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Does v. City of Chicago

United States District Court, N.D. Illinois, Eastern Division

July 9, 2019

JANE DOES 1-5, Plaintiffs,
v.
CITY OF CHICAGO, a municipal Corporation, Defendant.

          MEMORANDUM OPINION AND ORDER

          SUNIL R. HARJANI UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on Plaintiffs' motion to sanction Defendant for failure to preserve evidence, Doc. [194], 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. [216]. 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.

         The 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.

         I. Plaintiffs' Motion to Sanction Defendant for Failure to Preserve Electronically- Stored Evidence

         A. Background

         Plaintiffs 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. [1] 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. [194] at 13. Plaintiffs also seek a host of other sanctions relating to summary judgment proceedings.

         Defendant 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.

         B. Legal Standard

         The 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.

         The 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).

         C. The Existence of the Recording

         The 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.

         A 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. [487] at 7).

         After 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. [212] 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. [212] 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.

         In 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, ¶¶ 12-13.

         In 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.

         Last, 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.

         Jane 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. [195] 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 were ...


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