Mkrtchyan v. Sacramento Cnty.

ORDER

KENDALL J. NEWMAN, UNITED STATES MAGISTRATE JUDGE

I. Introduction

Plaintiff is proceeding through counsel with a civil rights action pursuant to 42 U.S.C. § 1983. Pending before the court is plaintiff's motion for sanctions for spoliation of video evidence.^[1] (ECF No. 44.) On September 16, 2021, the undersigned conducted a hearing regarding plaintiff's pending motion. Patrick H. Dwyer appeared on behalf of plaintiff. Matthew W. Gross and Carl L. Fessenden appeared on behalf of defendants.

Following the September 16, 2021 hearing, the undersigned ordered the parties to file further briefing. (ECF No. 48.) On October 8, 2021, defendants filed further briefing. (ECF No. 50.) On October 21, 2021, plaintiff filed a reply to defendants' further briefing. (ECF No. 51.)

For the reasons stated herein, plaintiff's motion for sanctions is granted. However, plaintiff's request for an adverse inference instruction is denied without prejudice. Instead, defendants are ordered to pay plaintiff the costs for bringing the pending motion.

II. Legal Standard

Plaintiff moves for sanctions based on the alleged spoliation of video evidence pursuant to Federal Rule of Civil Procedure 37, which addresses the legal standard for spoliation of electronically stored information (“ESI”).

Before determining the appropriate 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 the ESI is “lost” and “cannot be restored or replaced through additional discovery”; (3) whether the ESI “should have been preserved in the anticipation or conduct of litigation”; and (4) whether the responding party failed to take reasonable steps to preserve the ESI. Colonies Partners, L.P. v. County of San Bernardino, 2020 WL 1496444, at *2 (Feb. 27, 2020 C.D. Cal.) (citing Fed.R.Civ.P. 37(e)). 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.” Id. (citing Fed. Rule of Civil Procedure 37(e)(1)).

If, however, the party that was supposed to have preserved the ESI “acted with the intent to deprive another party of the information's use in the litigation, ” Rule 37(e)(2) authorizes 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

Id. at *3 (citing Federal Rule of Civil Procedure 37(e)(2).

“'The applicable standard of proof for spoliation in the Ninth Circuit appears to be by a preponderance of the evidence.'” Id. (quoting Ramos v. Swatzell, 2017 WL 2857523, at *5 (C.D. Cal. June 5, 2017) (internal citations omitted)).

III. Plaintiff's Allegations

All parties and the court are familiar with the allegations and claims raised in this action. For this reason, plaintiff's allegations and claims need not be set forth in this order.

IV. Background

In the pending motion, plaintiff alleges that in a request for production of documents dated September 17, 2019, he asked defendants to produce all video of plaintiff while he was in custody at either the Rio Cosumnes Correctional Center (“RCCC”) Jail or the Sacramento County Main Jail (“Main Jail”) on or about the dates and times set forth in the amended complaint in paragraphs 19, and 22-53. (ECF No. 44-1 at 10.) The allegations in the amended complaint span from the date of plaintiff's alleged injury at RCCC on August 29, 2016, to his transfer to the Main Jail on September 6, 2016, and to his release from the Main Jail on April 23, 2017.

Plaintiff alleges that in response to the request for video, defendants produced six short videos from August-September 2016. (Id. at 11.) Defendants informed plaintiff that they were unable to provide further video because “no videos responsive to this request have existed.” (Id.)

In the pending motion, plaintiff contends that defendants' failure to request a litigation hold resulted in the loss of the video. (Id. at 5.) Plaintiff contends that three documents put defendants on notice of their duty to preserve the at-issue videos: his January 13, 2017 tort claim, his February 2, 2017 administrative grievance, and his original complaint filed November 12, 2017. (Id. at 5-10.)

In opposition to plaintiff's motion, defendants contend that by the time defendants began searching for video evidence in September 2019 (when plaintiff served the request for production of documents), the 25-months retention period for video had passed and there was no video evidence to preserve. Defendants also contend that even if a search had been done prior to the date of discovery requests, the jail computer server was corrupted and video between 2016 and 2017 was lost, the period of time plaintiff was in custody. Defendants contend that any video surveillance would likely have been lost due to the data loss and corrupted files.

Defendants also contend that plaintiff's administrative grievance, tort claim and November 12, 2017 original complaint, did not put defendants on notice that they were required

to capture video of plaintiff's entire stay at the jail. Defendants contend that plaintiff's complaint alleges only a denial of medical care.

Defendants also argue that plaintiff's motion for sanctions is untimely because plaintiff waited almost two years after receiving defendants' response to the September 2017 request for production of documents to file the pending motion.

Following the September 17, 2021 hearing, the undersigned ordered defendants to file further briefing addressing whether, when and by whom a litigation hold was requested on the missing video. (ECF No. 48 at 3.) Assuming a litigation hold was made, defendants were directed to provide further information regarding the litigation hold. (Id.) Defendants were also ordered to address the jail video retention policy. (Id.)

V. Timeliness of Plaintiff's Motion

“A spoliation motion ‘should be filed as soon as reasonably possible after discovery of the facts that underlie the motion.'” Montoya v. Orange County Sheriff's Dept., 2013 WL 6705992, at *6 (C.D. Cal. Dec. 18, 2013) (quoting Goodman v. Praxair Services, Inc., 632 F.Supp.2d 494, 506-08 (D. Md. 2009)).

“The deadline by which a party must file a motion for spoliation is a rather unsettled matter in this circuit.” Wine Education Council v. Arizona Rangers, 2021 WL 3550213, at *2 (D. Ariz. Aug. 11, 2021). “Multiple courts have held a motion for spoliation untimely when a party raises it after the close of discovery.” Id. (citations omitted). “Other courts permit parties to raise issues of spoliation after discovery has closed so long as the claim is raised ‘as soon as reasonably possible after [uncovering] the facts that underlie the motion.” Id. (citations omitted). “However, even courts adopting this more flexible timeline have stated that spoliation motions are subject to chambers discovery rules and applicable deadlines.” Id.

In the opposition, defendants argue that plaintiff's pending motion for sanctions, filed August 16, 2021, is untimely. Defendants contend that plaintiff was aware of the absence of video recording on at least October 16, 2019, when he received defendants' responses to plaintiff's request for production of documents, set one. Defendants also contend that plaintiff was aware of the missing video during a February 2020 deposition of Lawrence Perry.

Defendants contend that plaintiff waited almost two years after he became aware of the missing video to file the pending motion.

In the reply, plaintiff contends that he discovered the missing video through depositions in February and March 2020. (See ECF No. 46-1 at 1 (counsel's declaration).) Plaintiff contends that he waited to file the pending motion until after he completed the deposition of Nancy Gallagher and discovered other missing evidence, i.e., plaintiff's case management file. (Id. at 2.) Plaintiff argues that he waited to file one spoliation motion on August 16, 2021, which was three and one-half months before the November 30, 2021 discovery deadline. (See ECF No. 37 at 2 (scheduling order).) Plaintiff also argues that the pandemic impacted his litigation of this action.

In Goodman v. Praxair Services, Inc., 632 F.Supp.2d 494 (D. Md. 2009), cited by defendants in the opposition, the court cited four factors courts use to assess the timeliness of a spoliation motion. “First, ‘[k]ey to the discretionary timely assessment of lower courts is how long after the close of discovery the relevant spoliation motion has been made…'” Id. at 506 (citations omitted). “Second, a court should examine the temporal proximity between a spoliation motion and motions for summary judgment.” Id. (citations omitted). “Third, courts should be wary of any spoliation motion made on the eve of trial.” Id. (citations omitted). “Fourth, courts should consider whether there was any governing deadline for filing spoliation motions in the scheduling order pursuant to Fed.R.Civ.P. 16(b) or by local rule.” Id.

The lesson to be learned from the cases that have sought to define when a spoliation motion should be filed in order to be timely is that there is a particular need for these motions to be filed as soon as reasonably possible after discovery of the facts that underlie the motion. This is because resolution of spoliation motions are fact intensive, requiring the court to assess when the duty to preserve commenced, whether the party accused of spoliation properly complied