Lopez v. Cardenas Mkts.

1

David Lopez, Plaintiff, v. Cardenas Markets, LLC, Defendant.

No. 2:21-cv-01915-JCM-BNW

United States District Court, D. Nevada

May 1, 2023

ORDER RE ECF NO. 21

BRENDA WEKSLER, UNITED STATES MAGISTRATE JUDGE.

Before the Court is Plaintiff David Lopez's Motion for Sanctions. ECF No. 21. Defendant opposed at ECF No. 28, and Plaintiff replied at ECF No. 33. The Court held an evidentiary hearing on April 24, 2023. ECF No. 36.

The Court has reviewed the parties' briefs and attached exhibits as well as the testimony and evidence presented at the evidentiary hearing. For the reasons discussed below, the Court, in its discretion, grants in part Plaintiff's motion for sanctions.

I. Background

This is an action arising out of a 2019 slip-and-fall accident at a Cardenas supermarket in Las Vegas. ECF No. 1-2. Plaintiff filed suit in state court, alleging several causes of action including negligence. Id. Defendant subsequently removed the action to this Court. ECF No. 1. II. Discussion

A. Parties' Arguments

Plaintiff argues that Defendant spoliated electronically stored information (“ESI”), namely picture(s) and/or video(s) taken of the area where Plaintiff fell several minutes after the fall. ECF No. 21 at 2-3, 9. According to Plaintiff, the surveillance video of the store shows what appears to be Defendant's store manager taking photo(s) and/or video(s) of the area where Plaintiff fell while Plaintiff was still on the floor. Id. at 3. However because the evidence was spoliated, he does not know whether the store manager took just one photo or several photos and whether video was taken as well. Id. at 3 n.9. Finally, he adds that this spoliation has prejudiced “his ability to fairly present his case to a jury.” Id. at 4, 7-9.

Defendant argues that Plaintiff's motion is untimely, as it was brought after the close of discovery and in response to Defendant's summary judgment motion. ECF No. 28 at 3-4 9. In the event the Court finds Plaintiff's motion timely, Defendant concedes that it lost “one picture” of Plaintiff at the scene of the fall, but argues that any claim that additional pictures or videos exist is speculative. Id. at 5, 9. It also argues that the picture is of Plaintiff and not the area where Plaintiff fell. Id. at 6. Ultimately, Defendant argues Plaintiff has failed to meet his burden that the ESI cannot be replaced with additional discovery or that he has suffered any prejudice. Id. at 5-6, 9.

Plaintiff replies that (1) his motion is timely and was filed as reasonably practical after learning of the spoliation; (2) Defendant asked for two continuances to respond to Plaintiff's discovery requests that revealed the lost ESI; (3) the cases Defendant cites to establish untimeliness involve parties waiting over nine months to bring the spoliation motion; (4) he filed the motion before the dispositive-motions deadline; and (5) he was working on multiple motions at the same time, including a motion to strike and his response to Defendant's motion for summary judgment. ECF No. 33 at 1-3. Plaintiff also argues that “[t]he video clearly shows that the Store Manager is not pointing his cell phone at [Plaintiff] nor taking a picture of him” but is, instead, taking a picture of the spill, which goes to the issue of notice. Id. at 4, 6. Further, he submits that the lost photo referenced in the Incident Report “would be in addition to the picture(s)/video the Store Manager took of the exact area” where Plaintiff slipped. Id. at 4. Finally, Plaintiff asserts that Defendant has not explained why it lost the ESI.

B. Legal Standard

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve [evidence,] . . . in pending or reasonably foreseeable litigation.” United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). Fed.R.Civ.P. 37 (“Rule 37”) authorizes the Court to sanction non-adherence to discovery rules, including spoliation of evidence.

Before determining whether the Court should impose sanctions, Rule 37(e) requires the Court to assess the following four criteria: (1) whether the information qualifies as electronically stored information (“ESI”); (2) whether there was a duty to preserve the ESI in the anticipation or conduct of litigation; (3) whether the ESI was lost because a party failed to take reasonable steps to preserve it; and (4) whether the ESI can be restored or replaced through additional discovery.

If those criteria are met, and the reviewing court finds there is “prejudice to another party from [the] loss of the [ESI],” the Court may “order measures no greater than necessary to cure the prejudice.” Fed.R.Civ.P. 37(e)(1).

If, however, the party who was supposed to preserve the ESI “acted with the intent to deprive another party of the information's use in the litigation,” the Court may authorize the following sanctions:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e)(2).

Terminating sanctions under Rule 37(e)(2)(C) are “very severe.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007). However, they are appropriate when the Court finds “willfulness, fault, or bad faith.” Leon v. IDXSystems Corp, 464 F.3d 951, 958 (9th Cir. 2006).

“[T]he relevant standard of proof for spoliation sanctions is a preponderance of the evidence.” Fast v. GoDaddy.com LLC, 340 F.R.D. 326, 335 (D. Ariz. 2022) (citations omitted).

C. Analysis

Plaintiff fell while grocery shopping at one of Defendant's Las Vegas stores. Joint Exh. 7. Plaintiff's slip-and-fall was captured on Defendant's security camera. Id. Defendant preserved the video showing Plaintiff's fall. See ECF No. 21 at 2; see also Joint Exh. 7.

Defendant has a policy requiring that photos be taken of the area where the fall took place. ECF No. 21-5 at 2-3; ECF No. 36 at 27:50-28:14, 1:17:23-1:17:39. Its policy is to take photos of the area of the incident, not of the person who fell.^[1] ECF No. 36 at 51:08-51:28. At the evidentiary hearing, store manager Luis Pichardo testified that he does not have a memory of this 2019 incident but, based on the video footage and Defendant's policy, it is likely that he took a picture on either his personal or work cell phone of the area where Plaintiff fell and followed the company's procedures for sharing the picture with the proper personnel. Id. at 48:06-48:37, 50:35-51:03; 1:06:08-1:06:30, 1:12:14-1:12:27. Mr. Pichardo's testimony is supported by security video of the fall, as this footage shows him walking around Plaintiff (who remains on the floor waiting for an ambulance to arrive), bending over, retrieving what appears to be a cell phone from his pocket, and positioning the cell phone to take a photo. See Joint Exh. 7. Defendant did not preserve this photo. See ECF No. 28 at 5.

1. Plaintiff's motion for sanctions is timely.

Defendant argues that Plaintiff's motion is untimely. ECF No. 28 at 3-4. The Court, however, disagrees.

It is generally agreed that a motion for sanctions must be timely filed. MGA Ent., Inc. v. Nat'l Prod. Ltd., No. CV 10-07083 JAK SSX, 2012 WL 4052023, at *4 (C.D. Cal. Sept. 14, 2012). Unduly delaying in bringing a motion for discovery sanctions renders such a request untimely. See Brown v. Hawaii, 2009 WL 3365850, at *2-3 (D. Haw. Oct. 19, 2009); see also MGA Ent., Inc., 2012 WL 4052023 at *4. The outer limit for seeking discovery sanctions that are dispositive in nature is the deadline for filing dispositive motions. See, e.g., Hall v. Schumacher, 2011 WL 4458845, at *3 (D. Nev. Sept. 23, 2011); Larios v. Lunardi, 442 F.Supp.3d 1299, 1305 (E.D. Cal. 2020), aff'd, 856 Fed.Appx. 704 (9th Cir. 2021), and aff'd, 856 Fed.Appx. 704 (9th Cir. 2021) (noting that federal district courts have allowed parties to file spoliation motions after discovery closes).

Here, Plaintiff brought the instant motion for sanctions a few weeks after the close of discovery but before the deadline to file dispositive motions. Compare ECF No. 17 at 3 (the Court set a dispositive-motions deadline of March 10, 2023) with ECF No. 21 (Plaintiff filed the instant motion on March 9, 2023). The Court has reviewed cases where courts have found motions for sanctions untimely and finds that the facts of this case differ from those. In many of these cases, the movant waited a considerable period of time-ranging from six months to a year- after learning of the alleged spoliation to bring the motion for sanctions. See, e.g. MGA Ent., Inc., 2012 WL 4052023, at *4 (movant waited six months after learning of the alleged spoliation to bring the motion for sanctions); Larios, 442 F.Supp.3d at 1306 (finding a party's motion for sanctions untimely because the movant failed to explain why it waited nine months to bring the motion).

Accordingly, because Plaintiff received Defendant's responses regarding the lost ESI only a few weeks before the close of discovery-and after Defendant had requested two continuances to provide him with its responses-and Plaintiff filed this motion before the dispositive-motions deadline, the Court finds the motion timely.

2. Plaintiff has established a threshold showing of spoliation.

First, the photo taken by Mr. Pichardo and stored on either his personal or work cell phone constitute ESI for purposes of a Rule 37 analysis.

Second Defendant had a duty to preserve the ESI in anticipation of litigation, as it knew or should have known that a picture depicting the area of a slip-and-fall would be relevant to a party's claim or defense. Perkins v. City of Modesto, No. 119CV00126LJOEPG, 2020 WL...