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.
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