Ohio State destroyed loads of documents that it shouldn’t have and should be punished for it, according to a motion in a lawsuit against the university.
OSU acknowledged in a legal reply that some documents were destroyed but that the destruction didn’t violate any laws or university policies and will not affect the ability of those suing OSU to prepare their case. A judge is expected to rule on the claims later this month and the repercussions could be swift.
Two pharmacy professors and a former College of Public Health adjunct professor sued the university in 2007, alleging that they were victims of discrimination and retaliation.
The attorney for the three, Eric Rosenberg, said OSU has deleted or otherwise not produced documents he has requested for one of his clients, Sheryl Szeinbach.
Rosenberg is seeking a legal sanction called adverse inference from the judge. If the judge issues such a ruling, he would then inform the jury that OSU destroyed documents that would have been favorable to Rosenberg’s clients.
“Given the level of involvement of Ohio State University attorneys in this case, the documents should have been preserved,” he said in an interview.
In fact, the judge could decide that the document destruction was so devastating to Rosenberg’s client that he could determine that OSU is guilty of the civil charges in the case.
Rosenberg said that is unlikely.
Szeinbach and Enrique Seoane-Vazquez, the pharmacy professors, filed separate but similar suits alleging that their coworkers plotted against them and made their jobs miserable.
Seoane’s suit was dismissed because the Equal Employment
Opportunity Commission is considering the case and hasn’t ruled on it yet. If the EEOC determines that his tenure-discrimination claim is valid, then the commission will “have the first bite of the apple,” Rosenberg said. Whatever happens with the EEOC case, Seoane probably will refile his suit in federal court, Rosenberg said.
Rosa Rodriguez-Monguio, Seoane’s girlfriend in the College of Public Health, claims she lost her job at OSU when she lost research money because of complaints made by a different pharmacy professor. A destruction of documents claim might be made later in her case, Rosenberg said.
In Rosenberg’s July motion for sanctions, he claims that OSU generally issues letters to preserve documents when attorneys become involved in human resources matters, such as in Seoane’s case in 2005 when he filed a discrimination/harassment complaint.
But OSU didn’t tell those involved, Rosenberg claims, and in January 2007, the university wiped the hard drive of one of the principal people involved in the case, Raj Balkrishnan.
OSU’s response, filed the next month, is that Balkrishnan, who held dual appointments in the pharmacy and public health colleges, rarely, if ever, used the computer in question.
The destroyed computer was at his public health office, which he didn’t use often, and Information Technology staff reviewed the hard drive before destroying it and didn’t see any documents that needed to be preserved.
The university says it has produced more than 105,000 documents and e-mails to the plaintiffs, and that the accusers “have made several attempts to get OSU to do their work for them” in finding documents.
In one deposition, Rosenberg claimed some of the e-mails were not produced to him, but an OSU attorney refuted it. Rosenberg said he had more than 80,000 documents to look through, and “it’s very possible that I made a mistake.”
The university mentions a previous court decision that says courts generally do not impose an adverse inference decision on destroyed evidence unless it was done in bad faith. Further, that ruling requires that attorneys have proof that the documents ever existed.
Rosenberg’s motion claims an OSU Human Resources consultant intentionally destroyed notes that were written when she interviewed faculty to assess leadership effectiveness.
HR consultant Anne Massaro interviewed faculty about the feuds going on in the College of Pharmacy. But instead of writing down verbatim what she heard, she just took notes and synthesized them into a report and later destroyed her notes.
The notes had evidence supporting Rosenberg client’s retaliation or discrimination claims, he said, and the destruction shows that the university intentionally got rid of evidence. OSU’s attorneys should have told her not to destroy any documents, he said.
“There’s no way that her final report could possibly contain all the notes,” Rosenberg said. “Her final report does not contain all the information from her 31 faculty interviews because Massaro doesn’t know specifically who said what.”
The university said that destroying the notes was consistent with OSU policy, and she had a “pretty clear recollection” of what happened in her meetings.
They cite previous court decisions that say it is OK to get rid of notes if they are the basis for a final report, as in this case.
The lawsuit involving Szeinbach is scheduled for trial in late 2010.
No trial date has been scheduled for Monguio.
