A Helena judge has ruled Montana State University allowed email evidence about conductor Shuichi Komiyama to be destroyed and so the university is liable in a former student’s lawsuit, which alleges the university is to blame for hiring a convicted sex offender who coerced her into having sex.

Judge James Reynolds ruled Wednesday in Lewis and Clark County District Court that whether it was done intentionally or negligently, MSU’s failure to preserve all staff and student emails concerning Komiyama “irreparably damages” the former student’s ability to make her case and to respond to MSU’s accusations against her.

Preserving relevant evidence is critical to the court’s “search for the truth,” Reynolds wrote, quoting a 2015 Montana Supreme Court decision. “’There can be no truth, fairness or justice in a civil action where relevant evidence has been destroyed before trial.’”

MSU’s attorneys had insisted that the university did a reasonable job preserving those emails of Komiyama and other evidence that officials found relevant to the university’s internal investigation. That investigation led to the conductor being banned from campus in April 2011 and losing his job.

University attorneys argued that MSU turned over more than 1,700 pages of evidence to the student’s attorney.

They argued that when some emails were deleted or written over by the MSU computer system, it was not intentional but part of routine practice to free up space in the server a few months after students, administrators and professors leave the university.

“MSU should not get the benefit of the systematic removal of email accounts of its professors, students, and Komiyama, and be the only party to determine what was relevant,” Reynolds wrote. “MSU does not get to determine what will be relevant and important in foreseeable lawsuits.”

Relevance is a decision for trial courts, the judge wrote.

Geoffrey Angel, the Bozeman attorney for the former student, declined to comment on the judge’s ruling. Anderson Forsythe, the Billings attorney for MSU, referred questions to the university.

“MSU is still looking at the ruling, and the case is ongoing,” the university said in a written statement. “The university does not comment on pending litigation.”

Judge Reynolds ordered that MSU pay the former student’s unspecified costs and fees for her effort to seek legal sanctions. His order did not set any date for determining those costs.

The judge also rejected MSU’s effort to have the former student sanctioned for deleting some of her own email and texts. He ruled that unlike MSU, she is not a “sophisticated litigant” who should know the legal rules.

Also, the judge wrote, MSU attorney Pam Merrell sent out a “do not destroy” notice in June 2011, two months after Komiyama was booted off campus, telling staff that a lawsuit was likely and so all email, voicemail, videos, calendars, correspondence and other evidence should be preserved. MSU had a duty to ensure that emails and texts weren’t deleted, but “allowed that very thing to happen,” the judge wrote.

The former student originally sued MSU in October 2012, charging MSU was negligent for hiring a music professor who turned out to be a convicted sex offender and who coerced her into non-consensual sex.

The erased email would have been critical for showing when MSU knew of Komiyama’s behavior, including the extent of a 2009 complaint by a former male music student, the judge wrote.

The student’s attorney argued MSU shouldn’t have allowed email accounts to be erased for Alan Leech, interim music department head; Susan Agre-Kippenhan, former dean of the College of Arts and Architecture; Diane Letendre, former Title IX director; Komiyama; Heather Bentz, former assistant dean; Merrell; and several MSU students.

Leslie Taylor, then MSU legal counsel, said in an affidavit she directed that Komiyama’s email account be retained, but the judge wrote MSU decided what was relevant and let the rest of his emails be erased. Taylor did not direct a search of Letendre’s email or save Leech’s account when he retired in May 2011.

“This Court finds troubling,” Reynolds wrote, that while MSU sent out a “do not destroy” message, it still let the system systematically delete accounts. “By allowing the systematic deletion of the email accounts, MSU was able to shape the available evidence and limit (the student’s) opportunity to present her claim.”

Gail Schontzler can be reached at 406-582-2633 or gails@dailychronicle.com.

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