Summary:The plaintiff requested video footage from August 2014 as part of discovery, but the defendants had already purged the footage due to their one-year retention policy. The court found that the plaintiff had not provided sufficient evidence to show that the defendants had notice of the potential litigation prior to the destruction of the footage, and thus denied the plaintiff's request for sanctions.
Court:United States District Court, C.D. California
Date decided:
Judge:Oliver, Rozella A.
Charlton Sanders v. Los Angeles County, et al Case No.: CV 15-00907-AG (RAO) United States District Court, C.D. California Filed August 1, 2019 Counsel Olu K. Orange, Orange Law Offices PC, Los Angeles, CA, for Charlton Sanders. John L. Fuentes, Raymond J. Fuentes, Fuentes and McNally LLP, Glendale, CA, for Former Sheriff Baca, Los Angeles County, Deputy Shuster, Deputy Gautt. Jennifer Koo, Bowman and Brooke LLP, Torrance, CA, John L. Fuentes, Raymond J. Fuentes, Fuentes and McNally LLP, Glendale, CA, for Los Angeles Sheriffs Department. Raymond J. Fuentes, Fuentes and McNally LLP, Glendale, CA, for Deputy Wolf. Oliver, Rozella A., United States Magistrate Judge Proceedings: (In Chambers) ORDER RE PLAINTIFF'S REQUEST FOR SANCTIONS FOR SPOLIATION OF ESI [198] *1 Pending before the Court is Plaintiff Charlton Sanders' (“Plaintiff”) Request for Sanctions for Spoliation of Electronically Stored Information (“ESI”) (“Sanctions Request”). Dkt. No. 198. For the reasons set forth below, the Court DENIES the Sanctions Request. A. Background This litigation centers around Plaintiff's stay as a pretrial detainee at the Los Angeles County jail in 2014. From August 16 through August 21, 2014, Plaintiff alleges that he was starved by Los Angeles County Sheriff's Department deputies at the jail when he refused to voluntarily leave suicide watch. The Fourth Amended Complaint, the operative complaint in this action, pleads violations of 42 U.S.C. § 1983 and state law by defendants County of Los Angeles (“CoLA”), Los Angeles County Sheriff's Department (“Sheriff's Department”), Leroy Baca, Deputy Wolf/Doe, Deputy Shuster, and Deputy Gautt (“4AC”). The 4AC was filed on May 25, 2017, by Plaintiff who is proceeding pro se. 1. Relevant Procedural History The case has a lengthy procedural history, and multiple discovery issues have arisen during the course of the litigation. The instant dispute concerns video footage from August 16-21, 2014 of Plaintiff's cell, footage which Plaintiff sought from Defendants as part of discovery. In February 2017, Plaintiff requested production of ESI from Defendant CoLA, including video footage of the incidents occurring in August 2014 that form the basis for the claims raised in the 4AC. See Sanctions Request at 3. In responding to Plaintiff's discovery requests, Defendant CoLA stated that it did not preserve video of the incident. Id. In a supplemental response, Defendant CoLA informed Plaintiff that, after conducting a diligent search, the video footage was not located and appeared to have been destroyed. Id. Upon being informed that the video footage no longer exists, Plaintiff filed the instant Sanctions Request, asking the Court to grant sanctions in the form of default judgment against Defendants, or alternatively, asking for an adverse jury instruction against Defendants, as well as precluding Defendants from explaining why the video footage was not preserved, striking all defenses, and awarding Plaintiff $10,000 in attorney's fees.[1] Sanctions Request at 10. In response to a court order dated November 16, 2018, addressing then-outstanding discovery issues, the Court directed Defendants to file a pleading with supporting declaration(s) explaining why the ESI requested by Plaintiff was no longer available. See Dkt. No. 211 at 3. On December 7, 2018, Defendants filed a declaration explaining Defendant CoLA's ESI retention policy generally and addressing specifically why the video footage requested by Plaintiff no longer exists. See Dkt. No. 215, 215-1. On February 12, 2019, Plaintiff filed a response to Defendants' filing. Dkt. No. 241. 2. Parties' Arguments *2 In the Sanctions Request, Plaintiff states that he first notified Defendant CoLA in October 2014 that a lawsuit would be forthcoming, putting Defendants on notice that they may not destroy or dispose of any record that “relates to any pending claim, litigation, settlement or other disposition of litigation within the past two years....” Sanctions Request at 4. Plaintiff cites to attached exhibits (Exhibits Q and T) to demonstrate that Defendant CoLA was on notice that Plaintiff intended to file this lawsuit and thus its duty to preserve the video evidence was triggered prior to initiation of the instant lawsuit. Id. at 4, 8. Exhibit Q of the 4AC[2] is a letter dated October 14, 2014, from Zev Yaroslavsky, County Board of Supervisor, addressed to Plaintiff (“Yaroslavsky Letter”). Dkt. No. 100-1 at 14. The letter states that Mr. Yaroslavsky is in receipt of Plaintiff's correspondence “pertaining to [Plaintiff's] Second Civil Action Notice against the Los Angeles County Sheriff's Department.” Id. The letter goes on to state that “[i]t is the policy of the Board of Supervisors to forward all constituent letters to the appropriate representative for the jurisdiction which handles the constituent's concerns” and that Plaintiff's concerns are being forwarded to the relevant representative. Id. Exhibit T of the 4AC is a newspaper article printed in March 2016 with the caption, “Widespread Corruption in L.A. County Jails Leads to Federal Investigation, Indictments.” Dkt. No. 100-1 at 17-27. In response to the Sanctions Request, Defendant CoLA filed the declaration of Justine D. Joo, an employee with the Sheriff's Department Twin Towers Correctional Facility (“Joo Declaration”). Dkt. No. 215. In her declaration, Joo states that the Sheriff's Department has a policy of retaining video footage for one year. Joo Decl. at ¶ 4. Under the Sheriff Department's policy, video footage of Plaintiff's cell from the period of August 15 through August 21, 2014, would have been deleted one year later. Id. Further, Joo confirmed that no video footage of Plaintiff's cell from August 2014 exists. Id. Joo also declares that the Sheriff's Department was not aware of Plaintiff's lawsuit until January 5, 2017, when it was served with Plaintiff's Third Amended Complaint. Id. at ¶ 5. Based on the Sheriff's Department's retention policy, the video footage of Plaintiff's cell from August 2014 was already purged by the time the Sheriff's Department became aware of the pending lawsuit. Id. B. Relevant Legal Standards “A party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence.” Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051 (S.D. Cal. 2015) (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)). 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)). “The common law imposes the obligation to preserve evidence from the moment that litigation is reasonably anticipated.” Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132, 1136 (N.D. Cal. 2012) (citations omitted). This duty extends to that “period before litigation when a party should reasonably know that evidence may be relevant to anticipated litigation.” Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1005 (D. Ariz. 2011) (citation and quotation marks omitted). Once the duty to preserve takes effect, a party must “suspend any existing policies related to deleting or destroying files and preserve all relevant documents related to the litigation.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1070 (N.D. Cal. 2006) (citations omitted). *3 The party moving for sanctions based on spoliation of evidence must establish the following elements: “(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 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.” Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013) (citation omitted); see also Apple, 881 F. Supp. 2d at 1151. The standard of proof for spoliation in the Ninth Circuit “appears to be by a preponderance of the evidence.” Ramos v. Swatzell, Case No. ED CV 12-1089-BRO (SPx), 2017 WL 2857253, at *5 (C.D. Cal. June 5, 2017); see also Compass Bank, 104 F. Supp. 3d at 1053. C. Discussion There is no dispute that the video footage at issue was under the exclusive control of Defendant CoLA. Nor is there a dispute that the footage is irretrievably lost. Joo Decl. ¶ 4. Rather, the dispute centers on whether a duty to preserve existed prior to the footage's automatic deletion under the Sheriff's Department retention policy. “As soon as a potential claim is identified, a litigant is under a duty to preserve the evidence which it knows or reasonably should know is relevant to the action.” In re Napster, 462 F. Supp. 2d at 1067 (citations omitted). The Ninth Circuit has held, however, that a party does not engage in spoliation of evidence if potential evidence is destroyed in the normal course of its business “without notice of the evidence's potential relevance.” United States v. $40,955.00 in U.S. Currency, 554 F.3d 752, 758 (9th Cir. 2009). Even if a policy to delete information exists, once the party has notice that litigation is reasonably foreseeable, there is a duty to suspend that policy and retain all relevant documents and information for possible litigation. See Apple, 881 F. Supp. 2d at 1145 (finding that emails which were deleted due to a company-wide policy which automatically deleted emails after 14 days was not a valid excuse because the party was on notice that litigation was reasonably foreseeable and that those documents were relevant to the litigation); Oppenheimer v. City of La Habra, Case No. SACV 16-0018 JVS (DFMx), 2017 WL 1807596, at *11 (C.D. Cal. Feb. 17, 2017) (finding that a policy which automatically deletes emails after 180 days should have been suspended once a party was on notice that litigation was reasonably foreseeable). Reasonably foreseeable litigation is an objective standard. Apple, 881 F. Supp. 2d at 1145. Here, Defendant CoLA states that “the Department maintains a policy of retaining video footage for a year.” Joo Decl. ¶ 4. The older footage is automatically deleted and replaced by new footage after one year. Id. The Sheriff's Department has this policy in place due to the “extremely high cost of data storage” and to ensure that “there is enough storage capacity for current data.” Id. Even though this policy existed at the time, there is no doubt that once the Sheriff's Department became aware of reasonably foreseeable litigation in this matter, it should have suspended this policy or at the least made a back up copy of the relevant footage. The question then arises when did Defendant CoLa reasonably become aware that this action would be foreseeable and that the video footage of Plaintiff's cell should be preserved as relevant evidence. Defendant CoLA argues that the duty to preserve began on January 5, 2017, which was the date Plaintiff's Third Amended Complaint was served on it.[3] Joo Decl. ¶ 5. Defendant CoLA argues that January 5, 2017, is the first time that they were on notice that the video footage would be relevant to the litigation. Id. at ¶ 4. By the time the CoLA was on notice, the video footage of the August 2014 incidents would have already been deleted according to the Sheriff's Department retention policy. See id. *4 Plaintiff argues that the County was on notice weeks after the incident because Plaintiff complained about his treatment to corporate officers and the CoLA Board of Supervisors. Sanctions Request at 6. A survey of recent court decisions on the issue of spoliation offers guidance on how to resolve the instant discovery issue. In Voskanyan v. Unknown, the court found no duty to preserve when a prisoner requested video footage that had been deleted automatically due to the same retention policy as the policy in this case. Voskanyan v. Unknown, No. 2:15-CV-06259-MWF-KES, 2018 WL 6164257, at *1 (C.D. Cal. Mar. 21, 2018). The plaintiff, a prisoner at Men's Central Jail, alleged he was assaulted by 40 inmates and subsequently requested the video recording of that incident. Id. at *2. The complaint was not served out until two years after the events had occurred. Id. at *1. The Sheriff's Department had a video retention policy of one year, and the video had been automatically deleted prior to the service of the complaint. Id. The court reasoned that there can be no duty to preserve what no longer exists since the video was already destroyed prior to the start of the ligation. Id. The plaintiff tried to show that attached informal complaints should have triggered the duty to preserve, but the court determined that this was insufficient evidence because it was not clear whether the defendants received the informal complaints and if that would trigger a duty to preserve. Id. at *2. The court held that the plaintiff failed to carry his burden and that sanctions should be denied without prejudice. Id. In other cases, courts have found that the duty to preserve was triggered earlier, before the filing of the lawsuit. In Oppenheimer v. City of La Habra, the court found a duty to preserve email and text messages subsequent to a prisoner's suicide at La Habra city jail. Case No. SACV 16-0018 JVS (DFMx), 2017 WL 1807596, at *11 (C.D. Cal. Feb. 17, 2017). The defendants had a policy of automatically deleting emails after 180 days, and thus the relevant emails had been deleted. Id. The complaint was filed January 6, 2016, but the duty to preserve was found by the court to have started around April 20, 2015. Id. at *10. The plaintiff had served the city with a written request for information on April 20, 2015, filed an administrative claim on April 20, 2015, and the defendants already had an open investigation into the decedent's death by that date. Id. In Mizzoni v. Nevada, the court found a duty to preserve video evidence related to a claim brought by a prisoner in which the defendants allegedly used excessive force and falsified a disciplinary report. Case No. 15-CV-00499-MMD-WGC, 2017 WL 4284597, at *4 (D. Nev. Sept. 27, 2017). The event in question occurred on March 28, 2015, and the prison had a policy of destroying video footage every 10-14 days unless there was an incident. Id. The court held that because the plaintiff had specifically asked for the video footage from the Warden on April 5, 2015, the video footage should have been preserved. Id. Similarly, in Pettit v. Smith, the court found a duty to preserve video evidence related to an excessive force claim brought by a prisoner. 45 F. Supp. 3d 1099, 1108 (D. Ariz. 2014). The plaintiff submitted a grievance letter the same night of the incident, April 16, 2011, to one of the defendants. Id. at 1107. The defendants argued that this would not trigger a duty to preserve because the grievance letter had not yet been screened by the prison. Id. The court rejected this argument and found that the letter did trigger a duty to preserve the relevant video footage because the incident itself was “sufficiently concern[ing]” and the letter underscored that litigation was likely. Id. at 1108. *5 Here, the Court concludes that Plaintiff has not provided sufficient evidence to support Plaintiff's assertion that he complained to various individuals in the weeks after the August 2014 incident. Plaintiff points to the Yaroslavsky Letter (4AC, Ex. Q), which acknowledges receipt of Plaintiff's “correspondence pertaining to [his] Second Civil Action Notice against the Los Angeles County Sheriff's Department.” Id. However, this letter does not state what claims are being addressed, what the relevant time period is, or what is being requested by Plaintiff. Id. Plaintiff does not provide any evidence other than this letter to show that Defendants were on notice prior to the service of the Third Amended Complaint of reasonably foreseeable litigation and the duty to preserve the requested video footage. Exhibit T, the other exhibit relied upon by Plaintiff, is a newspaper article printed in March 2016 with the caption, “Widespread Corruption in L.A. County Jails Leads to Federal Investigation, Indictments.” But this exhibit does not name Plaintiff and cannot reasonably be construed to provide notice to Defendants that litigation concerning Plaintiff's August 2014 detention was reasonably foreseeable.[4] The Court determines that the instant dispute it not similar to those in Oppenheimer, Mizzoni, or Pettit, because the Court cannot verify from the evidence submitted that a grievance letter addressing the August 2014 incident was actually received by Defendants. The case is also distinguishable from Pettit because there is no evidence of a letter submitted to the prison or a prison official. If there was more evidence regarding what the Yaroslavsky Letter was addressing, who received it, and what the letter was in response to, the Court may be able to find that the duty to preserve began before the video footage was lost, but no such information is presently before the Court.[5] Plaintiff fails to specify dates, topics of discussion, and potential follow-up communication between the two. Therefore, based on the evidence before the Court, Plaintiff has not carried his burden of establishing that a duty existed to preserve evidence prior to the date of destruction of the video footage. Thus, the County did not have a duty to preserve the evidence before it was served with the Third Amended Complaint. Accordingly, Plaintiff's request for sanctions is DENIED. IT IS SO ORDERED. Footnotes [1] On September 6, 2018, Plaintiff filed an earlier Motion to Permit an Adverse Inference of Jury Instruction for failure to comply with the Court's discovery order. Dkt. No. 195. The Court denied the motion without prejudice to re-filing on the basis that no determination had been made that Defendants had failed to comply with any of the Court's discovery orders. Id. [2] No exhibits marked Q or T were attached to the Sanctions Request. However, the Court construes Plaintiff's references to be to Exhibits Q and T attached to the 4AC. [3] Because prisoner complaints are not served out until they have been screened, and the Court did not direct service until after it screened the Third Amended Complaint, Defendants were not served with the earlier complaints filed by Plaintiff. [4] Moreover, the video footage at issue would have been deleted under the Sheriff's Department retention policy by the time of the article's publication in March 2016. [5] In his earlier filed Motion to Permit an Adverse Inference Jury Instruction, Plaintiff states that the Inspector General spoke to him about “this incident of torture at ... deputies' hands.” Dkt. No. 195 at 4. However, it is unclear when this conversation took place and what specific topics were discussed during this encounter.