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Post-Rimkus Duty of Preservation and Spoliation of Evidence Decisions (Part VIII)

December 11, 2013

We are blogging on “Non-competes, Trade Secrets, Fiduciary Duties, and the Inevitable Disclosure Doctrine.” Mark Oberti has prepared a detailed paper on all of these issues, which can be found here.

The following post discusses how other courts view Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In Doe v. Northside I.S.D., No. SA-11-CV-412-XR, 2012 WL 3236003 (W.D. Tex. Aug. 6, 2012) the Court looked at Rimkus in depth despite granting Defendants’ motion for summary judgment. Doe is a Title IX and § 1983 action against the school district, and teacher, and a vice-principal and arises out of inappropriate romantic relationship developed between a female teacher and her female middle-school student.

Sarah Doe was a middle school student in a Northside I.S.D. school. Nora Martinez was a teacher at NISD’s middle school for approximately 7 years. Sarah Doe’s parents allege that on January 23, 2011, they discovered that Nora Martinez, was having an inappropriate relationship with Sarah. The next day they went to the school and relayed their concerns and showed school administrators the cell phone text messages that they discovered. On January 24, 2011, Ms. Martinez admitted to an improper relationship and resigned her employment.

Id. at *1 (footnotes omitted).

During the discovery period, Plaintiffs argued that Defendant failed to preserve evidence including security camera footage and other electronic evidence, such as e-mails. The Court ruled in favor of the Defendant at summary judgment because Plaintiffs failed to show that the District had “actual notice” of the events nor could Plaintiffs show that District acted with “deliberate indifference.” However, the Court went on to discuss the preservation and spoliation issues raised by Plaintiffs and do a thorough analysis of Rimkus:

Generally, the duty to preserve arises when a party has notice that the evidence is relevant to litigation or should have known that the evidence may be relevant to future litigation. The duty to preserve extends to documents or tangible things by or to individuals “likely to have discoverable information that the disclosing party may use to support its claims or defenses.” Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612–13 (S.D. Tex. 2010).

In this case Plaintiffs seek the sanction of an adverse inference instruction based on spoliation of evidence. Alternatively, Plaintiffs seeks the forensic examination of the computers assigned to Aslin, Liendo, Munson, Martinez and the NISD police department.

“It is well established that a party seeking the sanction of an adverse inference instruction based on spoliation of evidence must establish that: (1) the party with control over the evidence had an obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a culpable state of mind; and (3) the destroyed evidence was ‘relevant’ to the party’s claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Id. at 615–16.

Doe, 2012 WL 3236003 at *8.

The Court decided “[u]nderstandably, given the offense committed against Sarah, and the District’s past mistakes in locating and producing relevant documents, Sarah’s parents and attorneys are wary that the District has fulfilled all of its discovery obligations. Plaintiffs, however, merely provide their subjective belief and conclusory statements that other emails must exist. This is insufficient to establish that sanctionable behavior has occurred.” Id. at *10.

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