United States District Court, D. Arizona
Motion for Sanctions for Spoliation of Evidence
RUSSEL HOLLAND, District Judge.
Plaintiff moves for sanctions against the Town of Colorado City for spoliation of evidence. This motion is opposed. Oral argument was requested but is not deemed necessary.
On June 21, 2012, plaintiff, the United States of America, commenced this action against defendants The Town of Colorado City, Arizona; City of Hildale, Utah; Twin City Power; and Twin City Water Authority, Inc. Plaintiff alleges that "[d]efendants have engaged in a pattern or practice of illegal discrimination against individuals who are not members of the Fundamentalist Church of Jesus Christ of Latter-day Saints ("FLDS")." Plaintiff alleges that defendants "have acted in concert with FLDS leadership to deny non-FLDS individuals housing, police protection, and access to public space and services." Plaintiff further alleges that the municipalities' joint police department, the Colorado City Marshal's Office (CCMO), "has inappropriately used its state-granted enforcement authority to enforce the edicts of the FLDS, to the detriment of non-FLDS members."
Plaintiff contends that during the course of discovery in this case it has learned of three categories of evidence that have been destroyed or altered. First, plaintiff contends that Colorado City has admitted that it deleted the recordings of two dispatch calls from February 21, 2013. On that evening, CCMO officers responded to an alleged break-in at Eco Alliance, a local business, and an alleged home invasion at 340 East Johnson Avenue in Colorado City. Two of the persons involved in these incidents were Sam Steed and Willie Jessop, both of whom, according to plaintiff, are non-FLDS members. Allegedly, Steed and Jessop took items from Eco Alliance's safe and were attempting to retrieve items from a safe in the residence at 340 East Johnson Avenue where Steed's sister lived. At some point in the evening, officers from Mohave County were also called to the scene at East Johnson Avenue. Plaintiff contends that the events of February 21, 2013 indicate that the CCMO was operating to protect the interests of the FLDS church. In its First Request for Production, which was served on Colorado City in April 2013, plaintiff requested that Colorado City produce "[a]ll police reports, citations, incident reports, dispatch records (including computer-aided dispatch calls), records of calls and conversations, field contact reports/cards, and any related audio or video recordings between January 1, 2010, and the present." In addition, on October 30, 2013, plaintiff's counsel wrote to Colorado City's counsel to "confirm that your litigation holds are preserving all 911 calls, dispatch calls, and the like.... I'm envisioning that we may do a RFP for some of these soon, including some days in February 2013." Colorado City's counsel responded that "Colorado City is preserving these items." A CCMO "call log report" for the night in question shows that five calls were received in connection with the events at Eco Alliance and 340 East Johnson Avenue, two calls to dispatch and three 911 calls. Colorado City has produced recordings of the 911 calls but has not produced recordings of the two dispatch calls. After receiving the 911 calls but not the dispatch calls, plaintiff served Colorado City with an interrogatory which asked Colorado City to
[e]xplain in detail all the reasons why Colorado City has not produced to the United States copies of recordings of all calls made to and from dispatch between the hours of 3:00 a.m. and 7:00 a.m. on February 21, 2013, including (1) a call made to dispatch at approximately 3:14 a.m. by Morley Barlow, and (2) a call from dispatch to Josephine Steed at approximately 4:05 a.m.
Colorado City responded that "[t]he system automatically recorded over these calls after 24 hours."
The second category of evidence that is the subject of the instant motion is police reports. Plaintiff contends that it has learned that Colorado City has altered police reports prior to producing these reports to plaintiff. This contention is based on the April 2014 deposition testimony of Helaman Barlow, the chief of CCMO. Helaman Barlow was asked if "David Darger [the city manager] or anybody else in city government altered any... police reports, after the United States made a discovery request in this case?" Helaman Barlow responded "yes" and stated that he did not know how many reports had been "altered." He then explained that by "altered" he meant
there were times where there was an incomplete report or a report with the wrong call for service on it. Like for... instance, it was called a "burglary, " when it... was an alarm that went off. And those reports - then both myself and David Darger reviewed, and I... or Dave would take them back to the officer and say, "Hey, we need to give this to the Department of Justice, I want you to either finish it or correct it."
Helaman Barlow was also asked if "David Darger, at any point while you were working on producing police reports to the Department of Justice, suggest[ed] having a report altered because the report would make the marshal's office look bad?" Helaman Barlow answered that "I think both Dave and I would... agree on some of the reports that just didn't... match the... call type and that we felt like, Well, that makes us look bad.'" Helaman Barlow also testified that there were reports where he asked the officer to go back and put in a narrative. Helaman Barlow further testified that some of the reports that he and David Darger gave back to officers to "alter" had already been finalized. At his April 2014 deposition, Helaman Barlow also produced his police report for a December 18, 2013 incident and a copy of the report with changes made by David Darger.
The third category of evidence is minutes from CCMO officer meetings. Plaintiff contends that Colorado City has failed to produce minutes from certain CCMO officer meetings. Colorado City has produced notes of officer meetings for December 23, 2005 to September 22, 2007; September 15, 2008 to December 29, 2008; January 6, 2009 to December 18, 2009; January 4, 2010 to December 27, 2010; and January 3, 2013 to March 25, 2013. But, Colorado City has not produced any officer meeting notes for the time period of June 17, 2006 to September 4, 2006; September 23, 2007 to September 14, 2008; and November 1, 2011 to February 26, 2012. Colorado City has advised plaintiff that "there were no meetings during the timeframes that there are no minutes" and that "actual minutes themselves are only saved for two years."
Finally, plaintiff contends that it is possible that Colorado City destroyed some evidence on April 22, 2014. Plaintiff completed its second deposition of Helaman Barlow on that day, during which Barlow made numerous complaints about David Darger. On the afternoon of April 22, 2014, Willie Jessop avers that he "saw a small group of what appeared to be teen-aged boys taking white bankers boxes from the door of the Colorado City dispatch center and load[ing] them in [a] white SUV. The boys appeared to be working under the direction of town manager David Darger." ...