RICHARD A. KATZMAN, Plaintiff, v. LOS ANGLES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY, Defendant Case No.: 13-CV-00438-LHK United States District Court, N.D. California Filed March 26, 2015 Counsel G. Whitney Leigh, Gonzalez & Leigh, LLP, San Francisco, CA, for Plaintiff. Calvin Richard House, Caroline Shahinian, Gutierrez, Preciado and House, LLP, Pasadena, CA, for Defendant Koh, Lucy H., United States District Judge ORDER DENYING MOTION FOR SANCTIONS AND ADVERSE JURY INSTRUCTIONS *1 Before the Court is Plaintiff Richard Katzman's (“Plaintiff”) motion for sanctions and adverse jury instruction. ECF No. 175 (“Mot.”). Plaintiff moves for monetary sanctions, an adverse inference jury instruction, and a terminating sanction due to Defendant Los Angeles County Metropolitan Transportation Authority's (“MTA”) alleged misconduct during discovery and spoliation of evidence. Having considered the submissions of the parties and the applicable law, the Court DENIES Plaintiff's motion, for the reasons stated below. I. BACKGROUND A. Factual Background The MTA is the regional transportation authority for the County of Los Angeles. See ECF No. 1 (“Compl.”) ¶ 2. Plaintiff is a former employee of the MTA. Compl. ¶ 7. During the course of Plaintiff's employment, Plaintiff became vested in the MTA's pension plan, and subsequently elected to receive monthly pension payments from the MTA upon Plaintiff's retirement in 2007. See ECF No. 81, at 2. The instant litigation stems from the MTA's practice of conducting bi-annual audits of its pension recipients. As of 2014, there were approximately 2,500 people who received a pension from the MTA. Id. at 3. Once every two years, the MTA's pension and benefits department performs an audit of its pension recipients by mailing each pensioner an audit letter via standard mail of the United States Post Office. Id. Pensioners are required to fill out the letter, sign it, have it notarized (or have their signature verified in a manner approved by the MTA), and return the letter to the MTA within a specified time. Id. If a pensioner fails to return the audit letter, the MTA suspends the pensioner's payments. Id. If the pensioner subsequently completes the audit letter and returns it to the MTA, the MTA reinstates the pension and provides any missed pension payments in one lump sum. Id. According to the MTA, it conducts bi-annual audits to prevent fraud; to ensure that the MTA has up-to-date contact information for its pensioners; and to ensure that, if a pensioner dies, survivor benefits are promptly paid. Id. at 4. In June 2009, Plaintiff received an audit letter from the MTA. Id. at 5. The letter instructed Plaintiff to complete the included form, sign it, have the signature notarized, and return it before July 31, 2009. Id. Plaintiff filled out the form and signed it, but refused to have the form notarized. Id. The MTA received Plaintiff's incomplete audit letter, but did not suspend Plaintiff's pension after a staff member verified Plaintiff's identity over the phone. Id. Approximately two years later, around October 2011, the MTA suspended Plaintiff's pension payments due to Plaintiff's failure to return a completed audit letter. Id. According to Plaintiff, Plaintiff never received an audit letter from the MTA in 2011. Id. Plaintiff subsequently informed the MTA that Plaintiff objected to the audit process because, for among other reasons, Plaintiff contended that the MTA's practice of mailing a single audit letter did not provide pensioners sufficient notice of the audit and the possibility of their pension being suspended. Id. Plaintiff also objected that pensioners were required to pay a notarization fee in order to complete the audit letter. Id. B. Procedural History *2 On January 31, 2013, Plaintiff filed the operative Complaint in this matter, naming the MTA and the County of Los Angeles as defendants.[1] See Compl. Plaintiff alleged that the MTA's audit process violated Plaintiff's right to procedural due process in contravention of the Fourteenth Amendment of the U.S. Constitution. Id. ¶¶ 20-26. Plaintiff also alleged that Plaintiff's vested pension constituted a contract and that the MTA's bi-annual audit process modified the terms of that contract, in contravention of Article I, § 10 of the U.S. Constitution, and Article I, § 9 of the California Constitution (“Contracts Clause claim”). Id. ¶¶ 35-40. Plaintiff also alleged that the MTA's actions violated the Equal Protection Clause of the Fourteenth Amendment, and that the MTA committed conspiracy to violate the Equal Protection Clause. Id. ¶¶ 28-34. 1. The Discovery Process During the course of discovery in this matter, Plaintiff served on the MTA three sets of requests for production.[2] The MTA responded to each of Plaintiff's discovery requests by stating, with substantially identical language, that the MTA “has produced all non-privileged, non-protected responsive documents that are presently within the [MTA's] custody, possession or control.” See ECF No. 87-1 (the MTA's response to Plaintiff's first set of requests for production, dated June 18, 2013); ECF No. 87-2 (the MTA's response to Plaintiff's second set of requests for production, dated December 12, 2013); ECF No. 87-3 (the MTA's response to Plaintiff's third set of requests for production, dated March 20, 2014). Counsel for the MTA also signed each of these responses pursuant to Federal Rule of Civil Procedure 26(g). ECF No. 87-1 at 15; ECF No. 87-2 at 13; ECF No. 87-3 at 6; see also Fed. R. Civ. P. 26(g)(1) (requiring, inter alia, that every discovery response or objection be signed by at least one attorney of record that “certifies to the best of the person's knowledge, information, and belief formed after a reasonable inquiry” that the response is complete and accurate). Plaintiff took no depositions during discovery. ECF No. 141, at 55:21-24. 2. The Cross-Motions for Summary Judgment After discovery was complete, both Plaintiff and the MTA filed cross motions for summary judgment. ECF Nos. 45, 63. Plaintiff moved for summary judgment on Plaintiff's procedural due process claim only. See ECF No. 45. The MTA moved for summary judgment on all four of Plaintiff's claims. See ECF No. 63. The Court subsequently denied Plaintiff's motion for summary judgment, as well as the MTA's motion for summary judgment as to Plaintiff's procedural due process claim. ECF No. 81 at 9-19. However, the Court granted the MTA's motion for summary judgment as to Plaintiff's Equal Protection, conspiracy, and Contracts Clause claims. Id. at 19-25. 3. Proceedings During Trial On January 6, 2015, the parties proceeded to trial on Plaintiff's procedural due process claim. See ECF No. 122. During trial on January 6, 2015, the MTA called as a witness Janice Olsen (“Ms. Olsen”), the manager of the MTA's pension and benefits department. ECF No. 130, Trial Tr. 179:11-18. Ms. Olsen testified generally about how the MTA conducts its bi-annual audit, as well as the MTA's interactions with Plaintiff in 2009 and 2011. See id. During cross-examination, Ms. Olsen testified that the MTA has “procedures, internal procedures as to how we go about conducting the audit.” Id. at 202:4-6. Ms. Olsen further testified that these internal procedures were “in writing.” Id. at 202:7-8. *3 On January 7, 2015, counsel for Plaintiff emailed counsel for the MTA to request a copy of the written “internal procedures” governing the MTA's bi-annual audit about which Ms. Olsen testified. ECF No. 124, ¶ 5. Counsel for the MTA responded to Plaintiff later that day attaching a document. Id. The document was titled “Bi-Annual Pension Audit,” and contained a list of procedures to follow in mailing the bi-annual audit letters, validating completed audit letters, suspending the benefits of pensioners who failed to respond to the audit letters, and record keeping related to the bi-annual audit. ECF No. 124-2 (“Olsen Memo”). According to Plaintiff, the Olsen Memo “had never been produced in response to Plaintiff's discovery requests or elsewhere over the course of this litigation.” ECF No. 124, ¶ 6. The next day, on January 8, 2015, counsel for the MTA sent counsel for Plaintiff another email that attached a second document. Id. ¶ 7. This second document was substantially the same as the Olsen Memo, but it also contained handwritten notations. See ECF No. 124-3. According to Plaintiff, “this was the first time Plaintiff had ever seen this document, and Defendant did not produce it before this date.” ECF No. 124, ¶ 7. 4. Plaintiff's First Attempt to File a Motion for Sanctions, and Subsequent Mistrial On January 8, 2014, Plaintiff filed a motion to strike testimony and evidence, and for sanctions. ECF No. 123. In his motion, Plaintiff argued that Defendant's failure to produce the Olsen Memo, as well as the version of the Olsen Memo with handwritten notations, “constitutes an abuse of the civil litigation discovery process,” and that Defendant's “efforts to introduce testimony and evidence of this documentation at trial” was “an obvious effort to sandbag Plaintiff's case.” Id. at 2-3. The motion requested that the Court strike Ms. Olsen's testimony. Id. The motion also requested sanctions in the form of reasonable attorney's fees incurred as a result of the MTA's alleged discovery misconduct. Id. The MTA did not file an opposition to Plaintiff's motion. Instead, counsel for the MTA subsequently filed a declaration on January 8, 2015, in which counsel for the MTA “apologiz[ed] to the Court and to plaintiff and his counsel for the situation that has been caused by the Defendant's failure to produce the [Olsen Memo].” ECF No. 131, ¶ 2. Counsel for the MTA stated that he “was not aware of the written documents that Ms. Olsen referred to in her testimony, until she gave her testimony on the witness stand.” Id. ¶ 3. Counsel for the MTA also stated that he had “asked for all documents related to the pension audit program that is the subject of this lawsuit” at the beginning of the case and in response to Plaintiff's discovery requests, and that counsel for the MTA “was never provided the document that Ms. Olsen referred to in her testimony.” Id. Counsel for the MTA stated that he would agree to strike Ms. Olsen's testimony about the existence of written bi-annual audit procedures. Id. ¶ 7. On January 9, the Court held a hearing outside the presence of the jury on Plaintiff's motion to strike and for sanctions. ECF No. 143. Ms. Olsen and counsel for the MTA were sworn in, and the Court questioned them about the adequacy of the MTA's responses to Plaintiff's discovery requests. ECF No. 141, Hr'g Tr 5:18-6:19. During questioning, Ms. Olsen testified that the copy of the Olsen Memo with handwritten notations was a “checklist” that she used during the 2013 bi-annual audit, which the MTA conducted in February 2013. Id. at 19:4-7. Ms. Olsen further testified she had kept a hard copy of this document in a file. Id. at 20:14-17. As to the copy of the Olsen Memo that did not have handwritten notations, Ms. Olsen testified she “could not find the original electronic version” of this document when counsel for Plaintiff requested it on January 7, 2015. Id. at 20:18-20; 21:4-15. Ms. Olsen further testified that she “retyped” the Olsen Memo so that the document could be produced to Plaintiff's counsel. Id. at 21:1-3. In re-creating the Olsen Memo, Ms. Olsen testified that she used as a reference the hardcopy of the Olsen Memo with handwritten notations. Id. at 21:16-21. Ms. Olsen stated that the original Olsen Memo was a handwritten document that she subsequently transcribed as an electronic document. Id. at 31:4-14. Ms. Olsen acknowledged that she had “most likely” discarded the original version of the Olsen Memo. Id. at 32:2-4. Ms. Olsen stated that counsel for the MTA never instructed her to preserve documents in connection with Plaintiff's lawsuit. Id. at 32:5-13. *4 Ms. Olsen also testified that she had not previously given the Olsen Memo with handwritten notations to the MTA's counsel because she “didn't know that this was something that was requested.” Id. at 12:23-24. Ms. Olsen testified that she did not recall if any attorneys asked her “whether there was any documentation regarding the procedure for auditing pension beneficiaries at the MTA.” Id. at 12:25-13:2. Both Ms. Olsen and counsel for the MTA acknowledged that they never asked Ms. Olsen's staff in the pension and benefits department whether they kept notes related to the bi-annual audit. Id. at 25:19-26:2. Ms. Olsen identified 18 potential document custodians who might have documents relevant to Plaintiff's lawsuit, but whose files may not have been searched during discovery. See id. at 36:24-42:24. After the Court questioned Ms. Olsen and counsel for the MTA, the parties did not request that the Court declare a mistrial. Id. at 57:9-13. Instead, the parties agreed that trial would be postponed for one week until January 16, 2015. See id. at 82:3-83:19. During the interim period, the MTA would search the files of the 18 potential custodians identified by Ms. Olsen and produce any documents responsive to Plaintiff's previously served discovery requests. See id. at 112:1-25. At the hearing, Plaintiff requested that the Court provide the jury with an adverse inference instruction regarding the MTA's alleged destruction of evidence, which the Court denied on the grounds that Plaintiff failed to show any prejudice. Id. at 47:20-48:1. The Court further denied Plaintiff's request to strike Ms. Olsen's January 6, 2015 trial testimony, on the grounds that Plaintiff failed to cite specific testimony he wanted stricken. Id. at 119:23-120:18. The Court further denied Plaintiff's motion for sanctions without prejudice because Plaintiff failed to file any declarations supporting his request for attorney's fees, and did not file his motion for sanctions as a separate motion, as required by the Civil Local Rules. Id. at 84:7-19; see also Civ. L. R. 7-8 (requiring that a motion for sanctions be “separately filed”); Civ. L. R. 37-4 (sanctions motion for attorney's fees must be accompanied by “competent declarations” which “itemize with particularity” the expenses and fees caused by the alleged misconduct). At the conclusion of the January 9, 2015 hearing, the Court issued an Order Compelling Document Production and Subsequent Filings requiring, inter alia, Defendant to interview and collect relevant documents from the 18 custodians identified by Ms. Olsen at the January 9, 2015 hearing, and to produce documents to Plaintiff on a rolling basis. ECF No. 139, at 1-2. The Order also instructed the MTA to file document production letters with the Court, and to complete its production by January 15, 2015 at 10 a.m. Id. at 2. The Court adjourned trial until January 16, 2015, at 9 a.m. Id. at 1. According to document production letters filed by the MTA between January 9, 2015 and January 15, 2015, the MTA produced approximately 1,300 pages of documents to Plaintiff. See ECF Nos. 142, 149, 153 & 154. On January 12, 2015, the Court held a telephonic conference with the parties. ECF No. 150. After the conference, the parties filed a stipulation of mistrial, which the Court granted on January 12, 2015. ECF Nos. 145 & 146. The Court also scheduled a status conference in the case for January 16, 2015. ECF No. 146. 5. Plaintiff's First Opportunity to File a Renewed Motion for Sanctions On January 16, 2015, the Court held a status conference with the parties. At the status conference, the parties agreed to set a new trial date of April 24, 2015. ECF No. 155, at 1. The parties also agreed that Plaintiff would file a renewed motion for sanctions by February 6, 2015. Id. at 1. The Court set a hearing for Plaintiff's renewed motion for sanctions on February 26, 2015. Id. The Court scheduled a concurrent pretrial conference on February 26, 2015. Id. The Court further ordered the parties to file amended exhibit lists by February 19, 2015. Id. *5 At the January 16, 2015 status conference, Plaintiff argued that the Olsen Memo supported a new Equal Protection claim based on a new “class of one” theory. Specifically, Plaintiff argued that the Olsen Memo indicates retirees should be called, if possible, before pensions are suspended, and that the MTA did not call Plaintiff before suspending his pension benefits. Jan. 16, 2015 Hr'g Tr., 9:1-14. The MTA stipulated that Plaintiff be allowed to assert a new Equal Protection claim based on this new “class of one” theory at the April 24, 2015 retrial. ECF No. 155, at 1. Plaintiff failed to file a motion for sanctions by February 6, 2015. Plaintiff also failed to file an amended exhibit list by February 19, 2015. Instead, on February 20, 2015, Plaintiff filed a motion to continue the trial date. ECF No. 165. In that motion, Plaintiff claimed that he had been unable to file a renewed motion for sanctions by February 6, 2015 because Plaintiff did not receive transcripts of depositions that Plaintiff took to support his renewed motion for sanctions until February 20, 2015. Id. at 2. However, at the February 26, 2015, Plaintiff acknowledged that he had in fact received rough drafts of the deposition transcripts on February 7, 2015. ECF No. 169, at 1 n.1. Moreover, according to emails between counsel for Plaintiff and counsel for the MTA, Plaintiff did not schedule the relevant depositions, which were of Ms. Olsen and Ronald Stamm (“Mr. Stamm”), the MTA counsel responsible for coordinating responses to Plaintiff's discovery, until February 3, 2015. See Exhibit 3 to the Declaration of Calvin House in Support of Defendant's Opposition to Motion for Sanctions (“House Decl.”), ECF No. 187-3, at 31-37. Plaintiff scheduled the depositions to take place on February 5, 2015. Id. at 33-35. 6. Plaintiff's Second Opportunity to File a Renewed Motion for Sanctions At the February 26, 2015 pretrial conference, the Court denied Plaintiff's motion to continue the trial date. ECF No. 169, at 1. The Court granted Plaintiff another opportunity to file a renewed motion for sanctions, and ordered Plaintiff to file the motion by March 2, 2015. Id. at 2. The Court also ordered the MTA to file an opposition to the motion by March 16, 2015. Id. Plaintiff voluntarily waived a reply brief. Id. The Court further ordered Plaintiff to file an amended exhibit list by March 2, 2015. Id. In the Court's subsequent pretrial order, the Court stated that the Court “will strike any untimely submissions of the parties.” Id. On March 2, 2015, Plaintiff failed to file an amended exhibit list. At midnight on March 3, 2015, Plaintiff filed the instant renewed motion for sanctions. See Mot; House Decl., Ex. 4, at 1-2. Plaintiff filed his supporting exhibits between 12:32 a.m. and 1:08 a.m. House Decl, Ex. 4, at 3-16. To be considered timely, a filing must be made “prior to midnight.” Civ. L. R. 5-1(e)(4). In his motion, Plaintiff moves for monetary sanctions pursuant to Federal Rules of Civil Procedure 26(g)(3) and 37(b)(2), as well as terminating sanctions or, in the alternative, to give the jury an adverse inference instruction due to the MTA's alleged spoliation of evidence. Id. at 1. Plaintiff also filed a supporting declaration with 23 exhibits.[3] ECF Nos. 176, 177, 178, 179, 180, 181, 182. On March 16, 2015, the MTA timely filed an opposition to Plaintiff's motion. ECF No. 187. The MTA also filed three supporting declarations with four exhibits. See ECF Nos. 187-1, 187-2, 187-3, 187-4, 187-5, 187-6. II. LEGAL STANDARD *6 The Federal Rules of Civil Procedure permit district courts to impose monetary sanctions in specific circumstances. Two rules are relevant to the instant motion. First, Rule 26(g) requires that every discovery response be signed by an attorney, and specifies that the attorney's signature “certifies that to the best of the [person's] knowledge, information, and belief formed after a reasonable inquiry” that the response is “complete and correct.” Silva v. TEKsystems, Inc., No. 12-CV-05347-LHK, 2013 WL 3939500, at *3 (N.D. Cal. July 25, 2013) (quoting Fed. R. Civ. P. 26(g)). Rule 26(g)(3) provides that “[i]f a certification violates this rule without substantial justification, the court ... must impose an appropriate sanction on the signer, the party on whose behalf the signer was acting, or both. The sanction may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.” Second, Rule 37(b)(2) provides that if a party “fails to obey an order to provide or permit discovery,” the court may, inter alia, “order the disobedient party, the attorney advising the party, or both to pay the reasonable expenses including attorney's fees, caused by the failure, unless the failure was substantially justified.” In addition, “[a] federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence,” which includes the power “to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993). A federal trial court, pursuant to its inherent powers or Rule 37(b)(2), may also issue a terminating sanction—or a sanction of a dismissal—when “ ‘a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings.’ ” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (quoting Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995)). This is because courts have inherent power “ ‘to dismiss an action when a party has willfully deceived the court and engaged in conduct utterly inconsistent with the orderly administration of justice.’ ” Id. (quoting Anheuser-Busch, 69 F.3d at 348). III. DISCUSSION The Court will first address Plaintiff's request for monetary sanctions. The Court will then address Plaintiff's requests for an adverse inference instruction, as well as a terminating sanction. A. Plaintiff's Request for Monetary Sanctions In his motion, Plaintiff moves pursuant to Rules 26(g) and 37(b)(2) for, inter alia, the imposition of monetary sanctions. Mot. at 1. Plaintiff argues that the MTA's responses to Plaintiff's three requests for production, which stated that the MTA had “produced all responsive documents,” were “unfounded and incorrect.” Mot. at 12-13. Plaintiff further argues that counsel for the MTA improperly signed these discovery responses, in violation of Rule 26(g). Id. Accordingly, Plaintiff requests that the Court award Plaintiff “attorneys fees he has incurred in connection with the original trial proceedings that must be repeated, in conducting the post-mistrial discovery, and in bringing this motion.” Id. at 14. As a preliminary matter, the Court notes that Rule 37(b)(2) authorizes the imposition of, inter alia, monetary sanctions for failure “to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2) (emphasis added). In his motion, Plaintiff does not identify a court order to provide or permit discovery that the MTA allegedly violated. Accordingly, Rule 37(b)(2) does not provide a basis for sanctions, and Plaintiff's motion is DENIED to the extent it relies on Rule 37(b)(2). See Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (“Rule 37(b)(2)'s requirement that there be some form of court order that has been disobeyed has not been read out of existence; Rule 37(b)(2) has never been read to authorize sanctions for more general discovery abuse.”). *7 As for Plaintiff's request for monetary sanctions pursuant to Rule 26(g), that rule requires that every discovery response be signed by an attorney which “certifies that to the best of the [person's] knowledge, information, and belief formed after a reasonable inquiry” that the response is complete and correct. Silva, 2013 WL 3939500, at *3 (quoting Fed. R. Civ. P. 26(g)). Rule 26(g)(3) provides that “if a certification violates this rule without substantial justification” the court must impose an appropriate sanction, which may include “an order to pay the reasonable expenses, including attorney's fees, caused by the violation.” Here, the record discloses that the MTA responded to each of Plaintiff's discovery requests by stating, with substantially identical language, that the MTA “has produced all non-privileged, non-protected responsive documents that are presently within the [MTA's] custody, possession or control.” See ECF No. 87-1 (the MTA's response to Plaintiff's first set of requests for production, dated June 18, 2013); ECF No. 87-2 (the MTA's response to Plaintiff's second set of requests for production, dated December 12, 2013); ECF No. 87-3 (the MTA's response to Plaintiff's third set of requests for production, dated March 20, 2014). Furthermore, counsel for the MTA signed each of these responses pursuant to Rule 26(g). ECF No. 87-1 at 15; ECF No. 87-2 at 13; ECF No. 87-3 at 6. However, after the Court's January 9, 2015 order requiring the MTA to search the files of 18 other document custodians who might have responsive documents, ECF No. 139, at 1-2, the MTA produced approximately 1,300 pages of documents to Plaintiff, see ECF Nos. 142-149, 153 & 154 (production letters from the MTA). Accordingly, the MTA's initial discovery responses were plainly deficient under Rule 26(g), which requires that the attorney signature on a discovery response “certify[y] that to the best of the [person's] knowledge, information, and belief formed after a reasonable inquiry” that the response is “complete and correct.” Silva, 2013 WL 3939500, at *3. Because the MTA's certification of its discovery responses violated Rule 26(g), the Court must impose appropriate sanctions unless the MTA acted with “substantial justification.” Fed. R. Civ. P. 26(g)(3). The MTA, in its opposition to Plaintiff's motion, does not offer a substantial justification for its inadequate response. See Opp'n at 9-10. Moreover, the record discloses that the MTA, in compiling its responses to Plaintiff's requests for production, limited its search for responsive documents to one custodian, Ms. Olsen. See Leigh Decl., Ex. I (the MTA's response to Plaintiff's second set of interrogatories, stating, inter alia, that Mr. Stamm “reviewed and discussed the [document] request with the Pension and Benefits Manager of the MTA, Janice Olsen”). During his deposition, Mr. Stamm testified that he only consulted Ms. Olsen about Plaintiff's document requests because he assumed that Ms. Olsen, “was the primary and, perhaps, only Metro employee that would have knowledge and access to all the relevant documents.” Leigh Decl., Ex. V (“Stamm Depo. Tr.”), at 14:23-25. Mr. Stamm also acknowledged that “Jan [Olsen]'s subordinates” may have had documents relevant to the case, but that he did not ask Ms. Olsen to ask her subordinates for relevant documents. Id. at 19:7-20:7. As the MTA's late document production indicates, custodians other than Ms. Olsen had approximately 1,300 pages of responsive documents. Accordingly, the record does not show that the MTA acted with substantial justification within the meaning of Rule 26(g)(3). See R&R Sails Inc. v. Ins. Co. of State of Pa., 251 F.R.D. 520, 525 (S.D. Cal. 2008) (where a party who receives a discovery request fails to make a “reasonable inquiry ... into whether Defendant possessed discovery responsive to Plaintiff's requests,” that party does not offer a “substantial justification” as required by Rule 26(g)(3)). *8 Due to the fact that the MTA violated Rule 26(g) without substantial justification, the Court now turns to the question of the “appropriate sanction.” Fed. R. Civ. P. 26(g)(3). In his motion, Plaintiff requests an award of attorney's fees and costs. Mot. at 13. However, under Rule 26(g)(3), a monetary sanction is not mandatory. See Fed. R. Civ. P. 26(g)(3) (stating that a court must impose an “appropriate sanction,” which “may include an order to pay the reasonable expenses, including attorney's fees, caused by the violation.” (emphasis added)). Furthermore, the Court notes that Plaintiff, in filing the instant motion, was required to comply with the Civil Local Rules, which require, inter alia, that Plaintiff submit a “competent declaration[ ]” that “itemize[s] with particularity the otherwise unnecessary expenses, including attorney fees, directly caused by the alleged violation or breach, and set forth an appropriate justification for any attorney-fee hourly rate claimed.” Civ. L. R. 37-4(b). Plaintiff did not submit any such declaration here. Indeed, the only support Plaintiff offers is a single sentence at the end of Plaintiff's motion where Plaintiff states that the Court should award “attorneys fees [Plaintiff] has incurred in connection with the original trial proceedings that must be repeated, in conducting the post-mistrial discovery, and in bringing this motion.” Mot. at 14. Plaintiff also failed to submit the requisite declaration even though the Court, in denying Plaintiff's original motion for sanctions without prejudice, drew Plaintiff's attention to the relevant Civil Local Rules, including the requirement to submit a declaration in support of such a motion. See Jan. 9, 2015 Hr'g Tr., 84:7-23 (denying Plaintiff's motion for sanctions and stating that if Plaintiff chose to file a renewed motion, “I will need declarations from all of the attorneys involved.”). The Court also notes that this is Plaintiff's third opportunity to submit a motion for sanctions in connection with the MTA's discovery misconduct. The Court denied Plaintiff's first motion for sanctions without prejudice because Plaintiff failed to submit the requisite declarations supporting his request for attorney's fees, failed to file it as a separate motion, and—with respect to Plaintiff's request for an adverse inference jury instruction—failed to show the requisite prejudice. Jan. 9, 2015 Tr. at 47:20-48:1; 84:7-19. Plaintiff then failed to file a renewed motion for sanctions by the original February 6, 2015 deadline. Moreover, Plaintiff represented to the Court that Plaintiff missed the February 6, 2015 deadline because he did not receive relevant deposition transcripts until February 20, 2015, ECF No. 165, even though Plaintiff failed to take the depositions until February 5, 2015, and received rough drafts of the relevant transcripts by February 7, 2015, see ECF No. 169, at 1 n.1; House Decl. Ex. 3. Plaintiff then filed the current motion for sanctions—Plaintiff's third opportunity to file such a motion—at midnight on March 3, 2015, and filed supporting exhibits between 12:32 a.m. and 1:08 a.m. on March 3, 2015.[4] See House Decl., Ex. 4. Plaintiff did so even though the Court set a deadline to file the instant motion of March 2, 2015. ECF No. 169, at 2 (ordering Plaintiff to file a motion for sanctions by March 2, 2015 and further stating, “The Court will strike any untimely submissions of the parties.”). At this point, Plaintiff has had ample opportunity to try to make a case for monetary sanctions. For the reasons stated above, the Court DENIES Plaintiff's motion for monetary sanctions. However the Court recognizes that the MTA's conduct during discovery in this matter was clearly deficient, and warrants some consequence. The Court also notes that because the Court informed the parties it would strike any untimely submissions, and Plaintiff has twice failed to file an amended exhibit list, Plaintiff in effect would not be able to use any of the MTA's recently produced documents at the April 24, 2015 re-trial. Accordingly, the Court believes that an equitable result would be to grant Plaintiff a third opportunity to file an amended exhibit list. This will ensure that the MTA (which did timely file an amended exhibit list) is not accorded an unfair advantage by being able to use recently produced documents, while Plaintiff is barred from doing the same. It will also ensure that Plaintiff is given the opportunity to present a complete case. Accordingly, the Court GRANTS Plaintiff an extension to file an amended exhibit list. Plaintiff shall file an amended exhibit list by April 10, 2015. Moreover, Plaintiff has already received a benefit in that Plaintiff has been allowed to assert a new Equal Protection claim based on the Olsen Memo. B. Plaintiff's Request for an Adverse Inference Jury Instruction *9 In his motion, Plaintiff requests that the Court “provide the jury with an adverse instruction, informing the jury that relevant documents favorable to Mr. Katzman were destroyed.” Mot. at 13. Plaintiff argues that the MTA failed to implement a litigation hold for documents relevant to Plaintiff's case, and accordingly that spoliation occurred. Id. at 10-12. Plaintiff further argues that based on, inter alia, the resultant prejudice suffered by the Plaintiff, an adverse inference instruction is warranted. Id. at 12-13. The MTA, in its opposition, does not contest Plaintiff's assertion that the MTA failed to implement a litigation hold. Rather, the MTA contends that Plaintiff has failed to show that any documents that may have been destroyed are relevant, and further argues that Plaintiff has not been prejudiced. Opp'n at 8-9. The Court will first address whether Plaintiff has shown that spoliation occurred, and then whether, based on the record, an adverse inference instruction is warranted. 1. Spoliation Spoliation refers to “the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Evidence of spoliation may be grounds for sanctions, including an adverse inference instruction. Glover, 6 F.3d at 1329. While the Ninth Circuit has not set forth a precise standard to determine when an adverse inference instruction based on spoliation is appropriate, district courts in the Ninth Circuit have widely adopted the Second Circuit's three-part test which provides that “a party seeking an adverse inference instruction based on the destruction of evidence must establish[:] (1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the records were destroyed ‘with a culpable state of mind’; and (3) that the destroyed evidence was ‘relevant’ to the party's claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). In addition, before imposing an adverse inference instruction, courts also consider “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.” Nursing Home Pension Fund v. Oracle Corp., 254 F.R.D. 559, 563 (N.D. Cal. 2008) (internal quotation marks omitted). The Court first addresses the Second Circuit's three-part test set forth in Residential Funding Corporation. a. When the MTA had an obligation to preserve evidence “The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir. 2001). Thus, “[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a ‘litigation hold’ to ensure the preservation of relevant documents.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003). Here, Plaintiff contends that the MTA's duty to preserve relevant evidence was triggered on November 10, 2011, when according to an internal MTA email the Plaintiff complained to the MTA's pension and benefits department about the suspension of his pension. Mot. at 9. According to documents submitted in connection with the instant motion, the MTA claims that litigation was not “reasonably foreseeable,” and hence that the MTA did not have a duty to preserve evidence, until February 1, 2012, when the MTA received a letter titled “Notice of Claim” from Plaintiff that outlined Plaintiff's legal contentions. See Leigh Decl., Ex. I, at 2 (MTA's response to second set of interrogatories, stating that “[l]itigation regarding Mr. Katzman's claims was reasonably foreseeable upon receiving his claim for damages on or about February 1, 2012.”). However, in its opposition to Plaintiff's motion, the MTA appears to concede that its obligation to preserve evidence arose in November 2011. See Opp'n at 5 (stating that the “duty to preserve arose in November 2011”). Therefore, the Court assumes, without deciding, that the MTA had a duty to preserve evidence as of November 2011. b. Whether the MTA acted with a culpable state of mind *10 For purposes of spoliation, a “culpable state of mind” includes “ordinary negligence.” Zubulake, 220 F.R.D. at 220; see also Residential Funding, 306 F.3d at 108 (“[T]he ‘culpable state of mind’ factor is satisfied by a showing that the evidence was destroyed knowingly, even if without intent to [breach a duty to preserve it], or negligently.” (emphasis in original) (internal quotation marks omitted)). Once a party has a duty to preserve evidence, if that party fails to suspend routine document retention and destruction policies and implement a “litigation hold,” the party's failure to do so “constitutes gross negligence” for sanctions purposes. Treppel v. Biovail Corp., 249 F.R.D. 111, 121 (S.D.N.Y. 2008); see also United Factory Furniture Corp. v. Alterwitz, No. 2:12-CV-00059-KJD-VC, 2012 WL 1155741, at *3 (D. Nev. Apr. 6, 2012) (counsel “must take affirmative steps to monitor compliance” with a litigation hold, and counsel's failure to do so constitutes gross negligence for sanctions purposes, “because it is likely to result in destruction of relevant information”). Here, the MTA appears to concede that the MTA had an obligation to preserve evidence as of November 2011. See Opp'n at 5. The MTA also appears to concede that it failed to implement a litigation hold and suspend its normal document retention policy in connection with Plaintiff's lawsuit. See Opp'n at 4-6; see also Leigh Decl., Ex. U (January 31, 2015 email from the MTA's counsel to Plaintiff's counsel acknowledging that “[t]here was no effort to suspend the [document preservation/retention] policy”). Accordingly, the MTA concedes that it failed to suspend its document retention policy after it had an obligation to do so. Therefore, the MTA acted with, at the very least, “gross negligence.” Treppel, 249 F.R.D. at 121. This is a sufficient culpable state of mind for an adverse inference instruction sanction. Zubulake, 220 F.R.D. at 220. c. Whether the MTA destroyed evidence relevant to Plaintiff's claim To obtain an adverse inference instruction, a party must show, inter alia, that the destroyed “evidence was ‘relevant’ to [the party's] claim or defense such that a reasonable trier of fact could find that it would support that claim or defense.” Residential Funding, 306 F.3d at 107. The party alleging spoliation has the burden to show that the destroyed evidence was relevant to its claims. Curcio v. Roosevelt Union Free Sch. Dist., 283 F.R.D. 102, 115 (E.D.N.Y. 2012). “[S]peculative assertions as to the existence of documents do not suffice to sustain a motion for spoliation of evidence.” Tri-Cnty. Motors, Inc. v. Am. Suzuki Motor Corp., 494 F. Supp. 2d 161, 177 (E.D.N.Y. 2007); Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 631 (C.D. Cal. 2013) (speculation that destroyed evidence might support a party's case is insufficient to support a finding of spoliation). Proof of relevance “requires proof through extrinsic evidence.” Curcio, 283 F.R.D. at 115. As a preliminary matter, Plaintiff is able to point to only one document that was actually destroyed after the MTA's obligation to preserve evidence arose: the original Olsen Memo outlining procedures to follow in conducting the bi-annual audit. Ms. Olsen testified that before she destroyed the original version of the Olsen Memo, she transcribed the document in electronic form some time in 2013. Jan. 9, 2015 Hr'g Tr. 31:6-32:4. Counsel for the MTA subsequently provided Plaintiff with a copy of the electronic version of the Olsen Memo. Leigh Decl, Ex. O. In his motion, Plaintiff speculates that the MTA destroyed various other documents that may have been relevant to Plaintiff's claims. However, Plaintiff's assertions are either contradicted or unsupported by the record. For instance, Plaintiff argues that the MTA destroyed emails from “retirees ... regarding suspension of their account [i.e. pensions].” Mot. at 11. However, the record reflects that pensioners infrequently contacted the MTA by email regarding the suspension of their pensions. During her deposition, Ms. Olsen stated that although retirees “may have e-mailed” the MTA regarding the suspension of their pensions, “[m]ost retirees call us.” Olsen Depo. Tr. 14:3-13 (emphasis added). Furthermore, Ms. Olsen stated that if she or her staff has a substantive email communication with a pensioner, they print out and store the email “in the pensioner's corresponding file to keep a hard copy of any such communications.” Declaration of Janice Olsen in Support of Opposition to Motion for Sanctions, ECF No. 187-6 (“Olsen Decl.”), ¶ 5. Hard copies of emails would not be subject to the MTA's e-mail preservation/destruction policy, and therefore would have been preserved. Declaration of Vincent Tee in Support of Opposition to Motion for Sanctions, ECF No. 187-7, ¶ 5. Accordingly, to the extent that substantive communications from pensioners do exist, the record indicates such emails were not destroyed. *11 In his motion, Plaintiff also asserts that “[c]hanges and approvals to the audit policy (or statements regarding the benefits/disadvantages/costs of procedures of procedures or changes), often communicated by email ... were not preserved.” Mot. at 11. However, the record contradicts Plaintiff's claim that changes and approvals to the MTA's bi-annual audit policy were “often” communicated by email; indeed, the record does not reflect that such communications even exist. Rather, at trial Olsen testified that approval to change the audit policy “could be an e-mail approval. It could be definitely an oral approval.... I don't recall off the top of my head.” Jan. 6, 2015 Trial Tr. 209:3-5 (emphasis added). Plaintiff provides no support from the record for his assertion that changes and approvals to the bi-annual audit process were “often” communicated by email, or were communicated by email at all. Plaintiff also argues that “[i]nternal and/or external reports detailing the findings and recommendations of the 2013 [bi-annual] audit would be destroyed after 6 months,” and that “internal audit working papers, documents supporting the conclusions of an audit report, which, based on the 3-year retention policy would have been available in 2011 for both the 2009 and 2011 audits ... were not preserved.” Mot. at 11. In support of his assertion that reports and working papers regarding the bi-annual pension audit were subject to six-month and three-year retention policies, Plaintiff cites to the MTA's “Records Management” policy. See Leigh Decl., Ex. Y. That policy provides in relevant part that “INTERNAL and EXTERNAL AUDIT REPORTS – IMAGED,” which are defined as “[f]ormal documents detailing the findings and recommendations of an audit,” are to be preserved for six months in off-site or off-system storage. Id. at 23 (capitalization in original). The policy also provides that “INTERNAL AUDIT WORKING PAPERS,” which are defined as “[i]maged collection[s] of documents accumulated during an audit that support the conclusions of the audit report,” are to be retained in department files for three years. Id. (capitalization in original). However, Plaintiff provides no support from the record for his claim that the “INTERNAL and EXTERNAL AUDIT REPORT” and “INTERNAL AUDIT WORKING PAPERS” described in these retention policies are the same as the bi-annual pension audit. Moreover, as Defendant notes in its opposition, Plaintiff had the opportunity to ask Mr. Stamm or Ms. Olsen during their February 5, 2015 depositions whether the audits referred to in the “Records Management” policy were the same as the bi-annual pension audit, but did not. Opp'n at 6. Finally, Plaintiff argues that the MTA likely destroyed a “significant” document related to a change the MTA made to its pension and benefits procedures in 2011. During trial, Ms. Olsen testified that prior to 2011, the MTA sent advance notice of the bi-annual pension audit to pensioners. Jan. 6, 2015 Trial Tr. at 196:23-197:2. Ms. Olsen further testified that the MTA discontinued this practice in advance of the 2011 bi-annual audit, which occurred in August 2011. Id. at 186:9, 197:25-198:8. In his motion for sanctions, Plaintiff argues that the “critical decision to abandon the MTA's practice of providing advance notice to retirees of upcoming audits ... might have been documented in email,” and “would have been a significant email subject to preservation under section 1.[4.]8 of the Records Management Policy, preserved for between 1 and 3 years.”[5] Mot. at 11. Plaintiff then argues that because the MTA failed to produce such an email, the MTA must have destroyed it. Id. *12 There are two defects with Plaintiff's argument. First, the assertion that the MTA's “critical decision” to abandon the practice of sending multiple audit letters “might have been documented in email” is not supported by the record. During trial Ms. Olsen, in testifying about the decision to discontinue advance notice of the bi-annual audit, stated that she did not “recall it being in any formal written form.” Jan. 6, 2015 Trial Tr. at 203:2. Furthermore, Mr. Stamm testified in his deposition that he was not aware of any communications about the decision to halt advance notices to retirees about upcoming audits. Stamm Depo. Tr. 36:15-20 (“Q: Do you know, was there any communications about that decision? A: Not that I'm aware of.”). Second, even if such a decision had been documented in an email, Plaintiff provides no support for his assertion that such an email would have been preserved for one to three years. In support of this statement, Plaintiff appears to cite to § 1.4.8 of the MTA's “Records Management” policy. Leigh Decl, Ex. Y, at 7. Section 1.4.8 provides that “where an e-mail message constitutes a significant record, as in an affirmative act regarding a particular Board or agency activity, or approval or rejection of a contract or management decision, the e-mail must be retained” in accordance with an attached schedule. Id. The attached schedule is 35 pages long, and provides a range of time periods for which certain categories of documents must be preserved, ranging from one month to over 10 years. Id. at 16-50. Accordingly, even assuming that an email regarding the MTA's change to its bi-annual pension audit procedure in 2011 existed, Plaintiff provides no support from the record for Plaintiff's assertion that such an email would have constituted a “significant record” within the meaning of § 1.4.8. Plaintiff also provides no evidence that such an email would be considered “an affirmative act regarding a particular Board or agency activity,” or “approval or rejection of a contract or management decision.” See id. at 23. Plaintiff also provides no support for his assertion that such an email would have been preserved for “1 to 3 years.” Mot. at 11. In sum, Plaintiff only offers “speculative assertions as to the existence of documents” that may have been destroyed by the MTA. Tri-Cnty. Motors, 494 F. Supp. 2d at 177. This is insufficient to satisfy Plaintiff's burden to show that any allegedly destroyed evidence was “relevant to [Plaintiff's] claims ... such that a reasonable trier of fact could find that it would support that claim.” Residential Funding, 306 F.3d at 107. Accordingly, because Plaintiff fails to show that any destroyed documents besides the Olsen Memo were relevant, Plaintiff fails to show spoliation as to any relevant documents besides the Olsen Memo. See id. 2. Prejudice Even where a party has shown spoliation of relevant evidence, this does not result in automatic imposition of an adverse inference instruction. In considering what spoliation sanction, if any, to impose courts generally consider three factors: “ ‘(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party.’ ” Nursing Home Pension Fund, 254 F.R.D. at 563 (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)). “The prejudice inquiry looks to whether the [spoiling party's] actions impaired [the non-spoiling party's] ability to go to trial or threatened to interfere with the rightful decision of the case.” Leon, 464 F.3d at 959. Ultimately, the choice of what sanction to impose for spoliation should be commensurate to the spoliating party's motive or degree of fault in destroying the evidence. See, e.g., In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1066-67 (N.D. Cal. 2006) (“[A] party's motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed.”). Consistent with this principle, some courts have denied requests for an adverse inference instruction even where the three-part test for spoliation was satisfied, upon concluding that the degree of fault and level of prejudice were insufficient to justify imposition of the sanction. See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 161-62 (2d Cir. 2012) (holding that district court did not abuse its discretion in denying an adverse inference instruction notwithstanding a finding of spoliation). *13 Here, as previously discussed, the only relevant document to which Plaintiff points that was actually destroyed after the MTA's obligation to preserve evidence arose was the original, handwritten Olsen Memo outlining procedures to follow in conducting the bi-annual audit. Ms. Olsen testified that before she destroyed the original, handwritten version of the Olsen Memo, she transcribed the document in electronic form some time in 2013. Jan. 9, 2015 Hr'g Tr. 31:6-32:4. The MTA produced the electronic version of the Olsen Memo to Plaintiff on January 7, 2015. ECF No. 124-2. Ms. Olsen also testified that any deficiency in her search for and production of documents was “inadvertent.” Id. at 18:18-19 (stating in relation to the Olsen Memo, “If this was missed in the initial discovery, I apologize. It was inadvertent.”). Counsel for the MTA subsequently provided the Plaintiff with an electronic copy of the Olsen Memo. Leigh Decl, Ex. O. The Court concludes that, taking into account Ms. Olsen's degree of fault and the level of prejudice suffered by Plaintiff, the destruction of the original, handwritten Olsen Memo does not justify the imposition of an adverse inference instruction. Ms. Olsen testified that the inadequacy of her document production was “inadvertent.” Jan. 9, 2015 Hr'g Tr. 18:18-19. There is no evidence in the record that Ms. Olsen destroyed the Olsen Memo with a greater culpable state of mind. Moreover, Plaintiff does not point to any evidence in the record that indicates Ms. Olsen's destruction of the Olsen Memo was anything but inadvertent. Indeed, during Ms. Olsen's February 5, 2015 deposition, Plaintiff did not ask her once about the Olsen Memo. See Olsen Depo Tr. Furthermore, the MTA ultimately produced the electronic copy of the Olsen Memo to Plaintiff. Leigh Decl., Ex. O. There is no evidence in the record that the electronic copy given to Plaintiff differed in any respect from the original, handwritten copy that Ms. Olsen destroyed. Moreover, Plaintiff does not argue that the MTA's failure to produce the Olsen Memo, in any form, caused prejudice to Plaintiff. Accordingly, it is not apparent that the destruction of the original Olsen Memo threatened Plaintiff's “ability to go to trial” or “threatened to interfere with the rightful decision of [this] case.” Leon, 464 F.3d at 959. On this record the Court does not find an adverse inference instruction to be warranted.[6] *14 For the reasons stated above, the Court finds that Plaintiff fails to demonstrate that the MTA destroyed relevant evidence, other than the original Olsen Memo. The Court also finds that the destruction of the original Olsen Memo does not justify an adverse inference instruction. Therefore, Plaintiff's request for an adverse inference instruction is DENIED. C. Terminating Sanction Finally, the Court turns to Plaintiff's request for a terminating sanction. A district court has the inherent power to impose a terminating sanction “for discovery abuses that may not be a technical violation of the discovery rules.” Halaco Eng'g Co. v. Costle, 843 F.2d 376, 380 (9th Cir. 1988) (internal quotation marks omitted). However, “outright dismissal of a lawsuit ... is a particularly severe sanction.” Chambers v. NASCO, Inc., 501 U.S. 32, 45 (1991); see also Halaco, 843 F.2d at 380 (“Dismissal under a court's inherent powers is justified in extreme circumstances.”). Furthermore, “[b]ecause of their very potency, inherent powers must be exercised with restraint and discretion.... A primary aspect of that discretion is the ability to fashion an appropriate sanction for conduct which abuses the judicial process.” Chambers, 501 U.S. at 44-45. In deciding whether to impose a terminating sanction pursuant to its inherent powers, the district court must consider: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to [the party seeking sanctions]; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Porter v. Martinez, 941 F.2d 732, 733 (9th Cir. 1991). The moving party has the “heavy burden to establish the appropriateness of terminating sanctions.” Stanley Black & Decker, Inc. v. D&L Elite Investments, LLC, No. C 12-04516 SC (LB), 2014 WL 3738327, at *10 (N.D. Cal. June 20, 2014). Here, although Plaintiff requests that the Court award a terminating sanction, Plaintiff never addresses the five factors the Court must weigh, and never argues that the factors weigh in Plaintiff's favor. It is Plaintiff's “heavy burden” to explain how these factors favor dismissal, Stanley Black & Decker, 2014 WL 3738327, at *10, and Plaintiff never attempts to carry his burden. Accordingly, the Court DENIES Plaintiff's request for a terminating sanction. IV. CONCLUSION For the reasons stated herein, the Court DENIES Plaintiff's motion for sanctions. The Court GRANTS Plaintiff an extension to file an amended exhibit list. Plaintiff may file an amended exhibit list by April 10, 2015. IT IS SO ORDERED. Footnotes [1] Plaintiff voluntarily dismissed the County of Los Angeles as a defendant on July 29, 2013. ECF No. 23. [2] Plaintiff claims that he submitted copies of the MTA's responses to Plaintiff's first and second set of discovery requests in conjunction with the instant motion. See Declaration of G. Whitney Leigh in Support of Motion for Sanctions, ECF No. 176, ¶ 5 (identifying the MTA's responses to first set of requests for production as “Exhibit D”); id. ¶ 7 (identifying the MTA's responses to second set of requests for production as “Exhibit F”). However, Plaintiff failed to actually file these documents. Plaintiff did, however, submit copies of all three of Plaintiff's requests for production in conjunction with Plaintiff's November 25, 2014 motions in limine. See ECF Nos. 87-1, 87-2, 87-3. Accordingly, the Court refers only to Plaintiffs' requests for production. [3] Plaintiff's declaration in support of his motion for sanctions indicates that Plaintiff intended to file 29 exhibits. See Leigh Decl. ¶¶ 2-33. However, Plaintiff did not file six of the 29 exhibits. [4] As previously discussed, pursuant to Civil Local Rule 5-1(e)(4), all electronic filings of documents must be submitted prior to midnight “in order to be considered timely filed that day.” Civ. L. R. 5-1(e)(4). [5] In his motion, Plaintiff refers to the MTA's policy with respect to email preservation as policy number “1.28.” Mot. at 11. It appears Plaintiff intended to refer to § 1.4.8, which is titled “E-Mail Records.” Leigh Decl., Ex. Y, at 7. Moreover, the MTA's “Records Management” policy does not contain a policy number “1.28.” See id. [6] Although Plaintiff does not raise the argument with respect to spoliation or prejudice, in his motion Plaintiff also states that the MTA “altered” a November 10, 2011 email. Mot. at 9. The email in question is an internal MTA email between Ms. Olsen and two other MTA employees, Terry Matsumoto and Donna Mills. Leigh Decl., Ex. A. at 1. Plaintiff contends that when the email was produced during discovery, five sentences were omitted from the email that referred to conversations with the MTA's legal counsel. Mot. at 9. On January 9, 2015, the MTA produced the complete version of the email. Id.; see also Leigh Decl, Ex. A, at 2. In its opposition, the MTA acknowledges that it originally redacted the November 10, 2011 email on the grounds of privilege. Opp'n at 6. The MTA further states that “redaction of that email without an accompanying privilege log waived any claim of privilege regarding its contents,” and accordingly the MTA produced the complete email to Plaintiff on January 9, 2015. Id. Plaintiff never argues that the November 10, 2011 email is another example of spoliation that justifies an adverse inference instruction. Moreover, to the extent Plaintiff would try to make such an argument, Plaintiff has a complete version of the November 10, 2011 email; indeed, Plaintiff attached the complete email as an exhibit to his motion. Accordingly, it is not apparent how Plaintiff suffered any prejudice. See Leon, 464 F.3d at 959 (“The prejudice inquiry looks to whether the [spoiling party's] actions impaired [the non-spoiling party's] ability to go to trial or threatened to interfere with the rightful decision of the case.”).