104 F. Supp. 3d 1040
S.D. Cal.2015Background
- Defendant moved for evidentiary sanctions for spoliation of the subject call between Gurley and Wilkinson and sought terminating sanctions or an adverse inference.
- Gurley testified the subject call occurred in February 2013 with Wilkinson admitting issuance of a letter of credit; Plaintiff later could not locate the recording.
- Defendant's discovery requests sought all audio recordings related to the letter of credit; Plaintiff did not produce or identify such recordings and claimed no knowledge of automatic recording.
- Plaintiff searched only Gurley's 713-499-8640 line; court later learned Gurley had another line 713-449-8643, and the other line was not searched.
- Court found Plaintiff had a duty to preserve evidence before and during litigation; spoliation and failure to preserve were supported by the record; terminating sanctions denied, adverse inference sanctions granted, and monetary sanctions awarded.
- Court ordered detailed billing statements/evidentiary submissions for sanctions and noted Plaintiff’s history of discovery violations and prior orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did spoliation occur? | Plaintiff did not lose or destroy evidence; recording may not have existed; search was thorough. | Plaintiff had duty to preserve; recording existed and was withheld; failure to preserve supports sanctions. | Yes, spoliation occurred; adverse inference and monetary sanctions warranted. |
| What sanctions are appropriate for spoliation? | Sanctions should be limited; no willful destruction proven. | Severe sanctions warranted; terminating sanctions or adverse inference. | Adverse inference instruction granted; terminating sanctions denied; monetary sanctions awarded. |
| Was there a pre-litigation duty to preserve evidence? | Duty to preserve did not extend prior to litigation beyond general expectations. | Duty to preserve attaches when litigation is anticipated; pre-litigation preservation required. | Yes, duty to preserve existed before litigation and applied to the subject recording. |
| Did Plaintiff comply with discovery obligations and meet-and-confer requirements? | Plaintiff conducted searches and attempted to resolve disputes; Defendant failed to meet and confer. | Plaintiff breached discovery obligations and obstructed resolution; failed to meet and confer. | Sanctions appropriate; conduct supported finding of misbehavior and spoliation. |
| Are monetary sanctions proper under Rule 37 and inherent authority? | Monetary sanctions unnecessary or excessive. | Monetary sanctions appropriate to compensate for time and expense; supported by bad-faith conduct. | Monetary sanctions awarded under both Rule 37 and the court's inherent authority; detailed time records to be submitted. |
Key Cases Cited
- Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993) (sanctions for spoliation may be warranted for willful misconduct)
- Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) (bad faith required for certain sanctions; spoliation context)
- Primus Auto. Fin. Servs., Inc. v. Batarse, 115 F.3d 649 (9th Cir. 1997) (bad faith and delay as basis for sanctions; inherent powers recognized)
- In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060 (N.D. Cal. 2006) (pretrial spoliation standards and discovery relevance; phrase 'culpable mind')
- Apple Inc. v. Samsung Electronics Co., Ltd., 881 F. Supp. 2d 1132 (N.D. Cal. 2012) (adverse inference and severe sanctions framework for spoliation)
- Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99 (2d Cir. 2002) (adverse inferences and limitations on spoliation remedies)
- Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091 (9th Cir. 2007) (multi-factor test for determining case-dispositive sanctions)
- United States v. Kitsap Physicians Serv., 314 F.3d 995 (9th Cir. 2002) (duty to preserve and spoliation standards)
- Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334 (9th Cir. 1985) (disobedience and sanctions standards in discovery)