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Montana State University-Bozeman v. Montana First Judicial District Court

Supreme Court of Montana

September 11, 2018

MONTANA FIRST JUDICIAL DISTRICT COURT, Lewis and Clark County, and the HONORABLE JAMES P. REYNOLDS, Presiding Judge, Respondent.

          ORIGINAL PROCEEDING: Petition for Writ of Supervisory Control In and for the County of Lewis and Clark, Cause No. DDV-2012-906 The Honorable James P. Reynolds, Presiding Judge

          For Petitioner: W. Anderson Forsythe, Moulton Bellingham, P.C., Billings, Montana

          For Respondent: Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana


          Dirk Sandefur Justice.

         ¶1 This matter comes before the Court on the petition of Defendant Montana State University-Bozeman (MSU) seeking exercise of supervisory control over pending proceedings in the underlying matter of Cepeda v. Montana State University, Cause No. DDV-2012-906, Montana First Judicial District Court, Lewis and Clark County, the Honorable James P. Reynolds, presiding. By order filed April 11, 2018, the District Court summarily adjudicated liability against MSU on Plaintiff Breanne Cepeda's asserted negligence claim[1] as an evidence spoliation sanction pursuant to M. R. Civ. P. 37(e). MSU asserts that the District Court is proceeding under a mistake of law and petitions for supervisory control and reversal of the sanctions order. Upon consideration of MSU's petition, Cepeda's response, and the pertinent facts of record, we find that exercise of supervisory control is necessary and proper and accordingly reverse and remand for further proceedings.[2]


         1. Whether exercise of supervisory control is necessary and proper in this case?

         2. Whether the District Court abused its discretion in imposing default judgment as an evidence spoliation sanction pursuant to M. R. Civ. P. 37(b)-(c) and (e)?


         ¶2 In 2006, MSU hired Shuichi Komiyama as a teaching professor in the Music Department of the MSU College of Arts and Architecture (A&A). At pertinent times, Komiyama was also the Director of the MSU Orchestra and Jazz Band. Incident to those duties, Komiyama developed and administered an informal group of hand-picked students known as his Assistant Conductors group. Komiyama often worked separately with students of the group and chaperoned them on out-of-town and overnight road trips with little or no administrative oversight. Evidence exists that Komiyama also incidentally fraternized with them socially in public and private settings, including his home.

         ¶3 In 2008, Cepeda was an MSU music student when she became a member of Komiyama's Assistant Conductors group. Like other members of the group, Cepeda subsequently developed a relatively close and informal relationship with Komiyama in the various educational and incidental social settings that were typical of the group.

         ¶4 Evidence exists that, in 2009, a male member of the group (Student M) fell out of favor with Komiyama. In or about November 2009, in response to perceived negative treatment from Komiyama, Student M ultimately complained to the Head of the Music Department (Alan Leech) who recommended that he submit a written complaint to Assistant A&A Dean Heather Bentz. Evidence exists that, in December 2009, upon receipt of an email complaint, Bentz interviewed Student M and then consulted about the matter with Glenn Puffer, [3] who subsequently directed Leech to have "a serious talk" with Komiyama and to continue to monitor his conduct. After further communication with Bentz, Leech spoke with Komiyama and followed up with a corrective counseling letter on March 2, 2010. Leech's corrective counseling letter and various preserved email communications referencing Student M, Bentz, and Leech reflect MSU's handling of the Student M complaint. Bentz left MSU's employ two months later in May 2010.

         ¶5 Soon after resolution of the Student M complaint, Leech became aware of additional unprofessional conduct by Komiyama toward music students and faculty. A timeline subsequently prepared by Leech[4] and attached to his deposition in the underlying matter recounts Leech's view that Komiyama "was still causing much friction in his dealings with [f]aculty and [s]tudents." Leech noted that, after gaining tenure in September 2010, Komiyama had "started to be more blatant with his transgressions with students (particularly in the MSU Orchestra)" and disrespectful toward other faculty members. Leech's timeline further recounted that, in or about October 2010, he received an email from the conductor of the Bozeman Symphony forwarding him a link to an Internet article regarding:

a California case in which a person named Komiyama was accused of some sort of sexual transgression with a high school student. There was no statement as to whether there was a conviction contained in the notice and [Leech] could find nothing further online at the time.

         Leech recounted that "[i]t seemed likely that this was our [Komiyama], but since it was just an Internet reference, and from about 20 some years in the past, I could not really act on it in clear conscience."[5]

         ¶6 Leech's timeline reflects that he "started to compile a file" on Komiyama in December 2010 "to take to the MSU legal office" regarding "various complaints and information" regarding Komiyama's "questionable activities." Leech noted that, in or about January 2011, Music Department Professor Sara Biber told him:

about a couple of female students who had talked with her about uncomfortable situations with [Komiyama]. The students wanted to remain anonymous and would not come directly to [Leech] with the accusations, so [Leech] suggested that [Biber] take them to the MSU attorney's office where they could talk directly with [MSU's] female attorneys . . . [Biber later advised] that unfortunately, they refused to go.

         Leech's timeline further reflects that he had also heard unconfirmed rumors of Komiyama offering alcoholic beverages to students at his home. Leech recalled that, on February 18, 2011, Student M's father called Leech and advised that he had personally observed Komiyama offer alcoholic beverages to students in his home when the father was there in the company of his son during a visit. Leech further recalled that, in late February 2011, he also:

heard from a high school teacher in Bozeman that [Komiyama] had been accused of 'sexting' high school girls while engaged in public school coaching in Billings [earlier that month]. The Billings high school administration would not allow him to come into their schools again. [Leech] called the Billings Music Supervisor, Rob Wells[, ] to discuss this and asked him if he would please send [Leech] a letter outlining the accusation. . . . [Leech] subsequently also made a phone call to the Orchestra Director at the Billings school where the incident took place.

         On February 23, 2011, Leech met with MSU's in-house legal counsel (Leslie Taylor and Pam Merrell)[6] to discuss his knowledge and concerns about Komiyama's unprofessional conduct toward students and faculty. Leech noted that counsel advised him to report back after further documenting his concerns.

         ¶7 Leech's timeline reflects that, on March 8 or 9, 2011, he again spoke with Komiyama about his continuing concerns regarding Komiyama's unprofessional conduct. Leech recalled that Komiyama rebuffed him, which Leech subsequently reported "to the Dean." Leech's timeline notes that, in mid-March 2011, he first heard "rumors" of Komiyama "partying in a semi-undressed condition in his room with students" at an educational convention in Missoula on October 10, 2010, but that "no student had, or would, come forward with personal testimony about the actual events." However, in late March 2011, "[s]everal students finally came forward . . . willing to testify about the problems they were having" with Komiyama. Leech interviewed those students and kept notes of the interviews.

         ¶8 According to Leech's timeline, Cepeda contacted him on April 1, 2011, while on a break from student teaching in Denver. Leech recounted that Cepeda "verbally described [Komiyama's] offensive actions and [an] eventual rape" and "promised to send a signed letter." Leech advised her to call the police, and promised that he would "act with MSU legal office backing as soon as [Leech] had her letter in hand." The timeline notes that on April 6, 2011, Leech separately received a letter from the Billings School District Human Resource Officer confirming that the District had banned Komiyama from Billings schools following its investigation of the February 2011 sexting incident. On April 8, 2011, Leech received a follow-up email from Cepeda documenting her complaints about Komiyama, specifically including the allegation that he subjected her to non-consensual sexual intercourse at his home in or about November 2010. Both Leech's timeline and the affidavit of MSU counsel Leslie Taylor reflect that Leech immediately delivered the entirety of his compiled documentation regarding Komiyama to MSU counsel. The documentation included Cepeda's email, other email communications, signed statements from MSU music students, correspondence from the Billings School District, and Leech's notes regarding various student interviews and related matters.

         ¶9 Leech's timeline further reflects that, on April 14, 2011, the Music Supervisor of the Bozeman Public Schools emailed him a link to an Internet story "about a [Shuichi] Komiyama in California who had been charged with sexual" misconduct. The timeline notes that Leech immediately forwarded the email to counsel Taylor and that the link was to the same Internet story that he first saw in late February 2011.[7] On May 15, 2011, Leech retired from MSU as previously planned.

         ¶10 After receiving the Leech materials on April 8, 2011, Taylor excluded Komiyama from campus the next business day pending further investigation. At Taylor's direction, MSU's information technology (IT) personnel immediately preserved Komiyama's MSU email account, deleted his access to the MSU system, and later removed and preserved the hard drive from Komiyama's office computer for imaging. On April 14, 2011, the President of MSU directed MSU Title IX Officer Diane Letendre to investigate the various allegations and issues raised by the Leech materials. Letendre and associate MSU legal counsel Merrell subsequently conducted a comprehensive internal investigation culminating in a thirty-page Investigation Report, dated July 22, 2011. The report recounts that the investigators interviewed Cepeda, Komiyama, seven MSU staff and faculty members, three public witnesses, a parent of an MSU student, and a number of students who had been Komiyama music students (including Assistant Conductors), who had complained about Komiyama, who had requested interviews, or who MSU investigators identified as possible witnesses. The report noted that investigators also obtained copies of emails from Cepeda regarding communications between her and Komiyama and that the Billings School District had similarly "provided copies of interview notes and text messages" between Komiyama and the Billings High School student involved in the February sexting incident.

         ¶11 During the pendency of MSU's internal investigation, Cepeda served a written notice on the Tort Claims Division of the Montana Department of Administration stating her intent to file a legal claim for damages against MSU based on Komiyama's conduct toward her.[8] Under a cover letter dated May 26, 2011, the Tort Claims Division forwarded a copy of the notice to MSU.[9] On June 15, 2011, counsel Merrell emailed a records preservation notice to Susan Agre-Kippenham, the recently departed or outgoing A&A Dean; Joseph Fedock, the new A&A Dean; Gregory Young, the new head of the Music Department after Leech retired in May 2011; and Carole McLean, a music department administrator. The notice advised that "it is possible that some party will sue MSU in relation to the [Shuichi] Komiyama Investigation" and "I am required under the law to make sure that we do not inadvertently destroy information related to potential lawsuits." The notice accordingly instructed the recipients to:

save all correspondence (including voicemail, email, videos, etc.) you or others in the college or music department may have with Komiyama or his students, and that you take steps to assure it is not destroyed. You must treat any other documents related to Komiyama and his students similarly and make sure that you and all others with such documents retain the documents and that they are not destroyed. This includes electronic correspondence or documents of any type, including email, word processing, calendars, voice messages, videos, photographs, information in your cellphones, including texts, etc. . . . If you have any such documents you may send them to [Merrell] for safekeeping, if you wish. [10]

         ¶12 On August 11, 2011, Cepeda filed a quid pro quo sexual harassment claim (i.e., gender discrimination claim) against MSU with the Human Rights Bureau of the Montana Department of Labor and Industry.[11] Cepeda settled the sexual harassment claim seven months later by accepting an offer of judgment from MSU. On October 9, 2013, almost two and a half years after the completion of MSU's internal investigation, Cepeda commenced the underlying District Court litigation by filing a claim alleging that MSU negligently hired or supervised Komiyama and that MSU's negligence caused Cepeda to suffer harm in the form of non-consensual sexual intercourse allegedly inflicted on Cepeda by Komiyama on November 8 or 9, 2010. In September 2015, the District Court heard oral argument on the parties' cross-motions for summary judgment, discovery sanctions, ...

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