The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
JOSEPH SIEFERT, et al., : Case No. 1:17-cv-511
:
Plaintiffs, : Judge Timothy S. Black
:
vs. :
:
HAMILTON COUNTY :
BOARD OF COMMISSIONERS, et al., :
:
Defendants. :
ORDER DENYING REQUEST TO PERMIT DISCOVERY INTO SPOLIATION
This civil action is before the Court upon Plaintiffs’ request to conduct discovery
into the Defendant Children’s Hospital’s alleged spoliation of evidence. The parties
discussed this issue at an informal discovery conference held with the Court on
December 14, 2021. The Court has received written statements on the issue from counsel
and the relevant correspondence between the parties. The Court is ready to decide on the
request for discovery into spoliation.
I. FACTUAL BACKGROUND1
Plaintiffs are the parents of Minor Siefert (“M.S.”). Defendants are Hamilton
County and its sub-agencies (“County Defendants”) and Children’s Hospital Medical
Center, along with individuals employed by Children’s Hospital Medical Center
(“Hospital Defendants,” or “Children’s Hospital” unless otherwise specified).
1 For this Order, the factual background is taken from the complaint (Doc.1), the written
statements before the informal discovery conference of December 14, 2021, and the
representations at the informal discovery conference.
In November 2016, M.S. was admitted to Children’s Hospital. The context
regarding M.S.’s admission involves mental health and gender identity issues. Against
the wishes of Plaintiffs, for a period of 30 days, Defendants refused to release M.S. back
into Plaintiffs’ custody. During this 30-day period, Defendant Hamilton County Juvenile
and Family Services considered many options, including, it seems, initiating a court case
regarding the custody or care of M.S, although County Defendants never obtained a court
order regarding their holding of M.S. Plaintiffs requested M.S.’s release several times
during this 30-day period. Defendants only released M.S. after Plaintiffs agreed to let
M.S.’s grandparents take care of M.S., pursuant to a safety plan.
In the instant case, after motions to dismiss and an appeal and remand, there is
only one cause of action before this Court: a violation of procedural due process under
42 U.S.C. §1983.
The factual universe relevant to the question before the Court presently is narrow.
Specifically, there are three communications that are potentially relevant.2 Plaintiffs
suggest one or more of these communications should have triggered the duty to preserve
email evidence and that Hospital Defendants failed to do so.
In an email from Defendant Dr. Jennifer Bowden to other hospital personnel dated
December 9, 2016, Bowden says “JFS is seeking to take custody.” In the next sentence,
Bowden explains why in her estimation the child should not be discharged to the family.
And in the very next sentence, Bowden says “This case is likely to go to court…”
2 These communications are not themselves in the record. Counsel emailed them to the Court at
the Court’s request.
On April 11, 2017, about four months after M.S. had been released to the
grandparents, Plaintiffs’ counsel sent a letter to Hospital Defendants. The letter details the
facts surrounding the 30-day holding of M.S. After summarizing the factual account,
Plaintiffs’ counsel says:
These facts establish violations of Ohio and federal law. That is because, during the
entire time that [M.S.] was being held at the hospital, Children's, JFS, and their
representatives deprived Mr. and Mrs. Siefert of their association and custody of their
child, without their consent, without due process, and without a court order. Before we
make a final decision on how to proceed with this case, I would appreciate hearing your
response to the issues that I have raised. For that reason, I would encourage you or our
legal representative to contact me at the earliest possible convenience.
By letter dated April 24, 2017, in-house counsel for the Hospital Defendants
responded on behalf of the Hospital Defendants. The Hospital Defendants stated their
opinion that the hospital was not a state actor. The letter goes on: “If you are considering
filing suit, I would note that CCHMC is typically willing to accept responsibility for the
care and treatment provided by its employees…” and then describes a procedure whereby
the Hospital would receive a list of possible Defendants to avoid the process of serving
individuals. According to the parties at conference, there was no follow up
correspondence. Plaintiffs filed suit on August 1, 2017 and effectuated service on all
Defendants shortly thereafter.
II. STANDARD OF REVIEW
“[A] a party seeking an adverse inference instruction based on the destruction of
evidence must establish (1) that the party having control over the evidence had an
obligation to preserve it at the time it was destroyed; (2) that the records were destroyed
“with a culpable state of mind”; and (3) that the destroyed evidence was “relevant” to the
party's claim or defense such that a reasonable trier of fact could find that it would
support that claim or defense. Beaven v. U.S. Dep't of Just., 622 F.3d 540, 553 (6th Cir.
2010).3 “Thus, an adverse inference for evidence spoliation is appropriate if the
Defendants knew the evidence was relevant to some issue at trial and ... [their culpable]
conduct resulted in its loss or destruction.” Id. (quoting Hodge v. Wal–Mart Stores, Inc.,
360 F.3d 446, 450 (4th Cir.2004)).
“An obligation to preserve may arise when a party should have known that the
evidence may be relevant to future litigation, but, if there was no notice of pending
litigation, the destruction of evidence does not point to consciousness of a weak case and
intentional destruction.” Joostberns v. United Parcel Servs., Inc., 166 F. App'x 783, 797
(6th Cir.2006).
Plaintiffs do not move for a sanction for spoliation here, though. Instead, they have
requested discovery into spoliation.
Rule 26(b)(1) provides that a party: “may obtain discovery regarding any matter,
not privileged, that is relevant to the claim or defense of any party…. But the Court has
the power to limit discovery, even if it is relevant. Specifically, Rule 26(b)(2) permits a
court, upon its own initiative, to limit "the frequency or extent of use of discovery
methods" if:
3 The sanctions for spoliation run the gamut from an adverse inference to dismissal of claims. Mosaid Techs. Inc. v.
Samsung Elecs. Co., 348 F. Supp. 2d 332, 335 (D.N.J. 2004).
(i) the discovery sought is unreasonably cumulative or duplicative, or is
obtainable from some other source that is more convenient, less
burdensome, or less expensive; (ii) the party seeking discovery has had
ample opportunity by discovery in the action to obtain the information
sought; or (iii) the burden or expense of the proposed discovery outweighs
its likely benefit, taking into account the needs of the case, the amount in
controversy, the parties' resources, the importance of the issues at stake in
the litigation, and the importance of the proposed discovery in resolving the
issues.
III. ANALYSIS
As a threshold matter, the Court finds that the April 2017 email from Dr. Bowden
to staff does not give rise to any obligation to preserve evidence. Context makes clear
that Dr. Bowden is discussing the possibility of something like a custody proceeding, not
contemplating a civil rights case like the one that emerged. Moreover, it is not clear if
Dr. Bowden or anyone she is writing to has the ability to keep records or maintains an
appropriate agency relationship with the Hospital such that they could command record
preservation. This calls into question the idea of “control” over the evidence. Beaven,
622 F.3d at 553. For these reasons, the Court finds that December 2016 email does not
trigger the Hospital Defendants’ duty to preserve records.
The import of the April 2017 letter from Plaintiffs’ counsel to Defendants’ counsel
is another matter. This letter clearly raises the prospect of litigation, but it also states that
Plaintiffs are considering their options and that Plaintiffs’ counsel wishes to discuss the
issue. Noticeably absent, especially for a letter from counsel, is any request to preserve
evidence. Defendants’ response likewise suggests the expectation that the parties would
discuss things further and asks for a list of Defendants, “if you are considering filing
suit.” Plaintiffs’ counsel did not, apparently, follow up.
To be clear, based on what is before it, the Court lacks several of the factual
elements regarding a finding of spoliation. To start, Plaintiffs do not assert that relevant
evidence was destroyed. Plaintiffs only seem to suspect that unretained emails could
contain relevant evidence. “Mere skepticism that an opposing party has not produced all
relevant information is not sufficient to warrant drastic electronic discovery measures.”
John B. v. Goetz, 531 F.3d 448, 460 (6th Cir. 2008). Without knowing much about the
potentially destroyed evidence, the Court cannot say if would help a reasonable trier of
fact. Finally, Plaintiff’s 2017 letter to Defendants is equivocal on the possibility of
litigation. Even if the Court found that Hospital Defendants were on notice of litigation,
the issue is whether Defendants “knew the evidence was relevant to some issue at trial.”
Beaven, 622 F.3d at 553 (6th Cir. 2010). Plaintiffs do not assert a basis for why their
letter should have triggered an awareness that emails specifically would be relevant to
any future litigation. See Joostberns, 166 F. App'x 783, 797 (6th Cir. 2006).
Plaintiffs may well protest that these gaps indicate why discovery is necessary.
For now, the Court, under its discretion pursuant to Rule 26(b)(2), finds that Plaintiffs’
theory of spoliation is too tenuous to allow discovery into email spoliation specifically.
Additionally, the Court would expect discovery on this topic to cause substantial time and
cost to the parties. For that reason, the burden or expense of the proposed discovery into
the email spoliation outweighs its likely benefit.
IV. CONCLUSION
Wherefore, for the reasons stated here:
1) The Court DENIES Plaintiffs leave to conduct discovery into the
conclusory alleged spoliation of Defendants’ emails.
IT IS SO ORDERED.
Date: 12/15/2021 maby, .
Timot lack
United States District Judge