Curiel, Gonzalo P., United States District Judge
The court denied both plaintiff’s motion for class certification and her motion for spoliation sanctions. Although defendant negligently violated its duty to preserve by overwriting back-up tapes of call recordings after plaintiff filed her complaint, spoliation sanctions were not warranted because the lost recordings would not have been supportive of plaintiff’s claim.
Plaintiff brought a class action suit alleging that defendant violated the federal Cable Act by not obtaining her and other customers’ consent to be charged a monthly fee for defendant’s cable set-top boxes. When plaintiff ordered DVR service over the phone, defendant shipped her one of the cable set-top boxes necessary for such service. After plaintiff took the time to examine her cable bill nearly two years later and noticed the charge for the box, she filed suit in September 2010. In June 2011, plaintiff requested all “recordings of telephone calls with customers and/or potential customers." Defendant began preserving its recordings in compliance with the request. Before that time, defendant’s call recordings with customers were automatically overwritten every 45 days due to limited server storage capacity. Defendant had no business need for calls older than 45 days, and retaining calls for longer would have required investment in additional servers to store the massive amount of data.
The court first denied plaintiff’s motion for class certification because the proposed class members lacked a common injury. Plaintiff did not show that defendant had a uniform policy or practice of nondisclosure of converter box charges. The sampling of call recordings obtained from defendant revealed that significantly more employees disclosed converter box fees than those who did not. Therefore, plaintiff's experience established only that some employees deviate from defendant's disclosure policy and practice. Furthermore, plaintiff’s putative class failed to account for customers who signed up online, all of whom seemed to be fully informed about equipment charges.
The court next denied plaintiff’s motion for either an adverse inference spoliation sanction or, in the alternative, an evidence-preclusion order. The court applied the Second Circuit’s three-part test for spoliation sanctions adopted by district courts in California. That test requires (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. Under the court's test, culpability amounting to bad faith was sufficient to establish relevance as well. Because only the first two factors in the three-part test applied to defendant, the court denied the motion for spoliation sanctions as to an adverse inference.
First, with respect to defendant’s duty to preserve at the time recordings were overwritten, the Court concluded that the duty arose when the complaint was filed in September 2010. Defendant should have known that telephone recordings, the predominant way its customers request cable service, would have reasonably been requested during discovery.
Second, with respect to defendant’s culpability, defendant was negligent in failing to preserve its back-up tapes between September 2010 and June 2011. Plaintiff could not demonstrate bad faith because she did not show that defendant’s overwriting of its tapes was anything but a routine business practice, but negligence was enough to meet the culpability requirement.
The third element -- that the deleted evidence was relevant to her claim -- tripped plaintiff up. The court concluded that the deleted call recordings would not have been relevant because only a small fraction of the call recordings already produced (two out of 280) supported plaintiff’s claim. Plaintiff speculated that the earlier call recordings would have been relevant provided defendant had changed its training practices since 2008, but defendant demonstrated that no such change had occurred.
Even though neither party raised timeliness as an issue, the Court alternatively denied the motion for spoliation sanctions as untimely. Plaintiff knew at the time she filed her complaint that defendant was still overwriting its call recordings but did not take action until two motions to compel and nine months later.
v.
COX COMMUNICATIONS, INC., a Delaware corporation; DOES 1 through 100, inclusive, Defendants
Counsel
Jeff S. Westerman, Westerman Law Corp., Nicole Marie Duckett, Milberg LLP, Los Angeles, CA, Peggy J. Wedgworth, Milberg LLP, New York, NY, for Plaintiff.Allison L. Ehlert, Richard R. Patch, Katharine Tracy Van Dusen, Coblentz Patch Duffy & Bass LLP, San Francisco, CA, Nathan R. Hamler, Mintz Levin Cohn Ferris Glovsky and Popeo PC, San Diego, CA, for Defendants.
ORDER DENYING PLAINTIFF'S MOTION FOR CLASS CERTIFICATION AND DENYING PLAINTIFF'S MOTION FOR SPOLIATION SANCTIONS
All persons who, at any time from September 13, 2006, to the present (“Class Period”), paid a rental fee to CCI [Cox] for the use of a cable television converter box and/or remote control device in connection with cable television service they received within the state of California (the ‘Class').
First, the cable operators must specifically disclose the equipment offered and the prices to be charged. Second, the customer must respond affirmatively, either orally or in writing, accepting the offer of the equipment and prices.
All persons who, at any time from September 13, 2006, to the present (“Class Period”), paid a rental fee to CCI [Cox] for the use of a cable television converter box and/or remote control device in connection with cable television service they received within the state of California (the ‘Class').
All persons who, at any time from September 13, 2006, to the present (“Class Period”), paid a rental fee to UCI [Cox] for the use of a cable television converter box and/or remote control device in connection with cable television service they received within the state of California (the ‘Class').