248 F.R.D. 372 (D. Conn. 2007)

Plaintiff=Jane DoeDefendants=Norwalk Community College (NCC), Connecticut Community Colleges, and Ronald Masi

Violations of Title IX of the Education Amendments of 1972, as well as State Law claims of Negligent Retention and Supervision and Negligent Infliction of Emotional Distress-Sexual Assault by Professor Masi

Good Faith Operation of an Electronic Information System

Doe files a motion for sanctions for Discovery Misconduct and Spoliation of Evidence against the college Defendants

Doe files Motion to Compel the inspection of certain electronic records possessed by NCC, and hires Delay, of DataTrack Resources, a forensic computer firm Doe retained to inspect NCC’s computer records-Court grants her Motion on July 20, 2006

2 Hearings by Court for Computer Experts:

Delay=for PBissell=NCC’s Information Technology Technician

Olsen=System’s Manager for Connecticut Community Colleges

To prove this, she must show:1. Party that had evidence had obligation to preserve it

2. Records were destroyed with culpable state of mind

3. Destroyed evidence was relevant to party’s claim

The hard drives of key witnesses in the case were “scrubbed” or “wiped” of data

Key player Seaborn had computer replaced 1 month after suit, old one was data wiped

Microsoft Outlook PST files (for E-mail) of 4 people had been altered, destroyed, or filtered.

Calls for 2 year retention to electronic correspondence-Doe says this should apply to NCC and was not followed for the hard drives of faculty members who left the college.

1. NCC did not need to follow State Library, because did not apply to “normal computer usage.”

2. That they surrendered adequate information dealing with Defendant Masi

1. NCC should have placed a “Litigation Hold” on all documents relevant to the Doe issue.

2. NCC also admits to “Scrubbing” the hard drive of Masi after his resignation.

Has a “Good Faith” exception, stating a Court may not impose sanctions on a party for failing to provide electronically stored information that was lost as a result of routine, good faith operation of an electronic information system.

1. Duty to Preserve2. Culpable State of Mind

3. Relevance

The Court finds that this duty arose when several professors had a meeting regarding the sexual assault by Masi on Doe on February 13, 2004. This duty comes under Zubulake because at this time the Defendants should have known litigation was “Reasonably Anticipated.”

Court finds that D’s failure to place Litigation Hold on relevant evidence was “grossly negligent, if not reckless.”

NCC intentionally destroyed evidence that was relevant to the incident between Doe and Masi, some of it within minutes after Delay began his investigation.

If conduct is deemed “Grossly Negligent” (NCC’s was) or worse, no further proof is needed for this prong.

If conduct is only “Simple Negligence,” opposing party must show destroyed evidence would be favorable to them.

1. Doe is entitled to an Adverse Inference Jury Instruction with respect to the destroyed evidence.

2. Doe is entitled to costs she incurred with this motion, including the payment of Mr. Delay.

1. Should additional Damages be awarded to the opposing party when their opponent is found to have destroyed evidence in Bad Faith?

2. If a good deal of highly relevant evidence was found to be destroyed in Bad Faith, should Summary Judgment be awarded to the opposing party?