OPINION

*1 This matter comes before the Court on Plaintiff James Horner's Emergency Motion for Protective Order and Other Relief (d/e 25). For the reasons set forth below, the Motion is DENIED.

BACKGROUND

Horner was employed by Defendant ELM Locating & Utility Services (ELM) until he was terminated on December 12, 2011. Count I of Horner's Amended Complaint (d/e 20) (Complaint) alleges that he was fired in retaliation for engaging in protected activity to support a fellow employee's claim of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. § 2000e–3(a). Count II of the Complaint alleges employment discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a).

The Complaint alleges that in April 2011, Jefferson Blaine Cadieu was a Vice President of ELM. Cadieu was Horner's supervisor at the time. Cadieu had a sexual relationship with ELM employee Christina Scalf. Horner was aware of the ongoing sexual relationship between Cadieu and Scalf. The Complaint alleges that Cadieu and Scalf sent sexually explicit messages to each other via company-issued cell phones and computers. Scalf ended the sexual relationship with Cadieu on or about April 21, 2011.

On April 25, 2011, ELM issued Cadieu a new computer. Pursuant to ELM's standard practice, the hard drive of Cadieu's prior computer was wiped clean of data and reformatted.

On April 28, 2011, Scalf was laid off. At that time, Cadieu told Horner that he deleted evidence of his relationship with Scalf from Scalf's computer and cell phone.

On July 6, 2011, Scalf's counsel notified ELM that Scalf planned to sue ELM for sexual harassment. On or about July 8, 2011, Cadieu informed Horner that ELM planned to layoff Horner. In lieu of a layoff, Cadieu offered Horner a transfer to Arizona. Horner alleges that Cadieu told Horner that “the dust needed to settle.” Horner accepted the transfer. Horner received a $21,000.00 annual raise as part of the transfer.

At some point in time, Horner told Cadieu that he would not lie under oath if called to testify about the sexual relationship between Cadieu and Scalf. Horner was ultimately terminated on December 12, 2011. Horner alleges he was terminated in retaliation for his statement that he would testify truthfully about the sexual relationship between Cadieu and Scalf.

On October 5, 2012, Horner filed with the Equal Employment Opportunity Commission a Charge of Discrimination (Charge) against ELM for violations of Title VII and the ADA. ELM was notified of the Charge on October 10, 2012.

Cadieu received a new cell phone from ELM in October 2012. Cadieu had used the previously issued cell phone since March 2011. It is unclear whether Cadieu received the new cell phone before or after ELM had notice of Horner's Charge. The whereabouts of the phone Cadieu used from March 2011 to October 2012 is unknown.

On April 11, 2013, Horner filed this action. On or about April 17, 2013, ELM appeared in the case. Waiver of Service (d/e 7).

*2 On May 13, 2013, ELM issued a new computer to Cadieu. As part of its standard practice, ELM had the hard drive of the computer Cadieu used from April 25, 2011, to May 13, 2013, wiped clean of data and reformatted the hard drive.

On August 14, 2013, Horner's counsel sent defense counsel a notice to preserve “electronically stored information that may contain evidence important to the above legal matter.” Response to Plaintiff's Motion for an Emergency Protective Order and Other Relief (d/e 28) (Response), Exhibit E, Letter dated August 14, 2013. According to defense counsel, “ELM identified those employees it believed could have information potentially relevant to Plaintiff's claim and has taken affirmative steps to preserve such evidence since October 10, 2012.” Response, at 3.

On October 24, 2013, Horner's counsel sent an email to Defendants' counsel stating in part,

It has come to my attention that significant pieces of evidence have been destroyed after litigation was anticipated and/or immanent, litigation hold letters issued and discovery propounded.... Not only was Scalf's phone evidence deleted, 2 of Cadieu's phones were dumped and 2 computers were wiped and reformatted.... Now that the litigation with Scalf has been resolved, I fear further evidence will be deleted. Please advise as to the location and preservation of electronic communications, voicemails and physical hardware....

Motion, Exhibit 5, Email dated October 24, 2013.

On October 25, 2013, Horner sent a request for production of documents to ELM. The request for production asked for, among other things, the computers and telephones used by Cadieu and Scalf. Response, Exhibit F, Request for Production of Documents, ¶¶ 15 and 16. On the same day, Friday, October 25, 2013, ELM's counsel sent Horner's counsel an email asking if they could discuss this case the next week. Motion, Exhibit 6, Email dated October 25, 2013.

On October 31, 2013, Horner filed this Motion. Horner's counsel states in the Motion, “As of the filing of this motion, Horner's attorney has not received any substantive responses to her inquiries.” Motion, at 5.

The Motion asks for the following relief:

a) Defendant, ELM LOCATING & UTILITY SERVICES, must account for the location of pertinent physical objects, i.e. phones and computers, used by the individuals listed in the parties' Rule 26 disclosures as well as the individuals listed in Scalf and ELM's Rule 26 disclosures;

b) Defendant, ELM LOCATING & UTILITY SERVICES, must cease the destruction of data on the devices listed above;

c) Defendant, ELM LOCATING & UTILITY SERVICES, must advise Plaintiff, JAMES HORNER'S counsel as to the existence of back up data from which evidence can be reconstructed and must take measures to ensure that any back up data will not be destroyed;

d) Allow Plaintiff, JAMES HORNER, to conduct discovery regarding the destruction of evidence;

e) Reserve the issue of sanctions; and

f) Any other relief that the Court deems just and equitable.

Motion, at 6.

ANALYSIS

The gravamen of Horner's Motion concerns whether ELM improperly destroyed evidence.[1] A party may be sanctioned for destroying evidence if it has destroyed evidence in bad faith. To establish bad faith, Horner must show: (1) that ELM owed him a duty to preserve evidence because its representatives knew, or should have known, that litigation was imminent; and (2) ELM thereafter destroyed evidence for the purpose of hiding adverse information. See Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013); Norman–Nunnery v. Madison Area Technical College, 625 F.3d 422, 428 (7th Cir. 2010); Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008).

*3 Defendant ELM did not know that Horner was contemplating litigation until October 10, 2012, when ELM received notice of Horner's Charge. The events that occurred before October 10, 2012, are irrelevant to the question of whether ELM destroyed evidence in bad faith.[2]

Horner presents evidence of one act of destruction of evidence sometime in October 2012 and in May 2013. ELM issued Cadieu a new work cell phone in October 2012. The whereabouts of the old cell phone is unknown. ELM also issued Cadieu a new work computer in May 2013. As part of its standard practice, ELM had the hard drive of Cadieu's old computer wiped clean of data and reformatted. Horner argues that these two acts destroyed valuable evidence.

The issue, however, is whether ELM destroyed evidence in bad faith. The updating of Cadieu's computer does not show bad faith. Cadieu used that computer for work for approximately two years. The computer likely contained data related to all of Cadieu's duties for ELM for those two years. Much, if not most, of that data was totally irrelevant to this case. ELM wiped the old computer's hard drive clean as part of its standard practices in handling computers. Generally this Court may not sanction a party for losing electronically stored information as a result of the routine, good-faith operation of its electronic information system. Fed. R. Civ. P. 37. That appears to be what occurred here. The Court sees no bad faith in the updating of Cadieu's computer in May 2013. In addition, ELM represents that it has preserved the relevant electronically stored information back to October 2012. Horner has made no showing to the contrary. Thus, if the relevant electronically stored information was retained elsewhere in ELM's information systems, no evidence was destroyed.

Horner also fails to present evidence of bad faith in the loss of Cadieu's old cell phone. Bad faith, again, means acting with the intent and purpose of hiding adverse information. Norman–Nunnery, 625 F.3d at 428. ELM upgraded Cadieu's cell phone in October 2012, either shortly before or shortly after ELM received notice of Horner's Charge, and the old phone was thereafter lost. The action appears to have been a routine upgrade of a company cell phone. Given the circumstances, the Court sees no bad faith.

Given the lack of a showing of any bad faith, the Court will not grant the relief requested.

WHEREFORE Plaintiff James Horner's Emergency Motion for Protective Order and Other Relief (d/e 25) is DENIED.

Footnotes

[1]

Horner does not identify the Rule of Civil Procedure under which he brings this Motion. To the extent that Horner seeks relief under Rule 37, his counsel fails to certify that he has conferred or attempted to confer with opposing counsel in an effort to resolve the matter without court action. Fed. R. Civ. P. 37(a)(1). Horner has, however, attached correspondence between counsel in which his counsel communicated with opposing counsel regarding this matter before filing the Motion. In light of these efforts, the Court will consider the Motion this time. Generally, however, parties should comply with the Rules.

[2]

Horner asks the Court to find that ELM's duty to preserve evidence began on July 6, 2011, the date on which ELM received notice from Scalf's lawyer that she intended to sue. The July 6, 2011, notice did not put ELM on notice that Horner was contemplating litigation; therefore, the July 6, 2011, notice did not impose a duty owed to Horner. Regardless, Horner cites no destruction of electronically stored information after July 6, 2011, other than the two incidents that the Court addresses based on the October 10, 2012 notice date. Thus, the choice between the two dates is immaterial.

Horner v. Elm Locating & Util. Servs.

Citation: 2013 WL 12241533 (C.D. Ill. 2013)

Summary: The court found that ELM did not act in bad faith when they issued Cadieu a new work cell phone in October 2012 and a new work computer in May 2013. ELM also represented that it had preserved the relevant ESI back to October 2012, and Horner had made no showing to the contrary. Thus, the court denied Horner's Motion.

Court: United States District Court, C.D. Illinois

Date decided: November 18, 2013

Judge: Cudmore, Byron G.

James HORNER, Plaintiff, v. ELM LOCATING & UTILITY SERVICES, Defendant No. 13–cv–1168 United States District Court, C.D. Illinois Signed November 18, 2013 Counsel Dustin Jensen, Julie L. Galassi, Hasselberg Rock Bell & Kuppler, Peoria, IL, for Plaintiff. Jennifer M. Ballard, Scott M. Gilbert, Thomas H. Luetkemeyer, Hinshaw & Culbertson LLP, Chicago, IL, for Defendant. Cudmore, Byron G., United States Magistrate Judge OPINION *1 This matter comes before the Court on Plaintiff James Horner's Emergency Motion for Protective Order and Other Relief (d/e 25). For the reasons set forth below, the Motion is DENIED. BACKGROUND Horner was employed by Defendant ELM Locating & Utility Services (ELM) until he was terminated on December 12, 2011. Count I of Horner's Amended Complaint (d/e 20) (Complaint) alleges that he was fired in retaliation for engaging in protected activity to support a fellow employee's claim of sexual harassment, in violation of Title VII of the Civil Rights Act of 1964 (Title VII). 42 U.S.C. § 2000e–3(a). Count II of the Complaint alleges employment discrimination in violation of the Americans with Disabilities Act (ADA), 42 U.S.C. § 12112(a). The Complaint alleges that in April 2011, Jefferson Blaine Cadieu was a Vice President of ELM. Cadieu was Horner's supervisor at the time. Cadieu had a sexual relationship with ELM employee Christina Scalf. Horner was aware of the ongoing sexual relationship between Cadieu and Scalf. The Complaint alleges that Cadieu and Scalf sent sexually explicit messages to each other via company-issued cell phones and computers. Scalf ended the sexual relationship with Cadieu on or about April 21, 2011. On April 25, 2011, ELM issued Cadieu a new computer. Pursuant to ELM's standard practice, the hard drive of Cadieu's prior computer was wiped clean of data and reformatted. On April 28, 2011, Scalf was laid off. At that time, Cadieu told Horner that he deleted evidence of his relationship with Scalf from Scalf's computer and cell phone. On July 6, 2011, Scalf's counsel notified ELM that Scalf planned to sue ELM for sexual harassment. On or about July 8, 2011, Cadieu informed Horner that ELM planned to layoff Horner. In lieu of a layoff, Cadieu offered Horner a transfer to Arizona. Horner alleges that Cadieu told Horner that “the dust needed to settle.” Horner accepted the transfer. Horner received a $21,000.00 annual raise as part of the transfer. At some point in time, Horner told Cadieu that he would not lie under oath if called to testify about the sexual relationship between Cadieu and Scalf. Horner was ultimately terminated on December 12, 2011. Horner alleges he was terminated in retaliation for his statement that he would testify truthfully about the sexual relationship between Cadieu and Scalf. On October 5, 2012, Horner filed with the Equal Employment Opportunity Commission a Charge of Discrimination (Charge) against ELM for violations of Title VII and the ADA. ELM was notified of the Charge on October 10, 2012. Cadieu received a new cell phone from ELM in October 2012. Cadieu had used the previously issued cell phone since March 2011. It is unclear whether Cadieu received the new cell phone before or after ELM had notice of Horner's Charge. The whereabouts of the phone Cadieu used from March 2011 to October 2012 is unknown. On April 11, 2013, Horner filed this action. On or about April 17, 2013, ELM appeared in the case. Waiver of Service (d/e 7). *2 On May 13, 2013, ELM issued a new computer to Cadieu. As part of its standard practice, ELM had the hard drive of the computer Cadieu used from April 25, 2011, to May 13, 2013, wiped clean of data and reformatted the hard drive. On August 14, 2013, Horner's counsel sent defense counsel a notice to preserve “electronically stored information that may contain evidence important to the above legal matter.” Response to Plaintiff's Motion for an Emergency Protective Order and Other Relief (d/e 28) (Response), Exhibit E, Letter dated August 14, 2013. According to defense counsel, “ELM identified those employees it believed could have information potentially relevant to Plaintiff's claim and has taken affirmative steps to preserve such evidence since October 10, 2012.” Response, at 3. On October 24, 2013, Horner's counsel sent an email to Defendants' counsel stating in part, It has come to my attention that significant pieces of evidence have been destroyed after litigation was anticipated and/or immanent, litigation hold letters issued and discovery propounded.... Not only was Scalf's phone evidence deleted, 2 of Cadieu's phones were dumped and 2 computers were wiped and reformatted.... Now that the litigation with Scalf has been resolved, I fear further evidence will be deleted. Please advise as to the location and preservation of electronic communications, voicemails and physical hardware.... Motion, Exhibit 5, Email dated October 24, 2013. On October 25, 2013, Horner sent a request for production of documents to ELM. The request for production asked for, among other things, the computers and telephones used by Cadieu and Scalf. Response, Exhibit F, Request for Production of Documents, ¶¶ 15 and 16. On the same day, Friday, October 25, 2013, ELM's counsel sent Horner's counsel an email asking if they could discuss this case the next week. Motion, Exhibit 6, Email dated October 25, 2013. On October 31, 2013, Horner filed this Motion. Horner's counsel states in the Motion, “As of the filing of this motion, Horner's attorney has not received any substantive responses to her inquiries.” Motion, at 5. The Motion asks for the following relief: a) Defendant, ELM LOCATING & UTILITY SERVICES, must account for the location of pertinent physical objects, i.e. phones and computers, used by the individuals listed in the parties' Rule 26 disclosures as well as the individuals listed in Scalf and ELM's Rule 26 disclosures; b) Defendant, ELM LOCATING & UTILITY SERVICES, must cease the destruction of data on the devices listed above; c) Defendant, ELM LOCATING & UTILITY SERVICES, must advise Plaintiff, JAMES HORNER'S counsel as to the existence of back up data from which evidence can be reconstructed and must take measures to ensure that any back up data will not be destroyed; d) Allow Plaintiff, JAMES HORNER, to conduct discovery regarding the destruction of evidence; e) Reserve the issue of sanctions; and f) Any other relief that the Court deems just and equitable. Motion, at 6. ANALYSIS The gravamen of Horner's Motion concerns whether ELM improperly destroyed evidence.[1] A party may be sanctioned for destroying evidence if it has destroyed evidence in bad faith. To establish bad faith, Horner must show: (1) that ELM owed him a duty to preserve evidence because its representatives knew, or should have known, that litigation was imminent; and (2) ELM thereafter destroyed evidence for the purpose of hiding adverse information. See Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013); Norman–Nunnery v. Madison Area Technical College, 625 F.3d 422, 428 (7th Cir. 2010); Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008). *3 Defendant ELM did not know that Horner was contemplating litigation until October 10, 2012, when ELM received notice of Horner's Charge. The events that occurred before October 10, 2012, are irrelevant to the question of whether ELM destroyed evidence in bad faith.[2] Horner presents evidence of one act of destruction of evidence sometime in October 2012 and in May 2013. ELM issued Cadieu a new work cell phone in October 2012. The whereabouts of the old cell phone is unknown. ELM also issued Cadieu a new work computer in May 2013. As part of its standard practice, ELM had the hard drive of Cadieu's old computer wiped clean of data and reformatted. Horner argues that these two acts destroyed valuable evidence. The issue, however, is whether ELM destroyed evidence in bad faith. The updating of Cadieu's computer does not show bad faith. Cadieu used that computer for work for approximately two years. The computer likely contained data related to all of Cadieu's duties for ELM for those two years. Much, if not most, of that data was totally irrelevant to this case. ELM wiped the old computer's hard drive clean as part of its standard practices in handling computers. Generally this Court may not sanction a party for losing electronically stored information as a result of the routine, good-faith operation of its electronic information system. Fed. R. Civ. P. 37. That appears to be what occurred here. The Court sees no bad faith in the updating of Cadieu's computer in May 2013. In addition, ELM represents that it has preserved the relevant electronically stored information back to October 2012. Horner has made no showing to the contrary. Thus, if the relevant electronically stored information was retained elsewhere in ELM's information systems, no evidence was destroyed. Horner also fails to present evidence of bad faith in the loss of Cadieu's old cell phone. Bad faith, again, means acting with the intent and purpose of hiding adverse information. Norman–Nunnery, 625 F.3d at 428. ELM upgraded Cadieu's cell phone in October 2012, either shortly before or shortly after ELM received notice of Horner's Charge, and the old phone was thereafter lost. The action appears to have been a routine upgrade of a company cell phone. Given the circumstances, the Court sees no bad faith. Given the lack of a showing of any bad faith, the Court will not grant the relief requested. WHEREFORE Plaintiff James Horner's Emergency Motion for Protective Order and Other Relief (d/e 25) is DENIED. Footnotes [1] Horner does not identify the Rule of Civil Procedure under which he brings this Motion. To the extent that Horner seeks relief under Rule 37, his counsel fails to certify that he has conferred or attempted to confer with opposing counsel in an effort to resolve the matter without court action. Fed. R. Civ. P. 37(a)(1). Horner has, however, attached correspondence between counsel in which his counsel communicated with opposing counsel regarding this matter before filing the Motion. In light of these efforts, the Court will consider the Motion this time. Generally, however, parties should comply with the Rules. [2] Horner asks the Court to find that ELM's duty to preserve evidence began on July 6, 2011, the date on which ELM received notice from Scalf's lawyer that she intended to sue. The July 6, 2011, notice did not put ELM on notice that Horner was contemplating litigation; therefore, the July 6, 2011, notice did not impose a duty owed to Horner. Regardless, Horner cites no destruction of electronically stored information after July 6, 2011, other than the two incidents that the Court addresses based on the October 10, 2012 notice date. Thus, the choice between the two dates is immaterial.