Fire Law Blog Fire Service and Public Safety Legal Issues Blog by Curt Varone
An Illinois fire department is facing court-ordered sanctions after having been caught deleting evidence from its computer system that was relevant to a sexual harassment case.
The Country Club Hills Fire Department has been embroiled in a sexual harassment suit brought by firefighter Dena Lewis-Bystrzycki dating back to 2012. Lewis-Bystrzycki claimed that firefighters routinely viewed pornography in the fire stations, created a sexual hostile work environment for her, and retaliated against her when she reported the misbehavior.
Early into the proceedings, Lewis-Bystrzycki’s attorney, Dana Kurtz, sent the fire department an evidence preservation notice informing them that she considered electronically stored information (ESI) on the department’s computer system to be relevant to the case and that it needed to be preserved. According to Kurtz, the department failed to comply with the preservation request prompting her to allege spoliation. When she sought a court order to allow a computer forensic firm to examine the computer system, the fire department fought the request claiming it was a “fishing expedition”.
Kurtz was successful in convincing the judge to allow the examination, which resulted in a report documenting firefighters accessing pornography as well as the department’s efforts to “wipe” the computers. The report cited repeated disk cleanups and disk defragmentations in the weeks leading up to the forensic examination, as well as the department having swapped out two old computers that contained potential evidence for newer ones that did not.
As explained in Kurtz’s motion for sanctions:
- Defendants’ counsel, the Chief, the Deputy Chief and (the IT director) each took part in directing [Garrett – the forensic examiner] to two computers that they knew were not the computers that the Court ordered to be imaged.
- All of them failed to direct [Garrett] to the actual computers that were ordered by the Court to be imaged, despite knowing that those computers had been placed in the storage closet as Defendants put them there.
- Defendants’ only disclosed the existence of these computers after they got caught in their ‘bait and switch.’ [This was discovered during a subsequent deposition of an IT consultant].
The forensic report concluded that over a dozen firefighters had “pornography terms in the websites they visited or viewed pornography images within their user profile and web history.” It also identified “thousands of web searches for pornography” that could not be attributed to an accidental click.
Quoting from the report:
- [M]ultiple fire fighters were viewing pornographic material on the fire stations on multiple occasion more than frequently.
- For those whom have a large number of records categorized as Pictures, Carved Video, Pornography URL’s including swinger and hookup sites where two people are looking for sex, it would be hard to attribute those sites to an accidental user action.
- Especially, for those whom have searched Google using pornography terms it would be impossible to attribute that to accidentally visited.
The fire department’s attorney, Dan Boddicker, referred to the forensic report as containing “both inaccurate and misleading information.” He also provided an affidavit to the court denying he deliberately hid computers from the forensic experts, and contending that the two computers that were in the storage closet were “out-of-service” and lacked “relevant and material-weighty” information in light of the fact that Kurtz “already ha[d] evidence of pornography from the forensic examination.”
The matter is schedule for hearing on February 7, 2018. Kurtz is seeking an extreme sanction for the fire department’s spoliation: a default judgment. A default judgment would essentially decide the case in Lewis-Bystrzycki’s favor with the only remaining issue being the amount of damages she is entitled to.
The more common penalty for spoliation is what is referred to as a negative inference instruction. What this means is that when instructing the jury just before deliberations begin, the judge will tell the jury (more or less):
- The defendant in this case – the fire department – has committed what we refer to as spoliation.
- Spoliation is a very serious breach of the rules of how parties to a lawsuit are expected to act.
- In our legal system a party with evidence that is relevant to a legal proceeding is under an obligation to preserve that evidence.
- The plaintiff alleges that the fire department’s computer system contained evidence that firefighters searched for and watched pornography in the fire station on a regular basis.
- The defendant was instructed to and inexplicably failed to preserve that evidence.
- You are therefore entitled to infer that had that evidence been presented before you in court it would have been hurtful the defendants case.
- You are entitled to infer this, but you are not required to infer this.
Typically, once one side is caught committing spoliation in a case, and the judge agrees to issue a negative inference instruction, the case is over. A negative inference instruction carries such weight that most attorneys are not willing to roll the dice by letting the case go to a jury. The result is a settlement that is favorable to the other party (in this case Lewis-Bystrzycki).
One of the most well-known examples of a defendant who committed spoliation opting to roll the dice with a jury was the case of Zubulake v. UBS Warburg, 229 F.R.D. 422 (S.D.N.Y. 2004). Following a negative inference instruction, the jury awarded what at the time was the largest single-plaintiff sexual harassment suit damage award in American legal history: $29.2 million.
The facts in Zubelake were a little different (deleted emails and the failure to preserve the entire computer system following an upgrade) but they are similar enough to the Country Club Hills case that it should give the fire department’s legal counsel grounds for deep concern.
