*1 Pending before this Court is a motion by the Plaintiffs to sanction Defendant Shippers Transport Express (“Shippers”) for spoliation of evidence. (Dkt. No. 123.) At issue is whether Shippers' failure to prevent its employees from deleting discoverable text messages and emails warrants sanctions, and whether their attempts to recover these written communications should mitigate or obviate any necessary sanctions. For the reasons discussed below, the Court finds Shippers' conduct to warrant sanctions and thus GRANTS Plaintiffs' motion.

Defendant Shippers is a trucking and logistics company providing land transportation services for ocean containers to and from international ports in Los Angeles County and Oakland. (Dkt. No. 54 at 10.) Shippers maintains a fleet of drivers in California who often work full-time, year-round, driving Shippers-owned and –labeled trucks. (Dkt. No. 32 at 1.) Plaintiffs are a class of Shippers truck drivers operating out of Shippers' yards in Carson and Oakland, California. (Dkt. No. 32 at 1.) Shippers' logistical operations, such as scheduling the pick-up and delivery of the containers, are performed by regular employees. (Dkt. No. 32 at 1.)

Plaintiffs first initiated this lawsuit against Shippers on January 31, 2012 in Los Angeles Superior Court. (Dkt. No. 1-1.) On February 15, 2013, Plaintiffs filed a First Amended Complaint (“FAC”) in order to add Defendant SSA Marine, Inc. (“SSA”). (Dkt. No. 1-1.) The FAC, which remains the operative complaint in this matter, alleges seven state causes of action for: (1) failure to pay minimum wage under Cal. Lab. Code §§ 1194, 1194.2, 1197; (2) failure to reimburse for business expenses under Cal. Lab. Code § 2802; (3) unlawful coercion under Cal. Lab. Code § 450; (4) failure to provide accurate itemized wage statements under Cal. Lab. Code § 226; (5) waiting time penalties under Cal. Lab. Code § 203; (6) unfair business practices under Cal. Bus. & Prof. Code §§ 17200 et seq.; and (7) civil penalties under Cal. Lab. Code §§ 2698 et seq.—the Private Attorney General Act. (Dkt. No. 1-1.)

On March 22, 2013, SSA removed the underlying action to this Court pursuant to 28 U.S.C. §§ 1441, 1446, and 1453, alleging diversity subject matter jurisdiction under 28. U.S.C. § 1332(d). (Dkt. No. 1-1.) Plaintiffs then moved for class certification on September 23, 2013 (Dkt. No. 32), which the Court granted on March 10, 2014 (Dkt. No. 71). Shortly thereafter, Plaintiffs sought leave to file a Second Amended Complaint (Dkt. No. 73), but the Court denied this request (Dkt. No. 82). The central issue in dispute for purposes of evaluating Plaintiffs' allegations is whether Plaintiffs are properly characterized as Shippers' employees or as independent contractors.

In September 2011, the Department of Labor began investigating Shippers for potential violations of the Fair Labor Standards Act (“FLSA”) arising out of its Oakland office. See Perez v. Shippers Transport Express, Inc., No. 13-CV-04255 (Dkt. No. 47-3). In connection with that investigation, the Wage Hour Division (“Wage Hour”) requested that Shippers provide it with certain records, including time and payroll records for all drivers. Id. at 4-5. Wage Hour notified Shippers on February 17, 2012 that it had found Shippers to be in violation of FLSA minimum wage regulations because of Shippers' allegedly improper designation of its truck drivers as independent contractors rather than employees. Id. (Dkt. No. 47-2 at 2). On March 1, 2012, Wage Hour referred Shippers' case to the Secretary of Labor (the “Secretary”). Id.

*2 On August 13, 2012, the Secretary filed a complaint against Shippers in the Northern District of California, alleging violations of the minimum wage and recordkeeping provisions of FLSA. Id. (Dkt. No. 1). In response, Shippers denied these allegations and set forth thirty affirmative defenses. Id. (Dkt. No. 9). As here, the central issue in Perez is also whether Shippers' truck drivers are properly characterized as employees or independent contractors. Because both parties recognized that the discovery process would be greatly facilitated by coordination, the cases were deemed related, and the Perez action was transferred to this Court for the purpose of conducting discovery. Id. (Dkt. No. 24).

On March 1, 2012, Plaintiffs served their first set of Requests for Production (“RFPs”) on Shippers. (Dkt. No. 123-3.) Among other documents, Plaintiffs requested “All electronic mail sent or received from any of DEFENDANT's employees or officers relating to the scheduling of DRIVERS since January 31, 2008” (RFP No. 18), as well as “All DOCUMENTS relating to the scheduling of DRIVERS since January 31, 2008” (RFP No. 20). (Dkt. No. 123-3 at 6–7.) “DOCUMENTS” is defined as “all writings ..., including, without limitation, handwritings, typewriting, ... transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, ... and any records thereby created, regardless of the manner in which the records has [sic] been stored.” (Dkt. No. 123-3 at 2.) In response to Plaintiffs' RFPs, Shippers produced a number of documents to RFP No. 20. (Dkt. No. 123-4 at 8.) With regard to RFP No. 18, however, Shippers stated that, “After conducting a diligent search and reasonable inquiry Responding Party is not aware of the existence of any responsive documents.” (Dkt. No. 123-4 at 8.)

Between April 15 and 17, 2014, the Secretary in the Perez action deposed three of Shippers' key employees from its Oakland office: (1) General Manager Guy Sanderson, (2) Operations Manager Maria Banales, and (3) Dispatcher Kelvin Pham. Perez, No. 13-CV-04255 (Dkt. No. 47-2 at 4.) Both Mr. Sanderson and Ms. Banales testified that they do not send text messages. (Dkt. No. 123-6 at 6); Perez, No. 13-CV-04255 (Dkt. No. 52-2 at 6). Mr. Pham, however, testified that he not only sends text messages, he has since last year been sending texts to Shippers' drivers on a daily basis about who will be picking up which loads. (Dkt. No. 123-5 at 6–9, 12–14, 17–21.) In fact, given that his first step in offering loads to his drivers is to send a group text to all but two of his drivers (whose phones lack texting capabilities), texting appears to be Mr. Pham's primary method of communication with Shippers' drivers. (Dkt. No. 123-5 at 13, 19–20.) When asked during his deposition whether he retained these text messages, Mr. Pham responded that he deleted all of his text messages on a daily basis. (Dkt. No. 123-5 at 6–7.) Mr. Pham also testified that he had never been asked by anyone to retain text messages between himself and Shippers' drivers. (Dkt. No. 123-5 at 7.)

Similarly, Ms. Banales—the operations manager whose job description entails speaking with and delivering rates to customers and communicating with drivers (Dkt. No. 123-7 at 5)—testified during her deposition that she had never been asked to retain any documents such as emails that are related to this case (Dkt. No. 123-7 at 9–11). Rather, she testified that she deletes them on a bi-weekly basis. (Dkt. No. 123-7 at 11.)

On May 2, 2014, the Secretary filed a motion for sanctions against Shippers for spoliation of evidence, arguing that Shippers failed to comply with its duty to preserve evidence that was crucial to the Secretary's case in chief, resulting in severe prejudice to the Secretary. Perez, No. 13-CV-04255 (Dkt. No. 47-1). Plaintiffs sought to join in this motion (Dkt. No. 109), but the Court struck their notice of joinder due to the factual and legal differences between this matter and the Perez action (Dkt. No. 121). As a result, Plaintiffs filed their own motion for sanctions on June 16, 2014, which, at the Court's instruction, Plaintiffs set for hearing on July 7, 2014. (Dkt. No. 123.)

*3 In their motion, Plaintiffs essentially raise the same arguments as those presented in the Secretary's motion. Specifically, Plaintiffs argue that sanctions are warranted because Shippers failed to comply with its duty to preserve evidence that was crucial to their case in chief, resulting in prejudice to Plaintiffs. Plaintiffs request: (1) evidentiary sanctions precluding Shippers from introducing any evidence to refute Plaintiffs' evidence regarding the control exercised by Shippers over Plaintiffs working at Shippers' Oakland office, and striking any testimony from Shippers' witnesses regarding what the destroyed texts and emails may have said; and, (2) an adverse inference jury instruction regarding the missing texts and emails. (Dkt. No. 123 at 12–14.)

Shippers has opposed this motion on several grounds. (See Dkt. No. 132 at 9–18.) Its chief arguments are that: (1) the missing evidence may be recovered and was thus not destroyed; (2) Shippers should not be sanctioned for failing to preserve evidence it was unaware existed; (3) Shippers has acted diligently in attempting to recover any lost evidence; (4) Plaintiffs have not been prejudiced by any spoliation; and, (5) Plaintiffs' motion is untimely for failure to comply with Local Rule 6-1. (Dkt. No. 132 at 15–23.)

Since the Secretary filed its motion, Shippers has produced in the Perez action a number of heavily redacted text messages that were retrieved from the cellular telephones of Shippers' employees. Perez, No. 13-CV-04255 (Dkt. No. 52-3). Based on the declarations attached to the instant motion, these appear to constitute all of the text messages that Shippers has been able to recover (Dkt. Nos. 132-1, 132-2), although it appears that Shippers has also subpoenaed the deleted text messages from the cell phone service provider, AT&T, who may be able to recover deleted messages from up to sixteen months ago (Dkt. No. 132 at 12). Shippers' recent supplemental production in Perez includes work-related text messages from Mr. Pham, as well as from Ms. Banales and from the inbox of Mr. Sanderson, both of whom testified at their depositions that they do not send text messages. (Dkt. No. 123-6 at 6); Perez, No. 13-CV-04255 (Dkt. No. 52-2 at 6). In addition, Shippers appears to have produced Mr. Pham's text messages from a sixteen-day period of time. Perez, No. 13-CV-04255 (Dkt. No. 52-3). The Court heard oral argument from the parties on July 7, 2014.

District courts in the Ninth Circuit are vested with “the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.” Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993); accord Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (recognizing district courts' inherent authorities arising out of “ ‘the control necessar[y] ... to manage their own affairs so as to achieve the orderly and expeditious disposition of cases' ” (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991))). When a party fails to meet its duty to preserve evidence, the opposing party may move the court to sanction that party for destroying evidence. See Unigard, 982 F.2d at 365.

A court need not find that a party acted in “bad faith” in order to impose sanctions for spoliation of evidence. See Glover, 6 F.3d at 1329; Unigard, 982 at 368 n.2. Rather, a party may be sanctioned simply for having notice that the destroyed evidence was potentially relevant to the litigation. See Glover, 6 F.3d at 1329; Akiona v. United States, 938 F.2d 158, 161 (9th Cir. 1991). In determining what degree of sanction (if any) to impose, however, a court must consider the party's state of mind.

*4 Courts may sanction parties responsible for spoliation of evidence in three primary ways. See In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1066 (N.D. Cal. 2006). First, a court may instruct the jury that it may draw an inference that is adverse to the party responsible for destroying the evidence. See Glover, 6 F.3d at 1318; Akiona, 938 F.2d at 161. Second, a court may exclude witness testimony based on destroyed evidence that is offered by the party responsible for destroying the evidence. See Glover, 6 F.3d at 1329; Unigard, 982 F.2d at 161. Finally, a court may dismiss the claim of the party responsible for spoliation. See Allstate Ins. Co. v. Sunbeam Corp., 53 F.3d 804, 806–07 (7th Cir. 1995); Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 626 (C.D. Cal. 2013); see also Chambers, 501 U.S. at 45 (noting that “outright dismissal ... is a particularly severe sanction, yet is within the court's discretion”).

Turning to Shippers' conduct, the Court finds ample justification in the record to sanction Shippers for destroying relevant and discoverable evidence.

To begin, the record makes clear that Shippers failed to satisfy its duty to preserve. It is well established that “[a]s 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.” Napster, 462 F. Supp. 2d at 1067; accord Unigard, 982 F.2d at 365, 369 (affirming district court's evidentiary sanctions for destruction of evidence two years before lawsuit was filed).

Under the circumstances, there are two dates on which Shippers' duty to preserve may have been triggered. Shippers was first alerted to the potential for future litigation when Wage Hour notified it of their investigation into potential FLSA violations on September 29, 2011. Perez, No. 13-CV-04255 (Dkt. No. 47-3 at 4–5). While Wage Hour's letter did not explicitly threaten litigation, its notification of possible noncompliance with FLSA may suffice to put Shippers on notice. See Napster, 462 F. Supp. 2d at 1067; Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (noting that the duty to preserve attaches “when a party should have known that the evidence may be relevant to future litigation”). Alternatively, Shippers' duty to preserve may have attached as late as January 31, 2012, when Plaintiffs filed their initial complaint. (Dkt. No. 1.) At that point, Shippers was informed with certainty that its relationship with its drivers was the subject of litigation, which clearly put them on notice to preserve communications between Shippers' employees and its drivers.

Under either construction of Shippers' duty, it was clearly triggered well before April 15, 2014, when the Secretary deposed Mr. Pham and Ms. Banales. And on that date (and over the following two days), it became evident that Shippers had still not taken any measures whatsoever to preserve written correspondence between its employees and its drivers. For instance, Mr. Pham testified that he had never been asked by anyone to retain text messages between himself and drivers. (Dkt. No. 123-5 at 7.) Similarly, Ms. Banales testified that she had never been asked to retain her emails. (Dkt. No. 123-7 at 9–10.) In fact, Ms. Banales testified that she had never been told to keep any documents related to Shippers' drivers or to their pay and work schedules. (Dkt. No. 123-7 at 10.)

*5 Contrary to Shippers' contention that they put an immediate litigation hold in place (Dkt. No. 132-1 at 2),[1] it appears from the deposition testimony that no such litigation hold was implemented. Rather, Shippers' employees continued with their practice of deleting their written communications with drivers on a routine basis. Any efforts taken to preserve evidence were thus ineffective and insufficient to satisfy Shippers' duty to preserve. See, e.g., Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 2d 1132, 1146 (N.D. Cal. 2012) (noting a company's failure to satisfy its duty to preserve because of its “failure to monitor its employees' efforts downstream, as opposed to its immediate efforts to educate its employees” of the lawsuit).

Shippers offers several reasons for its failure to meet its duty to preserve, but none of these arguments is sufficient to excuse Shippers from performing its duty. At the outset, it appears that Shippers had only a small number of employees to monitor in preserving evidence. While even large companies have the duty to ensure compliance from their employees, see, e.g., Apple, 881 F. Supp. 2d at 1146 (assigning this duty to the international corporation Samsung Electronics), Shippers concedes that it has only eleven employees at its Oakland office (Dkt. No. 132-2 at 2) and only two offices in California.[2] Regardless of how many employees Shippers has, however, its failure to monitor reached the employees most likely to have discoverable information. Given his role as dispatcher for the Oakland office, Mr. Pham's communications with the drivers were clearly relevant to the issue of the control Shippers exerted over its drivers. And Ms. Banales, by her own admission, is the “number two person in charge” at Shippers' Oakland facility. (Dkt. No. 123-7 at 6.) That neither of these employees was ever told to retain their communications prior to April 2014 is inexcusable.

Moreover, Shippers' argument that it cannot be expected to preserve evidence that it was unaware existed is without merit. Shippers seems to base this argument on its contention that “[t]ext messaging is a new technology,” and its purported ignorance that its employees were sending text messages. (Dkt. No. 132 at 17.) The use of text messaging as a form of communication is widespread to say the least, and Shippers' alleged ignorance of this practice is insufficient to excuse Shippers of its duty. Instead, “[t]he duty to preserve also includes an obligation to identify, locate, and maintain [relevant] information.” Apple, 881 F. Supp. 2d at 1135 (emphasis added). Shippers thus had the duty to identify and locate relevant written communications even if it did not know they existed. Yet Shippers apparently never even asked its employees if they sent text messages to their drivers prior to Mr. Pham's deposition.

As a result, Shippers has breached its duty to preserve evidence. Such a breach warrants sanctions. See Glover, 6 F.3d at 1329; Akiona, 938 F.2d at 161.

Shippers argues in its opposition that Plaintiffs did not request the text messages at issue in their RFPs. While this would not excuse Shippers of its failure to comply with its duty to preserve these relevant communications, it would affect the degree to which Plaintiffs have been prejudiced by any discovery misconduct. Shippers' argument is not without merit. Indeed, the RFP that Plaintiffs argue covers these text messages—RFP No. 18—seeks only “electronic mail.” (Dkt. No. 123-3 at 6–7.) And as Shippers points out, “electronic mail” is the formal term for “email.” So it is tenuous to claim that Plaintiffs properly sought text messages by requesting “electronic mail.”

*6 Yet Plaintiffs rely too heavily on FRP No. 18. In fact, RFP No. 18 is redundant in light of RFP No. 20, which seeks all “DOCUMENTS” relating to the same issue—that is, “the scheduling of DRIVERS since January 31, 2008.” (Dkt. No. 123-3 at 6–7.) The definition of “DOCUMENTS” provided in Plaintiffs' RFPs includes “all writings ..., including, without limitation, handwritings, typewriting, ... transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing, any form of communication or representation, ... and any records thereby created, regardless of the manner in which the records has [sic] been stored.” (Dkt. No. 123-3 at 2 (emphasis added).) RFP No. 20 thus not only seeks electronic mail relating to the scheduling of drivers, but it also seeks other forms of communications, such as text messages.[3]

Shippers' opposition also makes the case that sanctions are not warranted because no evidence has been destroyed. Indeed, it appears that many of the discoverable emails that Ms. Banales (and potentially others) deleted are recoverable through a backup email server called “Postini.” (Dkt. No. 132 at 15–16; 132-2 at 6–7.) Of course, these emails were never produced to Plaintiffs despite the clear request to see them, and Shippers now readily concedes that there are “millions” of emails that are responsive to Plaintiffs' search terms, which will take a significant amount of time to produce. (Dkt. 132 at 11.) Thus, while the emails may eventually be recoverable, Shippers' failure to have its employees retain them and then produce them before now will likely either preclude Plaintiffs from reviewing them before the December 1 trial date or require this Court to modify its schedule to allow Plaintiffs to do so.

More importantly, Shippers concedes that it may not be able to recover all of the text messages that were deleted. Mr. Pham testified that he had been both using text messaging as his primary method of contact with the drivers and deleting these text messages on a daily basis. (Dkt. No. 123-5 at 6–7.) These text messages are clearly relevant to this dispute. Given his role as dispatcher for Shippers, Mr. Pham's communications with the drivers regarding the assignment of loads to transport is highly relevant to the issue of control exerted by Shippers over the drivers. In fact, as texting was Mr. Pham's primary method of communication with the drivers, these messages may be the most relevant evidence for this issue as it relates to the Oakland operations.

Shippers has apparently been able to recover some text messages that had been deleted from the phones of Mr. Sanderson, Ms. Banales, and Mr. Pham. (Dkt. No. 132 at 11–12.) But these text messages only cover a small portion of Mr. Pham's texting history, and only as far back as February 18, 2014. (Dkt. No. 132 at 11–12); Perez, No. 13-CV-04255 (Dkt. No. 52-3). Given Mr. Pham's testimony that he was sending text messages to his drivers on a daily basis since the previous year, there are clearly a great deal of relevant text messages missing from Shippers' production. Shippers argues that it will recover these messages through the service provider AT&T, whom it has now subpoenaed to retrieve these messages. (Dkt. No. 132 at 12.) According to Shippers, AT&T may be able to recover messages dating back as far as sixteen months. (Dkt. No. 132 at 12.) But Shippers cannot give any assurances of this capability, and any supplemental production after AT&T delivers the text messages and Shippers reviews and redacts them is likely to come on the eve of trial. In any event, the Court deems it very unlikely that Shippers' efforts to recover deleted emails and text messages will result in full production of all relevant documents.

*7 Shippers also contends that it should not be sanctioned because its spoliation of evidence has not caused any prejudice to Plaintiffs. Specifically, Shippers claims that the missing text messages are likely to mirror the ones it cites in its opposition, which Shippers argues support its case that Shippers did not exert significant control over the drivers. Whether the text messages support Shippers' position or that of Plaintiffs is immaterial for purposes of imposing sanctions; what is important is that the destroyed evidence was relevant to the underlying dispute.[4] See Wm. T. Thompson Co. v. Gen. Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984) (“Sanctions may be imposed against a litigant who is on notice that documents and information in its possession are relevant to litigation, or potential litigation, or are reasonably calculated to lead to the discovery of admissible evidence, and destroys such documents and information.”). And as discussed above, the missing evidence is highly relevant to this litigation.

Shippers' alternative argument that Plaintiffs not been prejudiced by the belated production because trial is still five months away is also unpersuasive. A great deal of time and strategic planning goes into preparing for a trial, and the existence or nonexistence of certain facts can shape a party's entire approach to preparing for trial. It is largely a recognition of how much preparation a trial entails that leads courts to set discovery cutoff dates far in advance of trial. See TV Interactive Data Corp. v. Sony Corp., C 10-475 PJH MEJ, 2012 WL 1413368, at *3 (N.D. Cal. Apr. 23, 2012) (“The overall purpose of a discovery cutoff date is to protect the parties from a continuing burden of producing evidence and to assure them adequate time to prepare for trial.”); see also Whittaker Corp. v. Execuair Corp., 736 F.2d 1341, 1347 (9th Cir. 1984) (“The purpose of a discovery cutoff date is to protect the parties from a continuing burden of producing evidence and to assure them adequate time to prepare immediately before trial.”). Five months is not as much preparation time as Shippers characterizes it to be, and Shippers has not even suggested when it might be able to finish any supplemental production. Thus, even if Shippers produces all the missing documents to Plaintiffs, Plaintiffs are still prejudiced by Shippers' conduct because Plaintiffs will be restricted in the time they have to review the evidence and prepare for the December 1 trial.

Shippers has made various attempts since the depositions of its employees to redress the issue of its deleted emails and text messages. Although these attempts will be considered in determining which sanctions should be imposed, they are insufficient to obviate the need for sanctions.

When addressing sanctions related to discovery abuse, the Ninth Circuit has on numerous occasions rejected the defense of “belated compliance.” See, e.g., N. Am. Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1451 (9th Cir. 1986) (“Belated compliance with discovery orders does not preclude the imposition of sanctions.”); G–K Props. v. Redevelopment Agency, 577 F.2d 645, 647–48 (9th Cir. 1978) (“[T]he appellants' last-minute tender of relevant documents could not cure the problem they had previously created.”). For the same reasons, Shippers cannot discharge its duty to preserve documents by attempting to recover destroyed documents.

Moreover, the effects of Shippers' attempts to rectify its omissions have been limited. For instance, although it engaged forensic experts to recover deleted text messages, it has so far failed to recover the vast majority of Mr. Pham's—the very person whose text messages are most pertinent to this litigation. And the text messages that Shippers produced in the Perez matter have been heavily redacted. Perez, No. 13-CV-04255 (Dkt. No. 52-3). Such efforts are insufficient to redeem Shippers of its failure to preserve relevant evidence.

*8 Finally, Shippers reiterates the argument that it made in its ex parte application to strike Plaintiffs' motion for sanctions—that the motion fails to comply with Local Rule 6-1. (Dkt. No. 128.) Because the Court ordered this motion, if filed, to be set for hearing on July 7, Plaintiffs were forced to file their motion on a shortened notice period. The Court has already rejected this argument in denying Shippers' ex parte application, and it will not reconsider it here. (Dkt. No. 131.)

In crafting sanctions for spoliation of evidence, a court must practice “restraint and discretion” and impose sanctions only of the degree necessary to redress the sanctioned party's abuse. Chambers, 501 U.S. at 45; Reinsdorf, 296 F.R.D. at 626; accord Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994) (stating that courts should choose “the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim”). The Court will thus only impose sanctions necessary to redress Shippers' failure to preserve relevant text messages and emails. Counsel for Shippers has conceded, both in their briefs and during oral argument, that they made a mistake, and Shippers has undertaken efforts to rectify this mistake. But neither this admission nor the remedial efforts have cured the deficiency. As a result, adverse inference sanctions, and perhaps preclusion sanctions as well, are warranted.

“The court's inherent authority to impose sanctions for the wrongful destruction of evidence includes the power to exclude evidence that, given the spoliation, would ‘unfairly prejudice an opposing party.’ ” Napster, 462 F. Supp. 2d at 1077 (quoting Unigard, 982 F.2d at 368). Whether to impose preclusion sanctions thus depends on the extent to which Plaintiffs were prejudiced by Shippers' spoliation of evidence.

As discussed above, the missing texts and emails were very likely to be relevant to the underlying dispute. Mr. Pham's text messages in particular, the majority of which are missing, likely go to the very heart of the issue of whether Shippers exercised substantial control over its drivers. As a dispatcher, his communications with the drivers are likely to provide very persuasive insight into the dynamics of Shippers' relationship with its drivers. By destroying that evidence, Shippers has effectively prohibited Plaintiffs from accessing some of the most important evidence available for establishing this key element of their case. Plaintiffs thus have been significantly prejudiced by Shippers' spoliation.

Allowing Shippers to introduce evidence in the form of either text messages or emails that Shippers has recovered (or testimony suggesting what the missing emails or text messages may have said) would enable Shippers to introduce only a select subset of this important evidence into the record. That Plaintiffs have been denied access to other such information justifies the issuance of preclusion sanctions.

That being said, the prejudice to Plaintiffs is surely less than it would be to the Secretary in the Perez action, as this case involves both Oakland and the much-larger Carson port, making evidence relating only to the Oakland port to be less crucial than it would be in Perez. More importantly, full preclusion sanctions as to both emails and text messages may not be necessary if Shippers is able to recover the majority of the missing documents through its allegedly ongoing recovery efforts with sufficient time to allow Plaintiffs to review them and prepare for trial. Thus, the nature and extent of the preclusion sanctions, if any, will be determined at a later stage.

*9 To impose an adverse inference sanction, the Court must find “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that [evidence was] destroyed with a culpable state of mind; and (3) that the destroyed 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.” Chevron U.S.A., Inc. v. M & M Petroleum Servs., Inc., SACV 07-0818DOCANX, 2009 WL 2431926, at *22 (C.D. Cal. Aug. 6, 2009); Napster, 462 F. Supp. 2d at 1077. Each of these factors is satisfied here.

First, Shippers clearly had control over the text messages and emails that were deleted, and, as discussed above, it had an obligation to preserve these communications potentially as far back as September 2011.

Second, the requisite “culpable state of mind” for imposing an adverse inference sanction is willfulness, which may be satisfied by establishing that the spoliating party had “some notice that the documents were potentially relevant to the litigation before they were destroyed.” Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006); Nursing Home Pension Fund v. Oracle Corp., 254 F.R.D. 559, 567 (N.D. Cal. 2008); accord Napster, 462 F. Supp. 2d at 1078 (finding culpable state of mind where party destroyed evidence with “gross negligence”). Here, Shippers had notice that the text messages and emails were “potentially relevant” to this matter at the very latest by January 2012 when Plaintiffs filed this lawsuit. Yet Shippers continued to allow its employees to delete their text messages and emails, apparently without even asking some of its most important employees to retain such communications. Indeed, Shippers conceded at the hearing on this matter that Mr. Sanderson “simply missed it.” The Court finds that this constitutes “gross negligence, if not willfulness.” Napster, 462 F. Supp. 2d at 1078.

Finally, a reasonable trier of fact could find that the missing text messages and emails supported Plaintiffs' case. As discussed above, these communications were clearly relevant to the issue of control. And as Mr. Pham testified in his deposition, his text messages to the drivers covered a range of subjects that indicate control, such as offering loads to the drivers, telling them what to deliver or pick up, discussing whether the drivers will be working or are running late on a given day, and other various topics. (See Dkt. Nos. 123 at 6, 123-5.) It is thus quite reasonable to presume that some of these messages supported Plaintiffs' case.

Plaintiffs are thus entitled to an adverse inference jury instruction related to the spoliation of these text messages and emails. Again, however, the extent to which these messages may be recoverable in the near future is unclear. The Court will therefore determine the precise wording of this instruction at trial.

For the reasons stated above, the Court hereby GRANTS Plaintiffs' motion for sanctions.