Evelina Gaina, et al. v. Northridge Hospital Medical Center, et al Case No. CV 18-177-DMG (RAOx) United States District Court, C.D. California Filed February 25, 2019 Counsel Anna Mercedes Rivera, Mallory Sepler-King, Maronel Barajas, Veena Krishan Gursahani, Disability Rights Legal Center, Jonathan, Ma, Marcy Gray Blattner, Yimeng Dou, Robert Alexander Pilmer, Kirkland and Ellis LLP, Los Angeles, CA, for Evelina Gaina, et al. Elizabeth B. Stallard, Jennifer Lynn Williams, Kathryn L. Patterson, Downey Brand, Sacramento, CA, for Northridge Hospital Medical Center, et al. Gee, Dolly M., United States District Judge ORDER RE PLAINTIFF'S MOTION FOR REVIEW OF MAGISTRATE JUDGE'S ORDER [63] I. BACKGROUND *1 On January 8, 2018, Evelina Gaina (“Plaintiff”) and her mother, who are both deaf, filed a Complaint alleging that a hospital controlled by Dignity Health (“Defendant”) denied them access to sign language interpreters on three separate occasions. [Doc. # 1 (“Compl.”).] The first alleged denial occurred on January 9, 2016 when Plaintiff's grandmother was hospitalized for 19 days. Id. at ¶ 4-5. The second took place in June 2017 when Plaintiff's mother had a medical emergency. Id. at ¶ 9. The third was in November 2017 when Plaintiff accompanied her fiancé to the emergency room. Id. On July 10, 2018, Defendant served written discovery requests for “[a]ll text messages authored or received by [Plaintiff], for the dates January 9, 2016 through November 30, 2017.” [Doc. # 41-3 (“Stallard 1st Decl.”), Ex. A at 7.] Defendant also requested all email messages authored or received by Plaintiff within the same time frame. Id. Plaintiff objected to producing the text messages, but not the emails. Stallard 1st Decl., Ex. B at 8. Plaintiff eventually served her initial production on August 29 and 31, 2018. [Doc. # 54 (“MJ Order”) at 2.] She provided 561 pages of documents but did not include any text messages. Id. After a meeting and conference on September 21, 2018, Plaintiff's counsel informed Defendant's counsel that Plaintiff had inadvertently sold her cell phone in or around May 2018. Id. Shortly thereafter, Defendant “raised the issue of spoliation of text messages.” Id. Magistrate Judge Rozella Oliver directed Plaintiff to contact her cell phone provider by October 19, 2018 to learn what messages might be recoverable. Id. On October 19, Plaintiff mailed a request to her cell phone provider concerning the text messages on her old phone and informed Defendant's counsel that she was awaiting a response from the provider. Id. Defendant's counsel then emailed Plaintiff's counsel on October 25, 2018, asking for an update on the text messages, but Plaintiff's counsel did not respond. Id. Plaintiff's counsel later confirmed that they were receiving “some documents” from the provider but also suggested that no text message content (as opposed to merely metadata) would be available. Id. at 2-3. On November 1, 2018, Defendant's counsel deposed Plaintiff. Id. Defendant's counsel spent a substantial amount of time questioning her about the status of the requested text messages. [Doc. # 65-2 (“Stallard 2nd Decl.”), Ex. A at 234-278.] Two hours into the deposition, Plaintiff's counsel produced 74 pages of documents containing phone numbers, dates, and times but no text message content. MJ Order at 3. Defendant's counsel spent additional time inquiring whether Plaintiff would produce more documents. Id. Plaintiff's counsel indicated that Plaintiff would produce more documents but did not describe any content or timeline. Id. On November 2, 2018, Plaintiff's counsel turned over 164 pages of text messages between Plaintiff and her fiancé. Id. The messages were “heavily redacted” and almost completely illegible. Id. Having no reason to believe that Plaintiff would produce more messages, Defendant filed a Motion for Sanctions for spoliation of evidence (“Sanctions Motion”) on November 5, 2018. Id. In the Motion, Defendant requested that the court award Defendant the reasonable attorneys' fees it incurred while litigating the Sanctions Motion. [Doc. # 41-1 (“Sanctions Motion”) at 14.] *2 The next day, on November 6, 2018, Plaintiff “ ‘stumbled upon’ her old text messages from January 2016 to November 2017, which were synchronized to her old [computer].” MJ Order at 3. Plaintiff then filed her Opposition to the Motion for Sanctions on November 12, 2018. Id. Between the evening of November 12, 2018 and noon on November 13, 2018, Plaintiff produced at least 1,792 pages of text messages. Id. These pages included a less redacted, more legible version of the 164-page document of text messages between Plaintiff and her fiancé. Id. The documents, however, did not include any text messages from February 2016 through September 18, 2016 or September 3, 2017 through November 20, 2017. Id. at 6. On November 15, 2018, after receiving the large compilation of text messages, Defendant filed its Reply. Id. at 3. The Reply included a new request that the court award reasonable attorneys' fees associated with the November 1, 2018 deposition. [Doc. # 51 (“Def.'s Reply ISO Mot. for Sanctions”) at 13.] On November 21, 2018, Judge Oliver granted the Sanctions Motion. MJ Order at 10. Her Order required Plaintiff's counsel to pay Defendant's reasonable attorneys' fees associated with both litigating the Sanctions Motion and taking the November 1, 2018 deposition. Id. Plaintiff then filed the instant Motion for Review of the Magistrate's Order. [Doc. # 63.] II. LEGAL STANDARD A. Standard of Review Federal Rule of Civil Procedure 72 provides that, upon the filing of objections to a magistrate judge's ruling, a district judge must “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P 72(a); 28 U.S.C. § 636(b)(1)(A); Grimes v. City and County of San Francisco, 951 F. 2d 236, 241 (9th Cir. 1991). But the district court “may not simply substitute its judgment for that of the” magistrate judge. Id. Rather, a “magistrate judge's decision in ... nondispositive matters,” such as discovery disputes, “is entitled to great deference by the district court.” United States v. Abonce-Barrera, 257 F.3d 959, 969 (9th Cir. 2001). Put plainly, for a district court to overturn a magistrate's nondispositive decision, the “decision must be more than maybe or probably wrong; it must ... strike [the Court] as wrong with the force of a five-week-old, unrefrigerated dead fish.” Fisher v. Roe, 263 F.3d 906, 912 (9th Cir. 2001) (quoting Parts and Electric Motors, Inc. v. Sterling Electric, Inc., 866 F.2d 228, 233 (7th Cir. 1988) ) abrogated on other grounds by Mancuso v. Olivarez, 292 F.3d 939, 944 (9th Cir. 2002). B. Rule 37(e) Spoliation Sanctions Spoliation is the destruction or significant alteration of evidence, or the failure to preserve evidence, in pending or reasonably foreseeable litigation. Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051-52 (S.D. Cal. 2015) (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) ). Rule 37(e) sets forth four criteria for determining whether spoliation sanctions are appropriate. They are: (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 responding party took reasonable steps to preserve the ESI; and (4) that party was under a duty to preserve the ESI. 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.” Fed. R. Civ. P. 37(e)(1). If, however, a spoliating party has “acted with the intent to deprive another party of the information's use in the litigation,” Rule 37(e)(2) authorizes more severe sanctions, including an adverse inference jury instruction. Fed. R. Civ. P. 37(e)(2)(B). III. DISCUSSION *3 Judge Oliver determined that Plaintiff's failure to preserve relevant text messages prejudiced Defendant, but that such failure was not intentional. See MJ Order at 8-9. As a result, she held that monetary sanctions, and not evidentiary sanctions, were sufficient to cure the prejudice. Id. Plaintiff makes three primary arguments that the Court should overturn Judge Oliver's decision. The first is that Defendant's underlying discovery request for Plaintiff's text messages was not sufficiently proportional to the needs of the case under Rule 26(b)(1). The second is that her text messages are not “lost” pursuant to Rule 37(e) because she routinely deleted text messages as a matter of practice before litigation commenced. The third is that, even if some sanctions are warranted, Plaintiff should not have to pay for Defendant's deposition fees. The Court is not persuaded that any part of Judge Oliver's decision constituted clear error. A. Rule 26 Proportionality is Outside the Scope of the Court's Review Plaintiff argues that Defendant's discovery request for all text messages between January 2016 and November 2017 violated Rule 26(b)(1)'s mandate that all discovery requests be “proportional to the needs of the case.” Mot. at 8-9; Fed. R. Civ. P. 26(b)(1). But the current dispute is about spoliation of evidence, not whether Defendant's discovery requests were overbroad or disproportional to the needs of the case. Indeed, the Order this Court must review did not address the adequacy of Defendant's discovery request under Rule 26, or the request's resulting burden on Plaintiff to produce responsive documents—Judge Oliver's inquiry was limited to whether Rule 37 spoliation sanctions were appropriate. Plaintiff has not cited any authority indicating that a district court may overturn a magistrate judge's decision by transforming the review of a discovery sanctions order into a Rule 26 proportionality inquiry into the underlying discovery request. Judge Oliver's decision to award Rule 37(e) sanctions without probing the proportionality of Defendant's request was not clear error. B. Judge Oliver's Decision that Spoliation Sanctions Are Appropriate Was Not Clear Error Judge Oliver found that all four elements necessary to impose sanctions under Rule 37(e) were satisfied: the text messages constituted electronically stored information, the text messages were lost without chance of restoration or replacement, Plaintiff had a duty to preserve the information, and Plaintiff failed to take reasonable steps to preserve the information. The first element is not in dispute. It is also “not disputed that Plaintiff Evelina has not produced text messages from February 2016 through September 18, 2016 and from September 3, 2017 through November 20, 2017.” MJ Order at 6. Since Plaintiff has testified that she has produced all the text messages within her control, the text messages from those time frames are “lost” without the possibility of restoration or replacement. Id. The Court sees no reason to disturb Judge Oliver's findings to that effect. Nor does the Court find any fault in her conclusion that Plaintiff did, in fact, send text messages during those time frames given that Plaintiff has stated she is a “prodigious texter” who regularly sends and receives “upwards of 70 text messages” per day. [Doc. # 41-1 at 3.] Plaintiff argues that, although the messages are “lost,” spoliation sanctions are unwarranted because she likely deleted the messages before any preservation duty arose. She contends that she uses a large amount of data storage space on her phone because texting is her primary method of communication. Accordingly, she must habitually “clear memory space on her phone” by “routinely delet[ing] voluminous text messages.” Mot. at 11. This “routine” deletion plays a role in the spoliation analysis, but is not dispositive. The Advisory Committee's notes to Rule 37(e) state: The routine, good-faith operation of an electronic file system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation. *4 Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment at ¶ 9. Even assuming that her habitual deletion of text messages to regulate her phone's storage capacity qualifies as a “good-faith operation” of an “electronic filing system,” that deletion would not excuse the failure to preserve information she was under a duty to keep. Plaintiff does not dispute that, in general, she had a duty to preserve relevant evidence, including text messages. MJ Order at 6. Courts generally agree that, “[a]s soon as a potential claim is identified, a litigant is under a duty to preserve evidence that it knows or reasonably should know is relevant to the action.” Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 991 (N.D. Cal. 2012) (quoting In re Napster Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1062 (N.D. Cal. 2006) ); see also Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (“[S]imple notice of potential relevance to the litigation” is often sufficient to establish a duty to preserve information.); Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991) (concluding that a duty to preserve information arises when the party has “some notice that the documents are potentially relevant”). Judge Oliver found that Plaintiff had a duty to preserve text messages at issue because, like other text messages Plaintiff has produced, they were likely to contain communications “highly relevant” to determining Plaintiff's mental state, whether she was present at the hospital, and “whether she understood the communications at the hospital.”[1] MJ Order at 6-7. Plaintiff argues that she could have erased the messages from between February 2016 and September 2016, and between September 2017 and November 2017, as a part of her routine deletion long before litigation was “probable.” Mot. at 11; In re Napster, 462 F. Supp. 2d at 1068 (the duty to preserve is triggered when litigation becomes “probable,” meaning “more than a possibility”). But Plaintiff has not provided evidence that she deleted the messages shortly after sending them, as opposed to a later point at which point she could anticipate litigation. Moreover, given that Plaintiff has produced messages from December 2015, January 2016, and September 19, 2016 to September 2017, i.e., the months immediately preceding the time frames Judge Oliver focused on, Plaintiff's routine deletion system does not appear to be a simple matter of chronology. Accordingly, the Court cannot say that it was clear error for Judge Oliver to reject Plaintiff's assertion that she deleted the relevant messages long before she sold her cell phone. MSJ Order at 6. Finally, Judge Oliver found that Defendant was prejudiced by the lost messages because it “had to conduct depositions and other discovery without this potentially relevant evidence” and will “not be[ ] able to present or rely on the contents of these text messages” at “summary judgment and at trial.” MJ Order at 8-9. The Court agrees that this constitutes prejudice to Defendant.[2] Accordingly, Judge Oliver's determination that Defendant was prejudiced because the text messages were “lost” under Rule 37(e) was not clear error and this Court will not overturn it. C. Judge Oliver's Decision to Require Plaintiff to Pay for Fees Related to the November 1 Deposition Was Not Clear Error *5 To cure the prejudice to Defendant, Judge Oliver required Plaintiff to pay for Defendant's reasonable attorneys' fees associated with litigating the Sanctions Motion and taking the deposition. Plaintiff argues that, even if the Court agrees with Judge Oliver that some sanctions are appropriate, those sanctions should not include reasonable fees for the November 1, 2018 deposition. Mot. at 14. Her principle argument is that Judge Oliver should not have considered Defendant's request for the deposition costs because Defendant raised the issue for the first time on reply.[3] Id. Generally, a court will not consider arguments raised for the first time on reply. In re America West Airlines, Inc., 217 F.3d 1161, 1165 (9th Cir. 2000). But the Court has discretion to consider arguments newly raised in a reply brief when review is necessary in “exceptional circumstances” or the interest of justice. Id.; In re Professional Inv. Properties, 955 F.2d 623, 625 (9th Cir. 1992). Defendant deposed Plaintiff on November 1, 2018 and filed the Sanctions Motion on November 5, 2018. MJ Order at 3. At that point, Plaintiff had not produced any messages except for 164 pages of mostly redacted and highly illegible texts. Id. For all Defendant knew by November 5, 2018, it had all the text messages it was ever going to get. On November 12 and 13, 2018, however, Plaintiff produced 1,792 pages of text message content. Only after this outpouring did Defendant realize it had wasted much of the November 1, 2018 deposition questioning Plaintiff about the text messages and inquiring about using emails as substitutes for the text messages. Stallard Decl., Ex. A at 234-278. [Doc. # 65-2.] In other words, Defendant had no basis for requesting fees for taking the deposition in its opening brief because Plaintiff had not yet served the production that made a substantial portion of the deposition unnecessary. Therefore, since Plaintiff and her counsel dramatically changed the factual circumstances related to the motion after Defendant filed its opening brief, the Court cannot say it was clear error for Judge Oliver to exercise her discretion to consider the request in Defendant's Reply in light of the circumstances presented to her. IV. CONCLUSION For the foregoing reasons, Judge Oliver's decision to award spoliation sanctions by ordering Plaintiff's counsel to pay Defendant's reasonable attorneys' fees associated with litigating the Sanctions Motion and taking the November 1, 2018 deposition was not clear error. Plaintiff's Motion is DENIED and Judge Oliver's Order is AFFIRMED. Footnotes [1] District courts review a magistrate judge's relevance decision for “abuse of discretion.” Folb v. Motion Picture Indus. Pension & Health Plans, 16 F. Supp. 2d 1164, 1168, n.2 (C.D. Cal. 1998), aff'd sub nom. Folb v. Motion Picture Indus. Pension & Health Plans, 216 F.3d 1082 (9th Cir. 2000). A magistrate judge abuses her discretion “only when [her] decision is based on an erroneous conclusion of law or where the record contains no evidence on which [she] rationally could have based that decision.” Premium Serv. Corp. v. Sperry & Hutchinson Co., 511 F.2d 225, 229 (9th Cir. 1975). Judge Oliver has not abused her discretion in finding the messages relevant here. [2] Plaintiff argues that it ameliorated any prejudice to Defendant by producing emails instead of text messages. But given that text messages are Plaintiff's main form of contemporaneous communication, the Court agrees with Judge Oliver that they present evidentiary value that post hoc emails cannot. Plaintiff's attempt to turn Judge Oliver's suggestion that Plaintiff produce emails against Defendant is also unavailing. Mot. at 12; Ma Decl. II, Ex. B at 46:24-47:5. [Doc. # 63-3, Ex. B.] Judge Oliver made no definitive statement about emails curing prejudice. Rather, she made clear that she would not “advise [the parties] on strategy” and instead suggested that the parties meet and confer on the issue. Id. This exchange cannot be considered proof that producing emails would, in fact, mitigate any prejudice to Defendant. [3] Plaintiff also argues that they should not be required to pay the November 1, 2018 deposition fees because the deposition was scheduled to occur regardless of the dispute over text messages. Mot. at 14. While the deposition would have occurred anyway, the nature of the deposition would have been substantially different but for the events underlying this dispute. As discussed above, Defendant spent a substantial amount of the deposition questioning Plaintiff about text messages because Plaintiff had, to that point, failed to provide the messages or clearly communicate whether they were forthcoming.