OSCAR CORONA, Plaintiff, v. CITY OF FONTANA, et al., Defendants Case No. 5:22-cv-00034-WLH-SPx United States District Court, C.D. California Filed February 16, 2024 Counsel Brian D. Olney, Dan Stormer, Hadsell Stormer Renick and Dai LLP, Pasadena, CA, for Plaintiff. Angela Marie Powell, Marina Samson, Rebecca Renee Brown, Rickey Ivie, Ivie McNeill Wyatt Purcell and Diggs, Los Angeles, CA, Eric Gamboa, H. Mae G. Alberto, Atkinson, Andelson Loya, Ruud and Romo, Pasadena, CA, Michael R. Watts, Atkinson Andelson Loya Ruud and Romo PLC, Cerritos, CA, for Defendants City of Fontana, Officer Jacob Gregg, Lieutenant Matt Kraut. Eric Gamboa, H. Mae G. Alberto, Atkinson Andelson Loya Ruud and Romo APLC, Pasadena, CA, Angela Marie Powell, Marina Samson, Rickey Ivie, Ivie McNeill Wyatt Purcell and Diggs, Los Angeles, CA, for Defendants Sergeant Kyle Slusser, Christopher Gonzalez. Samantha Joy Hughes, Tamara A. Bush, Cory Lynn Webster, Dykema Gossett LLP, Los Angeles, CA, Rochelle Lillian Smith, Los Angeles, CA, for Defendants U-Haul Co. of California, U-Haul Co. of Washington, U-Haul International, Inc. Pym, Sheri, United States Magistrate Judge REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE *1 This Report and Recommendation is submitted to the Honorable Wesley L. Hsu, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California. I. INTRODUCTION On January 12, 2024, plaintiff Oscar Corona filed a motion for sanctions against defendants City of Fontana and Fontana Police Department (“FPD”) Officers Gonzalez, Gregg, Kraut, and Slusser. Docket nos. 161, 162. Plaintiff's motion is supported by the declaration of his counsel Brian Olney (“Olney Decl.”) and exhibits, and the declaration of paralegal Jessica Valdenegro (“Valdenegro Decl.”).[1] Defendants opposed plaintiff's motion on January 19, 2024 (“Opp.”), supported by the declaration of their counsel Angela Powell (“Powell Decl.”) and exhibits. Docket no. 165. Plaintiff filed a reply on January 29, 2024, supported by the further declaration of his counsel Brian Olney (“Olney Reply Decl.”) and exhibits. Docket no. 171. The court held a hearing on the motion on February 7, 2024. After considering the parties' written and oral arguments and evidence, and for the reasons discussed below, the court now recommends that plaintiff's motion for sanctions be granted in part and denied in part. II. BACKGROUND Plaintiff filed the present action on January 7, 2022, and amended his complaint twice. Plaintiff's operative Second Amended Complaint (“SAC”) alleges defendants violated plaintiff's constitutional rights when on January 29, 2021, Fontana Police Officers pulled plaintiff over under the suspicion he was driving a stolen vehicle, held him at gunpoint, forced him onto his knees, handcuffed him, searched his vehicle, and locked him inside a police car where he suffered a panic attack. Plaintiff also alleges a Monell claim against defendant City of Fontana challenging its policy, custom, or practice of conducting high risk traffic stops based only on suspicion of a stolen vehicle. SAC at ¶¶ 1, 33-39, 55-57, 65-67, 75-77, 85-87. Defendants' Alleged Spoliation of Evidence On March 25, 2021, plaintiff's paralegal Jessica Valdenegro mailed Fontana Police Department a request for documents pertaining to plaintiff's traffic stop, including any video footage recorded by the officers' body worn cameras (“BWC”). Valdenegro Decl. ¶ 3; Olney Decl., Ex. 1. Ms. Valdenegro also enclosed a check for $18.00 dated March 25, 2021 to cover the fee for the request. Valdenegro Decl. ¶ 3; Olney Decl., Ex. 2. Defendant's records supervisor Vanessa Hernandez testified that records requests are stamped on the day they are received whether or not a check is also received. Olney Decl., Ex. 5 at 36; Powell Decl., Ex. D at 36. She testified that the case file for the instant case did not contain a stamped copy of plaintiff's March 25, 2021 letter. Id. Fontana Police Department has a 60-day retention policy. See, e.g., Olney Decl., Ex. 7. On March 31, 2021, BWC video footage from plaintiff's traffic stop was purged by a third-party vendor. Olney Decl., Ex. 6 at 8, Ex. 7. *2 On April 7, 2021, Ms. Valdenegro sent an email following up on plaintiff's records request. Olney Decl., Ex. 8; Powell Decl. ¶ 11, Exs. E, F. The next day, Ms. Valdenegro spoke with City Records Department Specialist Whitney Wilson, who informed her that her office was having trouble locating the check and money order that was sent with plaintiff's March 25, 2021 letter. Valdenegro Decl. ¶ 4; Powell Decl. ¶ 12, Ex. F. The specialist also stated that counsel needed to subpoena both the Custodian of Records and the Property/Evidence unit to request video, audio, photos, or 911 calls. Powell Decl. ¶ 12, Ex. F. On April 13, 2021, Ms. Valdenegro sent the FPD's records department an email with the following message: “Can you please advise re status of the attached records request? I was told that we would receive the records last week but they have not come in. I called yesterday but did not receive a response.” Olney Decl. ¶ 19, Ex. 8; Powell Decl., Ex. F. An hour later, she received a response from FPD that stated “Your request has been received. One of our records personnel will get back to you regarding your request.” Id. Ms. Valdenegro received an email from “Nicole Medina on behalf of [FPD's records department]” the next day, with the following message: I received your request and upon further research, I can see one of our other records specialists spoke to you on April 8th regarding this request. It appears we did not receive your original check or money order. In addition to that, you will need to subpoena both the Custodian of Records and Property/Evidence Unit for a copy of the video, audio, photos, and 911 calls. Please let me know if you have any further questions. Id. On April 19, 2021, Ms. Wilson faxed Ms. Valdenegro a copy of the police report for plaintiff's traffic stop with a note on the fax transmission sheet stating “Per your request. Sorry for the inconvenience!” Olney Decl., Ex. 8 at 5-6; Valdenegro Decl. ¶ 5. Ms. Wilson had also waived the fee for processing the request. Id. Later that day, Ms. Valdenegro instructed her office to void the check. Valdenegro Decl. ¶ 5 On April 21, 2021, plaintiff emailed defendants a request to preserve records. Powell Decl. ¶ 13, Ex. G. Defendants' Alleged Violation of Court Orders On November 22, 2023, the court granted plaintiff's motion to compel further responses to Interrogatory Nos. 6-9 and 14 to defendant City; RFP No. 98 to defendant City; and Interrogatory No. 1 to the officer defendants. Docket no. 140. By the close of discovery on December 1, 2023, defendant had not served supplemental responses. Olney Decl. ¶ 9. The parties met and conferred on the issue between December 8, 2023 and December 15, 2023. Powell Decl., Ex. B. On January 3, 2024, defendants stated they would serve supplemental responses to Interrogatory Nos. 6-9 and RFP No. 98 on January 8. Olney Decl. ¶ 10, Ex. 30. On January 8, 2024, defendant City served supplemental responses to Interrogatory Nos. 6-9 and 14 and RFP No. 98. Olney Decl., Exs. 32-33, 39. Later on January 8, 2024, plaintiff emailed defendants regarding apparent inconsistencies and deficiencies in their responses. Olney Decl. ¶ 11, Ex. 34. Defendants responded on January 9, 2024 offering to meet and confer. Olney Decl. ¶ 11, Ex. 35. Plaintiff responded on January 10, 2024 at 10:43 a.m. stating that he was free for a call until 1:00 p.m. Olney Decl. ¶ 11, Ex. 36. Defendants had not responded to plaintiff's email when he filed the instant motion on January 12, 2024. Olney Decl. ¶ 11. Defendants responded on January 12, 2024 at 6:56 p.m. that they remain available to discuss any matter. Powell Decl., Ex. B. *3 As of the filing of plaintiff's reply, the officer defendants had not provided any supplemental response to Interrogatory No. 1. Olney Reply Decl. ¶ 4. III. DISCUSSION Plaintiff contends defendants deliberately destroyed BWC video evidence and repeatedly violated the court's orders to produce evidence concerning their high-risk traffic stops of suspected stolen vehicles. Plaintiff argues the court should issue sanctions for defendants' misconduct. A. Defendants' Alleged Spoliation of Evidence Plaintiff argues the court should issue sanctions for defendant City's spoliation of evidence, including an adverse inference jury instruction. Mtn. at 22. Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence.” Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 625 (C.D. Cal. 2013) (internal quotation marks omitted). Federal Rule of Civil Procedure 37(e) authorizes the court to sanction a party for losing or destroying electronically stored information (“ESI”) that it had a duty to preserve. Fed. R. Civ. P. 37(e).[2] The rule provides that a court may issue sanctions where the following requirements are met: (1) ESI “that should have been preserved in the anticipation or conduct of litigation is lost,” (2) the ESI is lost “because a party failed to take reasonable steps to preserve it,” and (3) the ESI “cannot be restored or replaced through additional discovery.” Id. Where these requirements are met, and upon finding prejudice to another party from the loss of the ESI, section (e)(1) allows a court to “order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). If the court finds additionally that “the party acted with the intent to deprive another party of the information's use in the litigation,” under section (e)(2) it 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)(2). The relevant standard of proof for spoliation sanctions in the Ninth Circuit is a preponderance of the evidence. Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 1040, 1052-53 (S.D. Cal. 2015). Here, the parties do not dispute that the electronically stored BWC recordings cannot be restored or replaced through additional discovery. The issues here are whether the recordings should have been preserved in anticipation of litigation and whether defendant failed to take reasonable steps to preserve them. Plaintiff argues his March 25, 2021 letter triggered defendant's duty to preserve the BWC evidence and that defendant failed to take reasonable measures to prevent its deletion. Mtn. at 15-21. Defendant responds that it never received that letter, and that the first time it received the records request was April 7, 2021, after the video had already been deleted. Opp. at 5. As evidence the letter was sent, plaintiff attaches as exhibits a copy of the letter and the enclosed check, both dated March 25, 2021, along with paralegal Valdenegro's declaration that she in fact mailed the letter and check that day. Olney Decl., Exs. 1-2; Valdenegro Decl. ¶ 3. But accepting that the letter was mailed on March 25, 2021, there is no evidence demonstrating FPD ever received it until a copy was emailed on April 7, 2021. See Powell Decl. ¶ 11, Exs. E, F. *4 Plaintiff argues that what most likely happened is FPD received his original letter and check, but subsequently lost the check, which prevented the Records Department from notifying the Property Department of the video request. Mtn. at 19-20. Defendant's Rule 30(b)(6) witness, records supervisor Vanessa Hernandez, testified that BWC is maintained by the FPD's Property Unit, not the Records Department. Olney Decl., Ex. 5 at 65-66, 69-70; Powell Decl., Ex. D at 65-66, 68-69. When the Records Department receives a request for BWC, it does not send the request to the Property Unit until all fees have been paid. Id. Plaintiff argues that pursuant to this policy, after FPD lost his check, no request was sent to the Records Department before the BWC was purged. Mtn. at 6. In support, plaintiff notes that when Ms. Valdenegro spoke with Ms. Wilson on April 8, 2021, Ms. Wilson informed her that her office was having trouble locating plaintiff's check, but she did not state that the letter itself was not received. Id. See Powell Decl. ¶ 12, Ex. F. But the fact that Ms. Wilson stated only that they could not locate the check without mentioning the letter does not necessarily suggest FPD received plaintiff's letter and lost the check. By the time Ms. Wilson stated this to Ms. Valdenegro, Ms. Wilson had received a copy of plaintiff's request by email. Having the request in front of her, and not knowing that the requested video had already been purged, it is reasonable Ms. Wilson would reference the missing check in particular because the outstanding payment prevented her from sending the request to the Records Department. Plaintiff further notes that Ms. Hernandez testified that the Records Department does not typically fax copies of police reports to private parties or waive its fees except in situations where “we keep on going back and forth that they need the report” or where there has been an “unreasonable delay” in providing the requested documents. Olney Decl., Ex. 5 at 40-41, 56-57. Here, after Ms. Valdenegro followed up with FPD on April 19, 2021, Ms. Wilson waived the fees for the requested records and faxed a copy of the police report for plaintiff's traffic stop. The fact that FPD waived the fee and faxed the police report do not necessarily show consciousness of having lost plaintiff's check. Ms. Hernandez testified that FPD sometimes extends this courtesy when it goes back and forth with a requester about a records request. Going back and forth about the request is exactly what was happening here, regardless of what happened to plaintiff's March 25, 2021 letter and check. Plaintiff argues that given the lack of direct evidence on either side regarding the letter's receipt, the court should apply the mailbox rule: “[A] long-established principle which presumes that, upon a showing of predicate facts that a communication was sent, the communication reached its destination in regular time.” Payan v. Aramark Mgmt. Servs. Ltd. P'Ship, 495 F.3d 1119, 1123 n.4 (9th Cir. 2007). “As a rebuttable presumption, ... it is a tool for determining, in the face of inconclusive evidence, whether or not receipt has actually been accomplished.” Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d 956, 961 (9th Cir. 2001). A party can rebut the presumption upon a showing of sufficient evidence. Id. at 963. As an initial matter, it is not at all clear the mailbox rule applies in this case. Plaintiff cites Stedeford v. Wal-Mart Stores, Inc., 2016 WL 3462132 at *9 (D. Nev. June 24, 2016), where the court granted spoliation sanctions in a slip-and-fall case after applying the mailbox rule to plaintiff's letter demanding preservation of video. But there, the duty to preserve relevant evidence had already been triggered when immediately following the incident the plaintiff “reported the injury to multiple employees, and the incident and witness reports reflect that she intended to seek medical treatment.” Id. at *10. Moreover, the court found it suspect that fifty minutes of video at the incident location abruptly ended ten minutes before the alleged accident. Id. at *11. As such, unlike the instant case, the application of the mailbox rule to plaintiff's formal preservation request was not the deciding factor in whether spoliation sanctions were warranted. Plaintiff does not cite any other cases where a court relied on the mailbox rule to grant spoliation sanctions under Rule 37(e), nor is the court aware of any. *5 Even if the mailbox rule may apply in this case, defendant here has rebutted any presumption that it received plaintiff's March 25, 2021 request. Records supervisor Vanessa Hernandez testified about the regular business practices of the unit and stated that if mail is sent to the records unit, it is brought to a different part of the FPD and then brought to the unit by a volunteer. Powell Decl., Ex. D at 27. When mail is brought to the unit by a volunteer, the mail is stamped with the date on which it was brought. Olney Decl., Ex. 5 at 29, 34. If a request brought to the unit is missing a check for the processing fee, the request is still stamped on the day it is received. Olney Decl., Ex. 5 at 36; Powell Decl., Ex. D at 36. When the unit receives requests for police records, Ms. Hernandez's co-supervisor Annette Logan assigns the task of responding to those requests to individual specialists within the office. Olney Decl., Ex. 5 at 32-33. Ms. Logan maintains documentation of which tasks she assigns to which specialists and the date of the assignments. Olney Decl., Ex. 5 at 33. She emails those assignments out to the unit, including Ms. Hernandez, in a weekly schedule. Olney Decl., Ex. 5 at 33-34. Ms. Hernandez testified that the file in this case did not contain a stamped copy of plaintiff's March 25, 2021 letter. Olney Decl., Ex. 5 at 36, 48-49; Powell Decl., Ex. D at 36. Ms. Hernandez stated that the reason there was no stamped copy of the letter in the possession of the records unit was because the request was an email request, not a mail request. Id. This was because the first indication in the file that the records unit received the request was Ms. Valdenegro's email from April 7. Olney Decl., Ex. 5 at 36-37; Powell Decl., Ex. D at 36. When records specialist Ms. Wilson contacted Ms. Valdenegro about the request, she informed her that payment was required in order for the request to be processed. Valdenegro Decl. ¶ 4; Powell Decl. ¶ 12, Ex. F. Plaintiff maintains defendant's showing is insufficient to rebut the presumption that his March 25 letter was received because “[t]he only basis for Ms. Hernandez's statement is that while preparing for her deposition, she checked FPD's case file, saw no stamped copy of Plaintiff's March 25, 2021, letter, and assumed this meant that no mailed copy of the request had been received.” Mtn. at 16-17. If this were true, then plaintiff would be correct. See Schikore v. BankAmerica Supplemental Ret. Plan, 269 F.3d at n.7 (“BankAmerica's simple statement that Schikore's form is not presently contained in its files is insufficient to constitute a ‘specific factual denial of receipt’ [adequate to rebut the presumption of the mailbox rule]”). But the evidence here goes beyond Ms. Hernandez's simply stating the letter is not currently present in FPD's files. She described specific procedures that were in place when the letter would have been received, under which any piece of mail received by the unit would have been stamped, assigned to a specialist in the office, and filed, even if the request were missing payment. In other words, the conclusion that that the request was not received was based on an understanding of the procedures in place to sort mail and process records requests, and how those procedures would have applied to any piece of mail FPD received. See id. (citing Legille v. Dann, 544 F.2d 1, 7-8 (D.C. Cir. 1976) (Patent Office successfully rebutted presumption of receipt by presenting detailed mail procedures including using date stamps)). Finally, plaintiff argues that defendant's 60-day retention policy for BWC footage is unreasonable because the majority of tort claims involving FPD were filed at least 60 days after the underlying incident, and the California legislature has cautioned law enforcement agencies against destroying video involving detention and arrests within two years of an incident. Mtn. at 6, 20-21. Plaintiff argues that as such, defendant was “on notice that its video retention policy would result in the routine destruction of evidence critical to future litigation.” Mtn. at 21. Plaintiff's criticism of FPD's 60-day retention policy may be justified as a general matter. Nonetheless, statistical knowledge that a majority of government tort claims are filed more than 60 days after an incident does not translate to knowledge that in this particular case a tort claim would be filed more than 60 days after the incident. In this case, plaintiff was detained but not ultimately arrested, and there was nothing in the incident that reasonably would have alerted defendant City or FPD that they should expect litigation. *6 Accordingly, the court recommends plaintiff's request for spoliation sanctions for the deletion of BWC footage be denied. B. Defendants' Alleged Refusal to Comply With the Court's Orders Plaintiff argues that defendants repeatedly violated this court's orders to produce evidence. The discovery requests at issue are Interrogatory Nos. 6-9 and 14 to defendant City; RFP No. 98 to defendant City; and Interrogatory No. 1 to the individual officer defendants. Powell Decl. ¶ 3. 1. Interrogatory Nos. 6-9 and 14 and RFP No. 98 to Defendant City a. Additional Factual Background Interrogatory Nos. 6-9 and 14 request information and data regarding traffic stops conducted since January 2017. A key difference between Interrogatory Nos. 6-9 and Interrogatory No. 14 is that the latter request concerns stops of suspected stolen vehicles, whereas the former concern stops based only on suspicion of a stolen vehicle. In particular: • Interrogatory No. 6 calls for defendant City to identify all traffic stops FPD conducted since January 2017 based only on suspicion of a stolen vehicle that were not conducted as a high risk traffic stop. Olney Decl., Ex. 13. • Interrogatory No. 7 calls for defendant to state, for all traffic stops FPD conducted since 2017, the total numbers of (a) stops; (b) people stopped by race/ethnicity; (c) high risk/felony stops; and stops based only on suspicion of a stolen vehicle (d) conducted as a high risk/felony stop, (e) where PFP determined the occupants had not stolen the vehicle, (f) where FPD determined the vehicle was not stolen, (g) where FPD arrested any suspect, and (h) where FPD did not arrest any suspect. Id. • Interrogatory No. 8 calls for the total numbers of high risk/felony traffic stops FPD conducted since 2017 based only on suspicion of a stolen vehicle for each of the following: (a) where a suspect was uncooperative or took action at the scene that raised a possibility of danger or flight; (b) where any officer had information prior to the stop that any suspect was armed; (c) where any officer had information prior to the stop that it closely followed a violent crime by a suspect in the stop; (d) where any officer had information prior to the stop that a violent crime was about to occur; (e) where FPD determined the vehicle occupants had not stolen the vehicle; (f) where FPD determined the vehicle was not stolen; (g) where FPD arrested any suspect; and (h) where FPD did not arrest any suspect. • Interrogatory No. 9 calls for detailed information about traffic stops since 2017 based only on suspicion of a stolen vehicle in which an FPD officer suffered injury during the stop. Id. • Interrogatory No. 14 calls for defendant City to identify all traffic stops by FPD since 2018 of suspected stolen vehicles, including all bases for the stops and whether anyone was arrested, armed, or injured. Olney Decl., Ex. 26. Finally, RFP No. 98 essentially requests documents sufficient to identify the information requested in Interrogatory Nos. 6-9. Olney Decl., Ex. 33. On April 27, 2023, the court ordered defendant City to produce supplemental responses to Interrogatory Nos. 6-9 and RFP No. 98. Docket no. 101. In particular, the court rejected defendant's argument that the Interrogatory Nos. 6-9 exceeded the interrogatory limit imposed by Rule 33. Id. The court also rejected defendant's argument that it would not respond to RFP No. 98 because it does not have a system in place for identifying responsive documents, and ordered defendant to conduct a diligent search, produce all responsive records that exist, and provide a verified supplemental response confirming it had done so. Id. *7 In amended and then supplemental responses served by October 16, 2023, with respect to Interrogatory Nos. 6-9 and RFP No. 98, defendant City (1) stated it was unable to provide responsive information because it did not have a system in place to identify high-risk traffic stops or stops based only on suspicion of a stolen vehicle; and (2) provided documents with responsive information, having Bates numbers COF01060-1421, containing police reports of about 25-27 incidents of traffic stops of suspected stolen vehicles or arrests of individuals found in possession of stolen vehicles, some involving drugs, weapons, and other crimes. See Olney Decl., Ex. 20. In addition, defendant provided total numbers of traffic stops by year in response to Interrogatory No. 7(a). Id. With respect to Interrogatory No. 14, defendant stated “information responsive to this request is contained in the attached documents” having Bates numbers COF01060-1421. Olney Decl., Ex. 26. On October 24, 2023, plaintiff filed a motion to compel further responses Interrogatory Nos. 6-9 and 14 and RFP No. 98 to defendant City. Docket no. 119. In opposition, defendant argued that its only crime analyst, Carynn Monto, could not electronically locate the information requested and that it would take over $250,000 and hundreds of hours to outsource the project. In ruling on the motion, the court noted that in 2021, Monto had in fact produced some of the requested information, and defendant offered no explanation for why she was unable to replicate that search. The court also noted that when Monto conducted the search that yielded the 25-27 incident reports defendant produced in its supplemental responses, she used search terms that did not reflect plaintiff's interrogatories, and were instead overly narrow. The court further highlighted evidence suggesting the existence of searchable databases containing responsive information. Accordingly, on November 22, 2023, the court ordered defendant City to run searches that more closely reflected plaintiff's requests. Docket no. 140. Specifically, it ordered defendant to conduct searches using search terms for stolen vehicles only, as opposed to search terms for stolen vehicles plus other terms like resisting arrest and weapons charges. If such a search was not feasible, defendant was ordered to confer with plaintiff about why specifically that was the case. And if after running such a search defendant still could not produce sufficiently responsive results, defendant was ordered to work with plaintiff to come up with search terms more likely to pull responsive information from defendant's databases. b. City Defendant Has Substantially Complied With Its Discovery Obligations, Although Its Interrogatory Responses Are Technically Deficient On January 8, 2024, defendant City served further supplemental responses to Interrogatory Nos. 6-9 and 14 and RFP No. 98. Olney Decl., Exs. 32-33, 39. In response to Interrogatory Nos. 6, 8, and 9, defendant stated: “Responding Party's search did not identify any traffic stops based only on ‘suspicion of a stolen vehicle.’ ” Olney Decl., Ex. 32. In response to Interrogatory No. 7, defendant provided numbers of high risk/felony stops by year in response to part (c). Id. As to parts (d)-(g), which requested the number of stops based only upon suspicion of a stolen vehicle broken into various subcategories, defendant responded that “0” such stops were conducted for each year since 2016. Id. In response to Interrogatory No. 14, calling for the identification of traffic stops of suspected stolen vehicles, defendant responded that its search did not identify any traffic stop “based only on ‘suspected stolen vehicle.’ ” Olney Decl., Ex. 39. In response to RFP No. 98, which requested documents sufficient to identify all felony/high risk traffic stops defendants initiated based only on suspicion of a stolen vehicle since January 29, 2016, defendants responded: “Responsive documents within Responding Party's possession, custody and control are attached. (Bates Nos. COF001651 – COF003343).” Olney Decl., Ex. 33. This production consisted of about 1700 pages of traffic stop records. Olney Decl. ¶ 11. *8 In prior orders with respect to these discovery requests, the court was not satisfied that defendant had made all reasonable efforts to find responses to plaintiff's requests, particularly because defendant's descriptions of the search terms used did not adequately match the call of the interrogatories. See docket no. 140 at 7. Accordingly, in granting plaintiff's last motion to compel as to Interrogatory Nos. 6-9 and 14 and RFP No. 98, the court ordered defendant to try to run database searches for stolen vehicles only, and if such search proved not feasible to confer with plaintiff to try to come up with workable search terms. Id. Defendant maintains that it complied with this order and produced almost 1700 pages of documents responsive to its revised search, using terms including “high risk,” “stolen vehicle,” and “felony stop.” Powell Decl. ¶¶ 4, 9, Exs. B, C. Defendant further contends plaintiff refused to confer about alternative search terms, but instead simply sought to file the instant sanctions motion after providing only a very limited window of availability to confer following defendant's January 8 production. Powell Decl. ¶ 7, Ex. B; see Olney Decl. ¶ 11, Ex. 36 (counsel stating in 10:43 a.m. email he was free to talk until 1:00 p.m. that day). Plaintiff counters that defendant failed to inform him prior to this production that it had been unable to identify traffic stops based only on suspicion of a stolen vehicle in its database searches. Olney Decl. ¶ 10. The court would have preferred counsel to make a genuine effort to confer regarding search terms as instructed; however, the record reflects such efforts likely would not have achieved anything meaningful. Defendant has shown its database is not structured so as to permit it to obtain the precise information plaintiff requests. Instead, defendant conducted numerous searches and produced hundreds of pages of records reasonably likely to contain at least some of the information plaintiff requested, even if incompletely. Plaintiff does not dispute that the pages produced are responsive to RFP No. 98. Indeed, it is not clear that plaintiff has even reviewed the pages produced. Although this information is not broken out as plaintiff would prefer, the court cannot compel defendant to provide information it does not have. As plaintiff notes, on their face defendant's responses to Interrogatory Nos. 6-9 and RFP No. 98 appear contradictory: Whereas defendant produced about 1700 pages of documents in response to RFP No 98, which requested documents concerning traffic stops initiated based only on suspicion of a stolen vehicle, defendant stated in response to Interrogatory Nos. 6-9 that it identified no such stops. See Mtn. at 13-14. If the documents defendant produced in response to RFP No. 98 are indeed responsive to that request, that is, if they are documents identifying felony/high risk traffic stops defendants initiated based only on suspicion of a stolen vehicle since January 29, 2016, then its responses to Interrogatory Nos. 6-9 would be untrue. But as described above, the record reflects that the documents produced in response to RFP No. 98 are in fact overinclusive. Documents retrieved using terms “stolen vehicle” or “high risk” are going to include records of stops that were not based only on suspicion of a stolen vehicle. As for why defendant's interrogatory responses state the number of stops based only on suspicion of a stolen vehicle is zero, defendant explained at the February 7 hearing that it has not been able to identify any stops that were based only on suspicion of a stolen vehicle because, according to defendant, there are no such stops. Instead, FPD officers consider all the circumstances before making a stop, with suspicion of a stolen vehicle being only one such circumstance. It may be true that officers consider all circumstances before making a stop; however, defendant's assertion that there are never stops based solely on suspicion of a stolen vehicle is at odds with the record. Defendant Kraut testified that he was “sure there have” been stops he initiated based only on suspicion the car was stolen, but he could not estimate how many. Olney Reply Decl., Ex. 41 at 112. And defendant Slusser testified he knew he has “been part of a lot of” traffic stops where the only reason for the stop was suspicion of a stolen vehicle and he ended up finding a weapon, but he could not recall any specific such stops. Olney Reply Decl., Ex. 45 at 58. It appears defendants are now splitting hairs in contending there are no stops based “only” on suspicion of a stolen vehicle, but this argument is hard to square with either the record or common sense. *9 Interrogatory No. 14 is another matter still. Defendant's first supplemental response to this interrogatory – just like its first supplemental responses to Interrogatory Nos. 6-9 – stated the information requested was contained in documents with Bates numbers COF01060-1421. Following the court's November 22 order to perform additional database searches, defendant's second supplemental response stated: “Responding Party's search did not identify any traffic stops based only on ‘suspected stolen vehicle’.” Olney Decl., Ex. 39. But as plaintiff notes, Interrogatory No. 14 calls for identification of stops of suspected stolen vehicles, not stops based only on suspicion of a stolen vehicle. As such, defendant's second supplemental answer is not responsive to Interrogatory No. 14. Defendant made no effort to address the deficiency in its opposition, or at the hearing. In short, defendant's second supplemental response to Interrogatory No. 14 is nonresponsive, and defendant's second supplemental responses to Interrogatory Nos. 6-9 are likely inaccurate. Yet while defendant could have provided more artful and technically accurate responses, it is unlikely plaintiff would have received any additional definite or useful information. The court is persuaded that, whatever a traffic stop record may show, defendant would be unable to determine whether a stop was based only on suspicion of a stolen vehicle without also interviewing the officers involved, and even then the officers may not recall all the circumstances to be able to tell. Thus, while the true answers to Interrogatory Nos. 6-9 may not be zero, defendant is not practically able to say what they are; at best it can just point to the records produced. Likewise, defendant might be able to review all the documents produced to come up with a better response to Interrogatory No. 14, but the Federal Rules of Civil Procedure do not require this. Where an answer to an interrogatory may be determined by examining business records and the burden of determining the answer is the same for either party, Rule 33 permits a party to answer the interrogatory by specifying the records and make them available. Fed. R. Civ. P. 33(d). Since defendant's database does not readily provide the information requested, defendant was permitted to produce records and identify them in response to these interrogatories. It did so with its first supplemental responses to Interrogatory Nos. 6-9 and 14, but failed to do so with its second supplemental responses when it produced another 1700 pages of records in response to RFP No. 98. Notwithstanding these deficiencies in the responses, plaintiff has the information defendant has been able to retrieve after repeated efforts. This is not to excuse the sloppiness in defendant's interrogatory responses, but it is hard to see what more plaintiff would have gained from technically better responses. As such, as discussed below, the court recommends as a sanction for these technical failings only what is necessary to prevent defendant from taking advantage of its discovery shortcomings. 2. Officer Defendants' Responses to Interrogatory No. 1 Remain Deficient Interrogatory No. 1 seeks information related to defendant officers' participation “in all traffic stops ... from January 29, 2016, to the present that were initiated based only on suspicion of a stolen vehicle.” The officer defendants initially responded to Interrogatory No. 1 by stating that they were unable to recall all such traffic stops in which they have participated. See Olney Decl., Exs. 22-25. On April 27, 2023, the court ordered defendants to amend and supplement their responses to Interrogatory No. 1 after refreshing their recollections with information reasonably available. Docket no. 101. The officer defendants provided first and second supplemental responses on May 17, 2023 and October 13, 2023. Their first supplemental responses provide a lengthier explanation for why they could not recollect particular traffic stops, and their second supplemental responses each state in relevant part: “Notwithstanding and without waiving the foregoing objections, and to the extent the Defendant understands the interrogatory, Defendant responds as follows: See deposition transcript of [individual defendant] taken [deposition date].” Olney Decl., Exs. 22-25. *10 On October 24, 2023, plaintiff filed a motion to compel further responses to Interrogatory No. 1 to the officer defendants. Docket no. 119. In opposition, defendants argued the interrogatory was overly burdensome because the information sought overlaps with the information sought in each defendant's deposition. In its November 22, 2023 ruling on the motion, the court noted that many of defendants' answers to questions in their depositions amounted to a lack of memory or knowledge sufficient to respond, and no defendant reviewed any documents of prior traffic stops to prepare for their deposition. Docket no. 140. The court further noted that defendants' incorporation of deposition testimony stating they did not review documents of prior traffic stops was particularly problematic given that the court previously ordered them to amend and supplement their responses after reviewing information reasonably available. Accordingly, the court ordered defendant City to run searches in the available databases with the search terms for stolen vehicle and each individual officer's identifying information. Defendant City was ordered to provide the officer defendants with any relevant resulting information from those searches, as well as relevant information from the searches related to Interrogatory Nos. 6-9 and 14 and RFP No. 98. The officer defendants were ordered to review such information and provide supplemental responses to Interrogatory No. 1 to the best of their abilities, regardless of however successful the search for information was. As of the filing of plaintiff's reply, the officer defendants had not provided any supplemental response to Interrogatory No. 1. Olney Reply Decl. ¶ 4. Defendants devote exactly one line of their opposition to this failure: “The Defendant Officers intend to supplement the response to Interrogatory No. 1, if after they review the police reports, they are able to respond further as directed by Magistrate Judge Pym.” Opp. at 10. At the hearing, defendants further explained that Interrogatory No. 1 is very detailed and demanding and they had not yet had time to review records and provide further supplemental responses. This explanation is inadequate. Defendants were ordered on April 27, 2023 to review information available to them and supplement their responses. They failed to do this in any substantive way. They have been on notice – again – since the court's November 22, 2023 order that they would need to review the relevant records and supplement their responses accordingly. They have had since at least January 8, 2024 when additional documents responsive to RFP No. 98 were produced to review those records. And there is no indication that defendants ever conducted the other records search ordered by the court, namely, a search with the terms for stolen vehicle and each individual officer's identifying information, to better augment their supplemental responses. As such, the officer defendants' responses to Interrogatory No. 1 remain wholly deficient in spite of multiple court orders compelling complete responses. 3. Sanctions A court may sanction a party who has failed to obey a discovery order by, inter alia, (i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; (ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence; (iii) striking pleadings in whole or in part; (iv) staying further proceedings until the order is obeyed; (v) dismissing the action or proceeding in whole or in part; (vi) rendering a default judgment against the disobedient party; or (vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination. Fed. R. Civ. P. 37(b)(2)(A). Plaintiff argues that defendants' discovery failures here have greatly prejudiced him. He argues that one of the central disputes in the case is the reasonableness of the officers' application of FPD's high-risk traffic stop policy to plaintiff in light of the risk posed by stolen vehicle stops. Mtn. at 23. He claims that the discovery defendant is refusing to produce – whether officers have been injured during stolen vehicle stops, how often suspected stolen vehicles turned out to actually be stolen, and whether the individuals stopped were armed – is directly relevant to that dispute. Id. Further, plaintiff notes that to the extent the officer defendants intend to rely on their experience to claim they reasonably believed plaintiff could have been armed and dangerous, plaintiff has been denied discovery on what their experience actually entailed. Mtn. at 23-24. As such, plaintiff argues, the court should strike defendants' answers and render a default judgment. Mtn. at 24. He argues that at a minimum, the court should instruct the jury that the facts withheld be taken as established for purposes of the action, as he claims. Id. Such facts here include: *11 That no FPD officer has been injured during a traffic stop of a suspected stolen vehicle, that FPD has no records indicating that any person detained during such a stop had actually stolen the vehicle or been armed, that FPD has no records indicating that any person detained in a suspected stolen vehicle (regardless of any other reasons for the detention) was armed, and that no Defendant Officer has ever conducted a stop based only on suspicion of a stolen vehicle where any suspect was armed, where any officer was injured, or where they determined that the vehicle was stolen. Mtn. at 24. Plaintiff argues that in the alternative, the officer defendants should be precluded from testifying about any traffic stop of a suspected stolen vehicle that was not listed in their responses to Interrogatory No. 1, i.e., every stop other than the one of plaintiff. Defendants first argue that plaintiff's sanctions request is untimely and should be denied on that basis alone, but do not explain why the request is untimely. Opp. at 10. Defendants also argue that they complied with the court's orders. Id. As discussed above, that is only partly correct. For the most part, defendant City made an effort to comply with the court's order to conduct additional database searches and supplement its responses to Interrogatory Nos. 6-9 and 14 and RFP No. 98. Although there are technical deficiencies in their interrogatory responses, plaintiff has not been deprived of any reasonably obtainable responsive information. As such, the court disagrees plaintiff has been significantly prejudiced, any more than any party is when the information he seeks is not available. As to the deficiencies in the City's responses, the court recommends only that defendants be prohibited from introducing into evidence any information or evidence responsive to these interrogatories – namely, information regarding traffic stops based on suspicion of a stolen vehicle or of a suspected stolen vehicle – not disclosed in response to plaintiff's discovery requests. See Fed. R. Civ. P. 37(b)(2)(A)(ii). The defendant officers' utter failure to review records and supplement their responses to Interrogatory No. 1 is more egregious. But the prejudice to plaintiff caused by this failure is not so great as to warrant the extreme sanctions plaintiff seeks. Plaintiff has not been completely thwarted in discovery so as to warrant terminating sanctions. Plaintiff's request that certain facts withheld be taken as established is more reasonable, but much of what plaintiff requests does not correspond with Interrogatory No. 1 to the defendant officers. That which does – e.g., his proposal that it be deemed established that no defendant officer ever conducted a stop based on suspicion of a stolen vehicle where any suspect was armed or where they determined the vehicle was stolen – may well be counterfactual, and is at a minimum inconsistent with some of the deposition testimony cited above. What is eminently warranted is plaintiff's alternative suggestion that the defendant officers be precluded from testifying about their experience conducting any traffic stop of a suspected stolen vehicle that was not included in their responses to Interrogatory No. 1, that is, every stop other than the stop of plaintiff. See Fed. R. Civ. P. 37(b)(2)(A)(ii). The sanctions recommended here are sufficient but not greater than necessary to ameliorate the harm of defendants' deficient discovery responses. IV. RECOMMENDATION IT IS THEREFORE RECOMMENDED that the District Court issue an Order: granting in part and denying in part plaintiff's motion for sanctions (docket nos. 161, 162) as set forth above; precluding defendant City from introducing into evidence any information or evidence regarding traffic stops based on suspicion of a stolen vehicle or of a suspected stolen vehicle that was not disclosed in response to plaintiff's discovery requests; and precluding defendant officers from testifying about their experience conducting any traffic stop of a suspected stolen vehicle, other than the stop of plaintiff. Footnotes [1] The most complete version of the Olney declaration and its exhibits is at docket no. 166; the Valdenegro declaration is found at docket no. 161-2. [2] “Rule 37(e) was completely revised in 2015 and sets the standards for sanctions arising from the spoliation of ESI.” Fast v. GoDaddy.com LLC, 340 F.R.D. 326, 334 (D. Ariz 2022). Rule 37(e) “provides the exclusive source of sanctions for the loss of ESI and forecloses reliance on inherent authority.” Id. at 335 (citing Rule 37(e) advisory committee note to 2015 amendment).