*1 On November 3, 2021, the Court received Plaintiff Richard Brian Martin's, also known as Searching Bear Molokai Martin, (“Plaintiff”) Motion to Take Photograph(s) for Evidentiary Purposes (“Motion” or “Mot.”). Electronic Case Filing Number (“ECF No.”) 17, Mot. In that Motion, Plaintiff seeks “the Court to order the California Department of Corrections and Rehabilitation [(“C.D.C.R.”)] – specifically the California State Prison-Los Angeles County, which is under the immediate control [of Defendant] Raybon C. Johnson [(“Defendant Johnson”)] ... to formally facilitate photographs to be taken, with [Plaintiff] present, of the Native American's communal ceremony drum, and feather prayer fan – for evidentiary purposes in this case.” Id. at 1.

Plaintiff explains that the reason for the motion is “to show the deliberate destruction and subsequent des[e]cration of [Plaintiff and others’] sacred drum and feather fan, which could have only been done by C.D.C.R. employee[ ]s ... as [the objects are] in a locked closet/locker, that only staff has the keys to.” Id. Plaintiff further explains that “the Native American population (spiritual group) has not had access to the ceremony drum and fan[ ] since before the COVID-19 restriction(s) were put in place ... until September 7, 2021, when [Plaintiff and others] discovered, and immediately reported[,] the damage and des[e]cration to custody” using a grievance form. Id.

Additionally, Plaintiff states that “the hearing officer[,] Sgt. D. Lee, refused to take and provide [Plaintiff] with photographs of the ceremonial drum and feather fan” despite Plaintiff's request that such action be taken. Id. Plaintiff requests that his motion be granted and the Court to issue an order “immediately, before C.D.C.R. employee[ ]s have the chance to dispose of, or further tamper with the evidence named in this motion....” Id. at 2.

A party has a duty to preserve evidence when the party knows or should know that litigation is imminent. See Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672 (7th Cir. 2008). After a party knows or should know that litigation is imminent, the party in possession of the evidence must identify and preserve relevant evidence. See Danis v. USN Communications, Inc., 2000 WL 1694325 (N.D. Ill. 2000).

Federal courts have the authority to order parties to preserve evidence by issuing preservation orders in circumstances where such orders are appropriate. The factors courts consider when determining whether to issue a preservation order include: “1) whether Plaintiffs can demonstrate that Defendants will destroy necessary [evidence] without a preservation order; 2) whether Plaintiffs will suffer irreparable harm if a preservation order is not entered; and 3) the burden imposed upon the parties by granting a preservation order.” In re Afr.-Am. Slave Descendants’ Litig., No. 02 C 7764, 2003 WL 24085346, at *2 (N.D. Ill. July 15, 2003). Federal courts also have authority to order third parties to preserve evidence in cases where the above factors weigh in favor of such orders. See Bright Sols. for Dyslexia, Inc. v. Doe 1, No. 15-CV-01618-JSC, 2015 WL 5159125, at *3 (N.D. Cal. Sept. 2, 2015) (issuing a preservation order to third parties where the three factors weighed in favor of issuance and “the entities that have the [evidence] Plaintiffs need are not parties and thus have no duty to preserve absent a court order”).

*2 Here, Plaintiff has not demonstrated that Defendants, or the third party C.D.C.R. employees discussed in the Motion, will destroy the ceremonial drum and feather fan absent the issuance of a preservation order, that Plaintiff will suffer irreparable harm without an order, or discussed the burden a preservation order would create. Therefore, the Court does not find that a preservation order is appropriate at this time.

The Court notes that it ordered the service of Plaintiff's Complaint (“Compl.”) on Defendants on October 8, 2021, ECF No. 10, Service Order, so Defendants know that litigation is underway and involves Plaintiff's access to ceremonial implements. See ECF No. 1, Compl. at 5. Therefore, Defendants should be aware of their duty to preserve the ceremony drum and fan as evidence relevant to this litigation. Similarly, although the California State Prison-Los Angeles County and the C.D.C.R. employees mentioned in Plaintiff's Motion are third parties, they are not disinterested non-parties, and therefore, should reasonably know that the evidence will be relevant to Plaintiff's litigation. See Ramos v. Swatzell, No. ED CV 12-1089-BRO (SPx), 2017 WL 2857523, at *7 (C.D. Cal. June 5, 2017) (imputing spoliation by employer to employee “to avoid unfair prejudice to plaintiffs”); Woods v. Scissons, No. CV-17-08038-PCT-GMS, 2019 WL 3816727, at *6 (D. Ariz. Aug. 14, 2019) (imputing the spoliation of video evidence by interested non-party to defendant for the purpose of imposing sanctions).

Although Defendants are aware of the ongoing litigation with Plaintiff, Plaintiff may nonetheless wish to send a preservation letter to Defendants, informing them of the litigation that Plaintiff has initiated against them, and requesting the preservation of the items described in Plaintiff's Motion.

Therefore, a preservation order is not appropriate at this time because Plaintiff has other methods of reminding the Defendants of their duty to preserve evidence related to Plaintiff's litigation and the Court DENIES Plaintiff's Motion without prejudice, which means that Plaintiff is free to renew his request at a later date if he so wishes.

IT IS SO ORDERED.