Daniel GONZALEZ, Plaintiff, v. TARGET CORPORATION, Defendant Case No. CV 22-9089 JAK (PVCx) United States District Court, C.D. California Signed January 23, 2024 Counsel Jason Alan Cole, Jonathan M. Kashani, Jonathan M. Kashani Law Offices, Adam J. Sherman, Wilshire Law Firm APLC, Brigitte M. Mayo, Law Offices of Jonathan Kashani PLC, Los Angeles, CA, Joseph M. Kar, Law Office of Joseph M Kar PC, Sherman Oaks, CA, for Plaintiff. Jessica Farley, Sean R. Burnett, Snyder Burnett Egerer LLP, Santa Barbara, CA, for Defendant. Castillo, Pedro V., United States Magistrate Judge REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE *1 This Report and Recommendation is submitted to the Honorable John A. Kronstadt, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. I. INTRODUCTION At the parties' request, the Court conducted an informal telephonic discovery conference on November 1, 2023, to address the parties' dispute regarding Target Corporation's alleged spoliation of video footage and failure to disclose a percipient employee witness. (Dkt. No. 24). The Court encouraged the parties to continue their discussions regarding the discovery disputes and attempt to reach a resolution. (Id.). On November 17, 2023, after the parties failed to resolve their discovery disputes, Gonzalez filed a Motion for Sanctions. (“Motion,” Dkt. No. 29). The Motion seeks sanctions for Target's failure to preserve video footage evidence of before and after the incident and for failing to disclose in written discovery the identity and existence of the missing video and the existence of a percipient witness. (Id. at 2). On November 18, 2023, the parties submitted an amended joint stipulation pursuant to Local Rule 37-2, setting forth each side's position on the disputes (“Joint Stip.,” Dkt. No. 30), along with the Declaration of Joseph M. Kar (“Kar Decl.,” Dkt. No. 30 at 22–23) and the Declaration of Jessica Farley (“Farley Decl.,” Dkt. No. 30 at 24–25), with accompanying exhibits (Dkt. Nos. 30-2 through 30-14). On December 19, 2023, the Court held an in-person hearing. For the reasons stated below and on the record at the hearing, it is recommended that Gonzalez's Motion be GRANTED. II. STATEMENT OF THE CASE In November 2022, Gonzalez filed a complaint against Target in Los Angeles County Superior Court, alleging negligence and premises liability. (Dkt. No. 1-1). On December 15, 2022, the case was removed to federal court. (Dkt. No. 1). Gonzalez alleges he suffered an injury after slipping on a dangerous condition on the floor of the Bakersfield Target store on January 20, 2021. He contends the dangerous condition existed because of Target's negligence. Target contends it did not have notice of the condition that allegedly caused Gonzales to be injured and that Gonzalez was comparatively at fault for failing to avoid the condition. Target further disputes the nature and extent of Gonzalez's alleged injuries and damages. On October 3 and 5, 2023, Gonzalez took the depositions of Target's Rule 30(b)(6) witnesses—Tyrez Gibson (incident) (“Gibson Depo.,” Dkt. No. 28-5) and Jesse Flores (video) (“Flores Depo.,” Dkt. No. 28-4).[1] (See Dkt. No. 30-2 (notice of depositions)). III. APPLICABLE LEGAL PRINCIPLES A. Scope of Permissible Discovery Federal Rule of Civil Procedure 26(b)(1), as amended on December 1, 2015, provides: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. *2 Fed. R. Civ. P. 26(b)(1). Evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action.” Fed. R. Evid. 401. “The relevance standard is commonly recognized as one that is necessarily broad in scope in order to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Raya v. Barka, 2022 WL 686460, at *4 (S.D. Cal. Mar. 8, 2022) (citation omitted); see Sci. Games Corp. v. AGS LLC, 2017 WL 3013251, at *2 (D. Nev. July 13, 2017) (“Even after the 2015 amendments, courts continue to recognize that discovery relevance remains ‘broad’ in scope.”). “The proportionality inquiry [in Rule 26(b)(1)] focuses, at bottom, on analyzing the marginal utility of the discovery being sought.” V5 Techs. v. Switch, Ltd., 334 F.R.D. 306, 314 (D. Nev. 2019) (citation omitted). While the scope of permissible discovery may be broad, because discovery must be both relevant and proportional to the needs of the case, the right to discovery, even plainly relevant discovery, is not limitless. The 2015 amendments to Rule 26 “were designed to protect against over-discovery and to emphasize judicial management of the discovery process, especially for those cases in which the parties do not themselves effectively manage discovery.” Noble Roman's, Inc. v. Hattenhauer Distrib. Co., 314 F.R.D. 304, 308 (S.D. Ind. 2016); see Davita HealthCare Partners, Inc. v. United States, 125 Fed. Cl. 394, 398 n.3 (2016) (the 2015 amendments to the Federal Rules “contribute to the overall goal of regulating the time and expense of litigation”). “Upon a motion to compel discovery, the movant has the initial burden of demonstrating relevance. In turn, the party opposing discovery has the burden of showing that discovery should not be allowed, and also has the burden of clarifying, explaining and supporting its objections with competent evidence.” United States v. McGraw-Hill Cos., 2014 WL 1647385, at *8 (C.D. Cal. Apr. 15, 2014) (citations omitted); see DIRECTV, Inc. v. Trone, 209 F.R.D. 455, 458 (C.D. Cal. 2002) (“The party who resists discovery has the burden to show that discovery should not be allowed, and has the burden of clarifying, explaining, and supporting its objections.”). B. Rule 30(b)(6) Depositions Rule 30 provides that: [A] party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. ... The persons designated must testify about information known or reasonably available to the organization. Fed. R. Civ. P. 30(b)(6). “In a Rule 30(b)(6) deposition, there is no distinction between the corporate representative and the corporation. The Rule 30(b)(6) designee does not give his personal opinion. Rather, he presents the corporation's position on the topic. The designee testifies on behalf of the corporation and thus holds it accountable.” Sprint Commc'ns Co., L.P. v. Theglobe.com, Inc., 236 F.R.D. 524, 527 (D. Kan. 2006) (citations omitted); accord Hsingching Hsu v. Puma Biotechnology, Inc., No. 8:15CV00865, 2018 WL 3078589, at *5 (C.D. Cal. June 20, 2018). Therefore, “companies have a duty to make a conscientious, good-faith effort to designate knowledgeable persons for Rule 30(b)(6) depositions and to prepare them to fully and unevasively answer questions about the designated subject matter.” Sprint, 236 F.R.D. at 527 (citation omitted). Accordingly, the entity being deposed has an obligation to “prepare deponents by having them review prior fact witness deposition testimony as well as documents and deposition exhibits.” United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C.), aff'd, 166 F.R.D. 367 (M.D.N.C. 1996); accord Garcia v. LQ Mgmt., LLC, No. 2:20-CV-06306, 2022 WL 1115207, at *8 (C.D. Cal. Mar. 29, 2022). “[A] party served with a Rule 30(b)(6) notice may be sanctioned for producing a partially educated witness with selective knowledge that only benefits the corporate party.” Garcia, 2022 WL 1115207, at *8. C. Spoliation *3 “As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006). The duty includes suspending any routine destruction of emails and text messages, placing a “litigation hold” on destroying relevant evidence, and taking any other reasonable steps to preserve the evidence, such as saving electronic information to the “cloud” or making other arrangements for preservation. Hugler v. Sw. Fuel Mgmt., Inc., No. 16 CV 4547, 2017 WL 8941163, at *6 (C.D. Cal. May 2, 2017). To determine whether spoliation occurred, the majority of courts use some variation of a three-part test: (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. Apple Inc. v. Samsung Elecs. Co., 888 F. Supp. 2d 976, 989–90 (N.D. Cal. 2012) (collecting cases); accord Esquivel v. Prudential Life Ins. Co., No. CV 17-8610, 2018 WL 6164321, at *2 (C.D. Cal. Sept. 25, 2018). Spoliation sanctions can be imposed pursuant to either the court's “inherent power” or Rule 37. Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Indeed, it is firmly established that “[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). Rule 37 provides that: If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). IV. DISCUSSION A. Spoliation of Video Footage In April 2023, Gonzalez propounded requests for production of documents. (Dkt. No. 30-3). As relevant here, Request Nos. 8–11 sought video footage before, during, and after the incident. In response, “three short, excerpted video clips were provided with a total time of about 5 minutes, and nothing was said about [any] missing footage and other cameras.” (Joint Stip. at 5; see Dkt. No. 30-4). Target designated Flores to testify regarding: “The surveillance system in place in the subject Target store at the time of the incident, including camera placement/locations and areas covered by the cameras, operational status of cameras on the premises at the time of the incident, and collection/custody/saving of all store video surveillance footage from the date of the incident.” (Dkt. No. 30-2 at 3 (Rule 30(b)(6) deposition notice)). Flores testified that (1) he did not personally retrieve any of the three video clips in this action and cannot find out who did retrieve the three clips; (2) he received the video clips from Target's counsel; (3) he could neither authenticate the time clock or date stamp on the video clips nor identify who captured the video clips in the first instance; (4) Target's policy was to capture and store video footage for 30 minutes before and 30 minutes after any incident from all cameras capturing an incident but that was not done in this case; and (5) there were other cameras in the area that might have captured the incident or events before or after the incident but that footage was not preserved. (Joint Stip. at 5; see Flores Depo.). *4 Gonzalez contends that sanctions are warranted for Target's failure to preserve video footage of before and after the incident. (Joint Stip. at 4). Target asserts, however, that it did not receive Gonzalez's “Notice to Preserve Evidence” letter until July 2021. (Id. at 16). Prior to receipt of the preservation letter, Target's security camera system routinely deleted all video related to the November 2020 incident not previously downloaded. (Id. at 16). Target had a duty to preserve additional video evidence related to the incident. As a general rule, a party has a “duty to preserve evidence when it knows or reasonably should know the evidence is relevant and when prejudice to an opposing party is foreseeable if the evidence is destroyed.” Lewis v. Ryan, 261 F.R.D. 513, 518 (S.D. Cal. 2009). Target contends that prior to receipt of the preservation letter, it had no duty to preserve additional video related to the incident. (Id. at 17–18) (relying on the holding in Garcia v. United States, No. EDCV 13-0112, 2014 WL 12709430, at *1–2 (C.D. Cal. Sept. 3, 2014)). In Garcia, the court found that the Government had no duty to suspend its routine 30-day video erasure based solely on Garcia's detention at the Tecate Port of Entry. 2014 WL 12709430, at *1–2. The Court finds that the Garcia holding does not apply here. Target's contemporaneous investigation of the incident and completion of a Guest Incident Report (Gibson Depo. at 4, 5; Dkt. No. 30-8 at 9–10) was sufficient to put it on notice of potential litigation. See Aiello v. Kroger Co., No. 2:08-CV-01729, 2010 WL 3522259, at *3 (D. Nev. Sept. 1, 2010) (“immediately after the [slip-and-fall] incident, Aiello filled out an accident report which, arguably, is sufficient to put [defendant] on notice of potential litigation”). Further, Target's own internal policy to save all video footage 30 minutes prior and 30 minutes after any incident from all available cameras placed on it a duty to preserve additional video footage. See Posner v. Hillstone Rest. Grp., Inc., No. 2:19 CV 00507, 2022 WL 705602, at *4 (E.D. Cal. Mar. 9, 2022) (“Even though Defendant investigated the incident, which included reviewing the video footage, its unilateral determination that the overwritten video footage was not relevant is insufficient to overcome its duty to preserve relevant evidence.”). In Posner, after an alleged slip-and-fall in defendant's restaurant, defendant's employee investigated the incident, saving “two short video clips for preservation while excluding all other footage,” and forwarded written statements to the corporate office. Id. at *1–2, *5. The court determined that “given Defendant's response to the incident, including investigating the incident, preparing a report, obtaining statements from its employees, saving some video footage, and sending such documentation to its corporate office ..., Defendant was, at a minimum, on notice of the potential of litigation.” Id. at *4. “Although [Target's] policy [to preserve 20 minutes of footage before and after an incident] does not itself create a duty to preserve, it does show that Target is aware, as a general matter, that footage prior to an accident is commonly relevant to litigation.” Freidig v. Target Corp., 329 F.R.D. 199, 207 (W.D. Wis. 2018). “Indeed, multiple cases that have held that Target had a duty to preserve video footage under similar circumstances.” Id. (collecting cases). Finally, based on the video footage that Target retained, which showed Gonzalez's fall and difficulty ambulating thereafter, Target should have contemplated litigation, thus triggering its duty to preserve additional video evidence. See Waters v. Kohl's Dep't Stores, Inc., No. 14-CV-00043, 2015 WL 1519657, at *3 (N.D. Cal. Apr. 2, 2015) (“Based on the video footage retained, which showed Plaintiff seriously falling and hitting her head, the Court finds that Kohl's should have contemplated litigation at the time of Plaintiff's fall, thereby triggering its duty to preserve.”). *5 Target failed to retain the additional video footage with a culpable state of mind. In determining the requisite state of mind, “bad faith is not the required mental state”; instead, “[a]ll that the court must find is that [the spoliator] acted with a ‘conscious disregard’ of its obligations.” Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132, 1147 (N.D. Cal. 2012). Target argues that there can be no culpable state of mind when it had no duty to preserve the additional video. (Joint Stip. at 18–19). However, as discussed above, Target had a duty to preserve more than the video of the incident itself. Moreover, Target employee's decision to retain three short, excerpted video clips with a total time of about 5 minutes, while excluding all other footage, demonstrates a conscious disregard of Target's obligations. See Posner, 2022 WL 705602, at *5 (finding that defendant's conscious selection of “two short video clips for preservation while excluding all other footage” demonstrated that defendant “acted with the requisite culpable state of mind); Aiello, 2010 WL 3522259, at *3 (finding that defendant's “failure to preserve the surveillance video, although perhaps not in bad faith, certainly qualifies as ‘willful’ in these circumstances”); Waters, 2015 WL 1519657, at *2–3 (finding that defendant's retention of “only nine minutes of video footage pertaining to Plaintiff's slip and fall” “was willful, even if not in bad faith”). The missing video was relevant to Gonzalez's claims. Target argues that while “[a]dditional video of the incident scene from before the time of the incident may have been relevant[, i]t is impossible to know one way or the other.” (Joint Stip. at 19). To the contrary, the missing video footage is relevant to show the conditions prior to the slip and fall, how and when the hazard came to exist on the floor of the store, and any employee's knowledge of the hazard. See Waters, 2015 WL 1519657, at *4 (“[R]elevancy is a very broad standard and is not limited to causation. Even if the footage from the second surveillance camera and extended footage from the stationary camera, that was produced, did not show Plaintiff's fall, it is relevant to show the condition of the premises for liability purposes.”). And Target's policy to retain video footage 30 minutes prior and 30 minutes after any incident indicates that the additional footage is commonly relevant to litigation. See Freidig, 329 F.R.D. at 207; Doe v. Cnty. of San Mateo, No. 3:15-CV-05496, 2017 WL 6731649, at *5 (N.D. Cal. Dec. 29, 2017). Moreover, Target's “failure to retain the additional footage requires the Court to take [Target's] word that such footage did not capture any evidence relevant to Plaintiff's claims, such as the condition of the area from which she slipped.” Posner, 2022 WL 705602, at *4. Accordingly, because Target had a duty to preserve additional video footage that was relevant to Gonzalez's claims and willfully destroyed, the Court finds that spoliation has occurred. B. Failure to Disclose Percipient Witness Target designated Gibson to testify regarding policies and procedures related to (1) “cleaning up trash/debris (or related slip/trip dangers) in the store aisles”; (2) “inspections of the premises for dangerous conditions”; and (3) “training of employees in relation clean up and inspection of the premises.” (Dkt. No. 30-2 at 2–3). Gibson testified that on the day of the incident, he spoke with the person responsible for keeping the area clean, whose name was “Alena or something like that,” a Filipino teenager who was 5'1” or so. (Gibson Depo. at 14–16). Alena denied any knowledge of the hazard which caused Gonzalez to slip and fall. (Id. at 16–17). In its ROG responses, Target did not identify “Alena,” the person who Gibson testified was working in the Girls department of Target on the day of the incident and who was reprimanded by Gibson after the incident for failing to maintain her “zone” free of debris and fall hazards. (Joint Stip. at 6). Gonzalez contends that sanctions are warranted for Target's failure to identify Alena as a potential witness as required by Rule 26(a) or in response to multiple discovery requests.[2] (Joint Stip. at 14–15). Target contends that Gonzalez's request for sanctions based on Target's failure to identify “Alena” is a red herring because “[n]o one by the name of ‘Alena’ or anything close to that name was employed by Target at the store on the date of the incident.” (Joint Stip. at 7; see Farley Decl. ¶ 11). But Alena was identified by Target's designated Rule 30(b)(6) witness and thus holds Target accountable for his statements. Sprint, 236 F.R.D. at 527. Because Target had a duty to fully prepare its witness, see id., it cannot now attempt to contradict Gibson's testimony with arguably hearsay evidence. Target's outside counsel's assertion that he “checked records from the store and the date of the incident to confirm that no one named ‘Alena,’ ‘Alina,’ ‘Alana,’ ‘Alaina,’ ‘Elena,’ ‘Elina,’ or ‘Elana’ was employed at the store at the time of the incident, and certainly no one by any of those names worked at the store on the date of the incident” (Farley Decl. ¶ 11) is not compelling evidence. Indeed, did Target attempt to identify a “a Filipino teenager who was 5'1” or so” who worked at the store during this time period or to identify the employee who was responsible for keeping the relevant area clean? *6 Target also contends that Alena's testimony would not be relevant because she had “nothing to do with the incident.” (Joint Stip. at 20). But like the missing video footage, she could have helped determine how long the hazard was on the floor or when the last time the area was inspected. C. Appropriate Sanctions “A court's discretion in choosing the type of sanction is broad and can include awarding attorneys' fees, dismissing the claims, or instructing the jury that it may draw an adverse inference.” Posner, 2022 WL 705602, at *6; see Apple, 881 F. Supp. 2d at 1135 (“A trial court's discretion regarding the form of a spoliation sanction is broad, and can range from minor sanctions, such as the awarding of attorneys' fees, to more serious sanctions, such as dismissal of claims or instructing the jury that it may draw an adverse inference.”) (footnotes omitted). Nevertheless, sanctions “should be appropriate to the conduct that triggered the sanction.” Apple, 881 F. Supp. 2d at 1136 (citing Chambers v. NASCO, Inc., 501 U.S. 32, 44–45 1991)); accord Posner, 2022 WL 705602, at *6. Because spoliation necessarily makes it generally impossible to know what the destroyed evidence would demonstrate, “a trial court ... has the broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation against the party ... responsible for that behavior.” Glover, 6 F.3d at 1329. Adverse inference instructions should be commensurate to the spoliator's conduct. Chambers¸ 502 U.S. at 44–45; Posner, 2022 WL 705602, at *6; see Apple, 881 F. Supp. 2d at 1150 (“The degree of harshness should be dictated by the nature of the spoliating party's conduct—the more egregious the conduct, the more harsh the sanction.”) (citation omitted). Here, while there is no evidence that Target acted in bad faith in destroying the additional video footage—or failing to identify Alena, Gonzalez certainly suffered some prejudice thereby. See, e.g., Waters, 2015 WL 1519657, at *5 (finding that “the additional video footage would have provided evidence not otherwise made available, including the condition of the premises for liability purposes—specifically that [the defendant] failed to exercise ordinary care in maintaining the premises”). While the Court cannot speculate, it is plausible that the destroyed footage—and Alena's testimony—could have shown whether Target had notice of the hazard and failed to remedy it. See Posner, 2022 WL 705602, at *6 (“Though the Court cannot speculate as to the contents of the destroyed evidence, it is plausible that it could have shown whether Defendant had notice of the water and whether Defendant caused the water to be on the floor.”). Gonzalez seeks a number of alternative sanctions, including default, negative inference jury instructions, and shifting the burden of proof. (Joint Stip. at 15–16). The Court finds that Gonzalez's requested remedies are generally too extreme. While Gonzalez plainly suffered prejudice from Target's conscious disregard to follow its own retention policies and preserve potentially relevant evidence, Gonzales has not demonstrated that Target acted in bad faith. Accordingly, it is recommended that Gonzalez is entitled to the following adverse inference jury instruction: As a matter of law, Target failed to prevent the destruction of potentially relevant video footage for Mr. Gonzalez's use in this case. This is known as the “spoliation of evidence.” Evidence is relevant if it would have clarified a fact at issue in the trial and otherwise would have been introduced into evidence. In this case, the destroyed video footage may have been favorable to Mr. Gonzalez. Whether this finding is important to you in reaching a verdict in this case is for you to decide. You may choose to find it determinative, somewhat determinative, or not determinative in reaching your verdict. *7 See Posner, 2022 WL 705602, at *7. However, because it appears that Alena would have denied any knowledge of the hazard that caused Gonzalez's slip and fall, the Court finds that no further sanction is warranted for Target's failure to disclose her. V. RECOMMENDATION For the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) accepting this Report and Recommendation, (2) granting Gonzalez's Motion for Sanctions (Dkt. No. 29), and (3) sanctioning Target with the adverse jury instruction described herein. Footnotes [1] For ease of reference, the Court cites to the Rule 30(b)(6) depositions using the ECF-generated pagination. [2] Gonzalez also contends that Target “omitted the identity of another employee, ‘Trey,’ the loss prevention manager on duty on that day.” (Joint Stip. at 6; see Gibson Depo. at 19). Gibson testified that Trey is an African American male, 5'8–9”, weighs 195 pounds, and no longer works for Target. (Id. at 19–20). At the hearing, Gonzalez's counsel conceded that because Trey has been located and will sit for a deposition, Target's alleged failure to disclose his identity is no longer an issue.