*1 On September 16, 2022, Plaintiff James Hightower (“Plaintiff”) filed a Motion for Sanctions pursuant to Federal Rules of Civil Procedure 26 and 37 seeking evidentiary and terminating sanctions against Defendants Southern California Permanente Medical Group and Kaiser Foundation Hospitals (“Defendants”). ECF Docket No. (“Dkt.”) 95.

For the reasons set forth below, Plaintiff's Motion for Sanctions is DENIED without prejudice.

On January 28, 2022, Plaintiff initiated the instant employment discrimination action by filing a Complaint against defendants Southern California, Permanente Medical Group dba Anaheim Medical Center and Does 1-10. Dkt. 1. On February 28, 2022, Plaintiff filed a First Amended Complaint (“FAC”) against defendants Southern California Permanente Medical Group, Kaiser Foundation Hospitals, and Does 1-10 setting forth sixteen causes of action. Dkt. 11. Plaintiff, “a Disabled Veteran and African American Male,” alleges he was discriminated against, harassed, and wrongfully terminated from his employment as a Registered Nurse after reporting “what he believed to be unsafe nursing practices and patient safety concerns in the COVID triage area.” Id.

On April 11, 2022, defendant Kaiser Foundation Hospitals filed an Answer to the FAC.[1] Dkt. 18. Kaiser Foundation Hospitals asserted it was not Plaintiff's employer and is a separate and distinct entity from Southern California Permanente Medical Group. Id.

On June 10, 2022, Defendants served their initial disclosures. Dkt. 105-1, Declaration of Monica Y. Hernandez (“Hernandez Decl.”), ¶ 13, Exs. G, H.

On June 15, 2022, defendant Southern California Permanente Medical Group served a five-page supplemental production in connection with its initial disclosures. Id., ¶ 16, Ex. I.

On July 18, 2022, the Court issued an order (1) Granting in Part and Denying in Part Plaintiff's Motion for Protective Order (Dkt. 48); (2) Denying Without Prejudice Plaintiff's Motion to Deem Facts Admitted and for Sanctions (Dkt. 56); and (3) Granting in Part and Denying in Part Plaintiff's Motion to Compel Production of Documents (Dkt. 59). Dkt. 69.

On August 26, 2022, defendant Kaiser Foundation Hospitals served its Court-Ordered further response to Plaintiff's Request for Information, Set One.[2] Hernandez Decl., ¶ 18, Exs. J, K.

On September 16, 2022, Plaintiff filed the instant Motion for Sanctions on the grounds Defendants (a) “concealed and or destroyed material evidence”; (b) “engaged in abusive discovery practices”; and (c) violated Court orders requiring compliance with Federal Rule of Civil Procedure 26(a). Dkt. 95. Plaintiff seeks the following evidentiary and terminating sanctions: (a) that summary judgment be awarded in his favor; (b) an “order holding Defendants in Civil Contempt”; (c) an order striking Defendants' pleadings; (d) an order informing the jury of the alleged failure to make a disclosure required under Rule 26; and/or (d) entering default against Defendants. Id. at 34. On September 29, 2022, Defendants filed an Opposition. Dkt. 105. On October 7, 2022, Plaintiff filed a Reply. Dkt. 110.

*2 The matter thus stands submitted.

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); see also 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.” Montoya v. Orange Cnty. Sheriff's Dep't, No. SACV 11-1922-JGB, 2013 WL 6705992, at *4 (C.D. Cal. Dec. 18, 2013) (quoting Surowiec v. Cap. Title Agency Inc., 790 F. Supp. 2d 997, 1008 (D. Ariz. 2011)) (citing Apple Inc. v. Samsung Elecs. Co., Ltd., 881 F.Supp.2d 1132, 1135 (N.D. Cal. 2012); In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1066 (N.D. Cal. 2006)).

When a party fails to obey an order to provide or permit discovery, Federal Rule of Civil Procedure 37(b)(2)(A)(i) permits courts to issue an order “directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims.” FED. R. CIV. P. 37(b)(2)(A)(i).

In addition, Rule 37(b)(2)(A)(v) of the Federal Rules of Civil Procedure authorizes the sanction of dismissal against parties who disobey a court's discovery orders. See Nat'l Hockey League v. Metro. Hockey Club, Inc., 427 U.S. 639 (1976); Sigliano v. Mendoza, 642 F.2d 309, 310 (9th Cir. 1981). To justify the imposition of case-dispositive sanctions, the Court must find that the discovery violations were due to “willfulness, bad faith, or fault of the party.” Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc., 67 F.3d 766, 770-71 (9th Cir. 1995), cert. denied, 519 U.S. 815 (1996) (citation omitted); see also Societe Internationale v. Rogers, 357 U.S. 197, 212 (1958). Disobedient conduct not outside the control of the litigant is all that is required to demonstrate willfulness, bad faith, or fault. Henry v. Gill Indus., Inc., 983 F.2d 943, 948-49 (9th Cir. 1993). In evaluating the propriety of sanctions, the Court considers “all incidents of a party's misconduct.” Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1411 (9th Cir. 1990), cert. denied, 498 U.S. 1109 (1991) (citation omitted).

Courts apply a five-part test to determine whether a case-dispositive sanction is just:

*3 Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1096 (9th Cir. 2007) (citations omitted) (affirming default judgment against defendants after “years of evasion of discovery obligations”). “The first two of these factors favor the imposition of sanctions in most cases, while the fourth cuts against a default or dismissal sanction. Thus, the key factors are prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).

As an initial matter, the Court is unable to determine from the conflicting declarations of Plaintiff and defense counsel whether the parties properly met and conferred regarding the instant Motion for Sanctions. The Court, therefore, reminds both parties of their duties of candor to each other and the Court, but declines to strike Plaintiff's motion solely for failure to comply with his duty to meet and confer. However, in turning to the merits of Plaintiff's motion, the Court does not find sanctions warranted.

First, Plaintiff has not established Defendants destroyed or failed to preserve material evidence. Plaintiff appears to believe Defendants have not produced evidence, either in their initial disclosures or in response to discovery requests, sufficient to support their alleged defenses. However, even if the Court ultimately found Defendants do not have sufficient evidence to support their defenses, that would not prove Defendants concealed or destroyed evidence.

Next, Plaintiff argues Defendants engaged in abusive discovery practices by serving discovery on Plaintiff seeking Plaintiff's medical records after the Court granted in part and denied in part Plaintiff's Motion for Protective Order seeking to quash subpoenas requesting that information. While the Court found Defendants had not established the relevance of certain categories of documents listed in the subpoenas, there is nothing in the Court's order precluding Defendants from requesting the same information from Plaintiff. See dkt. 69. While the Court is not pleased at Defendants' conduct, it does not rise to the level of “abusive discovery practices” warranting evidentiary or terminating sanctions.

Finally, Defendants have sufficiently established they complied with their initial disclosure obligations. See Hernandez Decl., ¶¶ 13, 16, 18. Accordingly, Plaintiff has failed to establish Defendants violated Court orders requiring compliance with their initial disclosure obligations.

Here, there is no evidence Defendants have violated any discovery orders or applicable rules. Therefore, the sanctions Plaintiff requests are not warranted at this time.

For the reasons set forth above, Plaintiff's Motion for Sanctions is DENIED without prejudice.