to M. R. Civ. P. 37(b)-(c) and (e) ?
¶ 20 Compliance with discovery rules and orders is essential to the efficient and fundamentally fair administration of justice on the merits. Peterman , ¶ 17 ; Richardson , ¶¶ 56-57 ; Owen v. F. A. Buttrey Co. ,
General Standards for Merits-Based Sanctions Under M. R. Civ. P. 37(b)-(c).
¶ 21 Extreme sanctions precluding or truncating litigation on the merits (i.e., claim dismissal, default judgment, striking of asserted defenses, or exclusion of evidence) are generally proper only when the predicate discovery abuse is so inexcusable and prejudicial that it outweighs the express preference in M. R. Civ. P. 1 for adjudication on the merits. See Evans v. Scanson ,
Application to Merits-Based Spoliation Sanctions.
¶ 22 In contrast to the failure to disclose or produce existing evidence, evidence spoliation is the material alteration, destruction, or failure to
¶ 23 Sanctionable spoliation occurs only upon the breach of a duty to preserve the subject evidence. Yoder & Frey Auctioneers, Inc. v. EquipmentFacts, LLC ,
¶ 24 When adverse litigation becomes reasonably foreseeable, the duty to preserve applies only to then-existing items or information reasonably likely to be relevant
¶ 25 A party seeking the extreme sanction of precluding or truncating litigation on the merits has the burden of showing that: (1) the lost item or evidence was subject to a duty to preserve; (2) the other party intentionally, knowingly, or negligently breached the duty; and (3) the loss was sufficiently prejudicial to outweigh the overarching policy of M. R. Civ. P. 1 for resolution of disputed claims on the merits. See Stokes II , ¶¶ 18-20 (citing Willson, ¶ 28 and Eisenmenger ,
¶ 26 If the spoliating party intentionally, willfully, or in bad faith destroyed evidence (i.e., with the purpose or intent to conceal unfavorable evidence), a rebuttable presumption arises that the evidence was materially unfavorable to the spoliating party thus resulting in severe prejudice to the other party. See Guzman ,
Limitation on ESI Spoliation Sanctions- M. R. Civ. P. 37(e).
¶ 27 Against the backdrop of M. R. Civ. P. 37(b)-(c), and as adopted verbatim from former Fed. R. Civ. P. 37(e) (2006)
Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically-stored information lost as a result of the routine, good-faith operation of an electronic information system.
M. R. Civ. P. 37(e) ; Fed. R. Civ. P. 37(f) (2006) Advisory Committee Note. Pursuant to its express terms, M. R. Civ. P. 37(e) is not an independent source of authority for the imposition of sanctions but, rather, a special limitation on the imposition of otherwise available sanctions. See M. R. Civ. P. 37(e) ("[a]bsent exceptional circumstances, a court may not impose sanctions under these rules ..." (emphasis added) ); Fed. R. Civ. P. 37(f) (2006) Advisory Committee Note.
¶ 28 Fed. R. Civ. P. 37(e) (2015) essentially boils the standards for the
MSU's ESI Spoliation.
¶ 29 The District Court imposed a severe sanction on the merits (default judgment on liability) against MSU based on its failure to preserve certain faculty and music student email communications that may have existed on the MSU email server and faculty-assigned computers regarding Komiyama and his interactions with music students. The sanctions order specifically pertained to unpreserved emails associated with the MSU email accounts of Komiyama, Komiyama music students, and former MSU employees Leech, Bentz, Agre-Kippenham, and Letendre. Though it did not make particularized findings of fact and conclusions of law, the District Court characterized the unpreserved email information as potentially relevant to substantiate Cepeda's assertion that MSU was or should have been
¶ 30 MSU made an unrebutted evidentiary showing regarding the routine operation of its email server, personal computer systems, and non-litigation-related IT management practices. IT personnel routinely deleted employee email accounts from the MSU email server upon termination of employees from MSU. Prior to redeployment, IT personnel similarly deleted any personal email and files left behind on computers previously assigned to departed faculty. Deleted emails were nonetheless briefly recoverable from the MSU email server and personal computer storage media until automatically overwritten by system demands in the ordinary operation of those systems. Pursuant to the ordinary, non-litigation-related operation and administration of MSU's IT systems, any residual emails still present on the MSU email server or faculty-assigned computers in relation to a faculty email account were usually irrecoverably lost within a short time after the employee left MSU.
¶ 31 As a matter of law, MSU had a duty to interrupt its routine IT operations and practices if and when it became reasonably foreseeable that it would likely be subject to an adverse legal claim based on Komiyama's sexually-oriented conduct toward Cepeda or other music students. Upon such occurrence, the duty required MSU to preserve any then-existing faculty and student email communications that would likely be relevant, or reasonably likely to lead to discovery of information relevant, to such claim or related defense. Based on the June 15, 2011 records preservation notice, the District Court found that MSU "was on notice that litigation was foreseeable concerning Komiyama and his relationships with his students." We agree. MSU thereafter had a duty to preserve any then-existing email communications relevant to, or reasonably likely to lead to discovery of information relevant to, sexually-oriented conduct by Komiyama toward Cepeda or other music students.
¶ 32 However, Assistant A&A Dean Bentz left MSU over a year before MSU received Cepeda's tort claim notice and MSU's subsequent issuance of the related records preservation notice on June 15, 2011.
¶ 33 More troublesome is MSU's failure to preserve all emails associated with the email accounts of Leech, Agre-Kippenham, Letendre, and Komiyama music students other than Cepeda, that may have existed on the MSU email server or faculty computers on June 15, 2011. Apart from an unverifiable, self-serving showing that they likely contained no relevant information other than as referenced in emails retained pursuant to its internal investigation, MSU's affidavit showings, through in-house counsel, were at best vague or ambiguous as to when unpreserved emails associated with the MSU accounts of Leech, Agre-Kippenham, and Letendre were in fact irrecoverably lost. Further, other than a showing that Komiyama and Cepeda primarily, if not exclusively, communicated by private email, MSU made no particularized evidentiary showing in response to Cepeda's sanctions motion as to whether and to what extent, if any, emails associated with MSU email server accounts assigned to Komiyama music students would still have been present on the MSU server on June 15, 2011.
¶ 34 However, the balance of the District Court's sanctions analysis is more problematic. Without any predicate finding, the court insinuated that MSU failed to preserve the entirety of the subject faculty and student emails in bad faith, i.e., with the intent or purpose of concealing unfavorable evidence. Except for disputable evidence of a breach of a duty to preserve the entirety of music department faculty and student emails, neither the District Court nor Cepeda have cited any non-speculative direct or circumstantial evidence indicating that MSU knowingly failed to preserve any potentially relevant student or faculty email communications with the purpose or intent of concealing unfavorable evidence. To the contrary, MSU's failure to preserve occurred in the midst of MSU's own aggressive investigation of Komiyama at a time when the decision to reinstate or terminate him from employment hung in the balance. The only real-time assessment reasonably supported by the limited record before us was that MSU was actively searching for evidence manifesting the propriety or impropriety of Komiyama's conduct and relationships with students, including Cepeda, in the face of serious and already significantly-substantiated allegations of misconduct. Beyond rank speculation and conjecture, neither the District Court nor Cepeda cited any substantial direct or circumstantial evidence that would support a finding or inference that MSU knowingly failed to preserve evidence with purpose or intent to conceal unfavorable evidence.
¶ 35 Seemingly recognizing the infirmity of its insinuation of bad faith, the District Court in any event found that MSU's failure to preserve faculty and student emails, other than those deemed relevant to its internal investigation, "irreparably damage[d] Cepeda's ability to present her claims." Absent direct or circumstantial evidence of purpose or intent to destroy unfavorable evidence, dismissal or default judgment is a proper spoliation sanction under M. R. Civ. P. 37(b)-(e) only upon a finding of a substantial likelihood that the lost or destroyed evidence would have been materially relevant to an essential element of a claim or defense at issue and not substantially cumulative of other available evidence. See Stokes II , ¶¶ 18-20 (citing Willson, ¶ 28 and Eisenmenger ,
¶ 36 In contrast, MSU timely produced in excess of 1,700 pages of documentary discovery including all of the information initially compiled by Leech and subsequently gathered in MSU's extensive internal investigation. MSU made an unrebutted evidentiary showing that co-investigator Letendre had no involvement with Komiyama or related student complaints prior to her involvement in MSU's internal investigation. Cepeda thoroughly deposed Bentz, Leech, and Agre-Kippenham about their relevant involvement, knowledge, and communications in this matter. Cepeda had the opportunity to similarly depose Komiyama but did not. In her response in opposition to Cepeda's petition for supervisory control, Cepeda does not assert that Student M, Professor Biber, or any other MSU faculty member or Komiyama music student likely to have knowledge of pre-2010
¶ 37 Under these circumstances, Cepeda has lost no more than the opportunity to comb through every single email communication to or from Komiyama, Komiyama music students, Leech, Bentz, Agre-Kippenham, and Letendre that might possibly have existed on June 15, 2011, and then might possibly have referenced Komiyama in some fashion, whether relevant or not. Cepeda has nonetheless had a full and fair opportunity to discover all known, materially-relevant documentary evidence that likely existed on June 15, 2011, regarding MSU's prior awareness of Komiyama misconduct. No non-speculative basis exists upon which to believe that MSU's failure to preserve every email communication that may have existed on June 15, 2011, caused the loss of a smoking gun or any other documentary information materially favorable to Cepeda or even otherwise substantially different from the information and evidence already available.
¶ 38 The District Court analogized the spoliation in this case to the materially-prejudicial spoliation in Spotted Horse v. BNSF. In Spotted Horse , we reversed a defense verdict and remanded for a new trial with imposition of a sanction "commensurate with" the prejudice that resulted from the railroad's failure to preserve workplace video surveillance highly probative of the accident at issue.
¶ 39 Contrary to the District Court's reasoning, Spotted Horse is not an analogous example of circumstances under which a default judgment is a proper spoliation sanction. In fact, in that case we actually affirmed the district court's denial of the plaintiff's motion for default judgment due to the lack of conclusive evidence of bad or good faith. Spotted Horse , ¶ 39. We subsequently reversed and remanded only because the sanction imposed by the court (barring the railroad from referencing the fact or contents of the lost videos as long as the plaintiff remained silent) unfairly rewarded the destruction of preservable evidence by forcing the plaintiff to choose between remaining silent, and thereby allowing the railroad to assert that no evidence supported his claim or, alternatively, exposing the highly suspicious destruction of evidence, but thereby allowing the railroad to present irrefutable self-serving testimony that the lost evidence was favorable to the railroad. Spotted Horse , ¶¶ 37-39. Spotted Horse is analogous to this case only to the extent that both cases essentially involved findings of a breach of duty to preserve evidence. Unlike in Spotted Horse , here there is no non-speculative basis upon which to conclude that MSU's failure to preserve the subject emails resulted in material prejudice to Cepeda. Spotted Horse is clearly distinguishable here.
¶ 40 Except for insignificant differences, the circumstances of this case are most analogous to those in Cartwright and Willson . Though
CONCLUSION
¶ 41 We hold that exercise of supervisory control is necessary and proper on the ground that this case presents a significant question as to whether the District Court is proceeding under a mistake of law which, if uncorrected prior to final judgment, will likely cause significant injustice rendering ordinary appeal inadequate. Upon extraordinary review, we hold that the District Court abused its discretion in imposing default judgment against MSU as a spoliation sanction under M. R. Civ. P. 37(b)-(c) and (e). We therefore reverse that portion of the District Court's sanctions order and remand for further proceedings in the ordinary course.
¶ 42 Reversed and Remanded.
We concur:
MIKE McGRATH, C.J.
JAMES JEREMIAH SHEA, J.
BETH BAKER, J.
INGRID GUSTAFSON, J.
Notes
Cepeda's response to MSU's petition for supervisory control characterizes this as a "negligent hiring, retention, and supervision case."
MSU further petitions for exercise of supervisory control over the portion of the District Court's April 11, 2018 order denying MSU's cross-motion for Rule 37 sanctions against Cepeda. MSU asserts that Cepeda destroyed or otherwise concealed unfavorable email communications and text messages previously present on her private Gmail account and cell phone. Upon review of MSU's petition and Cepeda's response, we decline to exercise supervisory control on the basis that MSU has failed to sufficiently demonstrate that ordinary appeal will be inadequate to address the asserted mistake of law.
It is unclear from the limited record presented as to Puffer's precise administrative capacity.
A copy of Leech's timeline is also attached of record as Exhibit C to MSU's Brief in Opposition to Cepeda's Motion for Sanctions (Dkt. 115) in the underlying matter.
Though unclear from the record presented when MSU first became aware, Komiyama apparently was a registered sex offender at the time of hiring based on a 1990 California conviction, at age 22, for felony sexual contact with a sixteen-year-old girl.
Leslie Taylor was MSU's chief in-house legal counsel. Pam Merrell was associate legal counsel under Taylor's supervision.
Leech's timeline states that he did not know that Komiyama had actually been convicted of a sex crime in California, and that he was thus required to register as a sex offender, until reading about those facts in a Bozeman Daily Chronicle story on June 11, 2015. His timeline asserts that a subsequent Montana Human Rights Bureau investigative report mistakenly stated that Leech told the investigator that he first became aware of Komiyama's California conviction in February 2011 but that he was then aware only that Komiyama had been previously charged with a sex crime.
See § 2-9-301, MCA (requirement for advance tort claim notice to State of Montana).
It is unclear on the limited record presented who received the notice and when.
On July 8, 2011, Merrell emailed co-investigator Letendre directing her to similarly preserve their accumulated internal investigation records.
See §§ 49-2-101 through -602, MCA (mandatory administrative remedy for illegal discrimination claims).
In granting this petition, we reiterate that pretrial discovery disputes are typically not appropriate for exercise of supervisory control. It is not our place "to micromanage discovery or perform exhaustive document review on supervisory control." BNSF Ry. Co. v. Mont. Eighth Judicial Dist. Court , No. OP 11-0114, Or.,
Unlike M. R. Civ. P. 37(b) (sanction for failure to comply with court order), a violation of a court order is not a necessary prerequisite to the imposition of sanctions under M. R. Civ. P. 37(c)(1). For similar distinction between M. R. Civ. P. 37(b) and 37(d), see Jerome v. Pardis ,
If the court specifically warned a party about the consequences of a discovery violation or abuse, we further review whether the sanction imposed was consistent with the court's warning. Culbertson-Froid-Bainville Health Care Corp. v. JP Stevens & Co. Inc. ,
Similarly, see Fed. R. Civ. P. 37(e)(2) (2015).
See 2011 M. R. Civ. P. 37 Advisory Notes.
See also M. R. Civ. P. 26(b)(2)(B) and Fed. R. Civ. P. 26(b)(2)(B) further providing that:
[a] party need not provide discovery of [ESI] from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.
Though intended to provide a "safe harbor" for good faith destruction of ESI, federal courts effectively read the intended "safe harbor" out of Fed. R. Civ. P. 37(e) (2006) by generally concluding "that once the duty to preserve arises-and it arises as soon as litigation becomes foreseeable-any deletion of relevant data is, by definition, not in good faith." Robert Hardaway et. al., E-Discovery's Threat to Civil Litigation: Reevaluating Rule 26 for the Digital Age ,
The 2015 version of Fed. R. Civ. P. 37(e) provides:
Failure to Preserve Electronically[-]Stored Information. If electronically[-]stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation 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.
The "good faith" and "exceptional circumstances" considerations referenced in M. R. Civ. P. 37(e) are necessarily subsumed into the prejudice and proportionality elements of the analysis.
MSU inexplicably failed to specifically respond to Cepeda's District Court briefing assertion that Komiyama's 2011 music students were readily identifiable and that MSU could and should have preserved the contents of their MSU email accounts at least as of June 15, 2011. Given the potential gravity of Cepeda's sanctions motion, and the IT and administrative knowledge presumably available to MSU, we share the District Court's frustration with the unexplained reason why MSU did not make a more particularized showing in opposition to Cepeda's motion as to whether and to what extent, if any, the subject class of music student and faculty emails existed on the MSU email server or faculty-assigned computers on June 15, 2011.
Federal Employers Liability Act.