*1 This matter comes before the Court on the Report and Recommendation re: the deferred portion of Plaintiffs’ Motion for Sanctions. Dkt. #251. The Court has reviewed Defendants’ Objections, Dkt. #255, and Plaintiffs’ Response, Dkt. #263.

The relevant background has been summarized in previous Orders. See Dkts. #77 and #232. On October 13, 2022, Plaintiffs moved for sanctions alleging Snohomish County destroyed and/or lost evidence relevant to this case during the state court dependency and termination proceedings involving minor Plaintiff A.H. (the dependency case), which took place in Snohomish County Superior Court between 2013 and 2016. Magistrate Judge Christel issued an Order granting in part, denying in part, and deferring in part the Motion. Dkt. #232. Relevant to today's discussion, he found by a preponderance of the evidence that “VGAL Brook's double deletion of emails permanently deleted some of her Snohomish County email, and her use of personal email and devices also resulted in lost and/or destroyed evidence,” id. at 17; that Defendants failed to take reasonable steps to preserve this ESI that they had a duty to preserve, id. at 19–22; and that “VGAL Brook's lost and/or destroyed ESI is relevant to Plaintiffs’ claims,” id. at 23. Judge Christel deferred ruling on what sanctions should be imposed and set a date for a hearing. Defendant Snohomish County filed Objections under Rule 72(a). Dkt. #240. The undersigned ruled “there is enough evidence on the record for Judge Christel to find that ESI was lost and/or destroyed by a preponderance of the evidence.” Dkt. #243 at 3. The Court found “no factual errors in Judge Christel's order regarding the relevancy of the ESI…” Id. The Court found no error in Judge Christel's ruling that Snohomish County failed to take reasonable steps to preserve VGAL Brook's ESI prior to her death. Id. at 3–4. The Court will not revisit these findings.

After reviewing supplemental briefing and oral argument, Judge Christel now recommends the following sanctions against Snohomish County:

Dkt. #251 at 9.

The Court reviews this R&R and the Objections de novo as the recommended sanctions are relevant to trial and could be deemed dispositive in nature. See Apple Inc. v. Samsung Electronics Co., Ltd., 888 F.Supp.2d 976 (N.D. Cal. 2012).

Federal Rule of Civil Procedure Rule 37(e) states:

Defendant Snohomish County first argues the R&R erroneously relies on the Court's inherent authority to issue sanctions in addition to the authority under Rule 37(e). Dkt. #255 at 2 (citing, inter alia, the Rule 37 2015 Amendment Advisory Committee Notes; Fast v. GoDaddy.com LLC, 340 F.R.D. 326, 335 (D. Ariz. 2022); Newberry v. Cnty. of San Bernardino, 750 Fed. Appx. 534, 537 (9th Cir. 2018). The Court agrees that Rule 37(e) sets forth the applicable standard in this case and that the Court cannot rely on its inherent authority.

Monetary sanctions are available under Rule 37(e)(1) because Plaintiffs have demonstrated, and Judge Christel has found, significant prejudice in this case including Plaintiffs’ efforts to seek out other sources or reconstruct the spoliated evidenced. Snohomish County agrees that monetary sanctions are available under the above standard. Dkt. #255 at 5– 6 (“…to the extent that the Court determines Plaintiffs did experience prejudice, the County does not object to the Magistrate's assessment of monetary sanctions.”)

Snohomish County maintains that the remaining recommended sanctions are not available under Rule 37(e)(2) because there is no evidence that it “acted with the intent to deprive another party of the information's use in the litigation.” See Dkt. #255 at 6.

Upon a careful review of the text of the Rule, the Court agrees. There is an insufficient factual basis to rule that Snohomish County acted with intent to deprive Plaintiffs of the information's use in this litigation for two reasons: first, the factual record establishes only a failure to preserve, not an intent to deprive, and second, this failure occurred prior to the instant litigation. Because the Court cannot make the required finding under Rule 37(e)(2), it cannot give an adverse instruction to the jury or use such as a basis to deny summary judgment.

Accordingly, having reviewed the Report and Recommendation, Defendants’ Objections, Plaintiffs’ Response, the declarations and exhibits attached thereto, and the remainder of the record, the Court hereby finds and ORDERS:

RICARDO S. MARTINEZ UNITED STATES DISTRICT JUDGE