Crecca v. Quemado Independent Schools

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
SARA CRECCA, as Guardian ad Litem
for M.K., a minor,
Plaintiff,
v. 	1:25-cv-00369-JMR-SCY
QUEMADO INDEPENDENT SCHOOLS,
Defendant.
ORDER DENYING MOTION FOR DEFAULT JUDGMENT AS
A SANCTION FOR DEFENDANT’S SPOLIATION OF EVIDENCE
THIS MATTER comes before the Court on Plaintiff’s Motion for Default Judgment as a
Sanction for Defendant’s Spoliation of Evidence. Doc. 54. Defendant filed a response. Doc. 57.
Plaintiff filed a reply. Doc. 59. Having reviewed the briefing and the relevant law, the motion is
hereby DENIED.
I. 	Background
On behalf of M.K., a minor, Plaintiff is suing the Quemado Independent Schools. Doc. 1-
2. M.K. attended Quemado Elementary School during the 2021–22 school year. Id. at 2 ¶ 5.
Plaintiff alleges that M.K. has autism for which he required specialized support in school. Id. ¶ 7.
According to the Complaint, Quemado Independent Schools failed to follow M.K.’s
Individualized Education Program (“IEP”). Id. ¶¶ 14–17. As a result, M.K. “went to the school
bathroom without an escort and was sexually victimized,” by another student. Id. ¶ 17.
In the subject motion, Plaintiff accuses Defendant of spoliation. Specifically, Plaintiff
accuses Defendant of creating new evidence in response to receiving a notice of legal claims and
Plaintiff’s discovery requests. Plaintiff further accuses Defendant of coordinating witness
testimony through a pre-deposition meeting.
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Regarding the alleged creation of evidence, on January 11 and 14, 2022, Plaintiff “sent a
notice of legal claims” to the Defendant. Doc. 54 at 2 ¶ 2. “In response to the notice, on January
18, 2022, Quemado Principal Cindy Orthman (‘Principal Orthman’) created a ‘timeline’ of
events related to M.K.’s sexual assault.” Id. ¶ 3. Plaintiff explains that “Principal Orthman did
not create this timeline contemporaneously with initial reports about M.K. being sexually
assaulted; the timeline was only prepared after correspondence from legal counsel.” Id. ¶ 4. Also
in January 2022, Principal Orthman asked “former Quemado teacher Joel Ahles . . to provide a
written statement regarding M.K.” Id. ¶ 6.
Later, on June 2, 2025, either Principal Orthman or Superintendent David Lackey asked
teacher Andrea Olson “to create a written statement regarding M.K., long after the sexual
assaults of M.K. had occurred.” Id. at 3 ¶ 11. That same day, Defendant responded to Plaintiff’s
discovery requests including a copy of Teacher Olson’s statement. Id. at ¶ 12.
As to alleged coordination of witness testimony, on September 4, 2025, Principal
Orthman, Superintendent Lackey, Teacher Ahles, and Special Education Coordinator Jime Jo
Albin attended a meeting. Id. at 5 at ¶ 22. During the meeting, the participants “reviewed ‘Jime
Jo Albin’s ‘Contact Log and Documentation . . .’ and ‘Mrs. Orthman’s ‘incident/overview
document,’ as well as texts, emails, specific information related to the case.” Doc. 54 at 5 ¶ 25.
“The purpose of the meeting was to review both timeline documents to refresh memories
because the events had occurred four (4) years prior.” Doc. 54-7 at 3. The electronic calendar
invitation for the meeting was titled, “Review of timeline MK.” Doc. 54-8. The meeting lasted
about one-and-a-half hours. Doc. 54 at 5 ¶ 25. Defense counsel was not present at the meeting
and did not know about it until after it occurred. Doc. 57 at 3.
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The following week, on September 9, 2025, Principal Orthman was deposed. Doc. 54-3.
Coordinator Albin was also deposed on September 9, 2025. Doc. 54-4. On September 10, 2025,
Teacher Ahles was deposed. Doc. 54-5. Principal Orthman and Coordinator Albin relied on the
two documents discussed at the September 4th meeting—Coordinator Albin’s “Contact Log” and
Principal Orthman’s timeline of events—throughout their depositions. Doc. 54 at ¶¶ 26(a), (b).
Teacher Ahles testified that he learned “[a] little bit” of information that he did not already know
at the September 4th meeting. Id. at ¶¶ 26(c); Doc. 54-5 at 3 (11:19–21).
II. 	Plaintiff’s Argument
Plaintiff argues that “Defendant’s after-the-fact creation and coordination of evidence
warrants severe sanctions, including default judgment.” Doc. 54 at 8 (capitalization altered).
Plaintiff asserts that, “[t]he sequence of events beginning in December 2021 and continuing
through the September 2025 depositions demonstrates Defendant’s tactics are not isolated lapses,
but rather, a directed and continuous campaign to reshape this case’s evidentiary record.” Id.
Plaintiff elaborates:
The record in this case shows that prior to the threat of litigation against Defendant,
despite receiving a report of repeated sexual assault against M.K., Principal
Orthman created no written findings, no investigative report, nor any other
documentation required under district policies – policies she later admitted she was
under obligation to follow. Indeed, it was only after receiving the notice of legal
claims that she created a “written timeline;” a document she then used to supply the
narrative to form the basis of her testimony and used in advance of the September
2025 depositions to coordinate Defendant’s witness testimony.
Id. at 8–9. Plaintiff further argues:
Strikingly, Principal Orthman’s misconduct did not stop with the post-event
creation of her timeline. After receiving the first legal notice, she solicited at least
two teachers to create written statements regarding M.K. In early 2022, she asked
Teacher Ahles to draft a narrative about events he had never contemporaneously
documented. Then, years later, in June 2025, Principal Orthman or Superintendent
Lackey asked another teacher, Teacher Andrea Olson (“Teacher Olson[”]), to
create a statement about M.K. long after the incidents had occurred. This
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solicitation was clearly in response to receipt of discovery requests from Plaintiff
for statements regarding the allegations put forth in the complaint.
Id. at 9–10. Finally, Plaintiff asserts “Defendant’s misconduct continued via the meeting to
‘review M.K.’s timeline,’ mere days before the depositions of Defendant’s witnesses.” Id. at 10.
“[T]his was not a standard witness preparation session: it was a group meeting to harmonize
testimony, including the use and review of after-the-fact created evidence.” Id. at 10–11.
Plaintiff believes that the prejudice created by the Defendant is “astronomical.” Id. at 11.
“Plaintiff cannot cross-examine a record that did not exist when the events occurred, cannot test
the accuracy of notes written years after the fact, and cannot reliably reconstruct what actually
happened.” Id. at 11–12.
III. 	Discussion
Plaintiff argues that “Defendant’s after-the-fact creation and coordination of evidence
warrants severe sanctions, including default judgment.” Doc. 54 at 8 (capitalization altered).
Defendant responds that the offending conduct does not justify “the ultimate sanction of a default
judgment in Plaintiff’s favor.” Doc. 57 at 4. The Court agrees with the Defendant.
“[C]ourts have broad inherent power to sanction misconduct and abuse of the judicial
process . . . which includes the power to enter a default judgment.” Klein v. Harper, 777 F.3d
1144, 1147 (10th Cir. 2015) (citations and quotations omitted). “[O]ur legal system strongly
prefers to decide cases on their merits.” Lee v. Max Int’l, LLC, 638 F.3d 1318, 1321 (10th Cir.
2011). “The entry of default judgment [as a spoliation sanction] . . . require[s] a showing of bad
faith.” Jones v. Norton, 809 F.3d 564, 580 (10th Cir. 2015) (citation omitted).
Tradionally, “[a] spoliation sanction is proper where: (1) a party has a duty to preserve
evidence because it knew, or should have known, that litigation was imminent, and (2) the
adverse party was prejudiced by the destruction of the evidence.” Jones v. Norton, 809 F.3d 564,
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580 (10th Cir. 2015) (citation omitted). The “meaningful alteration of evidence” can also be
spoliation. Van Winkle v. Rogers, 82 F.4th 370, 374 (5th Cir. 2023) (citation omitted).
When a litigant fabricates evidence, dispositive sanctions can be an appropriate remedy.
Garcia v. Berkshire Life Ins. Co. Of Am., 569 F.3d 1174, 1180 (10th Cir. 2009) (dismissal)
(citing Pope v. Federal Express Corp., 138 F.R.D. 675, 683 (W.D. Mo. 1990)). “Fabricating
evidence and willfully providing false answers during discovery are without doubt abusive
litigation practices that justify the sanction of dismissal with prejudice.” Kenno v. Colorado’s
Governor’s Off. of Info. Tech., No. 19-CV-00165-MEH, 2021 WL 2682619, at *19 (D. Colo.
June 30, 2021), aff’d sub nom. Kenno v. Colorado Governor’s Off. of Info. Tech., No. 21-1353,
2023 WL 2967692 (10th Cir. Apr. 17, 2023) (citing Archibeque v. Atchison, Topeka & Santa Fe
Ry. Co., 70 F.3d 1172, 1175 (10th Cir. 1995)).
Before imposing default judgment as a sanction, however, the Court should consider the
Ehrenhaus factors. See Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir. 1992); Chavez-
DeRemer v. Ascent Constr., Inc., No. 24-4072, 2025 WL 1638134, at *3 (10th Cir. June 10,
2025) (applying the Ehrenhaus factors to a default judgment). Those factors are: “(1) the degree
of actual prejudice to the [other party]; (2) the amount of interference with the judicial process; .
. . (3) the culpability of the litigant; (4) whether the court warned the party in advance that
dismissal of the action would be a likely sanction for noncompliance; and (5) the efficacy of
lesser sanctions.” Gripe v. City of Enid, Okl., 312 F.3d 1184, 1188 (10th Cir. 2002). “It is within
a court’s discretion to dismiss a case if, after considering all the relevant factors, it concludes that
dismissal alone would satisfy the interests of justice.” Ehrenhaus, 965 F.2d at 918. The same
standards apply for granting default judgment. See Chavez-DeRemer, 2025 WL 1638134, at *3.
Here, Plaintiff fails to show that Defendant’s actions were improper. See Duprey v.
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Twelfth Jud. Dist. Ct., 760 F. Supp. 2d 1180, 1226 (D.N.M. 2009) (declining to sanction party
when there was “no indication of misconduct”). In making her argument, Plaintiff incorrectly
conflates the “after-the-fact creation of evidence” with the fabrication of evidence. Specifically,
Plaintiff alleges that Defendant has “repeatedly and methodically manufactured evidence to
support [its] defense,” but provides no factual support for her claim. See Doc. 59 at 2. Plaintiff
insists that there was an apparent conspiracy to fabricate evidence but provides the Court with
insufficient information to independently draw such a conclusion.
First, Plaintiff complains that Principal Orthman created a timeline of events after
receiving a notice of tort claim. Yet, while there is no dispute that Principal Orthman created the
timeline after the fact, there is no evidence that it was fabricated. There is also no indication that
Principal Orthman behaved in bad faith. See Jones, 809 F.3d at 580. Plaintiff does not claim that
the timeline is inaccurate. It is unclear whether there are even any discrepancies between
Principal Orthman’s timeline and Plaintiff’s theory of the case. There are also no allegations that
when it was disclosed in discovery, that Defendant attempted to pass off the timeline as if it was
made contemporaneously with the Plaintiff’s allegations. Doc. 57 at 2. It was certainly not
misconduct for Principal Orthman to create notes for herself about this case, then openly provide
those notes through the discovery process.
Second, Plaintiff complains that several witness statements were drafted well after the
subject incidents. But, again, there is no indication that any of these witness statements contained
false information or that these witnesses behaved in bad faith. See Jones, 809 F.3d at 580.
Plaintiff has not explained how information contained in the statements contradicts Plaintiff’s
theory of the case. Defendant made no attempt to hide these statements and did not misrepresent
when these witness statements were created. A witness is certainly not prohibited at any point in
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time from writing a statement about an incident that occurred days, months, or even years prior.
In fact, it seems axiomatic that, even if not contemporaneously made, a statement written closer
in time to an event is likely to be more accurate than one made later.
Third, Plaintiff asserts that the witnesses impermissibly coordinated their testimony at the
September 4 th meeting. However, Plaintiff does not explain what, if any, false testimony was
provided as a result of the September 4 meeting. Plaintiff only explains one instance where
Plaintiff’s theory of the case differs with the testimony. Plaintiff asserts—without citation to
deposition testimony—that “Defendant’s witnesses . . . insist in their coordinated testimony and
fabricated statements that M.K. and the perpetrating student were always escorted to the
restroom.” Doc. 54 at 12. Whereas, “M.K. testified that school staff failed to escort him or the
perpetrator child to the bathroom more than a handful of times, despite requirements set forth in
M.K.’s IEP and instituted by Quemado in a Safety Plan.” Id. In the deposition excerpts provided
to the Court, none of the Defendant’s witnesses “insist” that M.K. was always escorted into the
restroom. See Docs. 54-3, 54-4, 54-5. Only Teacher Ahles was asked whether he escorted M.K.
to the restroom. Doc. 54-5 at 5 (31:3–17). And Teacher Ahles testified that he would not do so
himself, but the plan was to call an instructional aide. Far from insisting that M.K. was always
escorted to the restroom, Teacher Ahles testified that he could not remember whether or not he
had ever called an instructional aide to escort M.K. to the restroom. Id. Plaintiff further
complains that the deponents relied on the documents discussed at the September 4 th meeting
during their deposition testimony. But the witnesses’ reliance on these other documents during
their depositions, without evidence that the documents were fabricated, is not improper. Given
what is before it, the Court has no reason to believe that any of the witness testimony was
fabricated as a result of the September 4 th meeting.
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None of the conduct Plaintiff complains of amounts to willful misconduct or bad faith. See
Jones, 809 F.3d at 580. Defendant explains, and the Court agrees that:
just prior to depositions, and due to inexperience with litigation, Defendant’s
employees met to go over the events from several years earlier. This was not done
to deceive or mislead anyone. There is no evidence that any of the meeting
attendees changed his or her testimony, or that there was any intent to change
testimony. Nor is there evidence that “false answers” were given under oath as a
result of this meeting.
Doc. 57 at 5. In an affidavit, Superintendent Lacky notes that “this lawsuit is the first time that
the school district has been sued,” since he became Superintendent in 2014. Doc. 57-1 at 1 ¶ 2– 3.
He also affirms that he was “unaware that holding [the September 4 th ] meeting regarding the
lawsuit without Quemado Schools’ legal counsel’s knowledge or presence could be
problematic.” Id. at ¶ 6. He swears that the meeting was not held “in a deceitful or scheming
manner.” Id. at 2 ¶ 7. And, subject to potential objection, at trial, Plaintiff is certainly free to use
the September 4 meeting and/or or the circumstances around the written statements in a robust
cross examination to attempt to discredit and attack the Defendant’s evidence.
Finally, Plaintiff relies on five cases to support her motion. See Garcia v. Berkshire Life
Ins. Co. of Am., 569 F.3d 1174, 1179 (10th Cir. 2009); Archibeque v. Atchison, Topeka, Santa Fe
Ry. Co., 70 F. 3d 1172 (10th Cir. 1995); Ehrenhaus v. Reynolds, 965 F.2d 916 (10th Cir. 1992);
Volcan Grp., Inc. v. Omnipoint Commc’ns, Inc., 552 F. App’x 644 (9th Cir. 2014); Emuveyan v.
Ewing, No. 2:19-CV-00616-HCN-DAO, 2021 WL 3617423 (D. Utah Aug. 16, 2021), clarified
on denial of reconsideration, No. 2:19-CV-00616, 2022 WL 22887659 (D. Utah Apr. 29, 2022).
Yet, none of these cases hold that the after-the-fact creation of evidence is per se spoliation of
evidence.
Ehrenhaus is the case oft cited for the legal standard for imposing dispositive sanctions.
While relevant because it provides the factors this Court must consider when contemplating
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dismissal, the case does not involve spoliation of evidence.
Plaintiff’s other four cases each involved fabricated or falsified evidence. Garcia
involved “an especially egregious case” of fabricated and forged documents. See Garcia, 569
F.3d at 1178–79. Archibeque involved a party who “willfully provided false and misleading
answers on a continual basis during the discovery process.” Archibeque, 70 F. 3d at 1173.
Volcan Group also involved “falsified” documents, emails, financial reports, and project files.
Volcan Grp., Inc., 552 F. App’x at 645. But again, there is no indication that Defendant falsified
any evidence here. Drafting a statement about an alleged incident after it occurs, whether on the
witness’s own volition or at the request of another, does not in and of itself make it fabricated or
forged. Plaintiff’s cases are inapplicable to the current situation.
Plaintiff’s phrase, “after-the fact-creation of evidence” seemingly comes from Emuveyan.
2021 WL 3617423, at *4. In Emuveyan, an employment discrimination case, the District of Utah
held that “[a]fter-the-fact creation of evidence falls under the umbrella of spoliation.” Id.
However, in Emuveyan, the court was referring to new evidence created to mimic evidence made
at the time of the incident. For example, the defendant’s agent back-dated a note describing a
material discussion to appear as if the note was written contemporaneously. Id. at *3–4. The
court found that the defendant also altered dates and notes in plaintiff’s disciplinary records and
added incidents to the then-terminated plaintiff’s disciplinary record after the lawsuit was filed.
Id. at 7– 8. The Emuveyan court did not hold that evidence created after an incident is inherently
spoliation. Such evidence only amounts to spoliation if it is falsified or otherwise intended to
mislead.
At this time, the Court has no reason to believe that the Defendant engaged in
misconduct, sanctionable or otherwise. And because the Court finds that Defendant did not
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engage in sanctionable misconduct, it is not necessary to reach the Ehrenhaus factors.
Plaintiff’s Motion for Default Judgment as a Sanction for Defendant’s Spoliation of
Evidence (Doc. 54) is DENIED.
_______________________________
JENNIFER M. ROZZONI
United States Magistrate Judge
Presiding by Consent
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