In a particularly contentious employment discrimination case Sokn v. Fieldcrest Community Unit School District No. 8, et al., 2014 WL 201534(C.D.Ill. January 17, 2014), Plaintiff was a school principal who alleged gender discrimination and unlawful retaliation by Defendants. Plaintiff objected to the Magistrate’s Report and Recommendation denying sanctions for the destruction of audio tapes of closed-session school board meetings. The court noted that the duty to preserve evidence arose when Plaintiff sent a letter on March 24, 2010, claiming that she received disparate treatment based on her gender. The court is clear that if the tapes were destroyed prior to March 24, 2010, then sanctions would not be warranted but if they were destroyed after, then bad faith could be inferred.
The problem? No one knew when the tapes were destroyed, and the record suggested that there was no way to know when the tapes were destroyed. Although Plaintiff argued the burden should be on Defendants to prove they were destroyed prior to March 24, 2010, the court cites case law saying otherwise. It is the burden of the party seeking sanctions to prove such are warranted, citing Plunk v. City of Elwood, Ill., 2009 WL 1444436(N.D.Ill. 2009). The court found that since there was no evidence of when the destruction occurred, no sanctions were warranted.
Spoliation of evidence was not the only issue. Plaintiff also sought sanctions for withholding evidence, as the defense counsel supplied two audio tapes only after oral depositions of certain defense witnesses were taken. Although the court noted that Plaintiff’s complaints were not baseless, it found that the conduct did not rise to the level of sanctions, as there was nothing to infer bad faith.
Plaintiff did succeed in obtaining a finding that a sanction is appropriate due to defense counsel’s conduct at a deposition. The defense counsel inappropriately told a witness to not answer a question. The court also admonished the defense for other behavior during the deposition. As sanction, the court ordered defense counsel to bear the attorney fee costs of that deposition.