I. BACKGROUND

A. Procedural History

Plaintiff Scott Montoya (“Plaintiff” or “Montoya”) initiated this action on December 13, 2011. (Compl., Doc. No. 1.) Instead of opposing a series of motions, Plaintiff filed a First Amended Complaint on January 13, 2012, which asserts a single cause of action against Defendant Orange County Sheriff’s Department (“OCSD”) for violation of the Uniform Servicemembers Employment and Reemployment Rights Act (“USERRA”) pursuant to 38 U.S.C. § 4311. (“FAC,” Doc. No. 8.)

On March 1, 2013, OCSD filed a motion for summary judgment (Doc. Nos. 61, 63, 110), and three days later, Montoya filed a motion for partial summary judgment (Doc. Nos. 56, 90). After a hearing on the motions, the Court granted in part OCSD’s motion for summary judgment and denied Plaintiff’s motion for partial summary judgment. (“Order,” Doc. No. 160.)

On July 2, 2013, after the hearing on the summary judgment motion but before the Court issued its ruling, Plaintiff filed a motion for sanctions pursuant to Rule 37 and the Court’s inherent authority against OCSD for spoliation of evidence. (“Motion,” Doc. No. 119.) Pursuant to Local Rule 37-2, the parties filed the Motion as a joint stipulation which includes the points and authorities of each side. In support of the Motion, Plaintiff filed a Declaration of John S. Kyle (“Kyle Decl.,” Doc. No. 119-10) attaching Exhibits numbered 1 through 27. In opposition to the Motion, OCSD submitted a Declaration of Michael J. Rossiter (“Rossiter Decl.,” Doc. No. 119-2) attaching Exhibits lettered A through G. On July 15, 2013, Plaintiff filed a supplemental memorandum in support of the Motion (“Pl. Supp.,” Doc. No. 120) and a Supplemental Declaration of John S. Kyle (“Supp. Kyle Decl.,” Doc No. 120-1) attaching three exhibits. The same day, OCSD filed a supplemental memorandum in opposition to the Motion. (“Def. Supp.,” Doc. No. 122.) Following the September 30, 2013 hearing on the Motion, Plaintiff filed two additional declarations of John S. Kyle on October 1, 2013 (“2nd Supp. Kyle Decl.,” Doc. No. 185) and October 11, 2013 (“3rd Supp. Kyle Decl.,” Doc. No. 195). OCSD filed a supplemental declaration of Michael J. Rossiter on October 15, 2013. (“Supp. Rossiter Decl.,” Doc. No. 196.)

B. Factual History

The facts of this case were thoroughly summarized in the Court’s Order on the motions for summary judgment. (Order at 21-49.) The Court briefly recaps the facts relevant to the instant Motion.

Montoya served in the United States Marine Corps and was awarded the Navy Cross for his service as a scout sniper during the Battle of Baghdad. (Order at 22-23.) During this period, OCSD employed Montoya, and beginning in 2004 stationed him in Stanton, California where he worked as a Deputy Sheriff. (Id. at 22-24.) During the course of Montoya’s employment, OCSD initiated seven personnel investigations into Montoya’s conduct with the final three investigations occurring in 2009 (“2009 Investigations”). (Id. at 28-29.) In 2009, OCSD also conducted a “Threat Assessment” of Montoya and held a briefing presenting the Assessment to OCSD executive staff on December 7, 2009. (Id. at 43-44.) The following day, Montoya was placed on administrative leave. (Id. at 47.) At that time, OCSD began surveillance of Montoya, including installing a camera outside his home, tracking the location of his car, and ordering him to remain at home during working hours and not to contact OCSD employees or potential witnesses. (Id. at 47-49.) On September 2, 2010, OCSD issued Montoya a Notice of Pending Dismissal which stated his discharge was precipitated by numerous violations of Department rules and regulations pursuant to the conduct uncovered in the 2009 Investigations. (Id. at 49.) On October 8, 2010, Montoya was officially terminated. (Id.)

*2 Montoya claims that while he was stationed in Stanton he experienced pervasive discrimination and harassment at the hands of OCSD co-workers and supervisors due to his service in the Marine Corps and his receipt of the Navy Cross. (FAC ¶¶ 17, 12-13; Motion at 6.) As evidence of harassment, Montoya points to numerous incidents between him and OCSD coworkers at Stanton, pervasive rumors that spread in the station, and the initiation of the 2009 Investigations, the Threat Assessment, and the subsequent surveillance. (See Order at 75-78.) OCSD counters that its actions and those of its employees were not precipitated by any anti-military animus, but instead by coworkers’ dislike of Montoya or and numerous violations of OCSD policy identified in the investigations. (See Order at 80-81.) As explained in the Court’s Order, the central dispute remaining in this action is whether Plaintiff’s service was a motivating factor for the harassment perpetrated by OCSD and its employees. (See Order at 79-82.)

C. Spoliation

Plaintiff seeks sanctions against OCSD for its loss and destruction of Electronically Stored Information (“ESI”) relevant to this litigation. (Motion at 2.) Specifically, Plaintiff contends that OCSD knowingly permitted the automatic destruction of ESI, failed to inform key employees of the litigation hold, and failed to properly search any remaining ESI. (Id.)

On December 15, 2009, an attorney for Montoya sent a letter to OCSD contending that “confidential personnel information pertaining to Deputy Montoya has been distributed in a number of briefings” and a in a memorandum. (Kyle Decl., Exh. 17.) The letter notified OCSD that Montoya has a right to confidentiality of this information and OCSD’s breach of that right “may entitle Montoya to a claim against the Department.” (Id.) In May 2010, Montoya submitted a workers’ compensation claim due to injury he incurred on approximately October 28, 2004 at the Stanton station described on the form as “ongoing workplace harassment/stress causing illness.” (Kyle Decl., Exh. 18.) By October 2010, OCSD terminated Montoya, and he filed his complaint in this action on December 13, 2011.

OCSD’s computer archives retain ESI for two years. (Kyle Decl., Exh. 1, ¶ 3.) On December 16, 2011, OCSD emailed twelve employees, including IT professionals and supervisors in OCSD’s Support Services, Professional Standards, Investigations, Litigation and Records departments, which stated that “all data, including electronic data, pertaining to the incident involving Mr. Montoya must be preserved/retained until the Legal Hold is lifted.” (Doc. No. 109-23; Kyle Decl., Exh. 4, 17:18-22:1.) After receiving the email, IT employee Douglas Blackburn looked at the complaint and determined that the referenced dates therein were outside the two-year reach of the archive email system, therefore, “no litigation hold was implemented on the archive directory as of December 2011.” (Kyle Decl., Exh. 1, ¶ 3.) There is no evidence that any other recipient acted in response to the litigation hold email.

On April 9, 2012, the parties identified witnesses in their initial disclosures. (Motion at 17; Doc. No. 40-14.) On April 26, 2012, Plaintiff served OCSD with its first document request seeking all documents regarding any investigations of Plaintiff and all communications between OCSD and any person or entity regarding Plaintiff from 2005 to the present. (Kyle Decl., Exh. 5, Nos. 3-10.)

In August 2012, IT searched the archives and Plaintiff’s computer for any emails to, from or cc’d to Montoya and recovered 2,000 emails which were turned over on September 21, 2012. (Kyle Decl., Exh. 1, ¶ 4; Exh. 2, ¶ 5.) On September 19, 2012, OCSD produced some documents responsive to Plaintiff’s first document request, including information Investigator Lavinia Vega collected during the 2009 Investigations and the Threat Assessment. (Def. Supp. at 1; Kyle Decl., Exh. 2, ¶ 4.) This turnover included personal notes, tape recordings, diagrams, memorandums, letters, emails, personnel file materials and printouts from the internet that Investigator Vega saved. (Def. Supp. at 1.) OCSD also prepared supplemental responses to the first set of document requests which notified Plaintiff that his ESI requests were unduly burdensome and needed to be narrowed. (Kyle Decl., Exh. 7, ¶ 9.) However, OCSD never served these responses. (Id.)

*3 On September 25, 2012, OCSD contacted the witnesses listed in Plaintiff’s initial disclosures and asked them to search for documents pertaining to Montoya’s claims. (Kyle Decl., Exh. 2, ¶ 6.)[1] OCSD’s efforts produced 480 pages of documents, which it turned over on October 25, 2012. (Id.)

On October 22, 2012, Plaintiff learned that OCSD had not searched for ESI relevant to all of the documents he initially requested, nor had it served the supplemental responses notifying him of their overbreadth. (Kyle Decl., Exh. 7, ¶ 29.) At that point, the parties met and conferred and established parameters for a search of OCSD’s ESI communications. (Id. ¶ 29.) Pursuant to the criteria, OCSD searched the electronically stored files of 16 employees for communications addressed to, from, cced, or referencing Montoya or terms related to him or his service.[2] (Doc. No. 41-3.) On November 9, 2012, Plaintiff filed a motion to compel OCSD “to produce all responsive ESI to the Requests for Production of Documents” described above. (“Mot. Compel” at 9, Doc. No. 33-1.) In response, Magistrate Judge Block issued a minute order asking Plaintiff to address whether the motion was moot because “defendant ‘had already agreed to produce the documents in response to the Request for Production.’ ” (Doc. No. 34) (quoting OCSD). On November 20, 2012, OCSD produced 70 pages of documents responsive to the ESI search parameters. (Kyle Decl., Exh. 7, ¶ 33.) Six days later Plaintiff withdrew his motion to compel. (Doc. No. 38.)

However, Plaintiff remained unsatisfied with OCSD’s search for ESI. In a December 11, 2012 email, Plaintiff’s counsel expressed concerns about the implementation of the litigation hold and the inability to search for ESI on OCSD’s server going back to December 2008. (Kyle Decl., Exh. 10, at 98.) On January 30, 2014, OCSD responded to counsel’s email and notified him that no litigation hold was implemented in December 2011. (Id. at 97.)

On February 11, 2013, Plaintiff filed a second motion to compel additional documents from OCSD. (“2nd Mot. Compel,” Doc. No. 49.) Although this motion addressed numerous issues, of note here is Plaintiff’s request for an order compelling “documents responsive to at least his Requests for Production Nos. 1 – 8 (seeking records and communications with and about Plaintiff).” (Id. at 16.) After the filing of the motion, OCSD represented to Plaintiff that “[a]s for the ESI, we are done producing all the non-privileged ESI regarding those listed on the search parameters. ... however, if we do stumble upon ESI that is relevant I will agree to produce it within 2 days ....” (Doc. No. 45-2.) In Plaintiff’s supplemental response, he “with[drew] the portion of his Motion seeking additional responsive documents” due to OCSD’s representations in correspondence with him. (Doc. No. 45 at 4.)

*4 Finally, Plaintiff raised the issue of OCSD’s failure to preserve ESI in opposition to OCSD’s motion for summary judgment. (Doc. No. 79 at 17-18.) However, Plaintiff failed to apply the appropriate standard, to present arguments as to all of the required elements, or to provide the Court with sufficient facts to grant his requested sanction at that time. (See Order at 56-61.)

II. LEGAL STANDARD[3]

District courts may impose sanctions under their inherent power “to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” In re Napster, Inc. Copyright Litigation, 462 F. Supp. 2d 1060, 1066 (N.D. Cal. 2006) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence, in pending or future litigation.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)(Spoliation “refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.”).

“Sanctions that a federal court may impose for spoliation include assessing attorney's fees and costs, giving the jury an adverse inference instruction, precluding evidence, or imposing the harsh, case-dispositive sanctions of dismissal or judgment.” Surowiec v. Capital Title Agency, Inc., 790 F. Supp. 2d 997, 1008 (D. Ariz. 2011) (quotation and citation omitted); Apple Inc. v.Samsung Electronics Co., Ltd., 881 F. Supp. 2d 1132, 1135 (N.D. Cal. 2012); In re Napster, 462 F. Supp. 2d at 1066 (citations omitted). Plaintiff primarily seeks terminating sanctions, or in the alternative, to exclude evidence pertaining to the 2009 Investigations or to instruct the jury that it may draw an inference adverse to OCSD.

III. DISCUSSION

Plaintiff moves for sanctions against OCSD under Federal Rule of Civil Procedure 37(c)(1) and the Court’s inherent authority.

A. Rule 37 Sanctions

Rule 37(c)(1) is an improper basis for Plaintiff to seek sanctions. The Rule states in relevant part that the Court may order sanctions against a party who “fails to provide information or identify a witness as required by Rule 26(a) or (e) ... unless the failure was substantially justified or is harmless.” Fed. R. Civ. P. 37(c)(1). As applicable here, Rule 26(a) requires a party to provide to the other parties copies of “all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses.” Fed. R. Civ. P. 26(a). Here, Montoya has made no showing that OCSD intends to use any of the allegedly destroyed ESI to support its claims or defenses. Nor could OCSD have such evidence in its “possession, custody, or control” since this Motion is premised on its destruction. Rule 26(e) is similarly inapplicable as it requires a party to supplement its disclosure “if the party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process or in writing.” Fed. R. Civ. P. 26(e)(emphasis added). Although OCSD failed to serve its supplemental responses to Montoya’s first set of document requests, this oversight was made known to Montoya during the discovery process. Thus, by their own terms, Rules 26(a) and (e) do not apply to the facts presented, and therefore sanctions under Rule 37(c)(1) are inappropriate. See Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (“This court, however, has foreclosed the application of Rule 37sanctions in cases such as this where a party's alleged discovery-related misconduct is not encompassed by the language of the rule.”). Accordingly, the Court addresses the applicability of sanctions for spoliation under the Court’s inherent powers to manage its own affairs. See In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1075 n.4 (N.D. Cal. 2006)(“Sanctions imposed pursuant to a court's inherent powers is governed by a different set of principles than sanctions under Rule 37.”).

B. Timeliness

*5 OCSD’s primary argument in opposition is that the Motion is time-barred by the Court’s scheduling order. (Motion at 27.)

First, OCSD mischaracterizes the instant Motion as a motion to compel, which needed to be filed by the discovery cut-off date of February 1, 2013. (Motion at 27.) “Although defendant argues that the motion is actually a discovery motion that should have been filed before the discovery cutoff, plaintiffs request that the Court determine whether defendant wilfully [or negligently] destroyed relevant evidence in a way that undermines the integrity of this proceeding and, if so, the appropriate remedy. ... [P]laintiff is not seeking to compel additional discovery: rather, plaintiff seeks a dispositive sanction for litigation misconduct.” E.E.O.C. v. Fry's Electronics, Inc., 874 F. Supp. 2d 1042, 1044 (W.D. Wash. 2012). Accordingly, Plaintiff’s failure to file the Motion prior to the discovery cut-off does not make it untimely.

However, OCSD raises other bases for the untimeliness of the Motion which have more merit. The law and motion hearing deadline was April 1, 2013. (Doc. No. 100.) However, this motion was filed on July 2, 2013, over three months after the cut-off. Plaintiff argues that the instant matter is a motion in limine for which the deadline to file and serve was four weeks prior to the final pretrial conference. (Pl. Supp. at 4.) The jury trial order which applies to this case states that a party may file “any in limine motion which seeks an exclusionary sanction under Rule 37(c)(1) of the Federal Rules of Civil Procedure.” (Doc. No. 20 at 4.) However, for the reasons discussed above Rule 37(c)(1) does not apply to this case. Moreover, Plaintiff primarily seeks terminating sanctions, not exclusionary ones, thus the motion is dispositive not in limine and should have been filed by the law and motion cut-off.

More importantly, OCSD raises the issues of waiver and unreasonable delay. Plaintiff learned of the alleged deficiencies in the litigation hold and OCSD’s ESI search by January 30, 2013 at the latest, but waited until July 2013 to file the instant Motion. A spoliation motion “should be filed as soon as reasonably possible after discovery of the facts that underlie the motion.” Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494, 506–08 (D. Md. 2009). Courts in this circuit have found such a delay to be unreasonable and denied the motion on this basis. See Cottle-Banks v. Cox Commc'ns, Inc., 10CV2133-GPC WVG, 2013 WL 2244333, at *16 (S.D. Cal. May 21, 2013) (denying a motion for spoliation as untimely where plaintiff waited almost nine months to move for sanctions, and instead filed motions to compel evidence she knew was destroyed). Waiting over five months to file a sanctions motion seeking dispositive relief three months after the motion cut-off deadline could be considered unreasonable delay.

This delay is exacerbated by the fact that Plaintiff raised the issue in numerous prior motions, including two motions to compel and in opposition to OCSD’s motion for summary judgment. In the second motion to compel, Plaintiff waived his objection to OCSD’s ESI search and withdrew his motion on that basis, yet he re-raised the issue in opposition to summary judgment. Thus, Plaintiff was clearly aware of the purportedly sanctionable conduct belatedly raised here. Plaintiff’s reassertion of the issue after arguably waiving his objection to additional ESI responsive to his document requests constitutes brinkmanship which the Court looks upon unfavorably. As OCSD correctly points out, the Court may infer that Plaintiff’s inexcusable delay in bringing the instant Motion after waiving his objections to OCSD’s ESI search demonstrates that he was “lying in wait” in order “to exploit the incurability of the alleged discovery violation by [OSCD], rather than undertake its own” discovery. (Motion at 28) (quoting JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 50 (1st Cir. 1999)).

*6 Despite these violations of the scheduling order, Plaintiff’s unexplained delay, and tactics which arguably constitute unfair brinkmanship, the Court recognizes the countervailing interest in “the integrity of the discovery process” and the “assurance of proceeding on the true facts.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir. 2007) (quotation omitted). Although Plaintiff’s dilatory and potentially obstructive conduct is disreputable, the Court finds that it must turn to the merits of the sanctions motion in order to ensure that discovery in this action did not “interfere with the rightful decision of the case.” Id. (citation and quotation omitted). Nevertheless, Plaintiff’s actions in preparation and filing of its Motion are relevant to the appropriate sanction to impose, if any, on the spoliating party. See Unigard Sec. Ins. Co. v. Lakewood Eng'g & Mfg. Corp., 982 F.2d 363, 369 (9th Cir. 1992) (“efficacy of lesser sanctions” is a necessary criterion in reviewing a district court's exercise of its inherent powers to impose sanctions for discovery abuses); Surowiec, 790 F. Supp. 2d at 1008 (noting that the Court must “determine which sanction best ... restores the innocent party to their rightful litigation position”).

C. Applicability of Sanctions

For OCSD’s alleged spoliation of ESI, Plaintiff seeks terminating sanctions, or at the very least, to exclude evidence pertaining to the 2009 Investigations or to instruct the jury that it may draw an inference adverse to OCSD. “A party seeking sanctions for spoliation of evidence must prove the following elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a ‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated evidence[.]” Surowiec, 790 F. Supp. 2d at 1005 (citation omitted); Apple, 881 F. Supp. 2d at 1138. Accord In re Napster, 462 F. Supp. 2d at 1078. The Court addresses each element separately. If, after considering these factors, the Court determines that sanctions are appropriate, then the Court must consider all requested sanctions and determine the appropriate one. Apple, 881 F. Supp. 2d at 1138; see Leon v. IDX Sys. Corp., 464 F.3d 951, 960 (9th Cir. 2006).

1. Obligation to Preserve

Litigants have an obligation to preserve evidence from the moment that litigation is reasonably anticipated. Apple, 881 F. Supp. 2d at 1136; seeSurowiec, 790 F. Supp. 2d at 1005 (“[T]he duty to preserve arises when a party knows or should know that certain evidence is relevant to pending or future litigation.”) (citation and quotation omitted). The duty pertains to documents and information relevant to the claims or defenses of any party or prepared by individuals likely to have discoverable information, including “those employees likely to have relevant information – the ‘key players’ in the case.” Apple, 881 F. Supp. 2d at 1137 (quotation omitted).

Plaintiff argues that OCSD’s duty to preserve arose as early as May 2009 when it initiated personnel investigations against Montoya. (Motion at 13.) Plaintiff alternatively points to four other junctures which he contends triggered OCSD’s preservation obligation: (1) December 2009 when Montoya was placed on administrative leave, (2) December 2009 when Montoya’s attorney sent OCSD a letter regarding his potential claim for disclosure of confidential information, (3) May 2010 when Montoya filed a workers’ compensation claim, or (4) September 2010 when OCSD terminated Montoya. (Id. at 13-14.)

The Court finds that OCSD’s duty to retain evidence arose in May 2010 when Montoya filed a workers’ compensation claim alleging injury resulting from ongoing workplace harassment dating back to October 28, 2004. Cf.Realnetworks, Inc. v. DVD Copy Control Ass'n, Inc., 264 F.R.D. 517, 526 (N.D. Cal. 2009) (“Real had no duty to preserve relevant documents or evidence until a potential claim was identified ....”). Given the similarity between the claims alleged in this action and those in the May 2010 claim, the Court finds that OCSD was on notice of its duty to preserve evidence as of May 2010. See Hamilton v. Signature Flight Support Corp., C 05-0490 CW (MEJ), 2005 WL 3481423, at *5 (N.D. Cal. Dec. 20, 2005) (finding that plaintiff’s previous complaint of discrimination put defendant on notice of its duty to preserve); M & T Mortg. Corp. v. Miller, 02 Civ. 5410(NG)(MDG), 2007 WL 2403565, at *5 (E.D.N.Y. Aug. 17, 2007) (determining that the duty to preserve attached as of the date of an earlier action because the allegations therein were “strikingly similar” to the current action).

*7 OCSD argues that it receives numerous workers’ compensation claims and therefore could not be expected to preserve evidence for all of them. (Def. Supp. at 2.) OCSD could likely make a similar argument regarding lawsuits. However, the volume of claims does not change the fact that Montoya sought benefits for ongoing harassment occurring in the Stanton station. The similarity of the claims and the surrounding circumstances at the time it was filed, including that Montoya was on administrative leave, the subject of three personnel investigations, and a candidate for termination, would have led a reasonable party in the same factual circumstances to have reasonably foreseen litigation. See Apple Inc. v. Samsung Electronics Co., Ltd. [Apple II], 888 F. Supp. 2d 976, 990 (N.D. Cal. 2012). Accordingly, the Court finds that OCSD’s duty to preserve arose in May 2010.

Once OCSD’s duty to preserve took effect, OCSD was “required to suspend any existing policies related to deleting or destroying files and preserve all relevant documents related to the litigation.” In re Napster, 462 F. Supp. 2d at 1070. OCSD was also “obligated to ... implement a litigation hold to ensure the preservation of relevant documents.” Apple, 881 F. Supp. 2d at 1137 (citation and quotation omitted).

OCSD failed to implement a litigation hold, to suspend its 2-year automatic deletion of ESI, or to contact key employees in May 2010, nor did it take these required measures when the complaint was filed in December 2011. ESI and potentially relevant information continued to be automatically deleted until OCSD searched Montoya’s directory in August 2012 and then the directories of other key players in October 2012. Waiting until over two years to preserve ESI thwarted OCSD’s preservation duties. If OCSD complied with its obligation to preserve, Plaintiff would have had access to ESI on OCSD’s server dating from May 2008, as opposed to information only going back to August 2010.

2. Culpable State of Mind

The level of fault required to sanction a spoliating party varies with the level of sanction imposed. See Leon v. IDX Systems Corp., 464 F.3d 951, 958 (9th Cir. 2006) (requiring willfulness or bad faith to impose dismissal sanctions); Apple, 881 F. Supp. 2d at 1147 (requiring defendant to act with a “conscious disregard of its obligations” to impose an adverse inference instruction); Suroweic, 790 F. Supp. 2d at 1007 (finding that a party’s gross negligence was sufficient to impose an adverse inference). Needless to say, “[c]ourts have not been uniform in defining the level of culpability—be it negligence, gross negligence, willfulness, or bad faith—that is required before sanctions are appropriate[.]” Surowiec, 790 F. Supp. 2d at 1006(citation and quotation omitted). At a minimum, the culpable state of mind includes negligence. See Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (stating that “simple notice of potential relevance to the litigation” is sufficient to impose sanctions for spoliation); Lewis v. Ryan, 261 F.R.D. 513, 521 (S.D. Cal. 2009).

The Court finds that OCSD’s conduct in this case is culpable on several regards. First, OCSD failed to implement any litigation hold, even when it had actual notice of Plaintiff’s claims in this litigation and was undeniably aware of its policy to automatically destroy ESI after two years. See Richard Green (Fine Paintings) v. McClendon, 262 F.R.D. 284, 290 (S.D.N.Y. 2009)(“[T]he failure to implement a litigation hold is, by itself, considered grossly negligent behavior.”) Although OCSD sent an email to twelve employees notifying them of their duty to preserve evidence, it failed to follow up with those employees, including the IT department, to ensure that any action was taken. In fact, no action was taken. When the IT department received the litigation hold notice, it unilaterally determined that the server and computer system did not have any information which pertained to Montoya’s claims. Thus, ESI destruction continued unabated for months, even after Plaintiff served OCSD with requests for production which explicitly sought ESI communications with and about Montoya. Only in August 2012 did OCSD make any efforts to preserve or collect ESI relevant to this litigation.

*8 More is required of a party to litigation. “The obligation to retain discoverable materials is an affirmative one; it requires that the agency or corporate officers having notice of discovery obligations communicate those obligations to employees in possession of discoverable materials.” In re Napster, 462 F. Supp. 2d at 1070 (quoting National Ass'n of RadiationSurvivors v. Turnage, 115 F.R.D. 543, 557-58 (N.D. Cal. 1987)). OCSD had an affirmative obligation to communicate its responsibility to implement a litigation hold to its IT department and to ensure compliance. In addition, as of at least December 2011, OCSD had an obligation to contact the key players involved in Montoya’s claims to ensure that they preserved evidence in their possession and on their computers. See Pension Committee of Univ. of Montreal Pension Plan v. Banc of Am. Sec., LLC, 685 F. Supp. 2d 456, 464 (S.D.N.Y. 2010) (“[T]he failure to collect records—either paper or electronic—from key players constitutes gross negligence or willfulness as does the destruction of email or backup tapes after the duty to preserve has attached.”)

OCSD’s argument that the complaint is vague as to time and as to the personnel involved is not well-taken. (Def. Supp. at 2-3.) Defendant argues that because the complaint only references dates prior to 2005, the IT professional who received the litigation hold email “determined, in good faith, that the referenced dates in the Complaint were well outside the reach of the archived ESI system.” (Id. at 3.) OCSD also argues that “Plaintiff’s Complaint is vague as to the OCSD employees involved,” and “OCSD cannot be expected to put an ESI litigation hold on every employee who has come and gone from Stanton since 2005.” (Def. Supp. at 3.)[4]

The parameters of a litigation hold cannot be left solely in the hands of an IT professional. “The preservation obligation runs first to counsel, who has ‘a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction.’ ” In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 197-98 (S.D.N.Y. 2007) (citation omitted). The complaint put OCSD and its counsel on notice of the breadth of Montoya’s claims. It alleges that “beginning around January of 2005,” OCSD initiated and manipulated multiple personnel investigations against him eventually leading to his termination, and that he faced harassment at the hands of OCSD employees which it failed to investigate. (Doc. No. 1.) In coordination with its counsel, OCSD should have recognized that the complaint spanned beyond 2005 and implicated employees who had contact with Montoya. See also Qualcomm Inc. v. Broadcom Corp., 05 Civ.1958-B, 2008 WL 66932, at *9 (S.D. Cal. Jan. 7, 2008), vacated in part on other grounds, 2008 WL 638108 (S.D. Cal. Mar. 5, 2008) (“[A]ttorneys and clients must work together to ensure that both understand how and where electronic documents, records and emails are maintained and to determine how best to locate, review, and produce responsive documents. Attorneys must take responsibility for ensuring that their clients conduct a comprehensive and appropriate document search.”). Thus, OCSD’s claimed ignorance of the relevant time-period and personnel does not absolve it of culpability for its failure to preserve.

The facts in this case mirror those in Apple, 881 F. Supp. 2d 1132 (N.D. Cal. 2012), where the court found that Samsung engaged in culpable conduct:

*9 Id. at 1147. Although OCSD retained ESI for two years, and not two weeks, OCSD’s conduct is similar to Samsung’s in that it had a duty to implement a litigation hold and to ensure its employees preserved evidence. OCSD failed to follow up with its IT Department or with the key players implicated in Montoya’s claims until late 2012.

These facts support the conclusion that OCSD had “some notice that the documents were potentially relevant to the litigation before they were destroyed.” Leon, 464 F.3d at 959. Accordingly, the Court finds that OCSD acted with a culpable state of mind in failing to preserve potentially relevant evidence.

3. Relevance of the Destroyed Evidence

“[S]poliation of evidence raises a presumption that the destroyed evidence goes to the merits of the case, and further, that such evidence was adverse to the party that destroyed it. ... [I]f spoliation is shown, the burden of proof logically shifts to the guilty party to show that no prejudice resulted from the spoliation because that party is in a much better position to show what was destroyed and should not be able to benefit from its wrongdoing.” Apple II, 888 F. Supp. 2d at 998 (N.D. Cal. 2012).

The earliest OCSD preserved any ESI was August 2012, such that ESI was only available on its server dating back to August 2010.[5] Plaintiff argues that OCSD’s delay in preserving evidence resulted in the destruction of highly relevant material. (Motion at 20.) Specifically, the 2009 Investigations concluded by June 2010, therefore, all communications regarding these personnel actions, which are central to OCSD’s affirmative defense, were lost. (Id. at 6, 20.) Moreover, Montoya was terminated by October 2010, thus available ESI only covered at most four months of Montoya’s employment. If OCSD preserved evidence as of May 2010, when Montoya filed his workers’ compensation claim, or at the latest December 2011, when the complaint was filed, Montoya would have had access to ESI relevant to the 2009 Investigations, the Threat Assessment, and OCSD’s enactment of surveillance. See Lewis v. Ryan, 261 F.R.D. 513, 519 (S.D. Cal. 2009) (“The retention policy, however, indicates that many of the documents would have been in Defendants' possession when Defendants were served with notice of the lawsuit and when Plaintiff propounded his first set of Requests for Production of Documents.”). Although numerous OCSD personnel were involved in the 2009 Investigations, Plaintiff’s counsel testified that OCSD produced no ESI pertaining to them. (3rd Supp. Kyle Decl. ¶ 5.) Thus, Plaintiff has produced sufficient evidence to demonstrate OCSD destroyed relevant evidence by failing to implement a litigation hold and to collect ESI from key players.

*10 OCSD argues that no relevant evidence was destroyed because beginning in December 2009, Montoya was put on paid administrative leave and “had no more contact with his alleged harassers.” (Def. Supp. at 4.) However, OCSD goes on to admit that whatever ESI was destroyed “would have only included emails relevant to the personnel investigations.” (Id. at 5.)[6] OCSD misses the point. The ESI pertaining to the personnel investigations is central to OCSD’s defense and therefore is highly relevant to this action. In fact, the personnel investigations were explicitly mentioned in the complaint as evidence of the “pervasive animus against Montoya which stemmed in large part from his service in the Marine Corps.” (Doc. No. 1 at 4.) Thus, the relevance of these investigations and the ESI surrounding them is not subject to reasonable debate. See Leon, 464 F.3d at 959 (“[B]ecause the relevance of ... [destroyed] documents cannot be clearly ascertained because the documents no longer exist, a party ‘can hardly assert any presumption of irrelevance as to the destroyed documents’ ”) (internal citations omitted).

The parties also dispute the scope of relevant evidence that OCSD was required to preserve. Pursuant to its first request for documents in April 2012, Plaintiff argues that OCSD was required to search for ESI communications about him among other employees, but it did not do so until October 2012. (Motion at 19.) The Court need not determine whether OCSD’s delay in completing the ESI search constituted spoliation. OCSD already violated its preservation duty by failing to implement a litigation hold on any files, including Montoya’s archive directory, and by failing to inform key players of their duty to preserve. See Surowiec, 790 F. Supp. 2d at 1007 (“The Court need not determine the outer contours of the duty in this case. Whatever those outer boundaries, they clearly encompassed ongoing emails to and from Romley and information on Romley's computer.”).

Accordingly, OCSD’s destruction of relevant evidence supports the imposition of sanctions. The remaining question is what form of sanction is appropriate.

D. Form of Sanction

Plaintiff asks the Court to impose terminating sanctions, to exclude evidence pertaining to the 2009 Investigations, or to instruct the jury that it may draw an inference adverse to OCSD. “Courts should choose ‘the least onerous sanction corresponding to the willfulness of the destructive act and the prejudice suffered by the victim.’ ” Apple II, 888 F. Supp. 2d at 992(quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994)); see In re Napster, 462 F. Supp. 2d at1066-67 (“A party's motive or degree of fault in destroying evidence is relevant to what sanction, if any, is imposed.”). The Court addresses Plaintiff’s requested sanctions in turn.

1. Terminating Sanctions

The Ninth Circuit has established a five-part test to determine whether a terminating sanction is just: “(1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.” Leon, 464 F.3d at 958 (citing Anheuser–Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995)). “A finding of willfulness, fault, or bad faith is required for dismissal to be proper.” Id.(citation and quotation omitted).

The Court finds that the first two factors are moot in this analysis. The third factor regarding prejudice favors dismissal, but only slightly. The destroyed ESI pertains to the 2009 Investigations, which both parties rely on to prove their claims and defenses; therefore, the parties share the prejudice. Nevertheless, the ESI could have revealed inconsistences in the investigators’ testimony or exposed biases in their motives which would have benefited Plaintiff. The fourth and fifth factors do not support termination. If the Court enters judgment in Plaintiff’s favor on his sole claim, no merits decisions will be reached. More importantly, the availability of lesser sanctions makes dismissal unwarranted.

*11 “Dismissal is an available sanction when a party has engaged deliberately in deceptive practices that undermine the integrity of judicial proceedings.” Id. (citation and quotation omitted). Here, there is no evidence that OCSD deliberately engaged in deceptive practices. While OCSD’s conduct raises questions, its failure to preserve ESI does “not eclipse entirely the possibility of a just result.” Nursing Home Pension Fund v. Oracle Corp., 254 F.R.D. 559, 564 (N.D. Cal. 2008) (citation and quotation marks omitted). Moreover, Plaintiff has not demonstrated the requisite prejudice for termination. As demonstrated by the voluminous evidence submitted on the parties’ motions for summary judgment, Plaintiff has received a large quantity of materials through the discovery process, see id., and will not be forced to “rely on incomplete and spotty evidence at trial.” Leon, 464 F.3d at 959 (citation and quotation omitted). See also In re Napster, 462 F. Supp. 2d at 1074 (“[P]laintiffs must justify the default sanction by either showing that (1) no lesser sanction would adequately punish Hummer and deter other parties from engaging in the same conduct or (2) Hummer has engaged in deceptive conduct and will continue to do so.”).

Accordingly, the Court finds that terminating sanctions are inappropriate in this case, but lesser sanctions may be warranted. See Pension Comm., 685 F. Supp. 2d at 469–70 (terminating sanctions are justified in “only the most egregious cases, such as where a party has engaged in perjury, tampering with evidence, or intentionally destroying evidence by burning, shredding, or wiping out computer hard drives”).

2. Adverse Inference

Alternatively, Plaintiff requests an adverse inference instruction in the event that the Court does not grant a default sanction. An adverse inference is an instruction to the trier of fact that “evidence made unavailable by a party was unfavorable to that party.” Nursing Home, 254 F.R.D. at 563.

Based on the evidence presented, the Court believes that an adverse inference instruction adequately addresses the degree of fault demonstrated by OCSD and the prejudice suffered by Plaintiff. See Apple II, 888 F. Supp. 2d at 992. See, e.g., id. at 994 (imposing an adverse inference where plaintiff showed a conscious disregard for the preservation of evidence, but defendant’s “resulting prejudice is not particularly strong”); In re Napster, 462 F. Supp. 2d at 1078 (imposing an adverse inference where defendant’s conduct amounted to gross negligence); Lewis, 261 F.R.D. at 522 (imposing an adverse inference where defendants “have shown no effort to protect the documents from destruction”). As discussed above, OCSD was at fault for the destruction of ESI, but there is no suggestion of bad faith or deliberate destruction of evidence. Crucially, Plaintiff does not dispute that discovery in this case, both from documents and witnesses, was voluminous, negating the level of prejudice. See In re Oracle Corp. Sec. Litig., 627 F.3d 376, 386 (9th Cir. 2010) (finding a “carefully fashioned” adverse instruction proper where “plaintiffs should have been able to glean [material facts] from the documents actually produced, the extensive deposition testimony, and the written discovery between the parties”).

“ ‘[L]ike many other sanctions, an adverse inference instruction can take many forms, again ranging in degrees of harshness.’ ” Apple, 881 F. Supp. 2d at 1150 (quoting Pension Comm., 685 F. Supp. 2d at 470). “ ‘The degree of harshness should be dictated by the nature of the spoliating party's conduct—the more egregious the conduct, the more harsh the sanction.’ ” Id. (quoting Pension Comm., 685 F. Supp. 2d at 470).

On this record, where neither prejudice nor culpability are substantial, the Court concludes that OCSD’s conduct does not warrant a strong adverse inference instruction. Cf. Apple, 881 F. Supp. 2d at 1150 (“In its most harsh form, when a spoliating party has acted willfully or in bad faith, the jury can be instructed that certain facts are deemed admitted and must be accepted as true.”) (citation and quotation omitted). Rather, the Court finds that an “instruction [which] permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party” is appropriate. Id. (citation and quotation omitted). See Pension Comm., 685 F. Supp. 2d at 479 & n. 97 (“Unless they can show through extrinsic evidence that the loss of the documents has prejudiced their ability to defend the case, then a lesser sanction than a spoliation charge is sufficient to address any lapse in the discovery efforts of the negligent plaintiffs.”). The Court will read the following jury instruction at trial:

See Apple II, 888 F. Supp. 2d at 995 (using a similar jury instruction for spoliation).

3. Preclusion

Finally, Plaintiff seeks the exclusion of the 2009 Investigations and related testimony. (Motion at 26.) “This circuit has recognized as part of a district court's inherent powers the broad discretion to make discovery and evidentiary rulings conducive to the conduct of a fair and orderly trial. Within this discretion lies the power ... to exclude testimony of witnesses whose use at trial ... would unfairly prejudice an opposing party.” Unigard, 982 F.2d at 368 (citation and quotation omitted). In order to grant a preclusion sanction, the Court must find that, “given the spoliation, the evidence to be excluded would ‘unfairly prejudice an opposing party.’ ” In re Napster, 462 F. Supp. 2d at 1077 (quoting Unigard, 982 F.2d at 368).

The Court declines to exclude the 2009 Investigations as a sanction for OCSD’s spoliation. “Striking any and all evidence relating to the [ ] investigation [...] appears too harsh a penalty for Defendants' alleged inadvertent conduct.” Reed v. Honeywell Int'l, Inc., CV07-0396-PHX-MHM, 2009 WL 886844, at *11 (D. Ariz. Mar. 31, 2009) (refusing to preclude evidence of a personnel investigation in a USERRA claim, and instead using an adverse inference instruction). Since the 2009 Investigations provide the basis for OCSD’s primary defense, “[s]triking any and all evidence relating to the [2009] [I]nvestigation[s] would essentially constitute a directed verdict.” Id. For the reasons discussed above related to terminating sanctions, such a result is inequitable in this case. Plaintiff had the opportunity to depose all of the investigators and OCSD employees responsible for the investigations, and he will again have the opportunity to do so at trial. Thus, admitting the 2009 Investigations will not cause Plaintiff “unfair[ ] prejudice.” Unigard, 982 F.2d at 368 (emphasis added).

Accordingly, the Court declines to exclude the 2009 Investigations and related testimony as sanctions for OCSD’s spoliation.

4. Monetary Sanctions

Plaintiff also asks the Court to award him his costs and attorneys’ fees related to the sanctions issue. “Monetary sanctions may be imposed where one party has wrongfully destroyed evidence.” In re Napster, 462 F. Supp. 2d at 1078. The Court finds that Plaintiff is entitled to an award of attorneys’ fees in the amount of $8,000 which Plaintiff incurred in the preparation and filing of this Motion. (Kyle Decl. ¶ 29.) See Surowiec, 790 F. Supp. 2d at 1011 (awarding fees for spoliation); In re Napster, 462 F. Supp. 2d at 1078(same).

IV. CONCLUSION

For the foregoing reasons, the Court GRANTS IN PART Plaintiff’s motion for sanctions due to OCSD’s spoliation of evidence. As described above, the Court will instruct the jury that it may draw an inference adverse to OCSD. It will not grant terminating sanctions or preclude the 2009 Investigations. The Court AWARDS Plaintiff $8,000 in reasonable fees for the preparation and filing of the instant motion.

*13 IT IS SO ORDERED.

Plaintiff cites to deposition testimony from eight witnesses a portion of whom testified that they were never asked to search for documents related to Scott Montoya. (Motion at 17-18; Kyle Decl., Exhs. 23-26.) From this evidence, Plaintiff contends that OCSD never contacted any of the key witnesses or asked them to search for documents. (Motion at 17-18.) However, Plaintiff does not dispute that OCSD’s attempts resulted in the production of 480 pages of documents. (Id. at 18.)

It appears that this search primarily uncovered ESI stored from approximately November 1, 2010 through November 1, 2012. (See Kyle Decl., Exh. 9, at 91.) Any documents retrieved prior to that period were likely “present [due to] litigation holds” which created an “inability to remove” the documents during the automatic “two year purge.” (Id.)

Unless otherwise noted, all mentions of “Rule” refer to the Federal Rules of Civil Procedure.

Even if true, this does not explain why OCSD failed to place a hold on Montoya’s account, who is undeniably mentioned in the complaint. Nor does it explain why OCSD did not contact the OCSD employees listed in Plaintiff’s initial disclosures, which were served in April 2012, until September of that year.

OCSD argues that on September 25, 2012 it asked the employees listed in Plaintiff’s initial disclosures to search for ESI regarding Plaintiff on their hard drives, which are not subject to the 2-year automatic deletion. (Def. Supp. at 5.) These efforts do not satisfy OCSD’s preservation duties for several reasons. First, OCSD admits that many employees are “not issued a dedicated workstation” and “[o]nce a user leaves, the workstations get recycled.” (Kyle Decl., Exh. 9) Therefore, a substantial amount of ESI from former employees or those without dedicated workstations was lost. Second, the search occurred nine months after the initiation of litigation and over two years after OCSD’s preservation duty arose, leaving substantial time for employees to destroy or delete ESI from their hard drives. See Arista Records LLC v. Usenet.com, Inc., 633 F. Supp. 2d 124, 139-40 (S.D.N.Y. 2009) (“There can be no dispute that the Defendants were under an obligation to preserve all documents and communications stored on their ... computers, at least as early as the start of this litigation.”). Finally, and most importantly, it is clear that the search OCSD completed in September 2012 did not produce the ESI sought by Plaintiff, nor did it recover any of the ESI previously stored on OCSD’s servers. According to Plaintiff, OCSD did not turn over any ESI after September 25, 2012 and only produced 68 pages of hard-copy emails from the 2009-2010 time-period. (2nd Supp. Kyle Decl. ¶ 3.)

OCSD alternatively argues that it “meticulously preserved” evidence regarding the 2009 Investigations because it turned over all of the evidence Investigator Vega collected. (Def. Supp. at 1.) OCSD does not argue, nor could it, that it turned over ESI pertaining to these investigations – which is the only issue raised by Plaintiff here.