Erica Stewart Belhaven File
Erica Stewart Belhaven File
Erica Stewart Belhaven File
and through its attorneys of record, and respectfully submits its Supplement to its Motion for
Sanctions and Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C). This Supplement is provided in
light of the Magistrate Judges Order of June 8, 2017, and the report issued on June 9, 2017 by
the third-party computer forensics specialist who examined Plaintiffs iCloud and her current
iPhone.1 The report shows that the photograph produced by Plaintiff to the parties and the Court
on May 31, 2017, which was represented to the Court to be from November, 30, 2015, was
shown not to be from any 2015 data in Plaintiffs iCloud, but instead had a creation date of
August 11, 2016. The Pileum Report also showed that the image had multiple modification
dates, the most recent being shortly before 10:00 p.m. on June 7, 2017, the same day of the
hearing at which the Court ordered Plaintiffs iCloud and iPhone examined.
The examination of Plaintiffs iCloud reveals that her express representation to the Court
that the photograph was from November 30, 2015 is clearly false, in yet another example of the
deliberate spoliation and misrepresentations perpetrated by the Plaintiff in this matter. For the
reasons discussed herein and in the Universitys prior Memorandums, the University respectfully
1
As detailed in the Universitys Motion, the ESI on the iPhone that Plaintiff used to communicate with Durham has
been destroyed by the actions of Plaintiff.
1
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requests the Court grant its Motion, and sanction Plaintiff with dismissal of her action against the
University, pursuant to Fed. R. Civ. P. 37(e)(2)(C). The University also requests Plaintiff and
her counsel be assessed all attorneys fees incurred by the University as well as any other relief
the Court finds proper. In support of this Supplement, the University would show the following:
1. On May 31, 2017, Plaintiffs counsel e-mailed to counsel for all Defendants, as
well as the Magistrate Judge and District Court Judge, a photograph, which Plaintiff represents is
a selfie photograph of herself wearing only underwear, which the e-mail states she sent to
Defendant Tarold Durham on November 30, 2015.2 Plaintiff, through counsel, represents that
this purported November 30, 2015 photograph was just discovered on Plaintiffs iCloud. The
appearance of the purported 2015 photograph comes after more than six months of discovery and
after a Court-ordered sworn statement that she had already produced all relevant photographs.
2. On June 8, 2017, the Magistrate Judge granted the Universitys ore tenus Motion
to Compel, and ordered Plaintiff to provide to a third-party computer forensics specialist for
examination, her current iPhone and access information to her iCloud.3 The Order provides that
the third-party computer forensics specialist will disclose the results of the examination to
report, which was provided to all parties. A copy will be e-mailed to the Court for in camera
review pending leave for the Report to be filed under seal. The highlights of the Report are as
follows:
2
In its Order of June 9, 2017, the Court states it has reviewed the nearly-nude, salacious selfie which was
produced by Plaintiff, and accordingly, the University will not attach a copy as a Pacer accessible exhibit. See Pacer
Docket Entry No. 98 at 2 n.1 (Order).
3
See Pacer Docket Entry No. 92 (Order)
4
See Pacer Docket Entry No. 92 (Order)
2
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November 30, 2015, [w]hen examining Ms. Stewarts iCloud account Pileum
discovered that Ms. Stewart had 721 photos stored in the cloud from May 13,
2015 August 17, 2016. The only photo from 2015 was a video unrelated to
Ms. Stewarts iCloud shows that the creation date of the photograph supplied to
the Court as being from November 30, 2016, in fact had a creation date no earlier
The Pileum Report shows modifications were being made to the image as recently
as June 7, 2017 at 9:51 p. m., approximately seven hours after the Court ordered
The Pileum Report also shows modifications were being made to the image on
May 30, 2017 and May 31, 2017, prior to its production to the parties and the
The Pileum Report also shows Plaintiffs iPhone was activated as a new phone on
August 20, 2016, which gives lie to Plaintiffs earlier discovery responses in
February 2017 that she was in possession of her original phone, and then
For all the reasons discussed herein and in is other pleads as to its Rule 37(e) Motion,
Defendant Belhaven University respectfully requests the Court grant its Motion, and sanction
Plaintiff with dismissal of her action against the University, pursuant to FED. R. CIV. P.
5
See Pileum Report at Page 22.
6
See Pileum Report at Page 23-25.
7
See Pileum Report at Page 9-15.
8
See Pileum Report at Page 16-18.
9
See Pileum Report at Page 5.
3
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37(e)(2)(C). The University also requests Plaintiff and her counsel be assessed all attorneys
fees incurred by the University in bringing the instant Motion, as well as any other relief the
Respectfully submitted,
4
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CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on June 9, 2017, I electronically filed the
37(E)(2)(C) with the Clerk of the Court using the CM/ECF system which sent notification of
Carlos E. Moore
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
[email protected]
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
[email protected]
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
[email protected]
5
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ORDER
Before the Court is Tarold Durhams motion for summary judgment on the two state law
claims lodged against him: intentional and negligent infliction of emotional distress. The matter
The background of this case was recited in an earlier Order and need not be repeated
here. See Stewart v. Durham, No. 3:16-CV-744-CWR-LRA, 2017 WL 548994 (S.D. Miss. Feb.
Durham faces claims that his sexual advances inflicted emotional distress upon Erica N.
emotional distress as a direct result of the act/acts of the defendant. J.R. ex rel. R.R. v. Malley,
62 So. 3d 902, 906 (Miss. 2011) (italics and brackets omitted). Negligent infliction of emotional
Homecrafters, Inc., 744 So. 2d 736, 743 (Miss. 1999) (collecting cases).
Perhaps Durhams most egregious act was texting Stewart a picture of an engorged penis
along with the message, Your [job] interview will be next week. . . . Can I get something for the
interview? The advance was coarse, embarrassing, stupid, and as described by his counsel,
unbecoming of a married Christian father of twin boys. Be that as it may, the evidence does
The day after Durham sent the picture of the tumescent penis, Stewart replied, you can
get [a] hug and kiss after the interview! She then added, Sooo I found myself thinking about
you. The two flirted back and forth: Durham called her boo; Stewart called him Hun. When
Durham wrote I miss you, Stewart responded I miss you too and sent an emoji blowing him
a kiss. She also revealed that she had once participated in a threesome, texting I like stuff like
that . . . so if you become my boo. Stuff like that comes with me. Later she wrote, we can
celebrate once I get the job! along with three winking emoji, and invited Durham to join her
Needless to say these responses do not indicate distress. Stewarts deposition testimony
confirms as much. Counsel opposite asked, Now, by telling him youll hug and kiss him, you
dont sound particularly upset in your response about receiving the penis picture; is that correct?
Stewart answered, No, Im not -- I didnt sound upset. When asked again whether she was
Stewarts most compelling evidence of emotional harm came when she described what
happened (1) after she filed her charge of discrimination with the EEOC, and (2) after she filed
this lawsuit and held a press conference with her attorney, apparently to bring public attention to
her claims. After each of those occurrences, third partiesallegedly friends of Durham
harassed her and, in at least one instance, posted revealing pictures of her on the internet.
That conduct may warrant causes of action against the responsible persons. Without
evidence that the harassment and invasion of privacy were caused by Durham, though, it is not
1
After the briefing on this motion closed, Stewart located and produced a nearly-nude, salacious selfie she had sent
Durham. The supplemental production was vague as to the selfies date, but Stewarts deposition testimony indicates
that she sent Durham the selfie before he sent her the penis photo. In other words, Durhams pornographic photo of
a penis was sent in response to Stewarts scantily-clad selfie.
2
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The question today is not whether Durhams conduct was appropriate or unsavory, the
word Durhams counsel uses to describe Stewarts conduct. Nor is it whether Durhams behavior
constituted sexual harassment in violation of Title VII. The issue is whether he intentionally or
negligently caused Stewart to suffer emotional distress. The available evidence indicates that the
answer is no.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE
3
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and through its attorneys of record1, and respectfully submits its Motion for Sanctions and
relevant electronically stored information (ESI) by the deliberate and knowing disposal of
Plaintiffs phone after Plaintiffs counsel was expressly put on notice by the University to
text messages between her and former Belhaven employee Tarold Durham. In her deposition,
Plaintiff testified that all her text communications with Durham were conducted on her phone.
2. At the very start of this litigation, counsel for the University advised Plaintiffs
counsel in writing of his obligation to preserve ESI, and expressly instructed him to
immediately preserve and sequester any and all mobile telephones and/or other digital devices
belonging to Ms. Stewart, containing any and all text messages or other communications
between Ms. Stewart and Mr. Durham, including any and all images transmitted by Ms.
Stewart.
1
Undersigned counsel represents only Defendant Belhaven University, and does not represent Defendant Tarold
Durham.
1
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counsel informed the Universitys counsel that Plaintiff no longer had the phone and had traded
it in at an AT&T store, effectively destroying any opportunity to recover ESI on the devices
hard drive.
this highly relevant ESI, and by the sequence events detailed below, it is clear that Plaintiff
and/or Plaintiffs counsel acted with intent to deprive the University of the ESI contained on
Plaintiffs phone. FED. R. CIV. P. 37(e)(2). The University has been prejudiced by Plaintiffs
deliberate destruction of the phone, which prevents examination of the actual digital ESI, and
Plaintiff should be sanctioned with dismissal of her action against the University, pursuant TO
(c) September 23, 2016 Letter to Plaintiffs Counsel Discovery Responses, Attached
as Exhibit C;
Exhibit D;
(f) E-Mail Chain from April 28, 2017 May 9, 2017, Attached as Exhibit F;
2
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For all the reasons discussed herein and in its Memorandum, Defendant Belhaven
University respectfully requests the Court grant its Motion, and sanction Plaintiff with dismissal
of her action against the University, pursuant to FED. R. CIV. P. 37(e)(2)(C). The University also
requests Plaintiff and her counsel be assessed all attorneys fees incurred by the University in
bringing the instant Motion, as well as any other relief the Court finds proper.
Respectfully submitted,
3
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CERTIFICATE OF SERVICE
I, MARK FIJMAN, do hereby certify that on May 11, 2017, I electronically filed the
SANCTIONS AND DISMISSAL PURSUANT TO FED. R. CIV. P. 37(E)(2)(C) with the Clerk
of the Court using the CM/ECF system which sent notification of such filing to the following
counsel of record:
Carlos E. Moore
Tucker Moore Group, LLC
306 Branscome Drive
Grenada, MS 38902-1487
[email protected]
Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
[email protected]
Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
[email protected]
4
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