Big City Coffee Claims Tromp and BSU Destroyed Evidence

In the ongoing lawsuit filed by Big City Coffee and its owner Sarah Fendley against Boise State University (BSU) regarding the 2020 closing of the coffee shop’s BSU campus location, the plaintiff has filed a memorandum in support of a motion to join BSU President Marlene Tromp as a defendant in the case as well as a memorandum in support of a motion for sanctions for destruction of evidence.

You will recall that the issue which spurred the removal from campus is Big City Coffee’s vocal support of law enforcement. See our previous reporting on this story here, here, here, here, here, and here.

Tromp was named as a defendant in the original complaint, but a motion by the defense to remove her was granted by the Ada County Court in April 2022. Big City’s attorneys are asking for reconsideration of Tromp’s removal from the case, especially given the contents of a deposition Tromp sat for just weeks ago on April 11, 2024 in this matter.

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According to the recently filed memorandum in support of the motion to join Tromp as a defendant in the case,

“During discovery, Defendants aggressively and improperly resisted discovery, attempting to shield Marlene Tromp from being brought back into these proceedings, including by concealing evidence, destroying evidence and producing documents near the close of discovery— and after depositions—among other things. But, one thing is clear: Tromp was intimately involved in the decision and action to remove Plaintiffs from campus. In her own words: “I, ultimately, oversee all of these things.” “

The memorandum lists several examples of the ways in which Tromp was directly involved in the removal of Big City Coffee from the BSU campus. During their own depositions, other defendants in the case described emails, conversations, text messages, and meetings Tromp conducted regarding Big City. The memorandum concludes by summarizing and asking the Court to overturn the decision to remove Tromp as a defendant by joining her back into the suit.

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“In light of the foregoing, it is inconceivable that Tromp did not play an active role in directing and effecting Plaintiffs’ removal from campus. Based on these new allegations, including as to causation, Plaintiffs ask the Court to reconsider its prior ruling and join Tromp as a defendant. It is clear that, from the beginning, Tromp was involved in bringing Big City Coffee to campus, including managing the expected “flash point” on campus related to Big City Coffee’s support of the Thin Blue Line. She was intimately involved in the events leading up to, during, and subsequent to the October 22, 2020, meeting and the official messaging about the meeting. And, again, not only does the documentary and testimonial evidence support Plaintiffs’ argument, but Tromp herself declared that he oversaw this matter personally.”

Also filed by Big City at the end of April was a memorandum in support of a motion for sanctions for destruction of evidence. The court document states,

“Defendants and third-parties witness related to Defendants have deleted emails, texts, etc., despite receiving not one, but two, preservation letters prior to this lawsuit. Defendants and such third-parties testified that they neglected to terminate auto delete functions on their phones, computers, or other devices; this—at least for Defendants—after submitting verified discovery responses stating Defendants did not delete any relevant information.

During the deposition of University President Marlene Tromp (“Tromp”) specifically, she testified she failed to disable the auto delete function on her devices. That is beyond shocking. Tromp failed to do something she was twice instructed to do, and, as a matter of law, had a duty to do the moment litigation was reasonably anticipated.”

Included in the memorandum are excerpts from depositions of the defendants related to the deletion of information relevant to the case.

“This case has been pending for years. To find out in 2024, after sending a preservation reminder twice in 2021 that Plaintiffs’ preservation requests—and Defendants’ duties to preserve—have been ignored is staggering and cannot be anything other than intentional. This point is corroborated by Nicole Nimmons, who testified that BSU attempts to recode information to avoid public records requests:

“Q. Okay. So this — this Google document entitled, “Big City Coffee and Cafe,” you worked on it. Do you know whether Alicia Estey, Marlene Tromp and Lauren Griswold also worked on it?
A. Yes. Lauren worked on it, as well as Alicia Estey, in accordance with the history of the document and the edits it took — that took place in it, including changing the name of the Google document to be, I believe, B, space, C, space, C. Wherein it was — when I was asked about this specific document, I was unable to locate it for some time because the title had been altered.
Q. What was the new title?
A. The new title was B, space, C, space, C, I believe.
Q. And who made that change?
A. I believe it was Alicia — no. I believe it was — it was — I believe it was Lauren who changed the title of it.
Q. Okay. Do you know why they changed the title?

MR. HEPWORTH: Objection to form, foundation.
MS. KRUG: Join.

THE WITNESS: I believe it was for it not to be put forth in a public records request.

Roe Declaration, Ex. K (excerpts of deposition of Nicole Nimmons) (emphasis added).
***
Q. BY MR. ROE: Are you aware of other instances where BSU uses codes to evade public disclosure?

MS. KRUG: Object to the form.

THE WITNESS: I’ve been asked and told not to put things in writing at times because of public records requests and documentation.” “

Big City’s attorneys conclude by asking the Court for three specific sanctions against the Defendants,

“In other words, the misconduct at issue is not isolated, and Defendants and third parties under their control are entitled to no benefit of the doubt. Based on the above discussion, Plaintiffs respectfully request that: (1) the Court award Plaintiffs fees and costs; (2) Plaintiffs be permitted to present to the jury the fact that Defendants and third parties affiliated with the Defendants destroyed evidence; and (3) Defendants receive an adverse jury instruction.”

These motions and memorandums will likely be considered by the Court at the end of May. Barring any further delays or postponements, the trial in this case is set for August 28, 2024.