*1 Before the Court is Plaintiff Keisha Morehead's Motion for Sanctions (“Motion”) against Defendants City of Oxnard (“City”), Officer Leah Castellano (“Castellano”), and Officer Kevin Fessler (“Fessler”) (collectively, Defendants). (ECF No. 80 (“Mot.”)). Defendants oppose the Motion. (ECF No. 96 (“Opp.”)). Having considered the parties' submissions, the relevant law, the record in this case, and the arguments during the hearing on the Motion, the Court GRANTS, IN PART, and DENIES, IN PART, the Motion.

I. BACKGROUND

A. Factual Background[1]

On or around midnight on September 28,[2] 2019, Plaintiff was allegedly sexually assaulted. (ECF No. 65 (“FAC”) ¶¶ 2, 58, 166). One or more neighbors placed calls to 911 to send aid for Plaintiff, who was yelling for help. (Id. ¶¶ 2, 68). Defendants Castellano and Fessler from the Oxnard Police Department (“OPD”) each responded to the dispatch call(s). (Id. ¶ 68). As part of the response, a “CAD” log was generated providing information of the 911 call. (ECF No. 96-1 (“Park Decl.”) ¶ 3). Upon arriving at Plaintiff's residence, Defendants Castellano and Fessler found Plaintiff undressed from the waist down and in a confused state of mind. (FAC ¶¶ 2, 84). Castellano did not activate her body-worn camera before entering Plaintiff's home. (Id. ¶¶ 10, 83; ECF 81-1 at 74). Thus, the initial interaction between Castellano and Plaintiff inside Plaintiff's entryway hallway was not captured. (FAC ¶ 85).

The parties dispute what transpired in Plaintiff's home during Plaintiff's interaction with Castellano and Fessler. According to Plaintiff, Fessler's body-worn camera video depicts Defendant Castellano entering Plaintiff's apartment, “probing the entryway hallway with [Castellano's] flashlight,” and shining the flashlight in and out of Plaintiff's face. (Id. ¶ 86). Defendants contend that Plaintiff took the flashlight and attempted to strike Castellano. (Id. ¶ 87). However, Plaintiff claims that, despite the officers later writing about a purported attack in their report of the incident, (id. ¶ 87), Fessler's body-worn camera footage did not capture Castellano verbalizing “having been punched, struck, or otherwise attacked by [Plaintiff].” (Id. ¶ 88). Plaintiff was subsequently placed under arrest for assault on an officer. (Id. ¶¶ 89, 97). Plaintiff alleges the force Castellano and Fessler used to pin Plaintiff against a wall, handcuff her, and subsequently place Plaintiff into Castello's patrol car, resulted in her sustaining “a broken bone and nerve damage to her wrists.” (Id. ¶¶ 14, 99). Throughout Plaintiff's encounter with Castellano and Fessler, Plaintiff was not given any medical aid or examined for a sexual assault. (Id. ¶¶ 21, 95, 97, 102). Officer Fessler prepared a report of the incident. (Park Decl. ¶ 3).

*2 Plaintiff alleges that in the days following September 28, 2019, officers from the Oxnard Police Department obstructed her ability to obtain a sexual assault examination. (FAC ¶¶ 22, 102–03). Specifically, on September 30, 2019, Plaintiff went to a medical center emergency room to request to have her blood drawn to determine whether drugs had been in her system on the night of the incident. (ECF No. 80-1 at 88). While in the emergency room, OPD Officers Galindo and Gormley, who were dispatched to the location, spoke with Plaintiff. (Id. at 88–89). At some point after arriving at the emergency room, Officer Gormley also telephoned Castellano and possibly Fessler[3] about the alleged assault on September 28, 2019. (Id. at 89, 96–100). According to the police report of the encounter and deposition of Officer Galindo, the officers' contact with Plaintiff was captured on their body-worn camera and the footage uploaded into evidence at the police station (hereinafter referred to as the “September 30 Footage”). (Id. at 88, 91).

On October 3, 2019, Plaintiff traveled to the OPD station and requested a “rape kit” be completed. (ECF No. 96-4 (“Gormley Decl.”) ¶ 3). Officer Gormley initially spoke to Plaintiff in the parking lot of the OPD station for a few minutes. (FAC ¶¶ 55–58, 104; ECF No. 80-1 at 106; Gormley Decl. ¶ 3; ECF No. 101 at 26). Officer Gormley then went inside the police station and spoke to Sergeant Walker regarding Plaintiff's request for a rape kit. (ECF No. 80-1 at 106; Gormley Decl. ¶ 3). According to Officer Gormley, he deactivated his body worn camera during the time he was having this discussion with the Sergeant. (Gormley Decl. ¶ 3). “After talking to Sergeant Walker over the phone” and “explain[ing] to him the events of [that day] and [September 30, 2019], Sergeant Walker asked [Gormley] to go ask [Plaintiff] some further questions, including what had changed from [September 30, 2019], when she went to [the emergency room] to today.” (ECF No. 80-1 at 106). In response, Officer Gormley went back outside and spoke with Plaintiff. (Id.). During this second conversation, Officer Gormley again activated his body-worn camera. (Gormley Decl. ¶ 3; ECF No. 80-1 at 106–08). Thus, there were two separate segments of the October 3, 2019, body-worn camera footage capturing Officer Gormley's contact with Plaintiff on that date (hereinafter, referred to collectively as the October 3 Video). According to Officer Gormley, he uploaded both segments of the October 3 Video into evidence at the police station. See (ECF No. 80-1 at 108).

B. Relevant Procedural and Discovery History

Plaintiff, representing herself, brought the instant case on September 27, 2021, alleging a single cause of action for a violation of her civil rights pursuant to Title 42, United States Code, Section 1983.[4] (ECF No. 1). According to Plaintiff, in February 2022, Defendants served their initial Rule 26 disclosure statement, which consisted of “myriad documents from the [OPD], but just five audio and video recordings.” (Mot. at 15–16). According to Defendants, this disclosure included: Officer Fessler's September 28, 2019, case report; Officer Galindo's September 30, 2019, case report; transcripts of audio recordings; and a list disclosing possible witnesses and persons with discoverable information, including Defendants Castellano and Fessler, and Officers Gormley and Galindo, and disclosing that body-worn camera footage existed for these individuals and was located in Defendants' possession.[5] (Park Decl. ¶¶ 3–4, and ECF No. 96-1 at 9–17).

On March 23, 2022, Magistrate Judge Spaeth granted Plaintiff's request for an attorney to be substituted in as Plaintiff's counsel. See (ECF No. 22). On April 26, 2022, the parties entered into a protective order for discovery items which Magistrate Judge Spaeth approved. (ECF No. 30). According to Defendants, on April 28, 2022, “following the court's entry of the protective order, Defendants produced all body-worn camera footage of Officer Fessler and Castellano from September 28-29, 2019[,] and all September 30, 2019[,] body-camera footage of Officer Gormley and Officer Galindo to Plaintiff.” (Park Decl. ¶ 5). According to Defendants, the only missing body-worn camera footage at that time was Officer Gormley's October 3 Video, which OPD was “unable to locate despite multiple efforts to search for the [ ] footage.” (Id.) All other body-worn camera footage pertaining to either the September 28, 2019, incident or the September 30, 2019, follow-up contact between the OPD and Plaintiff had been produced to Plaintiff as of April 28, 2022. (Id.).[6]

*3 On June 1, 2022, the Court approved Plaintiff request to replace Plaintiff's first attorney with Plaintiff's current counsel. (ECF No. 37). According to Plaintiff, in September 2022,[7] Plaintiff's current counsel propounded several discovery requests seeking to obtain all video and audio recordings, including body-worn videos and recordings of 911 calls related to the incident. (ECF No. 67 ¶¶ 45–48, 63–65; ECF No. 67 at 50–54, 84–85). In their discovery responses, Defendants represented “the body[-worn] camera footage of Officer Gormley from [Defendants'] initial disclosures [ ] was produced to Plaintiff following entry of the standing protective order.” (ECF No. 67 at 85). Regarding the dispatch recordings, Defendants responded that they did not have “possession, custody or control of any [dispatch recordings].” (Id. at 52, 54). On October 27, 2022, Defendants supplemented their disclosures and produced another fifteen recordings. (Id. ¶ 40). In December 2022, Plaintiff renewed her discovery requests for the 911 and dispatch recordings. (Id. ¶ 47).

In January 2023, the parties met and conferred to resolve the dispute about the 911 recordings. (Id. ¶ 49–50). Thereafter, Plaintiff served a subpoena on Defendants to produce the 911 calls, to which Defendants did not respond. (Id. ¶ 49–50).

Beginning in March 2023, Plaintiff began to file several ex parte applications asking for various forms of relief. First, on March 2, 2023, Plaintiff filed her first ex parte application asking Magistrate Judge Spaeth to compel the Defendant to produce a witness for a Rule 30(b)(6) deposition. (ECF No. 67). In her application, Plaintiff argued that she was entitled to this deposition because Defendants were withholding and possibly destroying evidence relevant to her claims. (Id. ¶¶ 7, 38–76). Magistrate Judge Spaeth denied Plaintiff's application. (ECF No. 69). Plaintiff then filed an ex parte application requesting this Court vacate and reverse Magistrate Judge Spaeth's order. (ECF No. 70). This Court denied Plaintiff's application. (ECF No. 74).

On March 20, 2023, Defendants located the second segment of Officer Gormley's missing October 3 Video; the first segment of the October 3 Video remained missing. (Park Decl. ¶ 5). On March 20, 2023, during a telephonic meet and confer meeting of the parties, Defense counsel represented that they had located the second segment of the October 3 Video, but that the first segment had been automatically deleted. (ECF No. 80-1 at 8). Defendants' counsel subsequently produced the second segment of the October 3 Video to Plaintiff's counsel later that same day. (Park Decl. ¶ 5). Defendants also informed Plaintiff's counsel that the 911 recordings had been deleted pursuant to an 18-month retention policy that pertains specifically to recordings of 911 and dispatch calls. (Id.).

On March 21, 2023, Plaintiff filed her third ex parte application, asking this Court to reopen discovery to depose several individuals in light of Defendants' new disclosures. (ECF No. 75). After hearing arguments on March 22, 2023, this Court partially granted Plaintiff's request to reopen discovery, allowing Plaintiff to re-depose Gormley for the limited purpose of questioning him about the October 3 Video. (ECF No. 77).

On May 24, 2023, Plaintiff filed the instant Motion, (Mot.), which Defendants oppose. (ECF No. 96 (“Opp.”)). Plaintiff has timely replied. (ECF No. 101 (“Reply”)).

II. LEGAL STANDARD

“A party must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence.” Sanders v. Los Angeles Cnty., No. CV 15-00907-AG (RAO), 2019 WL 12831725, at *2 (C.D. Cal. Aug. 1, 2019) (citing United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002)). When a party “intentionally or negligently” breaches its duty to preserve “potentially discoverable evidence,” such conduct constitutes spoliation and justifies sanctions. Rodriguez v. Cnty. of Los Angeles, No. CV 10-6342 CBM(AJWx), 2013 WL 12122299, at *2 (C.D. Cal. Feb. 25, 2013); see also Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (“[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.”).

*4 Where the issue of spoilation involves electronically stored information (“ESI”), Federal Rule of Civil Procedure 37(e) sets forth factors a court should consider in evaluating the propriety of imposing sanctions and governs the sanctions available.[8] Fed. R. Civ. P. 37(e). It provides sanctions may be appropriate if : (1) ESI was lost; (2) the ESI cannot be restored or replaced; (3) the ESI should have been preserved in “the anticipation or conduct of litigation”; and (4) the party responsible failed to take reasonable steps to preserve the ESI. Id. If the court finds prejudice from loss of the ESI, Rule 37(e)(1) permits the court to “order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). The rule does not require either party to carry the burden of establishing prejudice. See Rule 37 Advisory Committee Notes to the 2015 Amendment; see also Est. of Bosco by & Through Kozar v. Cnty. of Sonoma, 640 F. Supp. 3d 915, 927 (N.D. Cal. Nov. 14, 2022). Rule 37(e)(2), however, provides “only upon finding that the party acted with the intent to deprive” the other party of the use of ESI in the litigation, may a court either: “(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.”

The Ninth Circuit has not set forth a specific standard of proof, but district courts in this Circuit apply a preponderance of the evidence standard in making findings to determine whether to impose spoliation sanctions under Rule 37(e). See Aramark Mgmt., LLC v. Borgquist, No. 8:18-cv-01888-JLS-KESx, 2021 WL 864067, at *6 (C.D. Cal. Jan. 27, 2021), report and recommendation adopted, No. 8:18-cv-01888-JLS-KESx, 2021 WL 863746 (C.D. Cal. Mar. 8, 2021); Deerpoint Grp., Inc. v. Agrigenix, LLC, Case No. 1:18-cv-00536-AWI-BAM, 2022 WL 16551632, at *11 (E.D. Cal. Oct. 31, 2022) (collecting district court cases within the Ninth Circuit applying the preponderance of the evidence standard).

III. DISCUSSION

Plaintiff asserts intentional spoilation as to the following categories of evidence: (1) the September 28, 2019, recordings of 911 calls to police; (2) the September 28, 2019, recordings of dispatch calls;[9] (3) the September 28, 2019, data from the officers' in-car computer terminals; (4) body-worn camera footage from officers' interactions with Plaintiff, presumably on September 28, 30, and October 3, 2019; and (4) body-worn camera footage from officers' interactions with each other about Plaintiff on those same dates. See (Mot. at 8). During the hearing on the Motion, Plaintiff's counsel acknowledged that the last category of evidence referred only to purported recordings of Gormley's conversations with Defendant Officers on September 30, 2019, Gormley's conversation with Sergeant Walker on October 3, 2019, and any conversations captured on the body-worn cameras of Officers Castellano and Fessler about Plaintiff on September 28, 2019.

A. Evidence at Issue

Defendants agreed during the hearing on the Motion that each of the five categories of evidence identified by Plaintiff, to the extent such evidence ever existed, qualifies as ESI. Defendants also conceded that the September 28, 2019, recordings of the 911 calls, dispatch calls, and the first segment of the October 3 Video have all been lost and cannot be restored or replaced. Defendants, however, dispute whether additional dispatch data from the in-car terminals and body-worn camera footage depicting conversations between the officers about Plaintiff on September 28, 30, and October 3, 2019, ever existed. Thus, the Court first addresses these two disputed categories of evidence.

*5 Plaintiff contends that the Defendants withheld and destroyed data from the officers' in-car computer terminals that dispatched them to Plaintiff's home on September 28, 2019. (Mot. at 16, 25, 19; Reply at 12–13). Defendants claim they produced the entirety of its data from the in-car terminals. (Opp. at 14; ECF No. 80-1 at 125–26). Nevertheless, Plaintiff argues, without further evidence, that the produced data cannot “constitute the complete in-car data production because, among other things, it does not include the location to which officers would be responding, nor officers' electronic acceptance of the emergency call such that the dispatch officer could convey to subsequent responding officers that the Defendant officers were already enroute.” (Reply at 13).

However, Plaintiff has not shown that it is more likely than not that other unproduced data from the in-car terminals exists. Instead, Plaintiff asks the Court to infer that, because the produced data is so sparse, the Defendants must have withheld and destroyed other data. Without anything to suggest that additional data relevant to this case exists, the Court will not apply a spoliation analysis to evidence that is merely speculative. See Odeh-Lara v. Synchrony Bank, No. CV 19-2446 PSG (AGRx), 2021 WL 8086854, at *3 (C.D. Cal. Oct. 12, 2021) (“[C]ourts have repeatedly held that mere speculation that there might have been more critically relevant information available is insufficient to prove spoliation.” (internal quotation marks and citation omitted)). Plaintiff's Motion is therefore denied, insofar as it is based on claimed missing dispatch data from in-car terminals.

Plaintiff claims without support that the Defendants destroyed body-worn camera footage that would depict interactions between officers outside the presence of Plaintiff. (Mot. at 17–19). Plaintiff focuses namely on the September 30, 2019, call between Gormley and Defendant officers. (Id.). The parties agree that after Gormley arrived at the hospital on September 30, he called Castellano and possibly Fessler to discuss Plaintiff and the initial incident on September 28, 2019. (Id.; ECF No. 80-1. at 88–89). However, in their Opposition, Defendants disagree that there is any footage depicting this conversation or any other conversation outside Plaintiff's presence and have submitted declarations in support of their Opposition. (Opp. at 11–12; Park Decl. ¶ 6; Gormley Decl. ¶¶ 2–3). According to Defendants' submissions, officers are “not required to keep their body-cameras activated when they are not interacting with the public.” (Id. at 12; ECF No. 96-2 (“Gardner Decl.”) ¶ 3; Gormley Decl. ¶ 2). Gormley further represents that there “is no additional footage from [his] body worn camera ... beyond the footage from [his] encounter with Plaintiff” because he “deactivated [his] body worn camera upon leaving Plaintiff's room on September 30, 2019 ... as [he] was no longer interacting with Plaintiff at that point ... [and] because [he] was cognizant that [he] was inside a hospital, where additional taping might depict other patients and implicate their medical privacy rights.” (Gormley Decl. ¶ 2).

In response to Defendants' Opposition, Plaintiff has not made additional arguments regarding the existence of the purported recordings in her Reply. Given that Plaintiff does not appear to contest Defendants' declarations on this point or the policy upon which Defendants rely to claim that this footage does not exist, the Court will not apply a spoliation analysis to any purported lost evidence of body-worn camera footage of interactions between officers. Further, even if Plaintiff were to continue to pursue sanctions for this category of evidence, based on the parties' submissions, the Court does not find by a preponderance of the evidence that this type of body-worn camera footage of conversations between the officer exists. See, e.g., Odeh-Lara, 2021 WL 8086854, at *6 (spoliation cannot be based upon speculation). Plaintiff's Motion is denied, insofar as it relates to body-worn camera footage from officers' interactions with each other about Plaintiff.

*6 During the hearing on the Motion, counsel for Defendants confirmed that evidence of the 911 recordings and dispatch calls on September 28, 2019, have been destroyed and that the first segment of Officer Gormley's October 3 Video is missing. Therefore, the Rule 37(e) analysis that follows will be limited to these items of evidence.

B. Rule 37(e) Factors

As stated previously, where the issue of spoilation involves ESI, Rule 37(e) sets forth several factor for courts to consider in determining the propriety of imposing sanctions, including: whether (1) ESI was lost; (2) the ESI cannot be restored or replaced; (3) the ESI should have been preserved in “the anticipation or conduct of litigation”; and (4) the party responsible failed to take reasonable steps to preserve the ESI. Id. Further, if the court finds prejudice, Rule 37(e)(1) permits the court to “order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). Only upon finding an “intent to deprive” the other party of the use of the evidence may a Court impose the more severe remedial measures set forth under Rule 37(e)(2). The Court addresses each Rule 37(e) factor in turn.

To find that a party spoliated evidence, the party must have had a duty to preserve the evidence. Courts apply an objective standard that requires a party to preserve relevant evidence when litigation is reasonably foreseeable. See Sanders, 2019 WL 12831725, at *3 (citing Compass Bank v. Morris Cerullo World Evangelism, 104 F. Supp. 3d 1040, 1051–52 (S.D. Cal. 2015); Kitsap Physicians Serv., 314 F.3d at 1001). This includes when a party learns of a potential claim and anticipates litigation. Fed. R. Civ. P. 37(e); John v. Cnty. of Lake, No. 18-CV-06935-WHA (SK), 2020 WL 3630391, at *6 (N.D. Cal. July 3, 2020). In the context of litigation involving public officers, a duty to preserve relevant information can arise upon the filing of a related administrative claim. See id. (finding that duty to preserve attached “as soon as [defendants] received notice of the administrative claim”); Montoya v. Orange Cnty. Sheriff's Dep't, No. SACV 11-1922 JGB, 2013 WL 6705992, at *8 (C.D. Cal. Dec. 18, 2013) (“The Court finds that [Defendants'] duty to retain evidence arose in May 2010 when [Plaintiff] filed a workers' compensation claim.”).

Here, Plaintiff filed her administrative claim in March 2020, claiming damages for the injuries incurred on September 28, 2019. (ECF No. 80-1 at 132–34). Her claim discussed her sexual assault allegations and that Defendants Castellano and Fessler injured her by handcuffing her. (Id.). The claim describes substantially the same events as in the complaint, identified herself and the two Officer Defendants, and requested over $825,000 in damages. (Id.); cf. Sanders, 2019 WL 12831725, at *5 (finding no duty where the letter prior to litigation did “not state what claims are being addressed, what the relevant time period is, or what is being requested by [plaintiff]”). Further, based on the City's denial of Plaintiff's claim in May 2020,[10] the evidence demonstrates the City actually received Plaintiff's administrative claim. See (ECF No. 80-1 at 135–38); cf. Sanders, 2019 WL 12831725, at *5 (no notice when the evidence does not show that the “grievance letter addressing the August 2014 incident was actually received by Defendants”). Plaintiff's administrative claim was thus sufficient to provide notice of a potential claim to the Defendants.

*7 Defendants nevertheless argue that because only “9%” of all administrative claims result in litigation, Plaintiff's filing of her “administrative claim alone is not reasonably indicative of impending or even likely litigation.” (Opp. at 17). However, in California, administrative tort claims are prerequisites to filing a lawsuit involving a tort against a public entity. See, e.g., I.A. by & through ReneePollarda v. City of Redondo Beach, No. CV 20-06447 DDP (JPRx), 2021 WL 3269961, at *2 (C.D. Cal. July 30, 2021) (“Under California law, a plaintiff may not bring a tort claim against a public entity or employee without first complying with California's Tort Claims Act ... [which includes the] requirement[ ] that plaintiffs present a claim to public authorities within six months after the accrual of the cause of action.”). “[T]he volume of claims does not change the fact” that Plaintiff filed an administrative claim demanding $825,000 as a prerequisite to filing this complaint. Montoya, 2013 WL 6705992, at *8; see (ECF No. 80-1 at 132–34). Further, Plaintiff filed her administrative claim while the Ventura District Attorney was considering the related investigation of the alleged sexual assault assailant. See (ECF No. 80-1 at 129–34). While Plaintiff's criminal investigation closed prior to her filing the administrative complaint, the investigation into Plaintiff's alleged assailant continued until June 2020, after the City denied Plaintiff's administrative claim. (Id. at 129–31). Under these circumstances, it was reasonably foreseeable that Plaintiff could file a lawsuit about the matters raised in her administrative tort claim. See Montoya, 2013 WL 6705992, at *8 (the filing of a worker's compensation claim in the context of the plaintiff's dismissal was enough to reasonably expect litigation). Thus, beginning on at least May 13, 2020, Defendants had a duty to preserve evidence relating to the events described in Plaintiff's administrative tort claim. This duty would reasonably include the 911 and dispatch calls on the night of September 28, 2019, that were deleted per the 18-month retention policy between “late March 2021 and early April 2021,” because those recordings were related to the events disclosed in Plaintiff's administrative tort claim. (ECF No. 96-3 (“Ward Decl.”) ¶¶ 2–3, 6).

However, a different analysis applies to the missing first segment of Officer Gormley's October 3 Video because that evidence was apparently deleted one year after Plaintiff initiated this lawsuit. See (Gardner Decl. ¶ 5; ECF No. 1). Once a lawsuit is filed, the party has express notice of the claims against it. See, e.g., Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003). Rather than questioning whether the Defendants have a duty to preserve evidence—there is no dispute they do at the initiation of litigation[11]—the Court instead considers whether the scope of their duty included the evidence at issue. Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408, 416–17 (S.D. Cal. 2018) (citing In re Napster, 462 F.Supp.2d at 1067; Apple v. Samsung Electronics Co., Ltd., 881 F.Supp.2d 1132, 1136 (N.D. Cal. 2012)) (“Once triggered, a litigant must preserve evidence which it knows, or would reasonably know, is relevant to the parties' claims or defenses.” (quotation marks and citation omitted)).

Here, the Defendant's duty to preserve evidence included the missing first segment of Officer Gormley's October 3 Video because it is relevant to Plaintiff's claims. See, e.g., Al Otro Lado, 328 F.R.D at 416 (“The scope of a party's duty to preserve is the same as the scope of discovery articulated in Rule 26(b)(1); namely that a party ‘may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.’ ” (quoting Fed. R. Civ. P. 26)). Indeed, on February 22, 2022, Defendants' initial disclosures expressly indicated that the October 3 Video footage was relevant, disclosing Gormley as a potential witness with knowledge of “[t]he facts and circumstances surrounding events prior to Plaintiff's arrest,” and disclosing Gormley's body-worn camera footage in the list of items in Defendants' custody and control that may be used to support their claims and defenses. (ECF No. 96-1 at 10– 11, 15). Lastly, Plaintiff argues—and the Court agrees—that the October 3 Video is potentially relevant to her credibility, which is central to whether her or the Defendants' account of the September 28, 2019, incident should be credited. The Court therefore finds that the Defendants had a duty to preserve the first segment of the October 3 Video at the time it was deleted on October 3, 2022.

*8 To find spoliation, the Court must also find that the evidence at issue was lost due to the party's failure to take reasonable steps to preserve it. Fed. R. Civ. P. 37(e). “This duty extends to the suspension of document destruction policies.” RG Abrams Ins. v. L. Offs. of C.R. Abrams, 342 F.R.D. 461, 505 (C.D. Cal. 2022). The 2015 Advisory Committee Notes provide some additional factors for courts to consider: (1) a party's “good-faith operation of an electronic information system”; (2) a “party's sophistication with regard to litigation”; (3) “the extent to which a party knew of and protected against such risks”; and (4) whether the information is “destroyed by events outside the party's control.” Est. of Bosco, 640 F. Supp. 3d at 924–25 (quoting 2015 Advisory Note to Fed. R. Civ. P. 37)).

Here, Defendants have identified no steps that they took to preserve the recordings of 911 and dispatch calls, arguing instead that they were not obligated to take any reasonable steps because “Defendants had no notice to preserve those recordings for a longer duration.” (Opp. at 17–18). As stated previously, however, Defendants were on notice both by Plaintiff's filing of her administrative tort claim and filing of the present suit that the 911 audio recordings and dispatch calls should be preserved.

Regarding the missing first segment of Officer Gormley's October 3 Video, Defendants assert that the deletion of the October 3 Video occurred in spite of their good-faith operation of the body-worn camera footage upload system and due to events outside their control. See Est. of Bosco, 640 F. Supp. 3d at 925. Defendants argue that the missing first segment was lost due to “inadvertent systemic error.” (Opp. at 11). Gormley represents that he drafted his case report and uploaded the body-worn camera footage after his encounter with Plaintiff on October 3, 2019, using the same case number that his partner, Galindo, had used for their September 30, 2019, encounter with Plaintiff. (Id.; Gormley Decl. ¶ 6). Further, he states that his upload of the October 3, 2019, footage was consistent with his usual practice of uploading body-worn camera footage after an encounter. (ECF No. 80-1 at 69).

In March 2023, the Defendants discovered that the first segment of Gormley's October 3 Video was inadvertently assigned a different case number than his case report. (Gardner Decl. ¶ 4). Around that time, Defendants asked the Public Safety Investigative Specialist Senior and Body Worn Camera Administrator for OPD, who is responsible for managing the body worn camera uploads and the outside agency records requests related to OPD's body-worn camera files, to help locate the missing October 3 Video. (Id. ¶¶ 1, 4). The employee first searched for the footage, as she typically would, by inputting the case number from the October 3, 2019, case report into the system. (Id. ¶ 4). Though she was not able to locate the footage on her “first attempt,” when she searched through Gormley's footage by date, rather than by case number, she was able to locate an “upload depicting contact between Officer Gormley and the Plaintiff on October 3, 2019.” (Id.).

Gormley believes that his use of the earlier case number for the report resulted in the system “automatically register[ing] the body-worn camera footage as a new call for service and thereby automatically assign[ing] a new case number when the footage was uploaded.” (Gormley Decl. ¶ 6). Because the footage case number did not match the report case number, “OPD was unable to locate [the footage] despite multiple efforts to search for the [October 3 Video]” for its initial disclosures in February 2022, and Gormley was not able to locate the October 3 Video to prepare for his deposition on January 23, 2023. (Park Decl. ¶ 5; ECF No. 80-1 at 58, 113).). However, Gormley testified that calling Gardner for help finding body-worn camera video footage “happens a lot.” (ECF No. 80-1 at 60) (“[If] we search by the date and time or the officer's name or the case number[, a]nd when we can't find it that way, we call her. If it's there, she can usually find it.”).

*9 Further the misnumbering error was “compounded” because the system also “inadvertently” mislabeled the first segment of the October 3 Video as an “incident,” which “triggered a systemic deletion after 36 months.” (Opp. at 11; Gardner Decl. ¶ 5, Gormley Decl. ¶¶ 4–5). Gormley does not remember labeling the October 3 Video, and believes that “the system may have automatically assigned categories to the two segments of footage from that date.” (Gormley Decl. ¶ 4; Gardner Decl. ¶5). Because the two segments of the October 3 Video were separately categorized and subject to different automatic deletion procedures, Gardner's search resulted in the Defendants locating and producing the second segment of the October 3 Video, but the first segment of the October 3 Video was deleted. (Gardner Decl. ¶ 5).

Beyond a conclusory claim that “OPD” undertook “multiple efforts” to search for Gormley's October 3 Video before making the defense's initial disclosure production in April 2022, Defendants fail to identify any concrete steps they took to search for and preserve the footage before March 2023. (Park Decl. ¶ 5); Phan v. Costco Wholesale Corp., No. 19-CV-05713-YGR, 2020 WL 5074349, at *3 (N.D. Cal. Aug. 24, 2020) (finding the second Rule 37(e) factor satisfied when “the absence of evidence of a proper process for preserving this important evidence indicates, at a minimum, that defendant was careless”); cf. Wisk Aero LLC v. Archer Aviation Inc., No. 3:21-CV-02450-WHO, 2023 WL 2277112, at *5 (N.D. Cal. Feb. 28, 2023) (finding that the defendant took reasonable steps to preserve evidence when it instructed employees to remove the trade secret data in question and forensically imaged the entire computer at issue within one month of the start of litigation). Nor is there evidence that the Defense requested that OPD preserve such evidence. By February 2022, the Defense disclosed that the October 3 Video was relevant to their claims and defenses and within their possession. (ECF No. 96-1 at 11, 15). At that point, the Defense should have taken reasonable steps to locate the October 3 Video to ensure that it would not be subject to any automatic deletion. At the very least, the Defense should have reached out to Gardner, who, according to Officer Gormley, can “usually find” footage “when [officers] can't find it,” (ECF No. 80-1 at 60).

Instead, the Defense failed to discover the “inadvertent systemic error[s]” in a timely fashion. See (Opp. at 11); John, 2020 WL 3630391, at *6 (finding that defendants did not take reasonable steps to preserve evidence when they “searched only cursorily through their text messages” and “there was no attempt to image their cell phones or run a search across all their text messages for responsive messages”). The Court can discern no reason that the Defense could not have tried a different search method, as Gardner did in March 2023, at any time from the initiation of litigation through the beginning stages of discovery. The Court thus finds that reasonable steps were not taken to preserve the first segment of the October 3 Video.

Next the Court considers whether the evidence can be replaced through additional discovery. Fed. R. Civ. P. 37(e). There is no contention that there are copies of either the first segment of the October 3 Video or the recordings of the 911 and dispatch calls or that there is any way to restore this evidence. (Ward ¶ 4 (describing the auto-deletion system)). To the contrary, Gardner testified that, “[o]nce the system deletes video footage, the footage cannot be recovered.” (Gardner Decl. ¶ 5). Further discovery would not replace the missing recordings and video footage because the only entities that had control over the recordings deleted them. See Porter, 2018 WL 4215602, at *3 (finding this factor satisfied when evidence could not be replaced when the vendor was “the only entity that maintained a copy [of the evidence], and it erased it”). Thus, the initial factors to be considered under Rule 37(e) each demonstrate spoilation.

*10 Once a court determines the spoilation factors under Rule 37(e) are present, the court then considers where “there is ‘prejudice to another party from [the loss] of the ESI’ ” such that imposing sanctions is justified. Porter, 2018 WL 4215602, at *3 (quoting Fed. R. Civ. P. 37(e)(1) (alterations in original). “The [c]ourt's evaluation of whether the loss of information was prejudicial depends in part on the importance of the information to the case.” Ramirez v. Zimmerman, 17-cv-01230, 2020 WL 905603, at *2 (S.D. Cal. Feb. 25, 2020) (citing Hernandez v. Tulare Cty. Corr. Ctr., No. 1:16-cv-00413-EPG (PC), 2018 WL 784287, at *4 (E.D. Cal. Feb. 8, 2018)). Rule 37(e) “does not place a burden of proving or disproving prejudice on one party or the other.” See 2015 Advisory Note to Rule 37(e).

Plaintiff argues that the recordings of the 911 and dispatch calls “were materially relevant evidence of information the Defendant-officers possessed prior to making initial contact with [Plaintiff]” on September 28, 2019. (Mot. at 25). The neighbors, according to Plaintiff, called 911 and provided information to Castellano and Fessler that Plaintiff was in distress and acting out of character. (Id.). Plaintiff argues that the actual recording that prompted the police response is relevant to credibility and would rebut the Defendants' “ ‘blame the victim’ approach.” (Reply at 7). Further, Plaintiff claims the case reports are not adequate substitutes because the case reports are “biased.” (Id.).

Defendants disagree that the actual recordings of the dispatch or the 911 calls provide any additional information than already exists in the case. For example, “[a]ll bodycam footage related to the arrest and use of force” were already produced in the case. (Opp. at 19). According to Defendants, Plaintiff has also “possessed for many months” the neighbor's interview reports and recordings and has examined both Fessler and Castellano “extensively” about the dispatch information. (Opp. at 14 (citing Park Decl. ¶¶ 7–8)). During the hearing, however, Defendants acknowledged that Plaintiff does not have transcripts of the actual dispatch or 911 call recordings.

The Court agrees with Plaintiff that the content of the 911 and dispatch calls is relevant to this case. For example, the recordings would have provided context to what the Defendant officers knew as they approached Plaintiff's home on September 28, 2019. See Tucker v. City of Elk Grove, No. 2:20-cv-01620-DAD-KJN, 2023 WL 4827470, at *7 (E.D. Cal. July 27, 2023) (finding that whether a Defendant's use of force was reasonable or not “is to be judged ‘from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight’ ”) (quoting Graham v. Connor, 490 U.S. 386, 396 (1989)). The reasonableness of Castellano and Fessler's use of force—and thus the question of the reasonable officer on the scene—is a central issue in this case. Without this contemporaneous evidence, Plaintiff is prejudiced in her ability to demonstrate what exactly Defendants Fessler and Castellano knew at the time they arrived at her home.

Plaintiff argues that the missing first segment of the October 3 Video would have bolstered her position that Castellano was preventing Plaintiff from receiving medical care due to Castellano's narrative that Plaintiff “is to blame” for her encounter with Defendants because of her “drunkenness on the night in question.” (Reply at 7). According to Plaintiff, Gormley's case report is not a satisfactory substitute because his “accommodating tone” in the report is contrary to Plaintiff's testimony in her deposition. (Reply at 26 (“[Gormley] said there's nothing wrong with you. Go home.”). Defendants do not agree that the missing segment is important to the case because it “occurred five days after the incident” and “presents no information that isn't otherwise known to her.” (Opp. at 18). In Defendants' view, Gormley's case report and depositions suffice to replace the missing segment, and “Plaintiff was present during that encounter and can presumably testify about it.” (Id.).

*11 The Court agrees with Plaintiff that the missing segment of the October 3 Video is relevant and potentially important to the case. First, the Defendants' contention that the missing segment is unimportant is contradicted by their own statements and actions.[12] Defendants themselves found this footage to be relevant enough to include on their initial disclosures in February 2022. (ECF No. 96-1 at 11, 15); see also RG Abrams Ins., 342 F.R.D. at 508 (“A party that spoliates evidence ‘is in no position to argue for a presumption of irrelevance’ as to documents destroyed while on notice of their potential relevance.’ ” (quoting Skyline Advanced Tech. Servs. v. Shafer, No. 18-cv-06641-CRB (RMI), 2020 WL 13093877, at *10 (N.D. Cal. Jul. 14, 2020)). Further, Gormley's case report reflects that he and Plaintiff discussed the events of September 28, 2019, in the missing segment. (ECF No. 80-1 at 104–08 (“I explained to [Plaintiff] that ... I spoke to officers who she was involved in the fight with and they advised that she was extremely intoxicated and had an empty bottle of Hennessey alcohol in her purse.”). Second, this evidence would arguably buttress whether Plaintiff's account of the incident is credible. See Porter, 2018 WL 4215602, at *4 (finding prejudice when destroyed evidence would have been “relevant to a jury's assessment of [plaintiff's] credibility”). Here, Plaintiff has no recourse—beyond her own testimony—to rebut the Defendants' account of this conversation. The Court therefore finds that Plaintiff has suffered prejudice from the Defendants' failure to preserve the recordings and missing segment of the October 3 Video. As such, the Court next considers whether measures are appropriate under Rule 37(e)(1) or (2) to address the spoliation.

C. Intent to Deprive

Rule 37(e)(2) provides that a court can only impose more severe sanctions, such as instructing the jury to presume that the lost information was favorable to the Plaintiff, if a party “acted with the intent to deprive” the other party of the ESI's use in the litigation. Fed. R. Civ. P. 37(e)(2); see Phan, 2020 WL 5074349, at *4. The intent requirement is met where “the evidence shows[,] or it is reasonable to infer, that ... a party purposefully destroyed evidence to avoid its litigation obligations.” Porter, 2018 WL 4215602, at *3. “Because courts are unable to ascertain precisely what was in a person's head at the time spoliation occurred, they must look to circumstantial evidence to determine intent.” Laub v. Horbaczewski, 17-cv-6210, 2020 WL 9066078, at *6 (C.D. Cal. July 22, 2020) (citation omitted).

The Ninth Circuit has not expressly weighed in on the standard for intent under the newly revised Rule 37(e).[13] See Est. of Moreno by & through Moreno v. Corr. Healthcare Companies, Inc., No. 4:18-CV-5171-RMP, 2020 WL 5740265, at *6 (E.D. Wash. June 1, 2020). However, district courts in this circuit have considered several factors when determining whether a party has intentionally destroyed evidence under Rule 37(e)(2). See hiQ Labs, Inc. v. LinkedIn Corp., No. 17-CV-03301-EMC, 2022 WL 18399982, at *20 (N.D. Cal. Nov. 4, 2022). “Relevant factors can include, inter alia, the timing of the destruction, the method of deletion (e.g., automatic deletion vs. affirmative steps of erasure), selective preservation, the reason some evidence was preserved, and, where relevant, the existence of institutional policies on preservation.” Laub, 2020 WL 9066078, at *6; Fed. Trade Comm. v. Noland, No. CV-20-00047-PHX-DWL, 2021 WL 3857413, at *12 (D. Ariz. Aug. 30, 2021) (finding “intent to deprive” where defendants installed “elaborate encrypted privacy-focused apps immediately after discovering they were the subject of an FTC investigation”).

*12 While Plaintiff contends that the current record demonstrates that the Defendants intentionally destroyed the 911 and dispatch calls, the Court does not agree. In support of intent, Plaintiff relies on the timing of the filing of her administrative tort claim and related investigation into the alleged sexual assault assailant to argue that the Defendants were on notice of possible litigation, had a duty to preserve the recordings, and yet failed to do so. She is correct that her administrative claim and the criminal investigation triggered the Defendants' duty to preserve evidence related to the events described in her claim. At the time that the recordings were destroyed, in March or April 2021, however, the present litigation had not begun. (Ward Decl. ¶ 6). Cf. Est. of Bosco, 640 F. Supp. 3d at 925 (evidence deleted after defendants were aware of the criminal investigation into the institution's first in-custody suicide). Defendants argue that they did not, in fact, expect litigation at the time that the recordings were deleted. (Opp. at 17–18). While that lack of actual knowledge is not enough to avoid a duty to preserve relevant evidence, under certain circumstances it can be enough to avoid a finding of intent. Meta Platforms, Inc. v. BrandTotal Ltd., 605 F. Supp. 3d 1218, 1238 (N.D. Cal. 2022) (“While [defendant] certainly should have recognized its obligation to preserve those records, it is not hard to imagine that [defendant's] employees might have overlooked [the evidence.]”). Here, Plaintiff has not presented evidence demonstrating that Defendant's failure to preserve the 911 and dispatch calls was intentional.

After a series of “inadvertent errors,” only the second portion of Gormley's October 3 Video was preserved, while the initial portion of the video was deleted. Moreover, as discussed above, the footage was deleted on October 3, 2022, when litigation had been pending for one year and approximately eight months after Defendants disclosed Gormley and the October 3 Video as relevant in their initial disclosures. See (ECF No. 1; ECF No. 96-1 at 10, 15; Gardner Decl. ¶ 5). In other words, at the time the October 3 Video was deleted, Defendants had actual knowledge of the video and its relevance. However, Defendants did not reach out to Gardner for assistance in locating the missing footage until March 2023, at which time she promptly located the second segment of the October 3 Video. (Gardner Decl. ¶ 4). Defendants failed to take reasonable steps to preserve the first segment of the October 3 Video after having actual knowledge of the relevant footage. (ECF No. 96-1 at 10, 15).

Though the Court notes that the failure to preserve the October 3 Video in these circumstances is, at minimum, negligent, the Court declines based on its consideration of the facts and circumstances of this case to find that Defendants intentionally deleted the October 3 Video. Fed. R. Civ. P. 37(e) 2015 Advisory Committee Notes (noting that “[n]egligent or even grossly negligent behavior” is insufficient to show intent”). Under certain circumstances “[i]ntent 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.” Est. of Bosco, 640 F. Supp. 3d at 927; Fourth Dimension Software v. DER Touristik Deutschland GmbH, No. 19-CV-05561-CRB, 2021 WL 5919821, at *11 (N.D. Cal. Dec. 15, 2021) (“[B]ased on the timing and circumstances of the deletion, the record supports a finding that DTDE acted with an intent to deprive” because it intentionally destroyed the relevant evidence more than a year after it was aware of pending litigation and just after receiving notice that the plaintiff was preparing to file suit.”). However, circumstantial evidence of purposeful conduct justifying such an inference are not present here. See Laub, 2020 WL 9066078, at *6 (describing factors). For example, the “timing of the destruction,” October 3, 2022, is not tied to any parallel event indicating a desire to avoid producing the video, such as notification of an investigation. See id.; Noland, 2021 WL 3857413, at *12 (inferring intent when defendants installed “elaborate encrypted privacy-focused apps immediately after discovering they were the subject of an FTC investigation”). Moreover, though only part of the October 3 Video was preserved, when considering the “reason some evidence was preserved” together with the nature of the deletion, the circumstances here do not demonstrate the level of nefarious actions considered by other district courts to warrant an inference of intent. See Laub, 2020 WL 9066078, at *6. For example, in Estate of Bosco, a case involving a jail's first in-custody suicide, the court inferred intent when the individual overseeing the video footage, who was aware that the footage was needed for a criminal investigation into the jail staff's liability, allowed only the part of the video that would have showed “jail staff finding Bosco” dead in his cell and “how long it took to begin administering aid after Bosco was found” to delete. 640 F. Supp. 3d at 928–29. Here, by contrast, the missing footage concerns a relatively brief interaction between a non-defendant officer and Plaintiff that occurred five days after the incident, was uploaded onto the video footage system, but was automatically deleted per the City's deletion procedures. Finally, while the lack of proper process to preserve relevant evidence, even one year into litigation, is concerning, the Court cannot ascertain any affirmative action taken by any of the Defendants that resulted in the deletion of the footage. See Est. of Bosco, 640 F. Supp. 3d at 929 (“[A] passive failure to halt an automatic deletion process, without more, often does not rise to a reasonable inference of intent.” (citing Porter, 2018 WL 4215602, at *4; Meta Platforms, 605 F. Supp. 3d at 1238)). Accordingly, based on the Court's careful consideration of the circumstances in this case, the Court finds that the Defendants' actions do not amount to an intent to deprive Plaintiff of the use of the footage in this litigation.

D. Appropriate Remedial Measure for Spoliation Under Rule 37(e)

*13 Because the Court has not found that the Defendants intended to deprive Plaintiff of the use of the destroyed evidence, the Court will order “measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). Plaintiff has not shown the more severe remedial measures under Rule 37(e)(2), including the mandatory adverse inference instruction, are appropriate. Fed. R. Civ. P. 37(e)(2). Thus, under the circumstances, the Court will give an instruction informing the jury that the evidence was spoliated, but that does not inform the jury that it can or must infer that the destroyed evidence was favorable to Plaintiff. See Porter, 2018 WL 4215602, at *4.[14]

Plaintiff also requests that the Court order fees. (Mot. at 31). Courts may award costs and fees “associated with spoliation as a sanction under Rule 37(e).” Colonies Partners, L.P. v. Cnty. of San Bernardino, Case No. 5:18-cv-00420-JGB (SHK), 2020 WL 1496444, at *12 (C.D. Cal. Feb. 27, 2020), report and recommendation adopted, Case No. 5:18-cv-00420-JGB (SHK), 2020 WL 1491339 (C.D. Cal. Mar. 27, 2020); see also Aramark Mgmt., 2021 WL 864067, at *22–23. The Court already found that Defendants failed to meet their discovery obligations and that this failure prejudiced Plaintiff. See (supra, Section III.B). To cure Plaintiff's prejudice, in addition to the time and expense incurred by Plaintiff, the Court ORDERS Plaintiff to submit a declaration detailing reasonable fees associated with this Motion.

IV. CONCLUSION

The Court GRANTS Plaintiffs' Motion, insofar as it is based on the audio recordings of 911 and dispatch calls and the missing first segment of the October 3 Video and pursuant to Rule 37(e)(1) orders a jury instruction regarding spoliation to be given to the jury during the trial of this matter. Insofar as Plaintiff's motion requests sanctions for the remaining categories of evidence, as set forth above, Plaintiff's Motion is DENIED. To the extent the Plaintiff seeks attorney's fees, Plaintiff should submit a declaration setting forth the justification for such fees no later than November 1, 2023, for the Court's consideration.