United States District Court, D. Arizona
G. CAMPBELL UNITED STATES DISTRICT JUDGE.
that Defendant Joseph M. Arpaio and the Maricopa County
Sheriff’s Office (“MCSO”) spoliated certain
evidence relevant to this case, Plaintiffs ask the Court to
impose sanctions. Doc. 529. The motion is fully briefed
(Docs. 549, 560) and oral argument will not aid the
Court’s decision. The Court will deny the motion.
seeking sanctions for the spoliation of non-electronic
evidence must prove the following elements: (1) the party
having control over the evidence had an obligation to
preserve it when it was destroyed; (2) the destruction was
accompanied by a culpable state of mind; and (3) the evidence
was relevant to claims or defenses in the case. Pettit v.
Smith, 45 F.Supp.3d 1099, 1104-05 (D. Ariz.
2014). The Court concludes that Plaintiffs have
failed to establish the first element - that the MCSO
Defendants had control over relevant evidence, and a duty to
preserve it, when the evidence was destroyed.
contend that a duty to preserve evidence arose on June 18,
2014 - the day this lawsuit was filed. Doc. 560 at 5 &
n.2. Their spoliation motion is based on the deposition
testimony of Sergeant Dmitrius Whelan-Gonzalez, former head
of MCSO’s Criminal Employment Unit (“CEU”).
Sergeant Whelan-Gonzalez became supervisor of CEU in
September 2013, and remained in that position until the CEU
was disbanded in January 2015. See Docs. 529-1 at
32; 531 at 4-5; 549 at 5. He testified that he attended
“a dozen or so” meetings - “on any
subject” - with the Maricopa County Attorney’s
Office during his time as head of the CEU. Doc. 529-1 at
40-41. He testified that he “took some notes as to what
we were talking about at some point during those meetings,
” but that “[t]hese notes would have been
destroyed shortly after I would have completed the task that
was written down.” Id. at 41-42. Plaintiffs
argue that some of these notes were taken after June 18,
2014; that the notes were relevant to this case because they
concerned seizure of federal I-9 forms and other discussions
related to this case; and that the notes were destroyed in
violation of Defendants’ duty to preserve. For several
reasons, the Court concludes that Plaintiffs have failed to
show that relevant notes were created or destroyed on or
after June 18, 2014.
the questioning during Sergeant Whelan-Gonzalez’s
deposition did not establish that he took notes on or after
June 18, 2014. He testified that he attended “a dozen
or so” meetings while he was in charge of CEU between
September 2013 and its dissolution in January 2015, but no
question tied any of those meetings to the period after June
18, 2014. To the contrary, Sergeant Whelan-Gonzalez testified
that the meetings were not regularly scheduled; they were
held only on an as-needed basis. Id. at 39, 41.
Sergeant Whelan-Gonzalez was asked about meetings on
“any subject.” Id. at 40. He was not
asked about meetings that specifically concerned the I-9
forms or issues relevant to this case. With respect to the
one conversation he could recall about I-9 forms, the
sergeant testified that he did not take notes. Doc. 551 at
even if Plaintiffs had established that relevant meetings
occurred after June 18, 2014, Plaintiffs have not shown that
Sergeant Whelan-Gonzalez took notes during those meetings.
Referring to the “dozen or so” meetings he
attended, the sergeant testified only that he “took
some notes . . . at some point during those meetings.”
Doc. 529-1 at 41. He did not testify that he took notes at
every meeting, or that he took notes at any meeting after
June 18, 2014.
to show that Sergeant Whelan-Gonzalez took relevant notes and
destroyed them after June18, 2014, Plaintiffs rely on this
Q: In reference to the notes that you discussed in your
answer that you said you destroyed shortly after completing
the task, was that your practice in June 2014 and thereafter?
A: I - yes. I don’t retain notes after I’ve
transcribed them or used them.
Id. at 43. This question does not ask about meetings
held after June 18, 2014; it asks about Sergeant
Whelan-Gonzalez’s “practice” after that
date. And his response appears to reflect a general practice.
The answer might be helpful if Plaintiffs had shown that he
attended and took notes at relevant meetings after June 18,
2014, but as shown above, Plaintiffs have not made that
Plaintiffs have failed to show that relevant notes were
created or destroyed on or after June 18, 2014, they have
failed to show that the MCSO Defendants should be sanctioned
for failing to preserve such notes.
ORDERED that Plaintiffsâ motion for sanctions ...