United States District Court, D. Arizona
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 ...