An Illinois judge has agreed to issue sanctions against a fire department for failing to preserve digital evidence in a sexual harassment case. The case dates back to 2012 when Country Club Hills firefighter Dena Lewis-Bystrzycki filed suit against the department, fire chief Joseph Ellington and firefighter Carl Pycz.
Lewis-Bystrzycki claimed colleagues sexually harassed her, created a hostile work environment, regularly watched pornography at the station, and retaliated against her when she reported their misconduct. She also claimed the department engaged in gender discrimination when she came up for a promotion.
Her attorney, Dana Kurtz, had directed the Country Club Hills Fire Department to preserve certain electronically stored information on the department’s computer system, and later followed that request up with a court order. The department failed to comply with those requests. According to Kurtz’s computer forensic expert Andrew Garrett, someone attempted to wipe the computers clean on several occasions. Over the department’s protests that he was on a “fishing expedition”, Garrett’s analysis was able to establish that firefighters had conducted thousands of web searches for pornography, but the imagery itself was gone.
Last Friday, Cook County Circuit Court Judge Brigid Mary McGrath agreed that sanctions against the department were appropriate. Judge McGrath was quoted by the Chicago Tribune as saying:
- “It’s clear that there were anti-forensic (computer) tools run after this court had ordered compliance with outstanding discovery request.”
- “And even though some of these things might have been done inadvertently, it still doesn’t undercut the court’s conclusion that sanctions are appropriate.”
Judge McGrath reserved judgment on what those sanction will be. Typically in cases like this, a judge will give the jury a “spoliation instruction” that explains they are entitled to draw an inference that fire department got rid of the electronic evidence because would have been hurtful to their case. The judge also has the option of giving Lewis-Bystrzycki a default judgment, meaning in essence she would win by default. Some other options are also on the table.
For those interested in more on the legal aspects of spoliation, here is a link to a similar case involving spoliation of electronic information in a sexual discrimination case – Zubulake v. UBS Warburg. The employer, UBS Warburg, was found to have committed spoliation of some emails, but opted to take the case to the jury despite the fact that the judge ordered the sanction of a spoliation instruction. The jury returned the largest single plaintiff sexual discrimination verdict in US history, $29 million. The jury, apparently believing UBS Warburg had indeed tried to hide evidence, ordered $20.1 million in punitive damages plus $9.1 million in compensatory damages. More on the Zubulake case.