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Bagley v. Yale University

United States District Court, D. Connecticut

December 22, 2016



          CHARLES S. HAIGHT, JR. Senior United States District Judge.

         The rekindled pretrial struggle in this case, taking the form of yet another motion by Plaintiff Bagley [Doc. 190] to compel Defendant Yale University to make discovery, focuses upon "litigation hold notices" Yale sent to 65 individuals. Yale opposes the motion in its entirety. This Ruling resolves it.

         As the relationship between Professor Bagley and the leaders of the Yale School of Management ("SOM") deteriorated from academic collegiality to bitter recrimination, a time came when Yale thought it advisable to send what it called a "document preservation notice" to a sizable number of individual members of the greater Yale community. The Ruling refers to this document as a "litigation hold notice, " a preferable phrase coined by trial lawyers and judges, preferable because it more accurately reflects the purpose of the exercise.

         The universe of recipients of Yale's notice in this case was not limited to those who (meaning no disrespect) may be referred to as the "usual suspects": SOM deans and faculty involved in the ultimate decision not to reappoint Bagley or inquiries into that refusal, then-provost Salovey, and certain others. Yale painted with a broad brush and adopted a course of wide dissemination. An in-house attorney addressed an e-mail dated May 8, 2013 to "Dear Colleagues" (Ex. F to Plaintiff's present motion, Doc. 191-1) which began:

As you may know, Professor Connie Bagley has brought a complaint against Yale alleging employment discrimination on the basis of her gender, disability and age. As a result, all members of the Yale faculty and staff who have information in their possession or control relating or referring in any way to Professor Bagley, her employment and teaching at SOM, or the circumstances relating to the non-renewal of her faculty appointment (collectively "this Matter") have a legal obligation to preserve that information. The law imposes this obligation to prevent the loss of potential evidence during litigation. You must preserve and retain, and not alter, delete, remove, discard or destroy, directly or indirectly, any information concerning this Matter. Failure to preserve information could seriously undermine Yale's legal position and lead to legal sanctions.

         The e-mail I have quoted was signed by Jonathan E. Clune, senior associate general counsel of Yale University, in the office of the vice-president and general counsel. Doc. 191-1, at 13. The notice defines the documents to be preserved broadly - "The term 'information' should be construed very broadly to include any communication in any medium, including hardcopy and electronic documents, schedule entries, e-mail, photographs, voice mail, and information stored on a smart phone or PDA" - and gives recipients detailed instructions about how all this material is to be preserved. Id., at 12-13. The notice concludes with this direction:

Attached to this e-mail is a brief form requesting information on the computer or computers that you believe contain information on this Matter. Please fill out the form and e-mail it back to me. . . . Please confirm by return e-mail that you have read and understood the instructions above and attach the completed survey form.

Id., at 13 (emphases in original).

         Exhibit A to Doc. 191-1 lists the names of the recipients of Yale's litigation hold notices and the dates on which the notice was sent to each. The exhibit lists 65 individual recipients. Doc. 191-1, at 1-2. I conclude from the evidence in the record, and the absence of any contrary proof, that Mr. Clune sent to each recipient a notice in the form submitted as Ex. F. Based on Ex. A, the dates on which notices were sent and the number of recipients for each date may be summarized as follows:

* March 1, 2013 (9)
* March 13, 2013 (3)
* April 30, 2013 (2)
* May 8, 2013 (17)
* January 2, 2014 (3)
* January 7, 2014 (27)
* February 26, 2014 (3)
* August 7, 2014 (1)

         Mr. Clune's litigation hold notices stressed that a recipient's failure to preserve pertinent documents could "lead to legal sanctions" against Yale. Clune was concerned about a possible sanction against Yale for spoliation of evidence. While Clune's notices did not use the term, "spoliation" is a cardinal litigation vice, known by that name to trial lawyers and judges, perhaps unfamiliar to academics unable to claim either of those distinctions. Clune's notices made manifest his concern that a trial court might sanction Yale for spoliation of evidence relevant to the University SOM's decision not to reappoint Bagley to its faculty.

         "Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). A district court has broad discretionary authority to impose sanctions if spoliation of evidence occurs. That authority stems from two possible sources. First, if the spoliating party has violated a court order, the court may impose sanctions pursuant to Rule 37 of the Federal Rules of Civil Procedure, see West, 167 F.3d at 779. Second, "[e]ven without a discovery order, a district court may impose sanctions for spoliation" as part of its "inherent power to control litigation, " id. (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991)). However, a district court's discretion is informed by the Second Circuit's instruction that any sanction "should be designed to (1) deter parties from engaging in spoliation; (2) place the risk of an ...

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