Colonies Partners, LP v. Cnty. of San Bernardino
Colonies Partners, LP v. Cnty. of San Bernardino
2020 WL 1496444 (C.D. Cal. 2020)
February 27, 2020
Kewalramani, Shashi H., United States Magistrate Judge
Summary
The court found that the defendants failed to take reasonable steps to preserve ESI and recommended granting the plaintiffs' motion for sanctions, including an adverse jury instruction and attorney fees. The court found that terminating sanctions were not warranted, but recommended granting the motion for sanctions insofar as the plaintiffs sought an adverse jury instruction that the lost ESI may have been unfavorable to the defendants.
Additional Decisions
COLONIES PARTNERS, L.P., et al., Plaintiffs,
v.
COUNTY OF SAN BERNARDINO, et al., Defendants
v.
COUNTY OF SAN BERNARDINO, et al., Defendants
Case No. 5:18-cv-00420-JGB (SHK)
United States District Court, C.D. California
Filed February 27, 2020
Counsel
Erica R. Graves, Jonathan E. Phillips, Koren L. Bell, Steven E. Bledsoe, Steven A. Haskins, Stephen Gerard Larson, Larson O'Brien LLP, Los Angeles, CA, Peter William Scalisi, Peter W. Scalisi Law Offices, Huntington Beach, CA, Rajan Ronald Maline, James Edward McGee, II, Maline and McGee LLP, Riverside, CA, Dale K. Galipo, Law Offices of Dale Galipo, Woodland Hills, CA, Darren Michael Harris, Spray Gould and Bowers LLP, Irvine, CA, for Plaintiffs.Brian S. Ginter, Susan E. Coleman, Charles E. Slyngstad, Kyle Anne Piasecki, Burke Williams and Sorensen LLP, Los Angeles, CA, Peter B. Schlueter, Schlueter Law Firm PC, Grand Terrace, CA, for Defendants
Kewalramani, Shashi H., United States Magistrate Judge
REPORT AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFFS’ MOTION FOR SANCTIONS AGAINST DEFENDANTS
*1 This Report and Recommendation is submitted to the Honorable Jesus G. Bernal, United States District Judge, under 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.
I. SUMMARY OF RECOMMENDATION
On November 18, 2019, Plaintiffs Colonies Partners, L.P. (“Colonies”), and Jeffrey S. Burum (“Burum”) (collectively “Plaintiffs”) filed a Motion for Sanctions (“Motion” or “Mot.”) against Defendants County of San Bernardino (“County”) and Michael A. Ramos, former San Bernardino County District Attorney (“Ramos”) (collectively “Defendants”), for spoliation of evidence. Electronic Case Filing Number (“ECF No.”) 249, Mot.
For the reasons described below, the Magistrate Judge recommends GRANTING IN PART and DENYING IN PART Plaintiffs’ Motion, ordering an adverse jury instruction that jury may presume that the information in the lost text messages deleted by Ramos on Ramos’s personal phone after March 2018 and emails deleted from Ramos’s mike@joinmikeramos.com e-mail account was unfavorable to Defendants, and awarding Plaintiffs’ attorney’s fees associated with pursuing this Motion.
II. BACKGROUND
On March 1, 2018, Colonies filed a Complaint against Ramos, the County, and other Defendants (“Complaint” or “Compl.). ECF No. 1, Compl. Colonies filed a First Amended Complaint (“FAC”) on July 25, 2018. ECF No. 64, FAC. The FAC alleges six causes of action against Ramos and/or the County: (1) retaliation under 42 U.S.C. § 1983 (“§ 1983”) (Ramos and the County); (2) Monell municipal liability under § 1983 (the County); (3) supervisorial liability under § 1983 (Ramos); (4) conspiracy under § 1983 (Ramos and the County); (5) breach of contract (the County); and (6) breach of implied covenant of good faith and fair dealing (the County). Id.
The set of facts and claims alleged in this case are nearly identical[1] to those raised in Jeffrey S. Burum v. County of San Bernardino, et. al, No. 5:18-cv-672-JGB (SHKx) (closed on Sept. 17, 2018) (“Burum”). The cases were consolidated on February 8, 2019. ECF No. 134, Consolidation Order. Burum is one of the managing members of Colonies, ECF No. 64, FAC at ¶ 2, and together, with Colonies, allege that Ramos and the County engaged in retaliatory, malicious, or politically motivated investigations and prosecutions against Burum and others, including a failed criminal action, which concluded in August 2017. Id. at ¶¶ 2-9; Burum, ECF No. 53, SAC at ¶¶ 1-7. Ramos and the County are represented by the same counsel in this matter.
Plaintiffs filed the present Motion on November 18, 2019, against Ramos and the County. ECF No. 249, Mot. In support of the Motion, Plaintiffs included the declaration of Kathryane O. Foster (“Foster Decl.”). ECF No. 249-1, Foster Decl., Exhibits 1-34. Defendants filed their opposition to the Motion on December 16, 2019, (“Opposition,” or “Opp.”) and included in support the declarations of Ramos (“Ramos Decl.”) and Brian S. Ginter (“Ginter Decl.”). ECF No. 263, Opp.; ECF No. 263-1, Ramos Decl.; ECF No. 263-2, Ginter Decl. On December 23, 2019, Plaintiffs filed their Reply (“Reply”). ECF No. 266, Reply. The matter is now ready for decision.
III. LEGAL STANDARD
*2 “Spoliation is the destruction or significant alteration of evidence, or the failure to preserve [evidence,] ... in pending or reasonably foreseeable litigation.” Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051-52 (S.D. Cal. 2015) (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)).
Federal Rule of Civil Procedure 37 (“Rule 37”) authorizes the Court to sanction non-adherence to discovery rules, including spoliation of evidence.[2]
Before determining the appropriate sanctions, Rule 37(e) requires the Court to assess the following four criteria: (1) whether the information qualifies as electronically stored information (“ESI”); (2) whether the ESI is “lost” and “cannot be restored or replaced through additional discovery”; (3) whether the ESI “should have been preserved in the anticipation or conduct of litigation”; and (4) whether the responding party failed to take reasonable steps to preserve the ESI. Fed. R. Civ. P. 37(e). If those criteria are met, and the reviewing court finds there is “prejudice to another party from [the] loss of the [ESI],” the Court may “order measures no greater than necessary to cure the prejudice.” Id. at § (e)(1).
*3 If, however, the party that was supposed to have preserved the ESI “acted with the intent to deprive another party of the information’s use in the litigation,” Rule 37(e)(2) authorizes the following sanctions:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
“A terminating sanction, [under Rule 37(e)(2)(C),] whether default judgment against a defendant or dismissal of a plaintiff’s action, [however,] is very severe.” Connecticut Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (emphasis added). Terminating sanctions against a party accused of spoliation, however, are appropriate when the Court finds “willfulness, fault, or bad faith.” Leon v. IDX Systems Corp, 464 F.3d 951, 958 (9th Cir. 2006) (quoting Anheuser-Busch, Inc. v. Natural Beverage Distrib., 69 F.3d 337, 348 (9th Cir. 1995)); see also Columbia Pictures, Inc. v. Bunnell, No. 2:06-cv-01093 FMC(JCx), 2007 WL 4877701 at *5-8 (C.D. Cal. Dec. 13, 2007) (granting default judgment due to evidentiary spoliation). “A party’s destruction of evidence qualifies as willful if the party has some notice that the documents were potentially relevant to the litigation before they were destroyed.” Leon, 464 F.3d at 959 (emphasis in original) (internal quotation omitted).
“ ‘The applicable standard of proof for spoliation in the Ninth Circuit appears to be by a preponderance of the evidence.’ ” Ramos v. Swatzell, No. CV 12-1089-BRO (SPx), 2017 WL 2857523, at *5 (C.D. Cal. June 5, 2017) (internal alterations omitted) (quoting Compass Bank, 104 F. Supp. 3d at 1052-53) (citing Kitsap Physicians Serv., 314 F.3d at 1001)).
IV. DISCUSSION
A. Plaintiffs’ Spoliation Claim.
Plaintiffs seek terminating sanctions, or in the alternative, adverse inference sanctions, based on Defendants’ deletion of emails in Ramos’s campaign account, mike@joinmikeramos.com, and deletion or non-production of text messages from Ramos’s personal cellular phone. ECF No. 249, Mot. at 7. Plaintiffs believe this ESI is relevant to their 42 U.S.C. § 1983 claims against Defendants, because the ESI would tend to show Ramos viewed Burum as a political enemy and abused his position in the DA’s Office to investigate Colonies and Burum and to eventually prosecute Burum and others. Id. at 7-11, 24. In support of their claim that the information that was deleted or not produced was likely relevant—that the emails show Ramos’s animus and retaliatory motivation—Plaintiffs refer to emails from obtained from other custodians and sent from the e-mail account at issue, mike@joinmikeramos.com, and another e-mail account associated with Ramos’s campaign, Ramos4da@aol.com, sent from 2009 to 2011, in which Ramos and others at the AG’s office discuss the Colonies investigation in what appear to be overzealous or politically charged terms. Id. at 7-11, 15; ECF No. 249-1, Foster Decl., Exs. 1-12.
Specifically, Plaintiffs point to the relevancy of the texts and emails as it pertains to their claims of conspiracy and retaliation against Defendants. See ECF No. 249, Mot. at 23 (citing ECF Nos. 176, 208). Plaintiffs also cite examples of Ramos using his two campaign email accounts to discuss investigative and prosecutorial actions. Id. at 7-11, ECF No. 249-1, Foster Decl., Exs. 13-18, 27 (attaching emails to or from Ramos4da@aol.com from 2009-2015), Exs. 21, 23-24 (attaching emails to or from mike@joinmikeramos.com from 2015-2018). Plaintiffs also believe Ramos used a personal cellular phone, which he acquired in 2016, to communicate about his political plans and DA work. ECF No. 249, Mot. at 13-14; ECF No. 249-1, Foster Dec., Exs. 20, 25, 26.
*4 Plaintiffs argue that spoliation occurred because Ramos shut down the campaign website and emails located at mike@joinmikeramos.com in 2018, after litigation had commenced, and never produced texts from his personal cellular phones. Id. at 13-14; ECF No. 249-1, Foster Decl., Ex. 25 (“As best Mr. Ramos can recall at this time, he purchased his current phone in July 2016, and the website that hosted emails he received at the email address mike@joinmikeramos.com was cancelled in 2018”).
Defendants do not dispute that the campaign email account was “closed” shortly after June 2018, when Ramos lost his bid for reelection as the San Bernardino DA, and they state that the mike@joinmikeramos.com account is no longer accessible. ECF No. 263, Opp’n at 5; ECF No. 263-1, Ramos Decl. ¶ 3. Defendants also do not dispute that Ramos routinely deleted texts off of his cellular phone, but state that he did so as a matter of course. ECF No. 263, Opp’n at 5; ECF No. 263-1, Ramos Decl. ¶ 4.
Defendants argue that Plaintiffs have not shown evidence of prejudice or the intent required under Rule 37 to warrant the imposition of sanctions. ECF No. 263, Opp’n at 5. They argue that Ramos forwarded emails relevant to the DA Office to other persons in the DA’s Office, and thus lacked the intent required for termination or adverse instruction sanctions. Id. at 6. And Ramos, in his Declaration, disputes knowing or understanding he was under any obligation to preserve text messages. ECF No. 263-1, Ramos Decl. ¶ 4. With regard to the text messages, Defendants claim Ramos routinely deleted text messages when he received and read them. Id. Defendants also argue that Plaintiffs fail to explain what duty the County may have had with regard to Ramos’s campaign email account and personal cellular phone, and thus fail to establish the County engaged in spoliation. Id. at 17-18.
Defendants argue that they have produced ample documents to demonstrate Ramos’s role “in the underlying criminal investigation and prosecution,” that the existing record demonstrates the facts Plaintiffs contend the missing emails and texts are needed to prove, and that the missing ESI is cumulative at best. Id. at 10-11. Accordingly, Defendants argue that the missing emails and text messages do not prejudice Plaintiffs’ case. Id. Further, Defendants argue Plaintiffs fail to show how any missing ESI is material to their case because they do not establish that “ ‘significant information’ ” existed in the campaign emails or text messages that were deleted. Id. at 11 (quoting Oracle Am., Inc. v. Hewlett Packard Enterprise Co., 328 F.R.D. 543, 552-53 (N.D. Cal. 2018)).
Finally, Defendants argue that Plaintiffs have not met their burden to show the ESI in question is actually lost. Id. at 12. Instead, Defendants argues that Plaintiffs provide only one example of their failed efforts to restore the ESI: a subpoena to Ramos’s former campaign manager. Id. Defendants argue no sanctions are warranted and that if the Court disagrees, the imposition of the harshest sanctions of negative inference instructions or termination sanctions should not be imposed, instead positing that monetary sanctions or attorney’s fees would constitute measures that are no greater than necessary to cure the alleged prejudice to Plaintiffs. Id. at 17.
B. Application Of Rule 37(e)(1).
1. The E-mails And Text Messages Are ESI
The emails stored in the mike@joinmikeramos.com e-mail account and text messages stored on Ramos’s personal phone constitute ESI for purposes of a Rule 37 analysis. See Oppenheimer, No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *7 (“Because the text messages and the e-mails are electronically stored information ... this Court needs to apply Rule 37(e).”). The next step is to determine whether the ESI is “lost” and “cannot be restored or replaced through additional discovery[.]” Fed. R. Civ. P. 37(e).
2. ESI Is Lost And Cannot Be Restored
*5 Rule 37(e) requires the Court to determine whether the information which should have been preserved “cannot be restored or replaced through additional discovery.”
The party arguing that spoliation has occurred has the burden of showing that evidence was in fact destroyed or not preserved. Gomez v. Stop & Shop Supermarket Co., 670 F.3d 395, 399 (1st Cir. 2012); FiTeq Inc., No. 13-cv-01946, 2016 WL 1701794, at *2-3 (denying plaintiff’s motion in limine for a spoliation instruction to the jury where plaintiff failed to show that ESI sought was not “ ‘restored or replaced through additional discovery’ ” and failed “to prove that other responsive documents ever existed”); Matthew Enter., Inc. v. Chrysler Group, LLC, No. 13-cv-04236-BLF, 2016 WL 2957133, at *1 (N.D. Cal. May 23, 2016) (concluding emails were lost under Rule 37(e) where business “made no effort to preserve communication” and did not complain when “outside vendor storing the [ ] communications deleted them automatically”).
A party must show by competent evidence, which could take the form of expert testimony or other evidence, that the ESI sought was actually lost. See Hugler, No. 16 CV 4547-FMO (AGRx), 2017 WL 8941163, at *9 (denying party’s request for sanctions for spoliation of emails and text messages). Evidence of deletion of electronic communications, without specific dates tied to litigation is insufficient to show spoliation. See CTC Global Corp, No. SACV 17-02202 AG (KESx), 2019 WL 6357271, at *3, 8 (concluding that emails are “server-based communications” and “the devices used to send or receive them are not necessary crucial to their production” after hearing testimony from a forensic analyst who investigated the devices and testified as to whether the ESI was lost). A party moving for spoliation must at least show what that categories of irreplaceable, relevant documents were likely lost. Oracle Am., Inc. v. Hewlett Packard Enterprise Co., 328 F.R.D. 543, 553 (N.D. Cal. Aug. 1, 2018). Not surprisingly, it is not irreplaceable if such evidence appears to be largely duplicative of evidence already in the record. Sanchez v. Jiles, No. CV 10-09384 MMM (OPx), 2012 WL 13005996, at *14 (C.D. Cal. June 14, 2012) (“The availability of other sources or types of evidence, in addition to the despoiled evidence may be considered by a court in determining if a sanction is warranted.”) (internal citations and quotation marks omitted).
Here, Plaintiffs believe the ESI has been irretrievably lost because of their own investigation and Defendants’ admissions that the emails in Ramos’s mike@joinmikeramos.com were deleted in 2018 and one of the campaign accounts was closed, that any pre-2016 text messages were lost when Ramos obtained a new cellular phone, and that text messages between 2016-2018 were lost because Ramos regularly deleted them off of his phone. ECF No. 249, Mot. at 13-14; ECF No. 266, Reply at 6; ECF No. 263, Opp’n at 5; ECF No. 263-1, Ramos Decl. at ¶ 4. Specifically, Plaintiffs point to their limited success retrieving the emails from other custodians, and note, for example, one recipient of emails from Ramos purportedly utilized a program that auto-deletes emails every six months. Id. at 12; ECF No. 249-1; Foster Decl., Ex. 33. To the extent other custodians have the emails, Plaintiffs argue, it is “telling” that they have failed to produce those emails.
*6 Defendants state that they have searched the electronic data maintained by the County for Ramos and other defendants and non-parties, that several individual defendants (not including Ramos) have produced documents from their respective personal email accounts and text communications, and that third parties have produced documents in response to Plaintiffs’ subpoenas seeking personal records relating to, among other things, communications with Ramos. ECF No. 263-2, Ginter Decl. at ¶¶ 2-4; ECF No. 263, Opp’n at 5.
At the outset, neither party contests that ESI was deleted by Ramos from Ramos’s personal cellular phone and as a result of closing down the mike@joinmikeramos.com e-mail account. ECF No. 263, Opp’n at 5-6; ECF No. 263-1, Ramos Decl. at ¶ 4; ECF No. 249, Mot. at 12-14; ECF No. 266, Reply at 6-7; see FiTeq Inc., No. 13-cv-01946, 2016 WL 1701794, at *2-3. The relevant questions are then whether the missing ESI is relevant and whether it is irreplaceable.
With respect to the irreplaceable nature of the ESI at issue, ESI “often exists in multiple locations,” see Adv. Comm. Notes to 2015 Amendment to Rule 37(e)(1), and Plaintiffs have not proffered expert testimony as to whether the email account and the texts can be restored or replaced with additional discovery. Plaintiffs did, however, provide evidence that they tried to retrieve the lost ESI from third parties. See, e.g., ECF No. 249, Mot. at 18; ECF No. 249-1, Foster Decl., Exs. 19, 23, 25, 26.
On the other hand, Ramos’s Declaration makes clear that he deliberately deleted the text messages and cancelled the email account, resulting in destruction of the ESI. See ECF No. 263, Opp’n at 5; ECF No. 263-1, Ramos’s Decl. at ¶ 4; see also ECF No. 249, Mot. at 12-14; Oppenheimer, No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *10-11 (accepting testimony by individual who deleted text messages as sufficient to show loss of ESI). Further, it does not appear that neither the County, Ramos, nor Ramos’s counsel made any attempts to preserve the ESI. See ECF No. 263, Opp’n at 5; ECF No. 263-1, Ramos’s Decl. at ¶ 4; see also Matthew Enter., Inc., No. 13-cv-04236-BLF, 2016 WL 2957133, at *1.
Defendants arguments that ESI in these locations was not relevant and was cumulative, however, is based on conjecture. Plaintiffs at least cite to evidence from these two sources, and obtained from other sources, that show they are relevant to the issues in this case. Based on this evidence, there is sufficient information to find that the ESI was lost, under Rule 37(e).
3. Duty To Preserve
“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” CTC Global Corp, No. SACV 17-02202 AG (KESx), 2019 WL 6357271, at *2 (internal quotation marks and citations omitted); World Courier v. Barone, 2007 WL 1119196, at *1 (N.D. Cal. Apr. 16, 2007). “As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which [he or she] knows or reasonably should know is relevant to the action” or “ ‘may be relevant to future litigation.’ ” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d at 1067-68 (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003); Leon, 464 F.3d at 956, 959 (employee failed to preserve ESI on his work laptop and was under duty to do so); Oppenheimer, No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *11 (discussing city’s policy of deleting emails after 180 days and finding duty to preserve where litigation was anticipated).
*7 Routine destruction constitutes spoliation where a party “had ‘some notice that the documents were potentially relevant’ to the litigation before they were destroyed[.]” See Kitsap Physicians Serv., 314 F.3d at 1001; Ramos, CV 12-1089-BRO (SPx), 2017 WL 2857523, at *5; Compass Bank, 104 F. Supp.3d at 1052.
An entity and employee defendants can both be under a duty to preserve, and therefore culpable for spoliation of ESI, even if one or the other is directly responsible for the destruction of evidence. See First Fin. Sec., Inc., No. 15-cv-1893-HRL, 2016 WL 5870218, at *3 (imposing adverse inference and monetary sanctions against defendant employer that failed to take reasonable steps to preserve employees’ text messages); Oppenheimer, No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *7, *10-13 (imposing adverse inference sanction against city where city employee deleted ESI after litigation had commenced); see also Ramos, CV 12-1089-BRO (SPx), 2017 WL 2857523, at *6 (“A non-party’s spoliation of evidence may be imputed to a party who did not engage in spoliation.”) (citing Pettit v. Smith, 45 F. Supp. 3d 1099, 1106-08, 1110-11 (D. Ariz. 2014) (finding non-party state agency had a duty to preserve evidence where non-party could reasonably anticipate ligation, was defending employee defendants and would pay for any judgment, where non-party was responsible for spoliation of the evidence in question, and granting adverse inference instructions to ensure the fairness of the trial)).
Plaintiffs argue Defendants should have reasonably anticipated litigation by October 2017, when County Counsel advised the Board of Supervisors about potential litigation related to the unsuccessful criminal investigation and prosecution of Burum, or by November 1, 2017, when James Erwin, a Plaintiff in the consolidated actions who is not a moving party, filed his complaint. ECF No. 249, Mot. at 15-16; ECF No. 249-1, Foster Decl., Exs. 12, 19, 28. Plaintiffs argue that personal email accounts are subject to a duty to preserve, reasoning from a holding that such accounts are subject to disclosure under the California Public Records Act. ECF No. 249, Mot. at 16 (citing City of San Jose v. Superior Court, 2 Cal. 5th 608, 614 (2017)).
Plaintiffs contend that the relevant ESI was deleted sometime after July 2018, by which time Plaintiffs had commenced litigation and even propounded discovery, while Defendants argue the deletion occurred shortly after June 2018. ECF No. 249, Mot. at 10; ECF No. 263, Opp’n at 1. Defendants argue that Ramos could not have been aware of allegations against him on November 1, 2017, based on the filing of Erwin’s complaint. ECF No. 263, Opp’n at 2. Defendants further argue the County did not have a duty to preserve Ramos’s personal emails and texts. Id. at 17-18.
Regardless of whether Defendants were on notice of pending or anticipated litigation involving Plaintiffs in October or November of 2017, it is clear that the emails were lost after the commencement of litigation. Colonies filed its Complaint on March 1, 2018, and counsel who is representing both the County and Ramos filed a waiver of service on behalf of Ramos on March 14, 2018. ECF No. 1, Compl.; ECF No. 16, Waiver of Service on behalf of Ramos. Mr. Burum filed his initial Complaint on April 2, 2018 and again, the same counsel representing both the County and Ramos filed a waiver of service on behalf of Ramos. Burum, ECF No. 1, Compl.; ECF No. 14, Waiver of Service on behalf of Ramos.
*8 Consequently, Ramos, with the assistance of his experienced counsel, had a duty to preserve his emails and texts messages following the commencement of the litigation. Instead, Ramos deleted text messages and closed his campaign account and is now claiming he had no idea he was required to preserve such ESI until some recent date—as late as his December 2019 deposition. See ECF No. 263-1, Ramos Decl. at ¶¶ 3-4. Ignorance of this obligation of preservation, especially from sophisticated parties who have the assistance of experienced counsel, is not persuasive to this Magistrate Judge. See Oppenheimer, No. No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *13.
Defendants argument—that the closure of Ramos’s campaign email account and regular practice of deleting text messages excuses the failure to preserve—is similarly unavailing here to escape the obligation to take reasonable steps to preserve potentially relevant materials. The parties, and their counsel, were on notice of this litigation and were therefore under an obligation to cease routine destruction practices in anticipation of litigation. See Ramos, CV 12-1089-BRO (SPx), 2017 WL 2857523, at *5; Compass Bank, 104 F. Supp.3d at 1052. The County was responsible for notifying its employees to preserve potentially relevant ESI, and counsel should have done the same for Ramos, because Ramos was named as a separate defendant. Additionally, although the County did not necessarily have direct access to the personal emails and text messages, Ramos was an employee of the County engaging in County business and business that implicated Plaintiffs on his devices and campaign email. Additionally, as a Defendant in the case, and defending Ramos—an employee—and responsible for any potential judgment in Plaintiffs’ favor, a duty to preserve ESI can be imputed to the County. See Ramos, CV 12-1089-BRO (SPx), 2017 WL 2857523, at *6; see Pettit, 45 F. Supp. 3d at 1106-08, 1110-11.
Accordingly, Plaintiffs have successfully demonstrated that Defendants had a duty to preserve the ESI.
4. Reasonable Steps To Preserve
Once aware of their duty to preserve ESI in anticipation of ligation, parties must take reasonable steps to preserve ESI. Fed. R. Civ. P. 37(e). A party is then “required to suspend any existing policies related to delating or destroying files and preserve all relevant documents related to the litigation.” Apple Inc., 888 F. Supp. 2d at 991 (internal quotation marks and citations omitted). A litigation hold, or preservation order, is often the most appropriate mechanism to ensure potentially relevant documents and information are not lost deliberately or unintentionally. See Sec. Alarm Fin. Enter., L.P. v. Alarm Prot. Tech., LLC, No. 3:13-cv-001012-SLG, 2016 WL 7115911, at *4 (D. Alaska Dec. 6, 2016); Blumenthal Distrib., Inc. v. Herman Miller, Inc., ED CV 14-1926-JAK (SPx), 2016 WL 6609208, at *9-12, *16 (C.D. Cal. Jul. 12, 2016).
Plaintiffs argue that Defendants failed to take reasonable steps to preserve the campaign account emails and text messages because they took no action at all, despite knowing Ramos would be a key figure in the anticipated litigation. ECF No. 249, Mot. at 11. Defendants counter that Ramos did not know he had an obligation to preserve his e-mails and text messages. ECF No. 263, Opp’n at 6, 16; ECF No. 263-1, Ramos Decl. at ¶ 4. However, Defendants and their counsel do not appear to dispute they took no steps to preserve the ESI. See ECF No. 263, Opp’n at 6; ECF No. 263-1, Ramos Decl. at ¶¶ 3-4. Ramos states in his Declaration that he was not aware of his obligation to retain such information, which suggests there was no formal litigation hold in place, or at least not one compressive enough to protect all relevant documents and ESI.
*9 Defendants allowed ESI to be deleted despite the public affairs officer of the San Bernardino District Attorney’s Office, Christopher Lee, acknowledging that the e-mail communications regarding the subject of the lawsuit “will be discoverable.’ ” ECF No. 249, Mot. at 17 (quoting Ex. 19: November 2017 emails between Ramos and other County employees discussing discoverability of communications relating to Colonies and specifically James Erwin’s claim against Defendants); ECF No. 249-1, Foster Decl., Ex. 12 (noting title of Christopher Lee as Public Affairs Officer of the San Bernardino County District Attorney’s Office). In short, both Ramos and the County had an obligation to maintain such ESI for foreseeable and, later, pending litigation.
Therefore, having determined that: (1) the lost information was ESI; (2) the ESI was information that Defendants had a duty to preserve; (3) the emails from Ramos’s campaign account mike@joinmikeramos.com and personal text messages deleted after March 2018 are now irreplaceable; and (4) Defendants had a duty to preserve the ESI and failed to take reasonable steps to do, the Court must address the appropriate remedy for the spoliation of ESI. See Hughes, No. CV 16-8962-CAS (KSx), 2018 WL 5914238, at *10; Fed. R. Civ. P. 37(e)(1)-(2).
C. Sanctions
1. Rule 37(e)(2): Intent To Deprive
Under subdivision (2), the Court must determine whether the County or Ramos “acted with the intent to deprive [Plaintiffs] of the information’s use.” Fed. R. Civ. P. 37(e)(2). If so, the Court may: (1) “presume that the lost information was unfavorable to the party”; (2) “instruct the jury that it may or must presume the information was unfavorable to the party”; or (3) “dismiss the action or enter a default judgment.” Fed. R. Civ. P. 37(e)(2)(A)-(C). “Courts should exercise caution, however, in using the measures specified in (e)(2).... The remedy should fit the wrong, and the severe measures authorized by the subdivision should not be used when the information lost was relatively unimportant or lesser measures such as those specified in (e)(1) would be sufficient to redress the loss.” Adv. Comm. Notes to 2015 Amendment of Rule 37(e)(2); Hugler, No. 16 CV 4547-FMO (AGRx), 2017 WL 8941163, at *10-12 (denying plaintiff’s request for terminating sanctions but granting request that defendants be precluded from using certain ESI evidence).
To determine whether a sanction is appropriate under Rule 37(e)(2), the Court must examine intent. Fed. R. Civ. P. 37(e)(2)(B); Fed. R. Civ. P. 37(e); Adv. Comm. Notes to 2015 Amendment; Oppenheimer, No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *12-13; Porter v. City & County of San Francisco, No. 16-cv-03771, 2018 WL 4215602, at *3 (N.D. Cal. Sept. 5, 2018).
Rule 37(e) does not define “intent,” but courts have found that a party’s conduct satisfies the Rule 37(e)(2) “intent requirement where the evidence shows or it is reasonable to infer[ ] that the [ ] party purposefully destroyed evidence to avoid its litigation obligations.” Porter, No. 16-cv-03771, 2018 WL 4215602, at *3 (citing First Fin. Sec., Inc., No. 15-cv-1893-HRL, 2016 WL 5870218, at *3).
Intent may be inferred if a party is on notice that documents were potentially relevant and fails to take measures to preserve relevant evidence, or otherwise seeks to “keep incriminating facts out of evidence.” See Leon, 464 F.3d at 959; First Fin. Sec., Inc., No. 15-cv-1893-HRL, 2016 WL 5870218, at *3; Blumenthal Distrib., Inc., ED CV 14-1926-JAK(SPx), 2016 WL 6609208, at *17-19 (finding party acted willfully and in bad faith even though it was unclear from the record whether someone intentionally or unintentionally deleted the relevant emails after the party failed to implement a litigation hold, had control over relevant evidence and a duty to preserve it, and misrepresented and delayed searches for the ESI). Courts also consider the timing of the document loss when evaluating intent. See GN Netcom, Inc. v. Plantronics, Inc., No. 12-1318-LPS, 2016 WL 3792833, at *7 (D. Del. Jul. 12, 2016).
*10 Further, an employee’s misconduct with regard to spoliation can be imputed to an employer. See Decker v. Target Corp., No. 1:16-cv-0071, 2018 WL 4921534, at *3-4 (D. Utah Oct. 10, 2018) (concluding that defendant corporation “acted in bath faith in regards to the evidence” where the corporation failed to instruct its employees to preserve evidence and employees deleted relevant video evidence, and evaluating the actions of employees not as individuals but as agents of the corporation). As previously described, an entity and employee defendants can both be culpable for spoliation of ESI, even if one or the other is directly responsible for the destruction of evidence. See First Fin. Sec., Inc., No. 15-cv-1893-HRL, 2016 WL 5870218, at *3; Oppenheimer, No. No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *7, *10-13; Ramos, CV 12-1089-BRO (SPx), 2017 WL 2857523, at *6.
Plaintiffs argue that based on the circumstances and timing of the deletion of Ramos’s campaign account emails and his text messages, the only logical conclusion is that Defendants intended to deprive Plaintiffs of the use of those communications. ECF No. 249, Mot. at 19-20. Further, Plaintiffs argue that the combination of Defendants’ awareness of the relevancy of the information and pending litigation coupled with Defendants’ utter failure to take any measures to preserve the ESI shows intent to deprive Plaintiffs of its use. Id. at 20-21.
Defendants counter that Plaintiffs fail to show that Ramos intended to deprive Plaintiffs of any evidence in litigation. ECF No. 263, Opp’n at 5, 13, 16. Defendants point to the fact that Ramos sent emails and text messages to various individuals at the DA’s Office, evincing he did not intend to conceal any communications. Id. at 6, 13. Further, Defendants argue there is no basis for the Motion against the County, a Defendant who did not control access to Ramos’s personal phone or campaign email account. Id. at 17-18.
Ramos, as a former DA, is a sophisticated party who had the assistance of experienced civil litigation counsel, as least as of March 14, 2018. His explanations that he was unaware of these obligations to retain the emails and text messages that could be relevant and material to litigation he was embroiled in are unconvincing. This is even more so because Ramos, as an experienced criminal practitioner in the California state courts, should be familiar with Cal. Crim 371, which provides:
If the defendant tried to hide evidence or discourage someone from testifying against (him/her), that conduct may show that (he/she) was aware of (his/her) guilt. If you conclude that the defendant made such an attempt, it is up to you to decide its meaning and importance. However, evidence of such an attempt cannot prove guilt by itself.]
Judicial Council Of California Criminal Jury Instruction 371. The language in this proposed instruction is similar to the type of instruction that may be sought in a federal civil case when potentially relevant evidence is destroyed.
Nevertheless, Ramos continued deleting text messages that pertained to the ligation and deleted his campaign email account from which he corresponded about work and personal matters after litigation commenced and long after litigation was reasonably foreseeable. Consequently, based on these factors, it is reasonable for this Magistrate Judge to infer that the materials were deleted with the intent to deprive their production to Plaintiffs, under Rule 37(e)(2).
Although the County’s obligations to preserve the lost ESI are somewhat attenuated, and the parties fail provide much case law on whether Ramos’s actions are attributable to the County, based on the fact that the County reasonably anticipated the litigation and failed to prevent the destruction of the ESI—including failing to instruct Ramos to preserve ESI—and both the County and Ramos are be represented by the same counsel, the intent to deprive Plaintiffs of the text messages and emails can be imputed to the County. See First Fin. Sec., Inc., No. 15-cv-1893-HRL, 2016 WL 5870218, at *3; Oppenheimer, No. No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *7, *10-13; Ramos, CV 12-1089-BRO (SPx), 2017 WL 2857523, at *6. Additionally, Ramos, as an employee, appeared to somewhat regularly use his personal devices and accounts for official business, and Defendants should have taken action to preserve communications once on notice about potential ligation.
*11 Because this Magistrate Judge concludes that Defendants failed to take reasonable steps to preserve electronic evidence and infers from the timing of the deletion of emails and texts that Defendants intended to deprive Plaintiffs of such information, the Court turns to what sanctions, if any, are no greater than necessary.
2. Terminating Sanctions
Plaintiffs request termination sanctions be imposed against Defendants, or, in the alternative, the following adverse inferences:
ο Ramos initiated the Colonies investigation because Burum was a political adversary who he wanted to take out;
ο Ramos initiated the Colonies investigation to retaliate against Burum for his political power and backing of political measures and candidates that Ramos Opposed;
ο Ramos used the power of the District Attorney’s Office to advance his political goals;
ο The County was aware of Ramos’s true intent in the Colonies investigation yet permitted it to proceed unabated; and
ο The lost ESI was unfavorable to Defendants.
ECF No. 249, Mot. at 16.
“As a general rule, the district court must consider less severe alternatives [than dismissal or default judgment] and discuss them if it elects to dismiss [or render a default].” U.S. for Use and Benefit of Wiltec Guam, Inc. v. Kahaluu Constr. Co., Inc., 857 F.2d 600, 604 (9th Cir. 1988); Wanderer v. Johnstone, 910 F.2d 652, 656 (9th Cir. 1990).
When considering whether to impose the ultimate sanctions of dismissal or a default judgment, a court in the Ninth Circuit must examine five factors: “(1) the public’s interest in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the [party seeking sanctions]; (4) the public policy favoring disposition of cases on their merit; and (5) the availability of less drastic sanctions.” Thompson v. Hous. Auth. of the City of Los Angeles, 782 F.2d 829, 831 (9th Cir. 1986) (per curium), cert. denied, 479 U.S. 829 (1986). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth factor cuts against a default or dismissal sanction. Thus, the key factors are prejudice and availability of lesser sanctions.” Wanderer, 910 F.2d at 656.
“For the Court to impose the sanction of default, it must find that there is a nexus between the Defendants’ misconduct and the merits of the case, such that the misconduct ‘interferes with the rightful decision of the case.’ ” Columbia Pictures, Inc., at *6 (internal alterations omitted) (quoting Halaco Eng’g Co. v. Costle, 843 F.2d 376, 381-82 (9th Cir. 1988)). Terminating sanctions may be warranted where a party is no longer able to present its case, spoliation occurs in direct violation of a court order, where a party has obviously engaged in deceptive practices during litigation, or where a court anticipates continued deceptive misconduct. See Anheuser Busch, Inc. 69 F.3d at 352-55; Leon, 464 F.3d at 959-61 (affirming a district court’s grant of terminating sanctions and concluding the district court properly considered the Anheuser-Busch factors where one party knew and had ample notice he was under a duty to preserve data on the laptop, intentionally deleted many files, wrote a program to write over deleted files, and admitted he intended to destroy the information); Columbia Pictures, Inc., No. 2:06-cv-01093 FMC (JCx), 2007 WL 4877701, at *5-8 (granting plaintiff’s request for terminating sanctions where defendants “engaged in widespread and systematic efforts to destroy evidence ... provided false testimony under oath in an effort to hide evidence of such destruction[,]” provided late and incomplete responses to discovery results and were warned or sanctioned on more than one occasion).
*12 Terminating sanctions are not warranted in this case. As previously described, terminating sanctions should be reserved for the most egregious cases of misconduct. The record in this case does not support that Plaintiffs are so harmed by the spoliation as to be unable to present their case, and it does not appear that Defendants destroyed evidence in direct violation of a court order. Accordingly, the Court recommends DENYING Plaintiffs’ Motion for Sanctions insofar as Plaintiffs request terminating sanctions.
3. Adverse Inference Instruction
An adverse inference is a sanction carried out as an instruction to the trier of fact that “ ‘evidence made unavailable by a party was unfavorable to that party.’ ” Lewis, 261 F.R.D. at 521 (quoting Nursing Home Pension Fund, 254 F.R.D. at 563). In order for the Court to impose an adverse inference the moving party must establish that: “(1) the party having control over the evidence had an obligation to preserve it; (2) the records were destroyed with a culpable state of mind; and (3) the destroyed evidence was relevant to the party’s claim or defense.” Id. (citations omitted); Ramos, No. CV 12-1089-BRO (SPx), 2017 WL 2857523, at *13; see Fed. R. Civ. P. 37(e). The party seeking an adverse inference bears the burden of showing ESI was destroyed in “bad faith.” GN Netcom, Inc., No. 12-1318-LPS, 2016 WL 3792833, at *5.
Although Defendants’ conduct does not rise to the level of warranting terminating sanctions, Plaintiffs carried their burden to show that they are entitled to an adverse inference jury instruction that the lost ESI may have been unfavorable to Defendants. Plaintiffs have demonstrated spoliation of the text messages and campaign emails in Defendants’ control. The lost ESI also appears relevant to Plaintiffs’ claims against Defendants for conspiracy and retaliation. See ECF No. 249, Mot. at 23 (citing ECF Nos. 176, 208). Based on the few text messages and campaign emails that could be gleaned from third parties, the lost ESI appears probative of Ramos’s mental state and intentions with respect to Colonies and Burum and relevant to Plaintiffs’ claims of conspiracy and retaliation. The attached exhibits to Plaintiff’s Motion provide insight into Ramos’s strategy, motivations, and actions in his position as DA and in his campaign for reelection and reference Plaintiffs on numerous occasions. See ECF No. 249-1, Foster Decl., Exs. 14-18, 20, 21, 23, 24, 26. Further, based on the timing and circumstances of the text message and email deletions, the Court infers bad intent from Defendants’ actions.
To counter the prejudicial effects of Defendants’ spoliation, the Court recommends issuing an adverse jury instruction at trial that the jury may presume that the deleted ESI information from the mike@joinmikeramos.com e-mail account and text messages deleted after March 2018 was unfavorable to Plaintiffs. See Fed. R. Civ. Proc. 37(e)(2)(B); see, e.g., Oppenheimer, No. SACV 16-00018 JVS (DFMx), 2017 WL 1807596, at *13.
Accordingly, the Magistrate Judge recommends GRANTING this aspect of Plaintiffs’ Motion, insofar as Plaintiffs request an adverse inference instruction that the lost ESI was unfavorable to Defendants.
4. Costs And Fees
Plaintiffs also requested attorney fees incurred in bringing this Motion. ECF No. 249, Mot. at 18. Courts may award reasonable attorney fees as a sanction for discovery abuse. See Fed. R. Civ. P. 37; Henry v. Gill Indus., Inc., 983 F.2d 943, 946 (9th Cir. 1993) (affirming a district court’s award of attorney fees under Rule 37(d) supported by defendant’s declarations and affidavits, which demonstrated fees were “ ‘caused by’ ” plaintiff’s discovery misconduct). Specifically, courts may award costs and fees associated with spoliation as a sanction under Rule 37(e)(1). See Spencer, No. CV 16-02129-SJO (RAOx), 2018 WL 839862, at *1-2 (finding monetary sanctions appropriate under Rule 37(e) given a finding of prejudice for loss of text messages); Sec. Alarm Fin. Enter., L.P. v. Alarm Prot. Tech., LLC, No. 3:13-cv-001012-SLG, 2016 WL 7115911, at *7-8 (awarding reasonable attorney’s fees incurred for bringing a motion after determining the moving party was prejudiced by the spoliation).
*13 As previously discussed, Plaintiffs sufficiently demonstrated they were prejudiced by the spoliation of the text messages and emails. See Fed. R. Civ. P. 37(e)(1). As a result of the prejudice suffered, the Court finds it appropriate that Plaintiffs be awarded attorney fees associated with bringing this Motion. Accordingly, the Court recommends GRANTING Plaintiffs’ request for attorney fees and ordering Plaintiffs to submit a declaration and records to the Court supporting a reasonable fee award.
V. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Court:
(1) Adopt the findings in this Report or Recommendation;
(2) GRANT Plaintiffs’ Motion for Sanctions insofar as Plaintiffs seek an adverse jury instruction, as described previously;
(3) DENY Plaintiffs’ Motion for Sanctions insofar as Plaintiffs seek terminating sanctions;
(4) Award Plaintiffs reasonable fees associated with bringing this Motion; and
(5) Order Plaintiffs to submit their declaration and records in support of their fees for the Court’s consideration within fourteen days of the date of the Order accepting this Report and Recommendation. Defendants shall file their response within fourteen days of the filing of Plaintiffs’ submission.
As discussed in the Notice below, the parties shall have fourteen days to object to this Report and Recommendation, should they disagree with the Court’s findings discussed herein.
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but may be subject to the right of any party to file Objections as provided in Local Civil Rule 72 and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.
Footnotes
The Burum Second Amended Complaint (“SAC”) also includes claims of malicious prosecution, fabrication of evidence, negligence, and intentional infliction of emotional distress. See Burum, ECF No. 53, SAC.
Courts formerly derived power to sanction wrongdoers for spoliation of evidence from both their inherent authority and from Rule 37. However, following the 2015 Amendments to the Federal Rules, the Advisory Notes state that courts are limited to authorizing sanctions under Rule 37. See Fed. R. Civ. P. 37(e), Adv. Comm. Notes to 2015 Amendment; Newberry v. County of San Bernardino, 750 Fed. App’x 534, 537 (9th Cir. 2018). Nevertheless, courts in the Central District are divided on how the post-Amendment rule is applied—with some courts authorizing sanctions under Rule 37 only while others continue to invoke their inherent authority to sanction parties for discovery violations. See Hugler v. Sw. Fuel Mgmt., Inc., No. 16 CV 4547-FMO (AGRx), 2017 WL 8941163, at *7-8 (C.D. Cal. May 2, 2017) (the Advisory Committee cannot limit the Supreme Court’s authority, and “it would be poor public policy to require the courts to rely solely upon the [Federal] Rules to address improper conduct such as spoliation of evidence[.]”); CTC Global Corp v. Huang, No. SACV 17-02202 AG (KESx), 2019 WL 6357271, at *2 (C.D. Cal. Jul. 3, 2019) (“The Court’s authority to sanction a party for despoiling evidence derives from two sources: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37[.]”) (internal quotation marks omitted); but see Spencer v. Lunada Bay Boys, No. CV 16-02129-SJO (RAOx), 2018 WL 839862, at *1 (C.D. Cal. Feb. 12, 2018) (explaining that that the Advisory Committee Notes “expressly contradict [defendant’s] argument that the Court must look to its inherent authority to impose monetary sanctions for Rule 37(e) spoliation.”); Manuf. Auto. & Software Sys., Inc. v. Hughes, No. CV 16-8962-CAS (KSx), 2018 WL 5914238, at *6 (C.D. Cal. Aug. 20, 2018) (noting that the 2015 amendments to Rule 37(e) “ ‘foreclose[s] reliance on inherent authority or state law to determine what measures should be used’ when ESI that should have been preserved is lost.”); see also FiTeq Inc. v. Venture Corp., No. 13-cv-01946, 2016 WL 1701794, at *1 (N.D. Cal. Apr. 28, 2016) (agreeing with defendant’s argument that the 2015 Amendment to Rule 37 “ ‘forecloses reliance on inherent authority’ ” when determining sanctions). Because the Magistrate Judge is relying on the authority exclusively under Rule 37, this order will not address the possibility of relying on the Court’s inherent authority.