In Helget v. City of Hays, et. al., Case No. 15-3093 (10th Cir., Jan. 4, 2017), Plaintiff, a former employee with the City of Hays’ police department, alleged that because she provided an affidavit in support of another employee’s wrongful termination lawsuit against the City, she herself was terminated in 2012. She then filed a lawsuit against the City, the police chief, and the city manager alleging violation of her First Amendment rights and retaliatory employment termination. The trial court entered summary judgment in favor of the City and provided qualified immunity for the city manager and the police chief. Plaintiff filed an appeal to the 10th Circuit Court of Appeals. As part of her appeal, Plaintiff argued that the summary judgment order was wrongfully entered prior to the court’s determination of a pending spoliation sanctions motion she had filed.
The basis for Plaintiff’s spoliation claims arose from her allegation that, despite sending Defendants a litigation hold letter demanding preservation of electronically stored information, Defendants did not fully comply with her discovery requests. Plaintiff moved to compel production, and the court at that time found “potential” spoliation issues with the internet usage and email histories of certain of Defendants’ custodians. The court therefore ordered Defendants to have the ESI forensically restored. Plaintiff later filed another sanctions motion. While the sanctions motion was pending, all parties filed motions for summary judgment. In Plaintiff’s summary judgment opposition filings, she only mentioned the spoliation issue briefly in the introduction to her response to Defendants’ summary judgment motion. On appeal, she argued that it was improper for the trial court to rule on the summary judgment motions without first considering her spoliation motion.
The 10th Circuit Court of Appeals found no abuse of discretion, because Plaintiff had failed to address the impact of the spoliation in her summary judgment “in any meaningful way.” The court noted that a party responding to summary judgment who fails to raise evidentiary issues that prevent meeting the summary judgment burden “acts at its own peril.” Plaintiff, the court said, had some duty to alert the court that a pending spoliation motion could affect summary judgment, and the time to do so was before such motion was decided and not on appeal. The court affirmed the entire decision on that ground as well as substantive grounds.