IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT …

Case 2:13-cv-02228-KHV-KGG Document 112 Filed 03/31/14 Page 1 of 18

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS

FIRMA HELGET, Plaintiff,

vs. CITY OF HAYS, et al.,

Defendants.

) ) ) ) ) Case No. 13-2228-KHV-KGG ) ) ) ) )

MEMORANDUM AND ORDER Before the Court is Plaintiff's "Motion to Compel Defendants to Initiate a Litigation Hold, for Preliminary Sanctions for Spoliation of Evidence and for Leave to Conduct Supplemental Discovery on Spoliation." (Doc. 33.) For the reasons set forth below, this motion is GRANTED in part and DENIED in part. Also pending is Defendant City's "Motion for Protective Order." (Doc. 50.) For the reasons set forth below, Defendant's motion is GRANTED in part.

BACKGROUND A. Nature of Case.

Plaintiff brings this lawsuit against her former employer, Defendant City of Hays, Kansas (Defendant City), as well as individual Defendants Toby Dougherty,

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the City Manager for Defendant City, and Donald Scheibler, Chief of Police for Defendant City. (See generally Doc. 1.) Plaintiff brings various claims against Defendants for the allegedly wrongful termination of her employment. Specifically, she contends that she was improperly fired after submitting an affidavit in a lawsuit (hereinafter "Dryden lawsuit") brought by former Hays, Kansas Police Department Officer Blaine Dryden against Defendant City, Defendant Dougherty, and the former Chief of Police "alleging interference with his constitutional rights . . . ." (Id., at 3-4.) Plaintiff contends, in part, that her termination constituted an unlawful interference with her right to testify at trial in violation of the First Amendment, an unlawful interference with her right to speak on a matter of public concern, and a violation of public policy. Defendants deny Plaintiff's claims and contend that her employment was terminated "because she could not maintain confidentiality . . . misused city computers . . . and could not effectively work with her superiors." (Doc. 42, at 1.) B. Nature of Spoliation Motion.

In the matter before the Court, Plaintiff argues that Defendants failed to put a litigation hold in place, spoliated evidence by destroying a server containing certain internet usage logs, "and appears to have overwritten or deleted other electronic documents and ESI, including e-mail messages related to Firma Helget,

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users' internet history on their hard drives, and documents on several of the key players' PC computers." (Doc. 33-1, at 1-2.) Plaintiff

asks the Court to compel the defendants to put a litigation hold in place, to produce the forensic images of the hard drives from the five key players and for the computer that had been assigned to Ms. Helget, to pay for the necessary forensic imaging and analysis of these hard drives to attempt to recover the deleted or destroyed documents and ESI, and to pay Ms. Helget's attorneys' fees for having to bring the instant motion. (Id., at 2.) Defendant responds that Plaintiff incorrectly "presupposes that ? once litigation is instituted, the defendant has an obligation to preserve everything ? its computers, documents, information ? as is." (Doc. 44, at 2.) Defendants argue that they were only "under a duty to preserve evidence relevant to this litigation," which Defendants contend they did. Id. (emphasis in original). C. Notice to Defendant of Document Retention. Plaintiff's employment was terminated on May 16, 2012. (Doc. 1, at 4.) On June 26, 2012, Plaintiff's counsel sent defense counsel a letter requesting the preservation of certain information, including "internet usage, including e-mail usage, by each employee in the Hays Police Department for the period beginning January 1, 2012 and ending May 16, 2012." (Doc. 33-3.) Plaintiff's lawsuit was filed on May 15, 2013. (Doc. 1.) On June 28, 2013,

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the Court entered its Initial Order Regarding Planning and Scheduling. (Doc. 4.)

That Order specifically instructs the parties that

[i]n developing their case management plan, counsel should keep in mind that electronically stored information (ESI) was the subject of very significant amendments to Fed. R. Civ. P. 16, 26, 33, 34, 37, and 45 that went into effect on December 1, 2006. Therefore, prior to the Rule 26(f) planning conference, counsel should familiarize themselves with those amendments and review the ESI guidelines that are posted on this court's Internet website:

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As this court's ESI guidelines make clear, prior to the Rule 26(f) conference, counsel also should become knowledgeable about their clients' information management systems and their operation, including how the information is stored and retrieved.

(Id., at 1-2.)

The Court entered its Scheduling Order on August 13, 2013, which included

the following instructions regarding ESI:

Consistent with the parties' agreements as set forth in the planning conference report submitted pursuant to Fed. R. Civ. P. 26(f), electronically stored information (ESI) in this case will be handled as follows: As the issues arise.1

1 This stipulation in the Scheduling Order is grossly inadequate in a case in which ESI is a known issue. It reflects on a failure of the parties to adequately discuss this issue prior to the conference and, perhaps, on a failure of the undersigned Magistrate Judge to insist that they do so. This dispute is the wages of that sin.

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(Doc. 21, at 3.)2 D. Nature of Motion for Protective Order.

Subsequent to Plaintiff's spoliation motion, Plaintiff served a subpoena for the deposition of a corporate representative of Defendant City on issues relating to spoliation. (Doc. 41.) The second of the "matters for examination" enumerated in the deposition subpoena is "[t]he details surrounding any efforts by the City of Hays, Kansas to initiate and comply with a "litigation hold" related to the lawsuit filed by Blaine Dryden against the City of Hays, Kansas." (Doc. 41, at 3.) Defendant moves to quash the deposition or enter a protective order to exclude deposition questioning relating to the Dryden litigation.

DISCUSSION A. Plaintiff's Motion to Compel a Litigation Hold and for Sanctions

Regarding Spoliation. 1. Spoliation. "`Spoliation' has been defined as `the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" Asher Assocs. v. Baker Hughes Oilfield Operations, No. 07-01379, 2009 WL 1328483, at *5 (D. Colo. May 12,

2 The Court notes that new ESI guidelines have gone into effect since the Initial Order Regarding Planning and Scheduling and the Scheduling Order were entered in this case.

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