ORDER & OPINION
JOE BILLY McDADE, Senior District Judge.
This matter is before the Court on 1) Plaintiff's Motion for Default and Sanctions (Doc. 97) related to Defendant's purported destruction and withholding of evidence and deposition misconduct and 2) Magistrate Judge Gorman's Order and Report and Recommendation ("R&R") (Doc. 112) recommending that such motion be denied. Plaintiff filed timely objections to the R&R contending that the R&R misapplied law and facts on the issue of sanctions for destruction and withholding of evidence and ignored Plaintiff's motion as to defense counsel's behavior in depositions. (Doc. 113). For the reasons stated below, the disposition recommended in the R&R is accepted in part and modified in part and Plaintiff's Motion (Doc. 97) is denied in part and granted in part.
The motions for default judgment and sanctions at issue in the R&R are treated as pretrial dispositive motions. Retired Chicago Police Ass'n v. City of Chicago, 76 F.3d 856, 868 (7th Cir. 1996); Alpern v. Lieb, 38 F.3d 933 (7th Cir. 1994). As Plaintiff filed an Objection to the R&R, the Court reviews de novo those portions of the R&R to which "specific written objections" have been stated. Fed.R.Civ.P. 72(b). "The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b)(3).
Plaintiff was employed by Defendant Fieldcrest Community Unit School District No. 6 ("Fieldcrest") as the Principal at Fieldcrest Elementary School South ("Fieldcrest South") from July 1, 2007 to June 30, 2010. Fieldcrest is a local governmental entity, and was acting under color of state law at all times material to this suit. Each of the individual Defendants were acting in the scope of their employment and under color of state law.
Fieldcrest employed men as principals at its three other schools. Plaintiff was also the only female administrator at Fieldcrest, as, in addition to the other principals, both the dean of students and superintendent of schools were men. Plaintiff taught classes for the first two of the years and provided intervention for special education students as needed in the third year in addition to her duties as Principal at Fieldcrest South during the same time frame. None of the male principals had any teaching duties.
Plaintiff was paid less over the three-year period at issue than were two of the male principals, Principals Demay and Lapp and she received smaller percentage increases each year than the third male principal, Principal Roberts. Plaintiff also was not offered a health benefits package that the male principals received. Plaintiff alleges that these disparities were due to her sex.
In January of 2009, then-Superintendent Randy Vincent told Plaintiff that she should start looking for another job, because of teacher complaints. Plaintiff alleges that the "teacher complaints" explanation was a pretext to terminate her, both because of her sex and in retaliation for a complaint of sex discrimination. Plaintiff states that this explanation is merely pretextual because there were pre-existing problems with the teachers at Fieldcrest South and because teacher conflict had actually declined while she had been principal.
On July 6, 2009, after Plaintiff was informed on that date by Superintendent Vincent that she would receive only a 1% pay increase, she sent an email to him asking why she was receiving this level of increase, and what the other principals were earning. Superintendent Vincent replied, explaining that the other principals received increases around 4%, and that her smaller increase was due to the issues they had previously discussed. On March 24, 2010 Plaintiff sent a certified letter to each of the individual Defendants in which she alleged she was the victim of disparate treatment on the basis of her gender. Defendants admit that such letter was sent and received by them. On March 30, 2010, the school board, including each of the Defendant members, voted against renewing Plaintiff's contract. On April 30, 2010, Plaintiff filed her first Complaint against Defendants. (Doc. 1).
At all times relevant, the Defendants had a policy known as School Board Meeting Procedure, Board Policy 2:220 (the "Policy"), which requires that closed-session school board meetings are to be audio recorded. The Policy seems to be designed to fulfill the requirements of the Illinois Open Meetings Act, 5 ILCS 120/1 et. seq. (the "OMA"). The Policy also requires that the audio recordings of closed-session school board meetings not be destroyed until no less than eighteen months have passed since the recorded meeting and after a vote by the school board approving the destruction. Between May 1, 2007 and January 1, 2009, the Fieldcrest school board held an unknown number of closed-session meetings, for which audio recordings were made. During these closed-session school board meetings, it appears that matters material and relevant to Plaintiff's causes of action against the Defendants were discussed. The audio recordings of these closed-session school board meetings have been destroyed without a vote by the school board approving the destruction. Plaintiff contends that the audio recordings of these closed-session school board meetings were destroyed at a time when the instant suit was either on file, reasonably foreseeable, or when a reasonable person would have foreseen that the audio recordings were material to a potential civil suit. The audio recordings of these closed-session meetings may have also been destroyed less than eighteen months after their recording.
Aside from the destruction of evidence, Defendants have produced to Plaintiff two audio recordings long after they were initially requested through proper discovery requests. The Plaintiff originally requested the information in July of 2012. She did not receive the first audio recording until June 26, 2013 and even then it was after the originally-scheduled deposition of Superintendent Vincent. The second audio recording was received by Plaintiff on July 15, 2013. Compounding the problem is that many of the Defendants' depositions had already proceeded and concluded. Moreover, one of the recordings is barely audible.
On November 30, 2012, Defendants' counsel wrote in response to a motion to compel the following:
Plaintiff also wants production of all closed session tapes in defendants' possession, even those that did not pertain to her. Defendants produced all of the closed session minutes and tapes in their possession during which plaintiff was discussed, but plaintiff wants all of them, because she does not trust that the production was complete. Plaintiff is concerned that defendants might have purposely withheld tapes where plaintiff was discussed, and wants to fish through all tapes to determine if there is relevant information contained in them.
Plaintiff's concern about the ethical conduct of an officer of the court (defendants' counsel) is misplaced. Defendants' counsel's signing of the document production is in itself an affidavit of its completeness. Fed.R.Civ.P. 26 (g)(1). Nevertheless, defendants' counsel will sign a specific affidavit stating that he has reviewed all of the tapes, and has isolated those which pertain to plaintiff and turned those over, if it will satisfy plaintiff's suspicion.
(Doc. 54 at 5-6). Plaintiff contends this proves Defendants' counsel lied to the Court and to Plaintiff because the passage above is belied by Defendants' counsel's later statements that he had in fact been in possession of a March 2009 audio recording in which Defendants do discuss Plaintiff. Plaintiff also argues that Defendants' counsel proved himself a liar by making a statement in June 2013 that he had not found anything on a tape from April 2010 about the Plaintiff, yet sending an audio recording of the April 2010 meeting about the Plaintiff a few weeks later.
As the litigation progressed, discovery requests and documents were exchanged and depositions were scheduled, canceled, rescheduled and taken. The parties have since become enthralled in incidents of cantankerous behavior, for Page 7> which they, mainly Plaintiff, have been filing numerous and sometimes voluminous submissions to the court.
Plaintiff's motion for default judgment and sanctions focuses on three primary issues. First, Plaintiff complains that Defendants have destroyed evidence in this case and that default judgment is the appropriate sanction. The R&R found that sanctions were not appropriate and the Plaintiff timely objected to this finding. Second, Plaintiff complains that Defendants have withheld evidence and that default judgment is appropriate. The R&R found that sanctions were not appropriate and the Plaintiff timely objected to this finding. Third, Plaintiff complains that Defendants' counsel has engaged in misconduct during depositions that requires court-imposed sanction. The R&R did not discuss whether sanctions were appropriate for defense counsel's deposition behavior and the Plaintiff timely objected to this lack of discussion. The Court will address each issue separately.
As an intial matter, Plaintiff makes much of the Defendants' counsel's November 2012 representation to the Court that he had reviewed all the audiotapes of closed school board sessions. The Court does not read that statement as a sweeping proposition that every audiotape about the Plaintiff was reviewed by counsel and then produced to Plaintiff at that time. Rather it seems that Defendants' counsel had already limited his discussion to all the tapes in the Defendants' possession, as that language was used twice in the paragraph immediately preceding his purported lie to the Court. ( See Doc. 54 at 5-6). The Court has not seen any evidence that Defendants' counsel knew about either the destroyed audiotapes or the April 2010 audiotape in November 2012 when he made the representation that he had reviewed all the audiotapes of closed school board sessions.
I. Destruction of Evidence
Plaintiff contends that Defendants should face default judgment or at least some other sanction for their destruction of audiotaped recordings of closed session meetings in which matters relevant to this lawsuit were discussed. In her motion (Doc. 97), Plaintiff argues that Defendants violated the Illinois Open Meetings Act, 5 ILCS 120/1 et. seq. ("OMA") and their own school district's policy by failing to keep audio recordings of all closed session meetings for a period of not less than eighteen (18) months from the date of recording. (Doc. 97 at 4-10). Plaintiff did not mention Illinois common law in her motion but now asserts it in her Objection to the R&R. (Doc. 113). Plaintiff now argues that Defendants' violation of OMA was by its very nature a violation of the ...