Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 1 of 5

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

ERICA N. STEWART PLAINTIFF

VS. CIVIL ACTION NO.: 3:16-cv-744 (CWR)(LRA)

TAROLD DURHAM AND BELHAVEN

UNIVERSITY DEFENDANTS

DEFENDANT BELHAVEN UNIVERSITYS SUPPLEMENT

TO MOTION FOR SANCTIONS AND DISMISSAL
PURSUANT TO FED. R. CIV. P. 37(E)(2)(C)

COMES NOW Defendant Belhaven University (the University or Belhaven), by

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

counsel for all parties.4

3. On June 9, 2017, the third-party computer forensics specialist submitted his

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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 Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 3 of 5

In regard to the photograph represented to the Court as having been sent on

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

communications between Ms. Stewart and Mr. Durham.5

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

than August 11, 2016.6

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

Plaintiffs iCloud and iPhone to be forensically examined.7

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

Court on May 31, 2017.8

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

subsequently traded it in at AT&T, resulting in the destruction of the ESI.9

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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 Case 3:16-cv-00744-CWR-LRA Document 99 Filed 06/09/17 Page 4 of 5

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.

THIS, the 9th day of June, 2017.

Respectfully submitted,

PHELPS DUNBAR, LLP

BY: /s/ Mark Fijman

W. Thomas Siler, Jr., MB #6791
LaToya C. Merritt, MB #100054
Mark Fijman, MB #99153
4270 I-55 North
Jackson, Mississippi 39211-6391
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: silert@phelps.com
merrittl@phelps.com
fijmanm@phelps.com

ATTORNEYS FOR DEFENDANT BELHAVEN

UNIVERSITY

4
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CERTIFICATE OF SERVICE

I, MARK FIJMAN, do hereby certify that on June 9, 2017, I electronically filed the

above and foregoing DEFENDANT BELHAVEN UNIVERSITYS SUPPLEMENT TO

MOTION FOR 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
carlos@tuckermoorelaw.com

Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com

ATTORNEYS FOR PLAINTIFF

Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com

ATTORNEY FOR TAROLD

DURHAM

/s/ Mark Fijman

MARK FIJMAN

5
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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

ERICA N. STEWART PLAINTIFF

V. CAUSE NO. 3:16-CV-744-CWR-LRA

TAROLD DURHAM; BELHAVEN DEFENDANTS

UNIVERSITY

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

is fully briefed and ready for review.

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.

9, 2017). The familiar summary judgment standard applies.

Durham faces claims that his sexual advances inflicted emotional distress upon Erica N.

Stewart. In Mississippi, intentional infliction of emotional distress requires proof of severe

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

distress requires, unsurprisingly, sufficient proof of emotional distress. Adams v. U.S.

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

not show that it actually caused Stewart to suffer emotional distress.

 Case 3:16-cv-00744-CWR-LRA Document 98 Filed 06/09/17 Page 2 of 3

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

and a friend for a drink at a local restaurant.1

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

upset in any way over the photo, she replied no.

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

enough to proceed to trial against him.

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.

The motion for summary judgment is granted.

SO ORDERED, this the 9th day of June, 2017.

s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

3
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IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION

ERICA N. STEWART PLAINTIFF

VS. CIVIL ACTION NO.: 3:16-cv-744 (CWR)(LRA)

TAROLD DURHAM AND BELHAVEN

UNIVERSITY DEFENDANTS

DEFENDANT BELHAVEN UNIVERSITYS MOTION FOR

SANCTIONS AND DISMISSAL PURSUANT TO FED. R.
CIV. P. 37(E)(2)(C)

COMES NOW Defendant Belhaven University (the University or Belhaven), by

and through its attorneys of record1, and respectfully submits its Motion for Sanctions and

Dismissal Pursuant to FED. R. CIV. P. 37(e)(2)(C) because of spoliation and destruction of

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

preserve it as evidence, and would show as follows:

1. Plaintiffs sexual harassment lawsuit against the University is based on 38 days of

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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3. Following the Universitys request that Plaintiffs phone be produced, Plaintiffs

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.

4. Plaintiff and/or Plaintiffs counsel failed to take reasonable steps to preserve

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

FED. R. CIV. P. 37(e)(2)(C).

5. In addition to the Universitys contemporaneously filed Memorandum, the

University also offers the following exhibits in support of its Motion:

(a) Excerpts of Erica Stewart Deposition, Attached as Exhibit A;

(b) EEOC Charge Detail Inquiry Erica Stewart, Attached as Exhibit B;

(c) September 23, 2016 Letter to Plaintiffs Counsel Discovery Responses, Attached

as Exhibit C;

(d) Excerpt of Plaintiffs February 14, 2017 Discovery Responses, Attached as

Exhibit D;

(e) Sworn Affidavit of Erica Stewart, Attached as Exhibit E;

(f) E-Mail Chain from April 28, 2017 May 9, 2017, Attached as Exhibit F;

(g) January 4, 2016 Text Messages Produced by Plaintiff, Attached as Exhibit G.

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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.

THIS, the 11th day of May, 2017.

Respectfully submitted,

PHELPS DUNBAR, LLP

BY: /s/ Mark Fijman

W. Thomas Siler, Jr., MB #6791
LaToya C. Merritt, MB #100054
Mark Fijman, MB #99153
4270 I-55 North
Jackson, Mississippi 39211-6391
Telephone: 601-352-2300
Telecopier: 601-360-9777
Email: silert@phelps.com
merrittl@phelps.com
fijmanm@phelps.com

ATTORNEYS FOR DEFENDANT BELHAVEN

UNIVERSITY

3
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CERTIFICATE OF SERVICE

I, MARK FIJMAN, do hereby certify that on May 11, 2017, I electronically filed the

above and foregoing DEFENDANT BELHAVEN UNIVERSITYS MOTION FOR

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
carlos@tuckermoorelaw.com

Charles T. Tucker
Tucker Moore Group, LLC
16009 Lavender Dream Lane
Brandywine, MD 20613
charles@tuckermoorelaw.com

ATTORNEYS FOR PLAINTIFF

Gerald A. Mumford
820 North Street
Jackson, Mississippi 39202
(601) 398-2347
gerald@themumfordfirm.com

ATTORNEY FOR TAROLD

DURHAM

/s/ Mark Fijman

MARK FIJMAN

4
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