Perrong v. Sperian Energy Corp, 2:19-cv-00115-CDS-EJY

Plaintiffs sued under the TCPA and repeatedly sought call records; the Court ordered EGC to produce call records and to assist in obtaining records from subcontractors (Nov. & Dec. 2019 orders).
EGC claimed calls were made via a VICI dialer and implicated downstream vendors (Team Integrity, G‑Energy, others); EGC produced no usable call logs and gave inconsistent explanations (including an alleged India server).
Plaintiffs pursued an Emergency Motion (Dec. 2019) alleging failure to preserve; the Court awarded Plaintiffs fees and later clarified EGC’s inadequate preservation efforts and lack of follow‑up with Team Integrity.
Court-ordered inspection of EGC servers and Team Integrity laptops produced no call records; some devices were inaccessible or nonfunctional and only a subset of email accounts were searched.
Plaintiffs moved for an order to show cause and sanctions for spoliation and for contempt for nonpayment of previously awarded fees; EGC responded asserting diligence, lack of control over dialer files, and financial inability to pay.
The Court found EGC negligently failed to preserve relevant calling records, granted a spoliation sanction in the form of a rebuttable adverse‑inference jury instruction, awarded additional fees for the motion, and allowed EGC to pay the prior fee award in monthly installments (with contempt warning for nonpayment).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether EGC had a duty/control to preserve call records	EGC controlled or had practical ability to obtain third‑party records (Team Integrity) and thus had a duty to preserve	EGC lacked possession/control of dialer/files and therefore had no preservation obligation	Court: EGC had practical ability/control (broad Rule 34 control); duty to preserve existed
Whether EGC spoliated evidence (state of mind/relevance)	EGC negligently failed to preserve or obtain records; lost evidence was relevant to TCPA claims	EGC acted in good faith, did all it could, and lacked willfulness	Court: Conduct was negligent (not shown willful); evidence was relevant; sanctions appropriate short of terminating sanctions
Appropriate sanction for loss of call records	Plaintiffs sought adverse inference and additional sanctions (including contempt)	EGC urged minimal sanctions given asserted good faith and inability to pay	Court: Granted rebuttable adverse‑inference instruction (spoliation sanction); denied most drastic sanctions; awarded additional fees for bringing the motion
Enforcement of prior fee award / contempt for nonpayment	Plaintiffs sought contempt and immediate payment of prior fee award	EGC asked for generous timeframe and cited COVID/financial distress (no supporting affidavit)	Court: Denied show cause for contempt but ordered payment over 10 months (10% monthly), warned missed payments without proof of inability to pay will be further contempt

Ingham v. United States, 167 F.3d 1240 (9th Cir. 1999) (spoliation must have prejudiced the party asserting it to be actionable)
Leon v. IDX Sys. Corp., 464 F.3d 951 (9th Cir. 2006) (court may sanction spoliation under inherent authority or Rule 37)
Glover v. BIC Corp., 6 F.3d 1318 (9th Cir. 1993) (trial court may permit adverse inference jury instruction for destruction of evidence; bad faith not always required)
In re NTL, Inc. Sec. Litig., 244 F.R.D. 179 (S.D.N.Y. 2007) (control includes practical ability to obtain documents from nonparties)
Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497 (D. Md. 2010) (parties have affirmative duty to preserve relevant evidence and standards for preservation/reasonableness)
In re Napster, Inc., 462 F. Supp. 2d 1060 (N.D. Cal. 2006) (duty to preserve requires active involvement by parties)
Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494 (D. Md. 2009) (control includes legal right or practical ability to obtain documents from nonparties)
Apple Inc. v. Samsung Elecs. Co., Ltd., 888 F. Supp. 2d 976 (N.D. Cal. 2012) (rebuttable presumption for spoliation requires more culpable conduct; contrasts levels of sanction)
Lofton v. Verizon Wireless, 308 F.R.D. 276 (N.D. Cal. 2015) (calling‑record preservation and spoliation issues in telephony contexts)