Stevens v. Brigham Young Univ. - Idaho
| Decision Date | 03 December 2019 |
| Docket Number | Case No. 4:16-CV-530-BLW |
| Parties | LORI STEVENS Plaintiff, v. BRIGHAM YOUNG UNIVERSITY - IDAHO dba BYU-Idaho, a Utah corporation and SUSAN STOKES, personal representative of the Estate of Stephan Stokes, Defendants. |
| Court | U.S. District Court — District of Idaho |
The Court has before it a motion for sanctions for the intentional spoliation of text messages filed by defendant. The motion is fully briefed and at issue. For the reasons explained below, the Court will deny the motion without prejudice to defendant BYU-I's right to raise the motion again depending on trial testimony, and the Court will allow a full inquiry by BYU-I at trial into the issues identified in this decision.
Plaintiff Stevens, a former BYU-I student, alleges that Robert Stokes, a former BYU-I professor, initiated an unwanted relationship with her while she was a student and Stokes was a professor at BYU-I. Stevens alleges that this relationship ultimately became sexually and emotionally abusive. She further asserts that she, along with another student, Danielle Spencer, reported Stokes' inappropriate and abusive behavior to several BYU-I professors and officials, who failed to take any action. The relationship ended when Stokes died on July 1, 2016, from complications during heart surgery. Stevens originally sued BYU-I and the Stokes estate. She later settled her claims against the Stokes estate. The LDS Church intervened for "the limited purpose of protecting its claims of privilege. . . ." See Order (Dkt. No. 89).
There are now four claims in this case against BYU-I:
In this lawsuit, Stevens intends to introduce selected text messages between her and Stokes to describe that relationship and support her claim of harassment and abuse. It is undisputed, however, that Stevens selectively and intentionally deleted a large amount of texts between the two. BYU-I argues that Stevens' deletions warrant sanctions such as dismissal of this lawsuit or exclusion of the remaining texts from evidence. To resolve this motion, the Court must review what the record reveals about Stevens' deletions of the texts.
During her relationship with Stokes, and prior to his death, Stevens would selectively delete certain texts between the two, but stopped that practice after he died. See Stevens Deposition at 126. So what did Stevens delete? She testified that she generally deleted "chitchat" such as her texts to Stokes that she "woke up at5:00 this morning and I went and had breakfast." Id. at 121. At other times, she randomly deleted texts with Stokes because she "was having a really bad day and my phone was clear full [and] I didn't even want to look at them, and I would just hit delete." Id. at 125. But she kept Stokes' texts that reminded her that she was Id. at 123. She also saved text messages from Stokes where she questioned "whether he was telling me the truth or not." She kept those texts as a form of protection because "if it turns out he is lying to me, if I ever told anybody that he was having sex with me, nobody would believe me." Id. at 123-24.
When asked if the number of texts she deleted prior to Stokes' death was "a huge number of texts," Stevens answered "yeah." Id. at 128. At another point, when asked if she deleted texts before Stokes died, Stevens answered "[a]ll the time." Id. at 88.
After Stokes died, Stevens testified that she took screen shots of the remaining text messages between her and Stokes and printed them out, resulting in 800 pages of texts. See Casperson Declaration (Dkt. No. 208-1) at ¶ 3. She did not at this time delete any of the remaining texts, so she had them both on her phone and in hard copy in six binders.
Stevens filed this lawsuit on December 9, 2016. About two or three months later - in February or March of 2017 - Stevens was using her phone when, she testified, her phone "froze" and quit working. Id. at 110; see alsoExhibit T (Dkt. No. 213-2). To repair the phone, she took it to the AT&T store where she had purchased it, to have them restore the phones functionality. Id. at 110. She told the clerk that "I had important things on there that I didn't want to lose." Id. at 114. Nevertheless, the clerk did some type of factory reset that deleted all the text messages. Id. When Stevens was asked why she did not take her phone to her attorneys for them to preserve the messages prior to it malfunctioning, Stevens explained that "I had all the text messages on the paper [and] . . . I really didn't even realize how big of an issue it was going to be." Id. at 116. Stevens testified that she did not tell her attorneys that she was taking her phone in for repairs and that her attorneys "didn't even know I went [to the AT&T store]." Id. at 112, 115.
See Casperson Letter (Dkt. 202-19). BYU-I argues that Stevens' intentional deletion of text messages is prejudicial to their defense of this case, and they seek sanctions under Rule 37(e), including a dismissal of this action or the exclusion of all remaining text messages from evidence.
The spoliation of electronic discovery is covered by Rule 37(e), "which essentially functions as a decision tree". Oracle America, Inc. v. Hewlett Packard Enterprise Company, 328 F.R.D. 543, 549 (N.D. Cal. 2018). Rule 37(e) states as follows:
See Rule 37(e) (emphasis added). The decision tree starts with an inquiry of whether the data is forever gone: The Court must consider three questions to determine whether ESI has been "lost" - (a) did the discoverable ESI exist at the time a duty to preserve arose, (b) did the party fail to take reasonable steps to preserve the ESI, and (c) is the evidence irreplaceably lost? Oracle America, 328 F.R.D. at 549. If the answer to any of these questions is "no", then a motion for spoliation sanctions must be denied. If all the questions are answered "yes", then the Court proceeds to determine whether the moving party has beenprejudiced and whether the party subject to potential sanctions had an intent to deprive.
The drafters of Rule 37(e) intended to preempt use of other sources of sanctions - such as state law or the long-established "inherent power" doctrine - and require findings consistent with Rule 37(e) as the only path to remedying the loss of electronically stored information. See Rule 37 Advisory Committee Notes to the 2015 Amendment ( that Rule 37(e) "therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used").
The Court begins its Rule 37(e) "decision tree" inquiry by determining whether the deleted texts are lost. They are. Stevens' phone cannot be used to recover any of the deleted texts because it was wiped clean by the AT&T clerk, according to Stevens. BYU-I subpoenaed records from AT&T but their records did not contain the contents of any texts. See Kerby Declaration (Dkt. No. 213-3) at ¶ 8. While Stokes' phone would have contained those texts, the phone he used was his personal phone and when counsel for BYU-I asked the Stokes Estate for the texts, they received only "a partial universe and did not include any of the missing texts or many of the texts that plaintiff did not produce." See Kerby Declaration (Dkt. No. 213-3) at ¶ 15. The requirement under Rule 37(e) that the texts be "lost" is therefore satisfied.
The next issues are whether the deletions were intentional and prejudicial. Stevens testified that her deletions during her relationship with Stokes were intentional - she meant to delete texts, as can be seen in the discussion above. Moreover, those deletions are prejudicial to BYU-I. Stevens intends to introduce the remaining texts to describe her relationship with Stokes. Stevens' expert, Anne Munch, will also use the texts to analyze the relationship. Stevens' selected texts may create a misleading description of their relationship but BYU-I is barred by her actions from challenging that narrative.
The next question is whether the texts were deleted at a time when the duty to preserve had arisen. That duty arises when "litigation is reasonably foreseeable." See Rule 37 Advisory Committee Notes to the 2015 Amendmen...
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