248 F.R.D. 372 (D. Conn. 2007) Doe v. Norwalk Community College

 Plaintiff=Jane Doe  Defendants=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 P  Bissell=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 Preserve  2. 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, 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?