Melendres, et al. v. Arpaio, et al

Filing 493

ORDER Defendants' Renewed Motion for Sanctions Doc. 416 is granted in part, and Plaintiffs will be entitled to adverse inferences at trial. Signed by Judge G Murray Snow on 12/23/2011. (NOTE: See PDF for full details)(KMG)

1

WO

2
3
4
5
6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8
9
10
11
12
13
14
15

Manuel de Jesus Ortega Melendres, et al.,)
)
)
Plaintiffs,
)
)
vs.
)
)
Joseph M. Arpaio, in his individual)
capacity as Sheriff of Maricopa County,)
)
Arizona, et al.,
)
)
Defendants.
)
)

No. CV-07-2513-PHX-GMS
ORDER

16
17
18
Pending before the Court is Plaintiffs’ Renewed Motion for Sanctions. (Doc. 416).
19
Oral arguments were held on December 22, 2011. For the reasons stated below, Plaintiffs’
20
motion is granted and the Court will permit the finder of fact at trial to draw adverse
21
inferences based on the destruction of documents by the Defendants.
22
As further explained below, Plaintiffs seek only injunctive relief and have not
23
requested a jury trial. At oral argument, both parties agreed that the Court will likely be the
24
finder of fact at trial. In light of the discretion with which it should use inherent power, the
25
Court reserves the right to alter the inferences or issue further permissive inferences as the
26
need arises during the course of this litigation.
27
28

BACKGROUND

1
2

This putative class action civil rights suit alleges that the Maricopa County Sheriff’s

3

Office (“MCSO”) engages in a policy or practice of racial profiling. (Doc. 26 ¶ 2). The

4

background facts relevant to the sanctions motion, in which numerous emails and “stat

5

sheets”1 responsive to Plaintiffs’ discovery requests were destroyed by Defendants, can be

6

found in the Court’s earlier order granting sanctions. (Doc. 261). Since that order was issued,

7

the Maricopa County Office of Enterprise Technology (“OET”) announced that it had in its

8

possession a database of MCSO emails dating back to August, 2008 which it had archived

9

pursuant to a litigation hold in an unrelated case. (Doc. 283, Ex. 1(C)). Defendants agreed

10

to provide Plaintiffs with a “carve-out” of the data recovered by OET, which contained all

11

of the archived MCSO emails except those containing the names of attorneys representing

12

MCSO in various matters. (Doc. 330). The carve-out contained numerous emails which

13

would have been responsive to the discovery requests but which had not been provided by

14

MCSO, ninety-two of which Plaintiffs include as exhibits to their motion for partial summary

15

judgment. (Doc. 450 at 1).
DISUCSSION

16
17

1. Legal Standard

18

A party engages in spoliation when it destroys documents even though it “had some

19

notice that the documents were potentially relevant to the litigation before they were

20

destroyed.” U.S. v. Kitsap Physicians Service, 314 F.3d 995, 1001 (9th Cir. 2002) (internal

21

quotations omitted). Once it determines that a party has destroyed evidence, the Court has

22

an inherent power to issue sanctions, including to order the finder of fact “that it may infer

23

that the spoiled or destroyed evidence would have been unfavorable to the responsible party.”

24
25
26
27
28

1

“Stat sheets” are forms on which deputies of the MCSO record their patrol activities.
Deputies record the total number of stops, contacts, and arrests made during a tour. Stat
sheets may also allow deputies to document the type of arrest made, such as a drug arrest, a
DUI arrest, a warrant arrest, or an arrest of a suspected illegal alien. (See Doc. 235, Ex.
9(A)–11).
-2-

1

Medical Lab. Mgmt. Consultants v. Am. Broad. Co., 306 F. 3d 806, 824 (9th Cir. 2002). In

2

fashioning an adverse inference instruction, a court should consider whether the party

3

seeking an instruction has shown “(1) that the party having control over the evidence had an

4

obligation to preserve it at the time it was destroyed; (2) that the records were destroyed with

5

a culpable state of mind; and (3) that the destroyed evidence was relevant to the party’s claim

6

or defense such that a reasonable trier of fact could find that it would support that claim or

7

defense.” In re Napster, Inc. Copyright Litigation, 462 F. Supp. 2d 1060, 1078 (N. D. Cal

8

2006) (internal quotations omitted).

9

An organization is put on notice that evidence must be preserved, for the purposes of

10

the Napster test, “[a]s soon as a potential claim is identified.” 462 F. Supp. 2d at 1067. When

11

an organization is put on notice, notice is imputed to its employees, in order to prevent “an

12

agency, corporate officer, or legal department [from shielding] itself from discovery

13

obligations by keeping its employees ignorant.” Nat’l Ass’n of Radiation Survivors v.

14

Turnage, 115 F.R.D. 543, 557 (N.D. Cal. 1987); cf. New Times v. Arpaio, 217 Ariz. 533, 541,

15

177 P.3d 275, 283 (App. 2008) (“If public entities could be excused from providing public

16

records merely by being inattentive to requests, then access to the records would be easily

17

frustrated.”). If, however, documents are not available “because of the inadvertent loss of the

18

evidence” before a party had notice of a lawsuit, an adverse inference instruction is not

19

merited. Medical Lab, 306 F.3d at 825; see also Marceau v. Int’l Bhd. of Elec. Workers, 618

20

F. Supp. 2d 1127, 1174 (D. Ariz. 2009) (destruction of duplicate copies of documents

21

pursuant to company policy a year before a lawsuit was filed may constitute “an innocent

22

reason” for loss).

23

Once a court has determined that documents were destroyed after a party was put on

24

notice that they should be preserved, “a party’s motive or degree of fault in destroying

25

evidence is relevant to what sanction, if any, is imposed.” Napster, 462 F. Supp. 2d at

26

1066–67. “[A] finding of ‘bad faith’ is not a prerequisite” to a district court’s imposition of

27

an adverse inference. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (citing Unigard

28

v. Lakewood, 982 F.2d 363, 368–70 n.2 (9th Cir. 1993)). When a party on notice
-3-

1

intentionally destroys, rather than accidentally loses, that evidence, it is a “willful” spoliator

2

even if it did not intend to deprive an opposing party of relevant evidence. Leon v. IDX

3

Systems Corp., 464 F.3d 951, 959 (9th Cir. 2006) (destruction was willful when a party

4

“knew he was under a duty to preserve [evidence], but intentionally deleted many files and

5

then wrote a program to write over the deleted documents”).

6

“Because of their very potency, inherent powers must be exercised with restraint and

7

discretion.” Chambers v. NASCO, Inc., 501 U.S. 32, 44 (1991). While a court may take the

8

degree of culpability into account when fashioning an adverse inference, it nevertheless must

9

“impose the ‘least onerous sanction’ given the extent of the offending party’s fault and the

10

prejudice to the opposing party.” Napster, 462 F. Supp. 2d at 1078 (quoting Schmid v.

11

Milwaukee Elec. Tool Corp., 13 F.3d 76, 79 (3d Cir. 1994). In particular, an adverse

12

inference should “not interfere with that party’s right to produce other relevant evidence.”

13

In re Oracle Corp. Securities Litigation, 627 F.3d 376, 387 (9th Cir. 2010).

14

2. Analysis

15

Plaintiffs issued two separate and adequate requests that Defendants preserve

16

documents relevant to this litigation, and Defendants nevertheless destroyed responsive

17

documents. On July 21, 2008, counsel for Plaintiffs wrote a letter to counsel for Defendants

18

in this matter demanding preservation of MCSO records regarding MCSO special operations.

19

(Doc. 227, Ex. E). On the same day that they wrote to counsel for the Defendants, Plaintiffs’

20

counsel made a virtually identical request for information directly to the MCSO’s Public

21

Information Officer pursuant to the Arizona Public Records Act. A.R.S. § 39-121 (2008).

22

(Doc. 235, Ex. 3(B)) (“PIR request”). Neither letter resulted in a litigation hold. MCSO

23

Deputy Chief Jack MacIntyre acknowledged that he took no action regarding the first letter,

24

and MCSO Lieutenant Doris “Dot” Culhane stated that if she took any action at all in

25

response to the second, it was only to issue a “general instruction.” (Doc. 235, Exs. 3, 4).

26

Moreover, emails deleted by MCSO officers and recovered by OET demonstrate that officers

27

in fact had actual notice of the suit. Lieutenant Sousa received and forwarded a press release

28

announcing this litigation, in an email to other officers requesting documentation of a named
-4-

1

Plaintiff’s arrest. (Doc. 417, Ex. 2–3). As of July 16, 2008, MCSO had notice that documents

2

relating to special operations were “potentially relevant to the litigation.” Kitsap, 314 F.3d

3

at 1001.

4

Defendants intentionally destroyed the documents. They state that they “inadvertently

5

and innocently discarded the stat sheets,” but do not contest that the sheets were shredded,

6

rather than lost. (Doc. 445). Moreover, Defendants do not contest that MCSO officers

7

intentionally deleted emails, as stated in deposition testimony. (Doc. 227, Ex. A). Because

8

Defendants had notice that the emails and stat sheets were relevant to the litigation, and

9

subsequently destroyed them, permissive adverse inferences are justified even if Defendants

10

did not intend to deprive Plaintiffs of relevant evidence. Leon, 464 F.3d at 959; see also

11

Glover, 6 F.3d at 1329.

12

This court has already found that adverse inferences will be issued regarding the stat

13

sheets because they were destroyed with a culpable state of mind and because “[t]he

14

information contained in the individual stat sheets would have been relevant to the claims of

15

Plaintiffs and/or defenses of Defendants.” (Doc. 261 at 10). Regarding emails, in an order

16

issued before the OET database was recovered, this Court wrote that the decision to issue

17

inferences and to define their scope would be made based upon the efforts made by

18

Defendants to recover lost documents, the sources from which documents were recovered,

19

and the content of recovered documents. (Doc. 261 at 11–12). Since the emails that were

20

provided by the OET carveout in large measure obviated the necessity to search for more lost

21

documents, the inferences will instead be crafted based upon the content of the recovered

22

email.

23

A. Stat Sheets

24

The MCSO stat sheets allow individual officers to capture data regarding the number

25

of contacts and types of arrests that they make during a particular tour. (Doc. 235, Exs.

26

9–11). Some of the sheets also allow deputies to mark the number of arrests made of

27

suspected illegal aliens. (Id.). The stat sheets identify officers, but do not offer a means by

28

which an officer can note the race or ethnicity of the people stopped during a patrol. (Id.).
-5-

1

Chief Brian Sands has stated that documentation of officer activity is the best evidence

2

that an officer in fact engaged in a “zero tolerance” policy, stating that “the end results at the

3

end of the day speak for themselves, how many arrests were made, how many contacts were

4

made, that type of thing.” (Doc. 453, Ex. 14 at 122, ln 15–17). MCSO has destroyed

5

numerous stat sheets that could have shown whether officers in fact engaged in a zero

6

tolerance a policy. Indeed, the few stat sheets that were not shredded show significant

7

variations between the number of stops and arrests conducted by individual officers during

8

special operations, including some sheets showing officers conducted very few stops during

9

a long shift while allegedly enforcing a “zero tolerance” policy. (Doc. 419, Ex. 27). One

10

MCSO officer, when presented with a stat sheet detailing an officer’s activity during a

11

special operation, confirmed that it documented fewer stops than a “zero tolerance” policy

12

would suggest. (Doc. 419, Ex. 29). Plaintiffs are therefore granted the following permissive

13

adverse inferences:

14

1) The finder of fact may infer that the stat sheets would have suggested that officers

15

involved in special operations did not follow a “zero tolerance” policy requiring them

16

to stop all traffic offenders.

17

2) The finder of fact may infer that the stat sheets for special operations would have

18

included a significantly higher number of arrests in the categories “Illegal Alien

19

turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on state charges”

20

than records documenting ordinary patrol activity.

21

B. MCSO Emails

22

After OET provided its recovered Database to Defendants, Defendants gave Plaintiffs

23

a “carveout” containing MCSO emails except for those that include the names of attorneys

24

representing MCSO. (Doc. 330). Many of the emails deleted by MCSO were present in the

25

OET carveout, which preserved emails on OET’s backup tapes as of “some date in August,

26

2008.” (Doc. 283, Ex. 1(C)). Although Plaintiffs have used numerous emails from the

27

carveout to argue the merits of their case, additional material is unrecoverable, and adverse

28

inferences will be issued regarding this lost material. Some of the material from Sheriff
-6-

1

Arpaio’s immigration file, which was provided in its entirety and therefore will not be subject

2

to adverse inferences, also sheds light on the nature of the deleted emails.

3

MCSO officers received and circulated requests that the department conduct special

4

operations based upon criteria other than criminal activity. Some of these communications

5

were found in Sheriff Arpaio’s file, while others were found in the OET carveout. Sample

6

communications from the public include requests that MCSO conduct special operations in

7

Sun City because the writer heard employees of a restaurant speaking Spanish, that MCSO

8

operate in Surprise because the writer observed “dozens of day workers” there, and that it

9

send officers to Mesa because the writer observed day laborers, “most of whom, I would

10

believe to be here illegally.” (Doc. 428, Exs. 25–26, 28). Subsequently, MCSO conducted

11

special operations in the locations specified in the communications. (Doc. 453 ¶ 65–68). At

12

least two emails refer to a file or collection of citizen requests, although no such file was

13

provided during discovery. (Doc. 417, Ex. 14; Doc. 451, Ex. 38). Some communications

14

obtained in discovery reference previous emails that were never produced. (Doc. 418, Ex.

15

21). In addition, the carveout included racially derogatory emails circulated among MCSO

16

officers and volunteer posse members. (Doc. 431, Exs. 94–115).

17

Defendants were on actual notice of this lawsuit by July 16, 2008, and the carveout

18

captured emails present on the OET system as of some day in August 2008. Although

19

Plaintiffs offer no good reason to suppose that the complete nature and type of the possibly

20

missing documents are not of the same nature as those in the carveout, they have

21

demonstrated that documents remain missing. Moreover, the content of the recovered emails

22

could constitute circumstantial evidence of discriminatory intent by MCSO. Therefore, at

23

trial, the following inferences will be allowed:

24

1) The finder of fact may infer that MCSO maintained a file of citizen complaints

25

making requests for special operations.

26

2) The finder of fact may infer that MCSO received and circulated citizen complaints

27

prior to August 31, 2008 requesting that MCSO officers conduct special operations

28

to enforce immigration-related law in areas where MCSO later conducted such
-7-

1

operations.

2

3) The finder of fact may infer that at least some of the citizen communications

3

described above complained about “Mexicans,” “day laborers,” or “illegal

4

immigrants” but did not provide a description of any criminal activity.

5

CONCLUSION

6

Plaintiffs made two separate and sufficient requests to MCSO that it retain documents,

7

and MCSO nevertheless destroyed responsive stat sheets and emails. Plaintiffs will be

8

granted permissive adverse inferences regarding both the stat sheets and the emails. The

9

Court reserves the right to issue further permissive inferences at or before trial as necessary.

10

IT IS THEREFORE ORDERED:

11

Defendants’ Renewed Motion for Sanctions (Doc. 416) is granted in part, and Plaintiffs

12

will be entitled to the following adverse inferences at trial:

13

a) The finder of fact may infer that the stat sheets would have suggested that officers

14

involved in special operations did not follow a “zero tolerance” policy requiring them

15

to stop all traffic offenders.

16

b) The finder of fact may infer that the stat sheets for special operations would have

17

included a significantly higher number of arrests in the categories “Illegal Alien

18

turned over to ICE/LEAR” and/or “Suspected Illegal Alien arrested on state charges”

19

than records documenting ordinary patrol activity.

20

c) The finder of fact may infer that MCSO maintained a file of citizen complaints

21

making requests for special operations.

22

d) The finder of fact may infer that MCSO received citizen complaints prior to August

23

31, 2008 requesting that MCSO officers conduct special operations to enforce

24

immigration-related law in areas where MCSO later conducted such operations.

25

e) The finder of fact may infer that some of the citizen communications described

26

above complained about “Mexicans,” “day laborers,” or “illegal immigrants” but did

27

not provide a description of any criminal activity.

28

The Court reserves the right to issue further permissive inferences at or before trial
-8-

1

as necessary.

2

Dated this 23rd Day of December, 2011

3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-9-