Court Recommends Adverse Inference Sanctions and Awards Attorney Fees for Spoliation: eDiscovery Case Law

This case order happened just four days ago.  Fresh enough for you?  😉

In John, et al. v. Cnty. of Lake, et al., No. 18-cv-06935-WHA(SK) (N.D. Cal. July 3, 2020), California Magistrate Judge Sallie Kim ruled that “Defendants or their counsel breached their obligations to provide discovery and that monetary sanctions are appropriate”.  Judge Kim also recommended that the District Court provide an adverse inference instruction to the jury at trial.

Case Background

This case involved claims by the plaintiffs of unlawful search and excessive force by the defendants, who were law enforcement officers attempting to locate a family member of the plaintiffs who was the subject of an arrest warrant.  In May and June 2018, the plaintiffs filed administrative claims with Lake County for damages for the allegedly illegal search of their homes in November and December 2017.  On November 15, 2018, the plaintiffs filed this suit, naming as defendants Lake County, law enforcement officers Antonio Castellanos, Cody White, Joseph Eastham and Mark Steele and the City of Lakeport.

On February 14, 2019, the District Court, in a hearing, addressed Plaintiffs’ concerns about Defendants’ unwillingness to confirm that they were preserving evidence pursuant to a litigation hold, stating: “Anything that relates directly to the case, like emails, text messages, voicemails, memos, handwritten notes, they should be preserved. And any document-destruction program should be interdicted in order to stop it. And if you fail to do that, on either side, then very likely the jury will be told…[Y]ou have a duty, as the lawyers, to tell your clients that. So, please do so.”

Despite that, the plaintiffs struggled to get ESI from the defendants, who initially represented that the individual Defendants did not use their cell phones to communicate about the November 2017 and December 2017 incidents and that there were no responsive phone records.  After motion practice, the plaintiffs added another defendant (Jose Martinez) who testified on August 7, 2019 that no one had asked him to preserve documents in connection with the litigation.  After factual discovery closed, the defendants informed the plaintiffs that they had a chain of text messages between and among individual defendants related to the plaintiffs’ request and that the defendants had withheld those messages on the grounds of relevance.  The defendants produced the text message chain to the plaintiffs on December 19, then produced a new version of the text message chain with additional messages also relevant to the matter on January 30, 2020.

Also, on March 10, 2020, after the Court ordered the defendant to use an eDiscovery specialist to search the text messages of individual defendants, the plaintiffs took the deposition of Lake County’s IT Director, who testified that the first time he had been asked to put a litigation hold on emails for Castellanos, White and Martinez was on March 9, 2020, the day before the deposition, that he had never been asked to put a litigation hold on any other employee’s records or depository, and that, as IT Director, he would know if such a litigation hold had been made.  After meeting and conferring failed to resolve the dispute, the plaintiffs’ motion for spoliation sanctions proceeded.

Judge’s Ruling

Rejecting the defendants’ arguments that the plaintiffs’ motion for spoliation violated due process and that it was untimely (which was rejected because the plaintiffs were given leave to file the motion according to a timetable set forth in detailed orders), Judge Kim assessed whether sanctions were warranted.  Judge Kim found that:

  • “Defendants had the obligation to preserve evidence as soon as they received notice of the administrative claim, which Plaintiffs mailed on May 15, 2018”;
  • “the ESI was lost because Defendants failed to take steps to preserve it”, including the fact that “individual Defendants testified that they deleted emails and text messages after this litigation began”;
  • “the ESI cannot be restored through other means” because “[t]here is no showing by Defendants that they can recover deleted email messages or text messages” and
  • “Plaintiffs have suffered prejudice” because “there is a strong likelihood that there are other text messages regarding Lindsay Williams that they can never recover.”

As for intent, Judge Kim stated this: “the undersigned finds that Defendants acted with intent to deprive Plaintiffs of the destroyed evidence. Again, the key fact here is that, on February 14, 2019, the District Court explicitly warned Defendants to put in place policies to preserve evidence and to stop any policy of destruction, but Defendants did not do so. Intent cannot be clearer when the District Court gave such an explicit, detailed explanation of Defendants’ obligations and when Defendants blatantly defied that specific order. But even without that warning, Defendants’ failure to comply with the basic rules requiring that they preserve evidence after the claim shows their intent.”

As a result, Judge Kim granted the plaintiffs’ motion for sanctions, recommended that the District Court provide the adverse inference instruction to the jury and granted the motion for attorneys’ fees and costs in an amount to be determined after final submissions (which included $105,949.98(!) incurred to date).

Also, just a reminder that on Wednesday, July 15, ACEDS will conduct the webinar Seeing 20/20: Reasonable and Proportional Discovery in 2020 at 1pm ET (noon CT, 10am PT).  Come join Mandi Ross of Prism Litigation Technology, Martin Tully of Actuate Law and me where we’ll discuss challenges with “right-sizing” discovery proportionally and defensibly, what can be leveraged from the rules and relevant case law regarding proportionality, and what best practices can be deployed for quick evaluation of potentially relevant custodians and data sources.  Don’t miss it!

So, what do you think?  Did the Court properly rule that the defendants acted with intent to deprive?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

4 comments

  1. I’ve long said that “Courts guard their own authority more scrupulously than our clients’ rights.” It’s apparently an easy leap to finding intent when the existing duty is underscored by the Court on the record; yet, if a requesting party had been equally explicit in, say, a notice letter, the failure alone wouldn’t be deemed to demonstrate intent. Some explicit evidence of intent would be required.

    Think about that for a minute and it will be clear why I encourage my e-discovery clients to secure a court order on anything involving preservation rather than rely on agreements with counsel. It’s just human nature that the Court will care mightily if its order is violated and will care less if your client’s rights were trampled.

  2. Great point and great advice, Craig! With all of the sanctions cases I’ve covered since the 2015 rules changes (except for ones with extreme examples of spoliation and clear intent), this one stands out because of the Court order on preservation and the end result of the recommendation of the adverse inference instruction sanction. This case may serve as a terrific example to others to try to obtain the same.

  3. Sadly it may not stem malfeasance on the part of law enforcement when handling evidence. This was a great but likely unusual outcome. May the spirit of this ruling spread across the nation!

  4. […] John, et al. v. Cnty. of Lake, et al., No. 18-cv-06935-WHA(SK) (N.D. Cal. July 3, 2020)U.S. Magistrate Judge Sallie Kim granted plaintiffs’ motion for spoliation sanctions and recommended that the District Count provide an adverse inference instruction to the jury, having found that (1) defendants’ obligation to preserve evidence was triggered with they received notice of an administrative claim and made even clearer when they received plaintiffs’ discovery requests; (2) defendants took no steps to preserve the sought-after ESI, resulting in its loss; (3) the lost ESI cannot be restored through other means; and (4) as a result of the loss, plaintiffs have suffered the prejudice of not having accessing to relevant information that goes to some of the key issues in the case.Source: Court Recommends Adverse Inference Sanctions and Awards Attorney Fees for Spoliation: eDiscovery Cas…. […]

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