Friday, September 14, 2018

All That Jazz: Spoliation In Big Sky Country

The Montana Supreme Court exercised supervisory control in a matter in which it is alleged that Montana State University - Bozeman negligently hired and failed to protect a student from a predatory professor. 

we find that exercise of supervisory control is necessary and proper and accordingly reverse and remand for further proceedings.

The Professor

In 2006, MSU hired Shuichi Komiyama as a teaching professor in the Music Department of the MSU College of Arts and Architecture (A&A). At pertinent times, Komiyama was also the Director of the MSU Orchestra and Jazz Band.

The lower court action

By order filed April 11, 2018, the District Court summarily adjudicated liability against MSU on Plaintiff Breanne Cepeda’s asserted negligence claim as an evidence spoliation sanction pursuant to M. R. Civ. P. 37(e).

The court vacated the default sanction.

Concerns about the professor's conduct from many sources led to an investigation by in-house counsel and a spoliation issue

More troublesome is MSU’s failure to preserve all emails associated with the email accounts of Leech, Agre-Kippenham, Letendre, and Komiyama music students other than Cepeda, that may have existed on the MSU email server or faculty computers on June 15, 2011. Apart from an unverifiable, self-serving showing that they likely contained no relevant information other than as referenced in emails retained pursuant to its internal investigation, MSU’s affidavit showings, through in-house counsel, were at best vague or ambiguous as to when unpreserved emails associated with the MSU accounts of Leech, Agre-Kippenham, and Letendre were in fact irrecoverably lost. Further, other than a showing that Komiyama and Cepeda primarily, if not exclusively, communicated by private email, MSU made no particularized evidentiary showing in response to Cepeda’s sanctions motion as to whether and to what extent, if any, emails associated with MSU email server accounts assigned to Komiyama music students would still have been present on the MSU server on June 15, 2011.

Though Leech and Agre-Kippenham retired in May 2011, MSU’s measured evidentiary showing and arguments evince tacit acknowledgment that it did not preserve all of the emails associated with the MSU accounts of Leech, Agre-Kippenham, and then-still-active Letendre that existed on June 15, 2011. Substantial evidence thus supports the District Court’s finding that MSU retained only the faculty and student emails that it deemed relevant to its internal investigation. Based on MSU’s vague and ambiguous evidentiary showing, we cannot say that the District Court’s implicit finding—that MSU breached a duty to take reasonable action to preserve information at least potentially relevant to a reasonably foreseeable adverse claim—was clearly erroneous.


However, the balance of the District Court’s sanctions analysis is more problematic. Without any predicate finding, the court insinuated that MSU failed to preserve the entirety of the subject faculty and student emails in bad faith, i.e., with the intent or purpose of concealing unfavorable evidence. Except for disputable evidence of a breach of a duty to preserve the entirety of music department faculty and student emails, neither the District Court nor Cepeda have cited any non-speculative direct or circumstantial evidence indicating that MSU knowingly failed to preserve any potentially relevant student or faculty email communications with the purpose or intent of concealing unfavorable evidence. To the contrary, MSU’s failure to preserve occurred in the midst of MSU’s own aggressive investigation of Komiyama at a time when the decision to reinstate or terminate him from employment hung in the balance. The only real-time assessment reasonably supported by the limited record before us was that MSU was actively searching for evidence manifesting the propriety or impropriety of Komiyama’s conduct and relationships with students, including Cepeda, in the face of serious and already significantly-substantiated allegations of misconduct. Beyond rank speculation and conjecture, neither the District Court nor Cepeda cited any substantial direct or circumstantial evidence that would support a finding or inference that MSU knowingly failed to preserve evidence with purpose or intent to conceal unfavorable evidence.


We hold that exercise of supervisory control is necessary and proper on the ground that this case presents a significant question as to whether the District Court is proceeding  under a mistake of law which, if uncorrected prior to final judgment, will likely cause significant injustice rendering ordinary appeal inadequate. Upon extraordinary review, we hold that the District Court abused its discretion in imposing default judgment against MSU as a spoliation sanction under M. R. Civ. P. 37(b)-(c) and (e). We therefore reverse that portion of the District Court’s sanctions order and remand for further proceedings in the ordinary course.

The Bozeman Daily Chronicle reported on the lower court action

A Helena judge has ruled Montana State University allowed email evidence about conductor Shuichi Komiyama to be destroyed and so the university is liable in a former student’s lawsuit, which alleges the university is to blame for hiring a convicted sex offender who coerced her into having sex.

Judge James Reynolds ruled Wednesday in Lewis and Clark County District Court that whether it was done intentionally or negligently, MSU’s failure to preserve all staff and student emails concerning Komiyama “irreparably damages” the former student’s ability to make her case and to respond to MSU’s accusations against her.

Preserving relevant evidence is critical to the court’s “search for the truth,” Reynolds wrote, quoting a 2015 Montana Supreme Court decision. “’There can be no truth, fairness or justice in a civil action where relevant evidence has been destroyed before trial.’”

  MSU’s attorneys had insisted that the university did a reasonable job preserving those emails of Komiyama and other evidence that officials found relevant to the university’s internal investigation. That investigation led to the conductor being banned from campus in April 2011 and losing his job.

University attorneys argued that MSU turned over more than 1,700 pages of evidence to the student’s attorney.

They argued that when some emails were deleted or written over by the MSU computer system, it was not intentional but part of routine practice to free up space in the server a few months after students, administrators and professors leave the university.

“MSU should not get the benefit of the systematic removal of email accounts of its professors, students, and Komiyama, and be the only party to determine what was relevant,” Reynolds wrote. “MSU does not get to determine what will be relevant and important in foreseeable lawsuits.”

Relevance is a decision for trial courts, the judge wrote.

Geoffrey Angel, the Bozeman attorney for the former student, declined to comment on the judge’s ruling. Anderson Forsythe, the Billings attorney for MSU, referred questions to the university.

“MSU is still looking at the ruling, and the case is ongoing,” the university said in a written statement. “The university does not comment on pending litigation.”

Judge Reynolds ordered that MSU pay the former student’s unspecified costs and fees for her effort to seek legal sanctions. His order did not set any date for determining those costs.

The judge also rejected MSU’s effort to have the former student sanctioned for deleting some of her own email and texts. He ruled that unlike MSU, she is not a “sophisticated litigant” who should know the legal rules.

 Also, the judge wrote, MSU attorney Pam Merrell sent out a “do not destroy” notice in June 2011, two months after Komiyama was booted off campus, telling staff that a lawsuit was likely and so all email, voicemail, videos, calendars, correspondence and other evidence should be preserved. MSU had a duty to ensure that emails and texts weren’t deleted, but “allowed that very thing to happen,” the judge wrote.

The former student originally sued MSU in October 2012, charging MSU was negligent for hiring a music professor who turned out to be a convicted sex offender and who coerced her into non-consensual sex.

The erased email would have been critical for showing when MSU knew of Komiyama’s behavior, including the extent of a 2009 complaint by a former male music student, the judge wrote.

The student’s attorney argued MSU shouldn’t have allowed email accounts to be erased for Alan Leech, interim music department head; Susan Agre-Kippenhan, former dean of the College of Arts and Architecture; Diane Letendre, former Title IX director; Komiyama; Heather Bentz, former assistant dean; Merrell; and several MSU students.

Leslie Taylor, then MSU legal counsel, said in an affidavit she directed that Komiyama’s email account be retained, but the judge wrote MSU decided what was relevant and let the rest of his emails be erased. Taylor did not direct a search of Letendre’s email or save Leech’s account when he retired in May 2011.

“This Court finds troubling,” Reynolds wrote, that while MSU sent out a “do not destroy” message, it still let the system systematically delete accounts. “By allowing the systematic deletion of the email accounts, MSU was able to shape the available evidence and limit (the student’s) opportunity to present her claim.”

(Mike Frisch)

September 14, 2018 in General Counsel, Hot Topics, Music, Professional Responsibility | Permalink | Comments (0)