Richard S. Kindred v. Allenby et al

Filing 20

ORDER DENYING 14 Request for Order to Preserve Evidence and for Early Discovery, signed by Magistrate Judge Erica P. Grosjean on 7/3/19. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICHARD SCOTT KINDRED,
Plaintiff,

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Case No. 1:18-cv-00554-DAD-EPG (PC)
ORDER DENYING REQUEST FOR ORDER
TO PRESERVE EVIDENCE AND FOR
EARLY DISCOVERY

v.
BRANDON PRICE, et al.,

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(ECF NO. 14)

Defendants.

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Plaintiff, Richard Scott Kindred, a civil detainee at the Coalinga State Hospital, is

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proceeding pro se and in forma pauperis with this civil rights action pursuant to 42 U.S.C.

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§ 1983. Before the Court is Plaintiff’s request, titled “writ of mandate,” which the Court

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construes as a request for preservation of evidence and for early discovery. The Court denies

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the requests.

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At this point in the proceedings, the defendants have not been served and made their

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appearance in the action. Thus, the Court currently lacks jurisdiction over any of the named

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defendants and it cannot issue any orders prohibiting them from taking certain actions or

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requiring them to provide early discovery. Zepeda v. United States Immigration Service, 753

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F.2d 719, 727 (9th Cir. 1985).

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As to Plaintiff’s concern that the defendants are destroying evidence, “[f]ederal law
imposes a duty to preserve evidence before litigation begins and even before a discovery
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request. This duty requires a litigant to preserve what it knows, or reasonably should know,

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will be relevant evidence in a pending action or one in the offing.” Biselli v. Cnty. of Ventura,

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2012 WL 2061688, at *2 (C.D. Cal. Jun. 4, 2012) (citing In re Napster, Inc. Copyright Litig.,

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462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006)); see also Leon v. IDX Sys. Corp., 464 F.3d 951,

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959 (9th Cir. 2006) (“A party’s destruction of evidence qualifies as willful spoliation if the

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party has ‘some notice that the documents were potentially relevant to the litigation before

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they were destroyed.’” (citation omitted)). Once the duty to preserve attaches, a litigant or

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potential litigant “is required to suspend any existing policies related to deleting or destroying

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[evidence] and preserve all relevant [evidence] related to the litigation” and courts may

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sanction parties responsible for spoliation of evidence. In re Napster, Inc., 462 F. Supp. 2d at

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1066, 1070. Plaintiff may trigger the duty to preserve evidence by providing a notice of

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litigation to Coalinga State Hospital’s Litigation Coordinator.

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Finally, Plaintiff has not made an adequate showing that early discovery is necessary in

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this action. A court may permit early discovery if the requesting party demonstrates good

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cause. Semitool, Inc. v. Tokyo Electron Am., Inc., 208 F.R.D. 273, 276 (N.D. Cal. 2002). Here,

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Plaintiff has not shown good cause for why early discovery is necessary and, moreover, as

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noted previously, the defendants have not yet been served or made their appearance in this

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action. Plaintiff’s request for early discovery will therefore be denied.

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IT IS ORDERED that Plaintiff’s request for an order requiring the defendants to
preserve evidence and ordering early discovery (ECF No. 14) is DENIED.
IT IS SO ORDERED.
Dated:

July 3, 2019

/s/
UNITED STATES MAGISTRATE JUDGE

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