Commercial Litigation and Arbitration

Spoliation — While Duty to Preserve Isn’t Dependent on Preservation Letter, Where One Is Sent and Abided by, No Error to Deny Adverse Inference for Destroying Other Documents Per Customary Retention Policy (11th Cir. — Bad Faith Required)

Hill v Cundiff, 2015 U.S. App. LEXIS 14101 (11th Cir. Aug. 12, 2015):

These consolidated appeals involve student-on-student sexual harassment. Jane Doe, an eighth-grade student at Sparkman Middle School, was raped in a bathroom after school officials decided to use her as bait in a sting operation to catch CJC, another eighth-grade student, in the act of sexual harassment. On appeal, Doe argues the district court erred in (1) granting summary judgment to the Madison County School Board (Board) on her Title IX sexual harassment claim and (2) granting summary judgment to the Board, Principal Ronnie J. Blair, Assistant Principal Teresa G. Terrell, Assistant Principal Jeanne Dunaway, and Teacher's Aide June Ann Simpson on her 42 U.S.C. § 1983 equal protection claims. For the reasons explained below, we affirm the grant of summary judgment to the Board and Terrell on Doe's § 1983 equal protection claims. We reverse, however, the grant of summary judgment to the Board on Doe's Title IX claim and to Blair, Dunaway, and Simpson on Doe's § 1983 equal protection claims.


G. Destruction of CJC's Paper Disciplinary File

In a letter dated April 30, 2010, approximately three months after the rape, Principal Blair received from Doe's counsel a letter notifying him to preserve certain records relating to the January 22, 2010 personal injuries of Doe. The letter stated:

As you may be aware, my law firm represents [Doe] as a result of personal injuries resulting from an incident which occurred on January 22, 2010 at Sparkman Middle School. We specifically request that the following evidence be maintained and preserved and not be destroyed, modified, altered, repaired, or changed in any matter [sic]:

1. Any videos or documents pertaining to the above referenced incident.

2. Any communications, including e-mails, regarding the incident. Blair says he preserved all the records stemming directly from the January 22, 2010 rape of Doe. Blair preserved no documents, other than the iNOW records, related to CJC's other alleged or proven infractions during the 2009-2010 school year.


10.  Doe also argues the district court erred in failing to draw a spoliation inference against all Defendants for the school [*36]  officials' destruction of CJC's disciplinary record. The district court did not abuse its discretion in denying Doe's request for an adverse spoliation inference. See Mann v. Taser Int'l., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (reviewing district court's decision regarding spoliation sanctions for abuse of discretion). Under our precedent, "an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith." Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). As the district court held, the timing and content of Doe's preservation letter do not establish Defendants destroyed CJC's 2009-2010 school year records in bad faith. Instead, the Board continued to follow the customary document retention policy by which disciplinary files were shredded each summer.

With regard to timing, Blair received the preservation letter from Doe's counsel in early May 2010, but the original complaint was not filed until September 23, 2010. Blair therefore received the letter roughly five months before Doe put the Board on explicit notice that she was bringing a Title IX claim whose success hinged on school officials' knowledge of CJC's sexual harassment history. Furthermore, it is undisputed that the summer—the time period between the submission [*37]  of the preservation letter and the filing of the complaint—was the customary time of year when school officials shredded paper disciplinary files.

The content of the preservation letter likewise supports the district court's denial of sanctions. Notably, the letter did not request all of CJC's disciplinary records, but instead only the evidence "pertaining to" the "incident which occurred on January 22, 2010 at Sparkman Middle School." Defendants did, in fact, preserve records stemming directly from the rape of Doe. We note the narrow request for information in the preservation letter is not dispositive of Doe's spoliation claim because "the common-law obligation to preserve relevant material is not necessarily dependent upon the tender of a 'preservation letter.' " Cache La Poudre Feeds, LLC

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