Woods v. Scissons

          ORDER

          G. Murray Snow, Chief United States District Judge.

         Pending before the Court is the Motion for Sanctions of Plaintiff Dustin Michael Woods (Doc. 60). For the following reasons the motion is granted in part and denied in part.

         BACKGROUND

         Plaintiff Dustin Woods brought this § 1983 action against Defendant Jason Scissons, alleging a claim of excessive force against Officer Scissons arising out of Woods' arrest in June 2016.

         On June 25, 2016, Officer Scissons arrested Woods after a brief pursuit and a confrontation during which Woods attempted to pull a gun on Officer Scissons. Other officers arrived on the scene shortly after Scissons successfully disarmed Woods and handcuffed him. According to Woods' complaint, after Scissons placed him in handcuffs, Scissons struck Woods several times while he lay face-down on the pavement. Woods alleges that the incident resulted in a fracture to his lower back which has left him in severe pain and will likely require future surgery to repair.

         At some point, Officer Scissons called for medical assistance for Woods. (Doc. 60-3 at 42.) Paramedics arrived. More officers also arrived at the scene, including Sergeant Heath, Scissons' commanding officer. Heath filed a Use of Force Report two days after the incident. Heath's report concluded that Scissons' use of force was justified. (Doc. 60-3 at 41-44.) The report makes no mention of any force used after Scissons handcuffed Woods. (Id.) Nor does the report indicate that it was made after reviewing any recordings that may have been made of the incident by any of the police units that were present at the scene. Following the initial report, Prescott Police Department leadership determined that the incident “warranted a full Incident Review Board, ” which consisted of law enforcement personnel and the city attorney. (Id. at 46.) The Board issued its report on July 22, 2016. It concluded, after reviewing “all of the reports, the pictures associated with the call as well as the Use of Force Report, ” that no “criminal, civil or Department Policy violations” had occurred, and that “Officer Scissons showed great restraint and professionalism during this incident.” (Id. at 47.) Again, however, there is nothing in the Board's report that suggested it requested, or reviewed, any of the recordings of the incident that may have been made at the scene.

         Woods filed this action in February 2017. Scissons agreed to waive service of summons on April 18, 2017. (Doc. 14 at 2.) Woods now seeks spoliation sanctions, arguing that non-party City of Prescott violated a duty to preserve evidence of the alleged incident-video footage automatically captured by the cameras in the various officers' vehicles-by allowing the footage to be automatically deleted from the police department's systems.

         DISCUSSION

         I. Analysis

         A. The Duty to Preserve Electronically Stored Evidence

         “A duty to preserve information arises when a party knows or should know that the information is relevant to pending or future litigation.” Pettit v. Smith, 45 F.Supp.3d 1099, 1105 (D. Ariz. 2014). “The failure to preserve electronic or other records, once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences.” Id. at 1103 (quoting Thompson v. U.S. Dep't of Hous. & Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003)). 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.” Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 649 (9th Cir. 2009) (quotation marks and citations omitted).

         Sanctions under Federal Rule of Civil Procedure 37(e) are available when “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.” Fed.R.Civ.P. 37(e); see also Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (party that fails to preserve or destroys evidence subject to sanctions for spoliation). There are, broadly speaking, two categories of remedies available under Rule 37(e). Both categories require the satisfaction of the first part of the Rule-i.e., the court must conclude (1) that electronically stored information was lost; (2) the loss is attributable to the failure by a party to take reasonable steps to preserve it; and (3) the information cannot be restored or replaced by more discovery.

         The first category of remedies allows a court, upon finding that the loss of the information has prejudiced another party, to “order measures no greater than necessary to cure the prejudice.” Fed.R.Civ.P. 37(e)(1). The second category allows a court to take more drastic measures if it finds that the party “acted with the intent to deprive another party of the information's use in the litigation.” Id. (2). Intent may be shown “when the evidence shows or it is reasonable to infer, that . . . a party purposefully destroyed evidence to avoid its litigation obligations.” Porter v. City & Cnty. of San Francisco, No. 16-CV-03771-CW(DMR), 2018 WL 4215602, at *3 (N.D. Cal. Sept. 5, 2018) (citing First Fin. Sec., Inc. v. Freedom Equity Grp., LLC, No. 15-CV-01893-HRL, 2016 WL 5870218, at *3 (N.D. Cal. Oct. 7, 2016)). If intent is found, the court may presume that the lost information was unfavorable to the party that lost it, issue an adverse inference instruction to the jury, or even dismiss the action or enter a default judgment. Fed.R.Civ.P. 37(e)(2)(A)-(C). The Advisory Committee Notes for Rule 37 stress that the sanctions available under (e)(2) are not to be used unless a party intentionally destroyed evidence. See Fed. R. Civ. P. 37(e)(2) advisory committee's notes to 2015 Amendment.

         B. Considerable evidence suggests that footage from ...