United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
R. HARJANI UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiffs' motion to
sanction Defendant for failure to preserve evidence, Doc.
, Plaintiffs' motion to file Exhibit B thereto under
seal, Doc. [195-96], and Plaintiffs' motion to strike a
portion of Defendant's response to its motion for
sanctions. Doc. . These discovery motions arise from a
lawsuit alleging sexual harassment, retaliation, disparate
treatment, and sex discrimination brought by five female
paramedics against the City of Chicago. The motions discussed
herein primarily pertain to Jane Doe 1.
issue in this case requires the Court to determine whether a
recording, which Plaintiff claims was not preserved, actually
exists, and if it did, whether the duty to preserve attached
in time and warranted preservation, and finally, whether
Plaintiff has suffered any prejudice from the alleged
destruction. For the reasons stated below, Plaintiffs'
motion for sanctions is denied in its entirety.
Plaintiffs' Motion to Sanction Defendant for Failure to
Preserve Electronically- Stored Evidence
move for sanctions under Rule 37(e)(1), claiming that
Defendant failed to preserve an electronic recording of a
radio communication made during a drill on October 28, 2017.
This radio communication relates to Plaintiffs'
allegation that Field Chief Richard Raney “called Jane
Doe 1's ambulance over the radio” during a drill
and “berated Jane Doe 1 in a harsh tone stating that
she was not to question him and to do as she was told.”
Doc.  at ¶¶ 49-50. Plaintiffs argue that this
recording will show the contents and tone that Raney directed
towards Jane Doe 1, after she allegedly rebuffed his
advances, and is therefore evidence of a hostile work
environment and retaliation. To sanction Defendant for the
alleged destruction, Plaintiffs request “that they be
allowed to present evidence to the jury regarding the
destruction of the OEMC recording and the likely relevance of
the lost information; and that the jury shall be instructed
that it may consider this information when making its
decision.” Doc.  at 13. Plaintiffs also seek a
host of other sanctions relating to summary judgment
counters that no such recording was ever made. Additionally,
Defendant reasons that even if the radio communication was
recorded, its preservation obligation was not triggered
before its regularly-scheduled destruction. Defendant further
contends that even if a recording existed and it did have
enough notice to trigger its preservation obligations,
Plaintiffs' motion should nevertheless be denied for lack
of prejudice and that their requested sanctions are
unwarranted. The Court addresses these arguments in turn.
Federal Rules of Civil Procedure gives the Court the
authority to sanction a party for failure to preserve
electronically stored documents. See Fed R. Civ. P.
37(e). To find that sanctions for spoliation are appropriate,
courts have determined that there must be: (1) a duty to
preserve the specific documents and/or evidence, (2) that the
duty was breached, (3) that the other party was harmed by the
breach, and (4) that the breach was caused by the breaching
party's fault. See, e.g., Love v. City of
Chicago, No. 09 C 03631, 2017 WL 5152345, at *4 (N.D.
Ill. Nov. 7, 2017) (internal citation omitted); Jones v.
Bremen High Sch. Dist. 228, No. 08 C 3548, 2010 WL
2106640, at *5 (N.D. Ill. May 25, 2010). (internal citation
omitted); Wells v. Berger, Newmark & Fenchel,
P.C., No. CIV.A. 07 C 3061, 2008 WL 4365972, at *6 (N.D.
Ill. Mar. 18, 2008) (internal citation omitted). Moreover,
Rule 37(e) was amended in 2015 to address the circumstances
under which sanctions could be imposed for spoliation. Now,
under Rule 37(e), the Court must determine that: (1) the ESI
should have been preserved in anticipation of litigation; (2)
the ESI is lost; (3) the party failed to take reasonable
steps to preserve it; and (4) it cannot be restored or
replaced through additional discovery.
duty to preserve does not necessarily start when a formal
discovery request is made because a variety of events may
alert a party to the prospect of litigation. See
id.; see also Wells, 2008 WL 4365972, at *6
(internal citation omitted). Indeed, the duty to preserve can
be triggered much earlier than a discovery request and even
the filing of a Complaint in a district court. The inquiry is
one based on the specific circumstances and facts and whether
those facts give rise to a reasonable foreseeability that
litigation will ensue. “Often these events provide only
limited information about that prospective litigation,
however, so that the scope of information that should be
preserved may remain uncertain. It is important not to be
blinded to this reality by hindsight arising from familiarity
with an action as it is actually filed.” Fed.R.Civ.P.
37, 2015 Amendment Advisory Committee Notes. Thus, the Court
must carefully review the kinds of information that
reasonably should have been preserved even when the duty
attaches to preserve electronically stored information before
litigation commences. Moreover, a key finding since the 2015
amendments, before sanctions can be considered, is that the
destroyed material cannot be replaced or restored through
additional discovery. Fed.R.Civ.P. 37(e).
The Existence of the Recording
Court first addresses whether there was a duty to preserve
the radio communication between Raney and Jane Doe 1 that
took place during a drill on October 28, 2017. See
Trask-Morton, 534 F.3d at 681. Interestingly, in this
case, the parties dispute whether the radio communication was
recorded in the first place. Of course, there cannot be a
duty to preserve evidence that never existed. See
Love, 2017 WL 5152345, at *5.
similar circumstance was faced by the district court in
Love. In that case, the plaintiff sought production
of any existing recordings of a call she made to report a
police officer to the Office of Professional Standards
shortly after calling 911. Id. at *4. Relying on the
defendant City of Chicago's attorney's statement that
no recordings were made, Love concluded that such
“production is not possible, because [the Office of
Professional Standards] did not have a policy of recording
phone calls . . . nor was any call actually recorded.”
Id. (citing Defs.' Resp. Br. Doc. No.  at
considering all the facts, as discussed below, the Court
finds that there is more evidence in the record than in
Love to demonstrate that the relevant communication
was unrecorded. Doc.  at 6. Specifically, Defendant City
of Chicago has supplied three declarations that state any
communications between paramedic personnel (i.e.,
between Raney and Jane Doe 1) would have taken place over an
unrecorded “tactical” radio channel rather than
the recorded “JNT OPS” and “CW Fire”
channels. Doc.  at 6. These Declarations include
Defendant's Deputy Fire Commissioner Timothy Sampey, Doc.
[212-1] at 39-40, Defendant's Assistant Deputy Fire
Commissioner Mary Sheridan, Doc. [212-1] at 48-49, and Field
Chief Richard Raney. Doc. [212-1] at 51-52. Notably,
Plaintiff Jane Doe 1 did not submit a contradictory
declaration even though she was a participant on the radio
channel when Raney allegedly berated her.
Deputy Fire Commissioner Timothy Sampey's declaration,
Sampey stated that the October 28, 2017 drill's radio
communications used three radio channels: “CW Fire,
” “JNT OPS, ” and “tactical
channels” such as “UHF Analog Simplex.”
Doc. [212-1] at 40. Sampey's declaration notes that the
“tactical channels” are not recorded while both
“CW Fire” and “JNT OPS” are recorded.
Doc. [212-1] at 40, ¶¶ 8-13. According to Sampey,
the three channels each have a distinct purpose, as follows.
First, the JNT OPS channel would have been used only for the
Chicago Fire Department to Communicate with the Chicago
Police Department. Doc. [212-1] at 40, ¶ 10. Second, the
CW Fire channel would have been used as the dispatch channel,
that is, the channel used to dispatch units to scene. Doc.
[212-1] at 40, ¶ 11. Sampey's declaration states
that radio communications between Paramedic personnel during
the October 28, 2017 drill would not have been over the
recorded JNT OPS channel or CW Fire Channel but over an
unrecorded tactical channel. Doc. [212-1] at 40, ¶¶
Assistant Deputy Fire Commissioner Mary Sheridan's
declaration, she states that she was present at the October
28, 2017 drill and heard the radio communication
between Raney and Jane Doe 1. Doc. [212-1] at 48,
¶¶ 4, 7. Sheridan's declaration similarly
states that this communication would have taken place over an
unrecorded tactical channel because it was a radio
communication between paramedic personnel. Doc. [212-1] at
48, ¶ 7.
Defendant attached a declaration from Field Chief Raney
himself. Doc. [212-1] at 51-52. In his declaration, Raney
states that he “communicated with Jane Doe 1 over the
radio during the drill” and that “[a]ny
communication that I would have had with Jane Doe 1 would
have been over a ‘tactical' channel which I
understand are not recorded by the OEMC or Chicago Fire
Department.” Doc. [212-1] at 51, ¶¶ 5-6.
Doe 1's only statement in the record that goes to which
radio channel she was using is found in her internal human
resources complaint that states: “[Raney] called my
ambulance over the radio. I responded, identifying my
ambulance and said we were the [Rapid Intervention Team]
ambulance. He said something like ‘you are to do as I
say, you are to do as you're told, do not question
me.' This was over the drill frequency.”
Doc.  at 10 (emphasis added). But the record does not
indicate that there was a radio channel called “drill
frequency, ” and both recorded and unrecorded channels