Plaintiff filed two motions to compel over a year and a half ago, which sought the video discovery, as well as other items. See Dkts. 73 (first motion to compel); 77 (second motion to compel). The Court ordered Defendants to respond to Plaintiff's motions to compel. Dkts. 97 (Court order); 99 (response). The Court then stayed discovery in this action pending the resolution of settlement proceedings. Dkt. 101. After the proceedings were unsuccessful, the Court ordered Plaintiff to file an update on the status of discovery in response to Defendants' earlier response. Dkt. 110.

Ultimately, the Court denied Plaintiff's motions in part and granted them in part. Dkt. 116. Notably, the Court granted Plaintiff's motions with respect to a video of an interview between Plaintiff and Sgt. Itani, noting that, while Defendants averred that the video recording of the interview did not exist, Plaintiff had “presented convincing evidence that further documents related to this interview may exist.” Id. at 4. Still, the Court acknowledged that it could not compel the production of documents that do not exist; accordingly, the Court found that “to the extent that, after a diligent search, Defendants honestly claim that they have no further responsive documents under their control, Defendants may satisfy their obligations with respect to [the] order by certifying that no further responsive documents exist, explaining their search methodology, and providing a brief explanation rebutting Plaintiff's showing regarding why such documents are likely to exist.” Id. The Court noted that “[i]n [that] case, if Plaintiff maintains that Defendants is still withholding documents, Plaintiff's remedy will be to impeach Defendants at trial or in dispositive motions.” Id. The Court also denied Plaintiff's request for sanctions because he did not make the requests in his motions, and thus Defendants had not had an opportunity to meaningfully brief the issue; the Court acknowledged that Plaintiff may bring a separate sanctions motion in the future if he maintained his allegations of spoliation and discovery misconduct.. Id.

As the case proceeded, Plaintiff has made numerous requests concerning the prison's alleged failure to allow him to sufficiently review the video evidence in this case; the Court has repeatedly ordered both counsel for Defendants and the prison staff to ensure that Plaintiff has had opportunities to view the videos they have provided. See Dkts. 50, and seeking court order directing prison to make available audio and video discovery); Dkt. 66 (minute order requiring prison to make discovery available to Plaintiff); Dkt. 77 (Plaintiff's motion to compel); Dkt. 81 (minute order requesting status report on discovery); Dkt. 86, 89, 94–95 (Plaintiff's status reports); Dkt. 90 (Defendants' status report); Dkt. 97 (minute order requiring response to Plaintiff's discovery motions in Dkts. 73, 77, 94, and 95); Dkt. 99 (Defendants' status report); Dkt. 110 (minute order seeking status report on discovery); Dkt. 116 (minute order denying requests for discovery in Dkts. 73, 77, 94–95, extending discovery for Plaintiff to view audio and video discovery); Dkt. 126 (minute order denying motion for extension of discovery, but ordering prison to make available audio and video discovery); Dkt. 138 (Plaintiff's request for extension of time to file opposition to motion for summary judgment to allow him to view video discovery); Dkt. 146 (similar request); Dkt. 148 (similar request).

*2 Most recently, on April 15, 2024, the Court ordered counsel for Defendants to “confirm with the prison litigation coordinator at the facility that Plaintiff has been able to view the discovery and submit an update to this Court.” Dkt. 152 at 4. Furthermore, the Court granted Plaintiff an extension to respond to Defendants' pending motion for summary judgment and ordered that, “if at all practicable, the discovery shall be made available to Plaintiff at least twice more over the next sixty days, so that he may reference it in compiling his opposition.” Id. Subsequently, Plaintiff filed the requests addressed in this order, which, as discussed above, ask that the Court: order Defendants to resend the video discovery, order the prison to provide better equipment for Plaintiff to view the discovery, order Defendants or the prison to provide the discovery to an attorney who is considering taking Plaintiff's case, and impose sanctions for Defendants' alleged discovery misconduct and spoliation of other video evidence. Dkts. 158–59, 161, 165.

...

[Plaintiff's motions for sanctions] alleg[e] that Defendants have withheld and intentionally destroyed video evidence. Dkts. 161, 166. The motions appear to primarily concern the interview with Sgt. Itani described in previous motions, which Defendants allege has never existed, and video of Plaintiff's back brace being taken from him, which Defendants acknowledge existed, but claim was purged pursuant to a twelve-month retention policy prior to the start of the litigation. See Dkt. 99 at 2, 6– 7.... Plaintiff appears to allege that Defendants actually provided video of the Sgt. Itani interview, despite representing previously that the video did not exist. Dkt. 166 at 4 (“Upon the denial of Plaintiff's request for additional time for discovery in November 2023 Defendants provide[d] video footage of Sgt. Itani interview with Plaintiff. This was the video that defense counsel and defendants said never took place and did not exist.”). Furthermore, Plaintiff alleges that, just six months after the incident, he filed a grievance regarding the incident where his back brace was taken. Dkt. 161 at 18. If true, this allegation could go towards showing that Defendants had a duty to preserve the video footage prior to the time it would have been purged due to their twelve-month retention policy. See Musse v. King Cnty., No. C18-1736-JCC, 2021 WL 4709875, *2–3 (W.D. Wash. Oct. 8, 2021) (noting that obligation to preserve attaches when litigation is reasonably foreseeable, which may arise before litigation is commenced, and finding litigation was reasonably foreseeable before complaint was filed in part because the county had opened an investigation on the incident).

(A) may order payment of the reasonable expenses, including attorney's fees, caused by the failure;

(B) may inform the jury of the party's failure; and

(C) may impose other appropriate sanctions, including any of the orders listed in Rule 37(b)(2)(A)(i)-(vi).

(i) 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;

(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence;

(iii) striking pleadings in whole or in part;

(iv) staying further proceedings until the order is obeyed;

*4 (v) dismissing the action or proceeding in whole or in part;

(vi) rendering a default judgment against the disobedient party; or

(vii) treating as contempt of court the failure to obey any order except an order to submit to a physical or mental examination.

If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

*7 (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.

In Voskanyan v. Unknown, the court found no duty to preserve when a prisoner requested video footage that had been deleted automatically due to the same retention policy as the policy in this case. Voskanyan v. Unknown, No. 2:15-CV-06259-MWF-KES, 2018 WL 6164257, at *1 (C.D. Cal. Mar. 21, 2018). The plaintiff, a prisoner at Men's Central Jail, alleged he was assaulted by 40 inmates and subsequently requested the video recording of that incident. Id. at *2. The complaint was not served out until two years after the events had occurred. Id. at *1. The Sheriff's Department had a video retention policy of one year, and the video had been automatically deleted prior to the service of the complaint. Id. The court reasoned that there can be no duty to preserve what no longer exists since the video was already destroyed prior to the start of the ligation. Id. The plaintiff tried to show that attached informal complaints should have triggered the duty to preserve, but the court determined that this was insufficient evidence because it was not clear whether the defendants received the informal complaints and if that would trigger a duty to preserve. Id. at *2. The court held that the plaintiff failed to carry his burden and that sanctions should be denied without prejudice. Id.

*8 In other cases, courts have found that the duty to preserve was triggered earlier, before the filing of the lawsuit. In Oppenheimer v. City of La Habra, the court found a duty to preserve email and text messages subsequent to a prisoner's suicide at La Habra city jail. Case No. SACV 16-0018 JVS (DFMx), 2017 WL 1807596, at *11 (C.D. Cal. Feb. 17, 2017). The defendants had a policy of automatically deleting emails after 180 days, and thus the relevant emails had been deleted. Id. The complaint was filed January 6, 2016, but the duty to preserve was found by the court to have started around April 20, 2015. Id. at *10. The plaintiff had served the city with a written request for information on April 20, 2015, filed an administrative claim on April 20, 2015, and the defendants already had an open investigation into the decedent's death by that date. Id.

In Mizzoni v. Nevada, the court found a duty to preserve video evidence related to a claim brought by a prisoner in which the defendants allegedly used excessive force and falsified a disciplinary report. Case No. 15-CV-00499-MMD-WGC, 2017 WL 4284597, at *4 (D. Nev. Sept. 27, 2017). The event in question occurred on March 28, 2015, and the prison had a policy of destroying video footage every 10-14 days unless there was an incident. Id. The court held that because the plaintiff had specifically asked for the video footage from the Warden on April 5, 2015, the video footage should have been preserved. Id.

Similarly, in Pettit v. Smith, the court found a duty to preserve video evidence related to an excessive force claim brought by a prisoner. 45 F. Supp. 3d 1099, 1108 (D. Ariz. 2014). The plaintiff submitted a grievance letter the same night of the incident, April 16, 2011, to one of the defendants. Id. at 1107. The defendants argued that this would not trigger a duty to preserve because the grievance letter had not yet been screened by the prison. Id. The court rejected this argument and found that the letter did trigger a duty to preserve the relevant video footage because the incident itself was “sufficiently concern[ing]” and the letter underscored that litigation was likely. Id. at 1108.