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King v. Catholic Health Initiatives

United States District Court, D. Nebraska

December 9, 2019

JENNIFER M. KING, an Individual; Plaintiff,
CATHOLIC HEALTH INITIATIVES, a Non-Profit Foreign Corporation Operating in Nebraska; and CHI NEBRASKA d/b/a CHI Health Defendants.



         This matter comes before the Court on the Motion to Compel Defendants' Discovery Responses and Request for Rule 37 Relief (Filing No. 81) filed by the plaintiff, Jennifer King, and Defendants' Motion to Strike the Declaration of Katherine A. McNamara (Filing No. 89). For the following reasons, the Court will grant King's motion in part, and deny Defendants' motion.


         King filed the instant action against her former employer(s), CHI Nebraska d/b/a CHI Health and Catholic Health Initiatives[1] on July 10, 2018, alleging they failed to take proper remedial action to protect her from sexual harassment from another employee. (Filing No. 1). In King's Amended Complaint filed on April 19, 2019, she asserts Title VII claims for hostile work environment and gender discrimination, as well as claims for intentional and negligent infliction of emotional distress, breach of contract, constructive discharge, and negligent hiring/supervision/retention. (Filing No. 54). King sets forth the following allegations in her Amended Complaint:

         King began her employment at CHI in April 2003 as a pharmacist and was ultimately promoted to Director of Pharmacy at Bergan Mercy Medical Center, Creighton University Medical Center, and Lasting Hope Recovery Center. Beginning in 2014, another CHI employee, Lawrence Kelly, began exhibiting alarming and inappropriate behavior after developing a crush on one of King's subordinates. In January 2015, Kelly began harassing King. King asserts she repeatedly reported Kelly's behavior to CHI supervisors, administrators, and human resources, including Mike Tiesi, Denise Robertson, Joanne Dzubak, and Todd Hoffman. In March 2015, Kelly took six weeks of FMLA leave for inpatient psychiatric treatment, but when he returned in May 2015 he continued to “constantly e-mail, message, hover, and follow” King. King continued to send “multiple messages” to various individuals, including Tiesi, Robertson, and Chris Evans, expressing concerns and discomfort with Kelly's stalking and predatory behavior.

         King met with Robertson, Tiesi, and Hoffman on May 26, 2015, to discuss the severity of the situation with Kelly and express her fear for her safety and safety of others. No disciplinary action was taken against Kelly, who continued his harassing behavior. In August of 2015, human resources asked Kelly to sign a written boundary agreement drafted by King to stay away from the pharmacy where she worked. The agreement provided for Kelly's immediate dismissal if he failed to follow its terms. The agreement was never enforced. King continued to email and otherwise communicate with supervisors, including Tiesi, about Kelly's threatening, stalking, and harassing behavior, through January 2016. On February 26, 2016, King obtained a protection order against Kelly in Nebraska state court. King emailed Robertson on February 29, 2016, requesting guidance on how to communicate to staff that Kelly was not permitted on campus per the terms of the protection order, but CHI did not take her protection order seriously. King was forced to resign from her employment on March 23, 2016, due to CHI's lack of response to the situation with Kelly. Kelly's employment was terminated on April 4, 2016, for “not meeting job expectations.” See Filing No. 54.

         CHI largely denies King's allegations above, including her characterizations of her interactions with Kelly, his behavior, and CHI's responses to her communications and complaints. (Filing No. 59). CHI also raises several affirmative defenses, including that King's claims are barred by “waiver, estoppel, laches, unclean hands and/or ratification, ” CHI “exercised reasonable care to prevent and promptly correct any alleged improper behavior, ” and CHI's “remedial measures were adequate to respond to any actual or constructively known discrimination or harassment.” (Filing No. 59 at p. 26).

         King's motion to compel concerns the parties' ongoing dispute regarding Electronically Stored Information (“ESI”), including both King's and Kelly's emails CHI maintains it deleted pursuant to its document retention policy 30-days after King and Kelly separated from their employment. King argues that CHI had a duty to maintain relevant ESI as early as 2015, and certainly by the time she resigned in March 2016, as CHI should have known King could have a claim against it. King argues that CHI has not met its burden to show that the time and expense of retrieving deleted ESI is unduly burdensome. (Filing No. 82). King therefore requests an order compelling CHI (1) to identify whether it is withholding any documents responsive to Request for Production No. 10, which seeks all documents generated or received by CHI's Employee Assistance Program (“EAP”) concerning King or Kelly, (Filing No. 83-3), and (2) to withdraw objections and supplement its answer to Interrogatory No. 5, which asks CHI to “describe the actions and/or efforts” it took to locate and identify ESI, including the custodians and search terms used. (Filing No. 83-2 at pp. 2-3). King also requests Rule 37 Sanctions and asks the Court to find: (1) CHI had a duty to preserve the ESI of King and Kelly as early as 2015; (2) CHI failed to adequately preserve such ESI and made no efforts to retrieve the deleted ESI; and (3) King has been prejudiced because of the destruction. (Filing No. 82 at pp. 3-4).

         CHI opposes King's motion on several grounds. CHI first argues that King's motion does not contain the required certification that she conferred or attempted to confer in good faith to obtain the requested discovery prior to court action, as required by Fed.R.Civ.P. 37(a)(1) and NECivR 7.1(i). (Filing No. 87 at p. 1). CHI maintains it has already provided King with all requested discovery in its control or custody and ran King's requested additional searches through several available custodians. (Filing No. 87 at pp. 2-5). CHI asserts that, to the extent any backup versions of the requested data from King and Kelly as custodians exists, it would be too expensive and burdensome to retrieve, and that the discovery sought by King may be obtained by other sources such as deposition testimony. CHI argues Rule 37 sanctions are not appropriate because its duty to preserve information related to this lawsuit did not arise until it received King's demand letter dated August 2016, by which time CHI had already deleted King and Kelly's ESI pursuant to its document retention policy. (Filing No. 87 at pp. 5-12).


         King's requests for ESI are contained in her Requests for Production Nos. 6-8, which ask CHI to produce: emails and electronic communications CHI “generated or received concerning Plaintiff and/or Lawrence Kelly” from January 1, 2010, to the present, (Request No. 6); emails, instant messages, and other correspondence regarding Kelly's “behavior, conduct, discrimination, employment, health, mental health, stalking, and work” as well as his “allegedly inappropriate or improper actions, behavior, [and] conduct” from January 1, 2008, through the present, (Request No. 7); and emails, instant messages, and other correspondence exchanged between King and CHI or Kelly, CHI or its agents/employees/directors, and between CHI and Kelly, or anyone else, regarding Kelly's behavior, harassment, stalking, mental health, inappropriate conduct, leave of absences/FMLA time off, and termination, King's protective order against Kelly, and any of King's allegations in her Complaint, (Request No. 8). (Filing No. 83-3 at pp. 3-4).

         In this case, the Court finds that the above requests, including emails to or from King and Kelly's email accounts evidencing, documenting, reporting, or complaining about Kelly's behavior and conduct, are relevant to King's claims and CHI's defenses in this case, including CHI's assertion that King cannot meet her burden to establish Kelly's alleged harassment was objectively severe, (Filing No. 102 at p. 20). See Fed.R.Civ.P. 26(b)(1)(“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case[.]”). However, the Court finds that King's requested time periods beginning on January 1, 2008, and January 1, 2010, are overbroad. King alleges Kelly's harassment of her began in January 2015, and therefore the Court will limit further supplementation of Request for Production Nos. 6-8 to the start date of January 1, 2015.

         Parties must take “reasonable steps” to preserve ESI relevant to anticipated litigation. See Fed.R.Civ.P. 37(e). The court may sanction a party for failure for failure to do so if the lost ESI cannot be restored or replaced through additional discovery. Id. However, Rule 37(e) does not apply if information is lost before the duty to preserve arises. See Fed.R.Civ.P. 37(e), advisory committee's note to 2015 amendment. Therefore, the Court must first resolve when CHI's duty to preserve relevant ESI arose. Generally, a defendant's duty to preserve evidence is triggered at the time the case is filed, “unless the defendant before that time becomes aware of facts from which it should reasonably know that evidence is to be preserved as relevant to future litigation.” The Valspar Corp. v. Millennium Inorganic Chemicals, Inc., 2016 WL 6902459, at *4 (D. Minn. Jan. 20, 2016); see Blazer v. Gall, 2019 WL 3494785, at *3 (D.S.D. Aug. 1, 2019)(“The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation.”). The Rule 37 advisory committee's note to the 2015 amendment explains:

Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant. A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation. . . It is important not to be blinded to this reality ...

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