*1 Plaintiff's Motion for Discovery Sanctions [69] and Motion for Disclosure of Certain Emails [74] are DENIED.

STATEMENT

Dr. Joyce L. Nelson was employed as a principal assigned to a middle school in Country Club Hill School District 160 (District) since 2011. In March 2015, a middle school parent assaulted and threatened Nelson while she was working at her assigned school. Nelson reported the incident to local law enforcement authorities and pressed criminal assault charges against the parent. Nelson alleges that over the next three months, Dr. Sandra Thomas, the District superintendent, directed Nelson to meet face-to-face with the parent and drop the criminal assault charges. Nelson further alleges that when she refused, Thomas engaged in unlawful retaliation, first, by issuing written discipline, and then by rescinding the District's offer of continued employment to Nelson for the next school year.

On May 5, 2016, the Court ordered Defendants to produce copies of the tape recordings and transcripts from the relevant executive session District meetings. (Dkt. 21). On August 6, after several months of discussions between the parties, Defendants produced 11 audio cassettes, which they represented to be the audio recordings of all available closed session meetings. However, there were no cassettes for either the May 15 or June 16, 2015 closed session meetings, and all of the other audio cassettes were either blank or inaudible. Nelson now requests discovery sanctions against the District, “for willful destruction of essential evidence and failure to properly preserve records and documents after knowledge of pending litigation.” (Dkt. 69 at 1). Nelson contends that the “appropriate sanction would be for the court to draw an adverse inference that the Board Secretary's closed meeting notes and/or the audio recordings of the closed session meetings ... would not support defendants' defenses and testimony in this case.” (Id. at 8). She also requests the disclosure of otherwise privileged information, as “a reasonable discovery sanction for defendant's failure to maintain and preserve verbatim audio recordings of all closed session meetings. (Dkt. 74 at 5).

“A party has a duty to preserve evidence, including any relevant evidence over which the party has control and reasonably knew or could reasonably foresee was material to a potential legal action.” Krumwiede v. Brighton Assocs., L.L.C., 05 C 3003, 2006 WL 1308629, at *8 (N.D. Ill. May 8, 2006). “Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Pension Comm. of Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F. Supp. 2d 456, 465 (S.D.N.Y. 2010). The burden lies with the party seeking sanctions to demonstrate that sanctions are warranted. Plunk v. Vill. of Elwood, Ill., No. 07 C 88, 2009 WL 1444436, at *12 (N.D. Ill. May 20, 2009).

The District's mere inability to produce audible recordings of the closed executive sessions or copies of the Board Secretary's handwritten notes, without more, “does not warrant an inference that the document, if produced, would have contained information adverse to the employer's case.” Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002). Instead, to draw an adverse inference, the Court must find that the District “intentionally destroyed the [information] in bad faith.” Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008); see Trask–Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008) (A showing of bad faith “is a prerequisite to imposing sanctions for the destruction of evidence.”).

*2 Here, the Board Secretary's testimony is that she saw someone turn on the recording equipment at every closed session. (Thurman Dep. 15). She further confirmed that the cassettes produced in discovery were of the same size and type used to record the Distirct meetings.[1] (Id. 18–19). There is no testimony or evidence that any member of the School District knew that the recordings were inaudible or that any School Board member recklessly or intentionally altered or destroyed the recordings. See Sokn v. Fieldcrest Cmty. Unit Sch. Dist. No. 8, No. 10 C 1122, 2014 WL 201534, at *6 (C.D. Ill. Jan. 17, 2014) (“Plaintiff must be able to point to something for which the Court can conclude ... that specific duties to preserve were violated in bad faith.”) (emphasis in original).

Further, the typed closed session meeting minutes have been produced in their entirety. The Board Secretary testified that her handwritten notes are typed up by the School District secretary following each meeting. (Thurman Dep. 19). And there is no evidence to suggest that these typed minutes do not accurately reflect the handwritten notes. To the contrary, Thurman testified that the typed minutes accurately represent her notes and the discussions that took place during the closed sessions. (Id. 75, 78–79).

Nelson contends that the criminal charges pending against the parent required Defendants “to suspend its ordinary policies governing how information is retained or destroyed and to put into place a litigation hold to preserve relevant material.” (Dkt. 69 at 4). But the parent is not a party in this case and the School District had no reason to believe that the criminal assault charges against a parent would devolve into an employment dispute between the District and one of its principals. In any event, as discussed above, there is no evidence that Defendants knew that the recordings were inaudible or that Defendants recklessly or intentionally altered or destroyed the tapes.

Finally, Nelson asserts that the District's failure to properly record its closed sessions violates the Illinois Open Meetings Act (OMA), 5 ILCS 120/1 et seq. (Dkt. 69 at 7; Dkt. 71 at 9). Under the OMA, public bodies such as the School District are required “to keep audio recordings of all closed session meetings for a period of not less than eighteen (18) months from the date of recording.” Sokn, 2014 WL 201534, at *4; see 5 ILCS 120/2.06(c). However, “[t]he existence of a general duty to preserve is not the proper prerequisite for assessing sanctions in federal court.” Sokn, 2014 WL 201534, at *5. Instead, the duty to preserve must be directly related to the litigation itself. Id.; see Trask-Morton, 534 F.3d at 681 (“[C]ourts have found a spoliation sanction to be proper only where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent.”). “Moreover, bad faith is a prerequisite to imposing sanctions for the destruction of evidence.” Sokn, 2014 WL 201534, at *5. Thus, regardless of the OMA's requirement to preserve audio recordings of all closed session meetings, “the Court must be able to determine whether the Defendants destroyed the tapes in order to hide information from the Plaintiff.” Id. As discussed above, the Court finds no evidence of spoliation by Defendants.

Plaintiff moves to compel disclosure of certain privileged documents, as a potential discovery sanction. (Dkt. 74). The Court ordered Defendants to provide these documents for in camera review. (Dkt. 73). But finding no basis to sanction Defendants, the Court declines to determine whether ordering Defendants to produce otherwise privileged information would be an appropriate spoliation sanction.