In Beverly John v. County of Lake, 18-cv-06935-WHA(SK) (N.D. Cal. Jul. 3, 2020), the Magistrate Judge recommended that the District Court provide adverse inference jury instructions to the jury based upon a finding that Defendants and their counsel spoliated evidence. The Magistrate Judge also determined that monetary sanctions were appropriate.
This case arose from Plaintiffs’ contention that Defendants searched their residences unlawfully and that they used excessive force in those searches. The dispute about the legality of the searches centered on whether Defendants had reason to believe that someone who was related to Plaintiffs lived at Plaintiffs’ residence.
During the lawsuit, Plaintiffs raised concerns about Defendants’ unwillingness to confirm that they were preserving evidence pursuant to a litigation hold. The District Court expressly stated:
“Anything that relates directly to the case, like emails, text messages, voicemails, memos, handwritten notes, they should be preserved. And any document-destruction program should be interdicted in order to stop it. And if you fail to do that, on either side, then very likely the jury will be told…[Y]ou have a duty, as the lawyers, to tell your clients that. So, please do so.”
Among others, Plaintiffs sought emails, text messages, and phone records related to the two searches at issue. At various times, defendants claimed that they never communicated via text messages and did not communicate by cell phones regarding the searches. In response, Plaintiffs moved to compel and sought ESI from the individual Defendant’s cell phones and the County’s electronic mail server.
At a mandatory meet and confer, Defendants belatedly informed Plaintiffs that there was a chain of text messages but that they were withheld on the grounds of relevance. Following in camera inspection, that text chain was ordered for production. The text chain, which was obtained from a law enforcement officer other than the individual Defendants, revealed a discussion among the individual Defendants and other law enforcement officers about the searches. Counsel for Defendants, however, claimed that the individual Defendants had deleted the text chain from their cell phones and made no attempt to create an image of the cell phone for discovery. Counsel also informed the Court that counsel had only relied on the individual Defendants to search their own cell phones.
The Magistrate Judge then issued an order requiring that Defendants use an ESI specialist to search the text messages of individual Defendants and to allow a deposition of County’s IT specialist who performed the search of Lake County’s email server and further allowed Plaintiffs to file a motion for sanctions if Plaintiffs found evidence of spoliation.
Plaintiffs subsequently took the deposition of the County’s IT specialist who performed the search of the email server and who testified that the first time he had been asked to put a litigation hold on emails for the individual Defendants was the day before the IT specialist’s deposition.
In ruling on the sanctions motion, citing to FRCP 37(e), the Magistrate Judge found that the three criteria for spoliation existed: “(1) the ESI ‘should have been preserved in the anticipation or conduct of litigation’; (2) the ESI ‘is lost because a party failed to take reasonable steps to preserve it’; and (3) ‘[the ESI] cannot be restored or replaced through additional discovery.'” Fed. R. Civ. P. 37(e).
Applying those factors, the Magistrate Judge found the following. First, Defendants had the obligation to preserve evidence as soon as they received notice of the administrative claim. Second, the ESI was lost because Defendants failed to take steps to preserve it. With regard to the email messages, the IT director for the County testified that he was not aware of a litigation hold and that he never conducted a search of the email server, and individual Defendants testified that they deleted emails and text messages after this litigation began. As to the text messages, Defendants not only failed to image their cell phones or run searches for responsive emails, but they clearly lied when they testified that they did not use their cell phones to discuss the searches. Third, the ESI could not be restored through other means as there was no showing by Defendants that they could recover the deleted email messages or text messages.
The court further found that Plaintiffs suffered prejudice as a result of Defendants’ spoliation and that Defendants acted with intent to deprive Plaintiffs of destroyed evidence, particularly given the District Court’s previous explicit warning to place legal holds and preserve evidence.
Accordingly, the Magistrate Judge recommended that the District Court give an adverse jury inference instruction at trial and granted Plaintiffs’ request for sanctions. While Plaintiffs also sought sanctions against Defendants’ attorney under Rule 26(g), the Magistrate Judge determined that the evidence of who bore responsibility as between Defendants’ attorney and the individual Defendants would involve attorney client communication and since the individual Defendants did not waive their privilege, in the absence of evidence, only the individual Defendants would be sanctioned.