Ohio State will not face legal sanctions for destroying documents that an attorney says could have been vital to his lawsuit against the university.
Attorney Eric Rosenberg filed a motion last July claiming the university failed to preserve documents that would have helped him prove discrimination of and retaliation against his client, College of Pharmacy professor Sheryl Szeinbach.
But Rosenberg failed to prove that OSU was guilty of misconduct, even though some notes and e-mails from university officials were destroyed, according to U.S. Magistrate Judge Mark R. Abel.
“I’m disappointed but I’m not disheartened,” Rosenberg told The Lantern Monday.
The destroyed documents included notes from interviews with 29 employees in the College of Pharmacy assessing their opinion of the college’s administration. Although the notes were destroyed, the university kept a summary of the interviews, which is available as evidence for Rosenberg, the judge said in his ruling last week.
Nonetheless, Abel said OSU attorneys should have told university employees to keep any documents related to Szeinbach’s dispute, including the interview notes. As a result, the judge may inform the jury about the missing documents.
“I do not rule out the possibility that the jury should be informed of OSU’s failure to timely implement a plan to preserve documents relevant to this dispute. No reasonable explanation has been advanced by defendant for its failure to issue an effective preservation directive” no later than the month another plaintiff, Enrique Seoane, filed his suit.
Anne Massaro, the Human Resources employee who conducted the interviews, followed the university’s policy of destroying her notes after she compiled the summary.
“Massaro routinely destroyed interview notes after the written assessment was finalized,” the judge wrote in his decision. “She adopted that practice because OSU’s legal counsel advised her that organizational assessment interview notes were not public records and should be destroyed within six months.”
Rosenberg said that because he doesn’t have the interview notes, he can’t trace comments in the interview summary to specific faculty members.
“I wanted to know who said what, which faculty member may have said what to Mrs. Massaro and now I can’t determine that because I don’t have the notes,” he said.
Even if the notes had been preserved, though, they likely would not have been admissible as evidence, the judge wrote.
Rosenberg also contended that university officials destroyed a computer that was used by a former professor involved in the lawsuit, and that OSU attorneys only gave him about a third of the e-mails he requested.
Although the computer was destroyed, it was used infrequently by former professor Rajesh Balkrishnan, according to court documents.
And the judge concluded that Rosenberg’s motion did not prove the missing e-mails were vital to his case.
University representatives were unavailable for comment.
Szeinbach’s lawsuit will go to trial later this year.
