Garcia v. City of Santa Clara et al

Filing 214

ORDER ON MOTIONS FOR DISCOVERY SANCTIONS 186 . (Illston, Susan) (Filed on 4/19/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DANIEL C. GARCIA,

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Plaintiff,

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CITY OF SANTA CLARA, et al.,

Re: Dkt. No. 186

Defendants.

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United States District Court
Northern District of California

ORDER ON MOTION FOR
DISCOVERY SANCTIONS

v.

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Case No. 10-cv-02424-SI

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Before the Court is plaintiff Daniel Garcia’s motion for discovery sanctions. Dkt. No. 186.

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Pursuant to Civil Local Rule 7-1(b), the Court finds this matter appropriate for resolution without

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oral argument and VACATES the hearing set for April 28, 2017. Having reviewed the parties’

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submissions in detail, for the foregoing reasons, the Court GRANTS IN PART and DENIES IN

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PART plaintiff’s motion.

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BACKGROUND

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The incidents underlying this civil rights lawsuit occurred in May 2008. The Santa Clara

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Marriott sought to evict Mr. Garcia for violating its “No Party” policy, and when Garcia refused to

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leave, hotel staff called the Santa Clara Police Department (“SCPD”). When the police arrived, an

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altercation ensued. Mr. Garcia was arrested. During and after the arrest, officers used physical

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force against Mr. Garcia – in the Marriott hallway, in the back seat of a police car, and later, at a

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Santa Clara County jail.1

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In 2009, completely unrelated to his May 2008 arrest, plaintiff was arrested and held on,

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The Court set forth a detailed factual background in its September 9, 2015 order granting
partial summary judgment. See Dkt. No. 116 at 1-7.

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among others, charges of conspiracy to commit murder. On June 1, 2010, plaintiff filed this civil

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rights lawsuit while in custody. Dkt. No. 1. In May 2012, upon motion, the Court stayed this case

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pending completion of the “significantly more serious” proceedings in Riverside County. Dkt.

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No. 60. Approximately one year later, Mr. Garcia wrote the Court to provide an update on his

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criminal proceedings – he had been convicted and sentenced to a term of life without parole. Dkt.

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No. 63.
On May 12, 2014, upon motion, the Court lifted the stay in this case. Dkt. No. 75. Garcia

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served his first discovery requests in January 2015; defendants responded in February 2015. Kim

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Decl. ¶ 3 & Ex. A. On September 9, 2015, the Court granted defendants’ motion for summary

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judgment in part, narrowing the case from at least nine causes of action against multiple defendant

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United States District Court
Northern District of California

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police officers to two excessive force claims, and related state tort claims, against a single officer:

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defendant Alec Lange.2 Dkt. No. 116.

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The Court referred this matter for appointment of pro bono counsel on May 17, 2016. Dkt.

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No. 129. Shortly thereafter, plaintiff’s attorneys were appointed to aid with discovery, trial

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preparation, and trial. Dkt. No. 132. Since being appointed last July, plaintiff’s pro bono counsel

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has conducted roughly ten depositions, engaged in document discovery, and closely reviewed the

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discovery record as it existed when counsel began representing Mr. Garcia. Throughout this

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process, plaintiff’s attorneys have repeatedly encountered specific documents or categories of

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documents that had not been produced and arguably should have.

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defendants produced some of these documents; others had been destroyed, lost, or may never have

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existed.3 On March 24, 2017, plaintiff filed this motion, requesting sanctions against defendants

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for spoliation of evidence and other alleged discovery misconduct.

At plaintiff’s request,

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In addition, vicarious liability claims remain against SCPD only as related to Mr.
Garcia’s state tort claims. See Opp’n at 8 n.3; Order on MSJ (Dkt. No. 116) at 26-27.
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According to plaintiff’s motion to continue the trial date in this matter, Dkt. No. 212,
defendants have continued producing documents during the briefing period for this sanctions
motion.
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LEGAL STANDARD

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Federal trial courts are vested with a wide range of inherent powers that allow them to

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govern their courtrooms and the litigation processes before them. Chambers v. NASCO, 501

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U.S. 32, 43 (1991). Inherent powers must be used only “with restraint and discretion.” Id. at 44.

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An example of these inherent powers is the discretionary power of a federal trial court to levy

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appropriate sanctions against a party which prejudices its opponent through the spoliation of

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evidence that the spoliating party had reason to know was relevant to litigation. See Glover v. BIC

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Corp., 6 F.3d 1318, 1329-30 (9th Cir. 1993). Appropriate sanctions for spoliation, when found,

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range from outright dismissal, an adverse inference jury instruction with respect to the spoliated

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evidence, exclusion of a category of evidence, or monetary sanctions (including attorneys’ fees).

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United States District Court
Northern District of California

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See id.; Leon v. IDX Sys. Corp., 464 F.3d 951, 958, 961 (9th Cir. 2006); see also Goodyear Tire &

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Rubber Co. v. Haeger, No. 15-1406, 581 U.S. ___, 2017 WL 1377379, at *5 (Apr. 18, 2017)

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(quoting Chambers, 501 U.S. at 44-45) (Inherent authority “includes ‘the ability to fashion

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appropriate sanctions for conduct which abuses the judicial process.’ . . . And one permissible

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sanction is ‘an assessment of attorney’s fees.’”).

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To impose evidentiary sanctions for spoliation, the court need not find that the spoliating

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party acted in bad faith; willfulness or fault can suffice. Unigard Sec. Ins. Co. v. Lakewood Eng’g

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& Mfg. Corp., 982 F.2d 363, 368 n.2 (9th Cir. 1992) (citation omitted); Glover, 6 F.3d at 1329.

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The court need only find that the offending party destroyed evidence with notice that the evidence

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was potentially relevant to the litigation. Leon, 464 F.3d at 959; Glover, 6 F.3d at 1329 (internal

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quotation marks omitted) (“Surely a finding of bad faith will suffice, but so will simple notice of

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potential relevance to the litigation.”); cf. United States v. $40,955.00 in U.S. Currency, 554 F.3d

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752, 758 (9th Cir. 2009) (“A party does not engage in spoliation when, without notice of the

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evidence’s potential relevance, it destroys the evidence according to its policy or in the normal

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course of business.”).

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As for attorneys’ fees, a court may award reasonable fees as a sanction for spoliation of

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evidence against a party “who acts in bad faith, vexatiously, wantonly, or for oppressive

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purposes.” Leon, 464 F.3d at 961 (citation omitted). “Before awarding such sanctions, the court
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must make an express finding that the sanctioned party’s behavior constituted or was tantamount

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to bad faith[,]” i.e., “by delaying or disrupting the litigation or hampering enforcement of a court

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order.” Id. (citations and internal quotation marks omitted). “[S]uch a sanction, when imposed

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pursuant to civil procedures, must be compensatory rather than punitive in nature. . . . [T]he fee

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may go no further than to redress the wronged party for losses sustained[.]” Haeger, 581 U.S. at

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___, 2017 WL 1377379, at *5 (citations and internal quotation marks omitted); see id. (requiring a

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but-for “causal link – between the litigant’s misbehavior and legal fees paid by the opposing

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party.”). In addition to a federal court’s inherent power to levy sanctions, courts also have

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authority to sanction a party “who fails to obey an order to provide or permit discovery” under

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Federal Rule of Civil Procedure 37(b). Leon, 464 F.3d at 958 (citation and internal quotation

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United States District Court
Northern District of California

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marks omitted). “Willfulness, fault, or bad faith is not required for the imposition of monetary

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sanctions under Rule 37(b)(2).” In re NCAA Student-Athlete Name & Likeness Licensing Litig.,

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No 09-1967-CW, 2012 WL 5372477, at *6 (N.D. Cal. Oct. 30, 2012).

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DISCUSSION

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This action has been pending for approximately seven years, predicated on events that

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occurred nine years ago. Mr. Garcia represented himself in this case, from prison, during the first

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six years of litigation. Essentially two claims remain for trial on May 30, 20174: (i) an excessive

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force claim against Officer Lange for pulling Mr. Garcia’s hair while he was restrained in the back

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seat of a police car; and (ii) an excessive force claim against Officer Lange for taking Mr. Garcia

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to the ground and using a “leg lock” at the Santa Clara County Main Jail.

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Plaintiff brings this motion seeking two types of sanctions for discovery misconduct. First,

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plaintiff seeks an adverse inference jury instruction based on defendants’ alleged spoliation of

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certain evidence. Second, plaintiff seeks attorneys’ fees for his Court-appointed pro bono counsel

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arising from alleged discovery misconduct. The Court will address each request in turn.

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Plaintiff filed a separate motion to continue the trial date for at least four weeks. Dkt.
No. 212. The Court has not yet ruled on plaintiff’s motion for a continuance.
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I.

Sanctions for Spoliation

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Plaintiff identifies five categories or items of purportedly spoliated evidence: (i) SCPD

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emails related to Mr. Garcia, which, if they existed, were destroyed pursuant to SCPD document

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retention policies; (ii) defendant Lange’s personnel records “relating to discipline, civilian

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complaints, and internal investigations,” which, to the extent they existed, were also destroyed;

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(iii) certain SCPD training documents; (iv) a Professional Standards Unit (“PSU”) report from an

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unrelated arrest in 2009 or 2010; and (v) a supervisor-initialed police report related to Mr. Garcia’s

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arrest. Plaintiff requests that the jury be instructed to draw an adverse inference related to these

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categories of evidence – that the jury must presume the missing items are adverse to defendants

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and favorable to plaintiff. Mot. at 19-20. The Court will give no such instruction.

United States District Court
Northern District of California

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The adverse inference instruction is “an extreme sanction and should not be taken lightly.”

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Moore v. Gilead Scis., Inc., No. 07-3850, 2012 WL 669531, at *5 (N.D. Cal. Feb. 29, 2012). “A

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party seeking an adverse inference instruction based on the destruction of evidence must establish

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(1) that the party having control over the evidence had an obligation to preserve it at the time it

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was destroyed; (2) that the records were destroyed with a culpable state of mind; and (3) that the

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destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact

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could find that it would support that claim or defense.” In re Napster, Inc. Copyright Litig., 462 F.

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Supp. 2d at 1078 (citation and internal quotation marks omitted). “[T]he presence of bad faith

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automatically establishes relevance; however, when the destruction is negligent, relevance must be

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proven by the party seeking sanctions.” S.E.C. v. Mercury Interactive LLC, No. 07-2822-WHA

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(JSC), 2012 WL 3277165, at *10 (N.D. Cal. Aug. 9, 2012) (citation and internal quotation marks

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omitted). In addition, “[t]he imposition of a harsh sanction such as . . . an adverse inference

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instruction requires an analysis of the prejudice suffered by the non-spoliating party.” Moore,

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2012 WL 669531, at *5 (citing Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337,

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348 (9th Cir. 1995)).

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impaired the non-spoiling party’s ability to go to trial or threatened to interfere with the rightful

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decision of the case.” Leon, 464 F.3d at 959 (citation omitted); see also Ingham v. United States,

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167 F.3d 1240, 1246 (9th Cir. 1999) (citation omitted) (“To be actionable, the spoliation of

“The prejudice inquiry looks to whether the spoiling party’s actions

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evidence must damage the right of a party to bring an action.”).

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The Court will assume that defendants had an obligation to preserve the purportedly

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spoliated evidence, and thus will focus on what was destroyed, i.e., whether it was “relevant to

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[Mr. Garcia’s] claim[s],” whether defendants destroyed the evidence “with a culpable state of

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mind,” and resulting prejudice to plaintiff. See id.
This is not the ordinary case where an essential piece of physical evidence was lost or

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destroyed, see, e.g., Silvestri v. GMC, 271 F.3d 583, 593 (4th Cir. 2001), or where a party

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deliberately destroyed files or deleted emails to evade discovery, see, e.g., Leon, 464 F.3d at 955-

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56. Aside from the supervisor-initialed use of force report described below, the record is simply

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not clear as to whether any relevant, useful evidence was spoliated; or, at least not sufficiently

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United States District Court
Northern District of California

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clear that the Court can gauge relevance and prejudice in order to fairly levy a sanction as harsh as

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that being sought by plaintiff. Shortly after Mr. Garcia’s arrest, in connection with the PSU

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investigation, defendants gathered key evidence, which was preserved and produced to plaintiff in

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this case. Defendants preserved a number of audio interviews: of Mr. Garcia, of the four involved

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officers, and of five other witnesses. See Opp’n at 9; Heaberlin Decl., Ex. A. Defendants

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preserved phone calls from the night of the arrest, Officer Lange’s police report, three

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supplemental police reports, video files from the Santa Clara County jail, and other evidence. See

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id. While defendants failed to put in place a more robust litigation hold with respect to the

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involved officers’ email inboxes, legacy training materials, and Officer Lange’s older personnel

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documents, the Court is not convinced that anything highly probative was lost or destroyed such

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that it will damage Mr. Garcia’s “right . . . to bring [this] action.” Ingham, 167 F.3d at 1246.

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Defendants’ conduct was, at worst, negligent.

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Only one instance of alleged spoliation identified by plaintiff is troubling. Defendants,

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purportedly by mistake, purged a supervisor-initialed police report related to Mr. Garcia’s arrest.

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To be sure, defendants retained the original police reports and produced them to plaintiff.

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However, any time a report involves the use of force, a separate copy is stamped “Use of Force”

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and stored in the SCPD Chief’s Office to be reviewed and initialed “by all supervising officers up

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the chain-of-command.” Opp’n at 16; Winter Decl. ¶ 2. Supervisor approval is to indicate that
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the use of force described in the report is consistent with SCPD policy. Id. The supervisor-

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initialed reports are regularly purged pursuant to the SCPD’s retention policy, and the copy in Mr.

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Garcia’s case was lost or destroyed. While there are indications that this report might have been

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approved as a routine matter, the Court cannot be certain. The Court has no doubt that when this

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report was destroyed (it is not exactly clear when), defendants had notice of Mr. Garcia’s claims

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and should have known this report would be relevant.
The remaining question is the appropriate sanction, if any, for destruction of the

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An adverse inference instruction is too harsh given defendants’

supervisor-initialed report.

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preservation of other copies of the report, and the availability of witness testimony and other

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evidence as to the propriety – or impropriety – of Officer Lange’s uses of force. However, the

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United States District Court
Northern District of California

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jury should be permitted to hear about the missing report and to draw whatever inferences it

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chooses.

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initialed police report at trial on direct- or cross-examination, but the Court will not give an

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adverse inference instruction.

Accordingly, plaintiff will be permitted to inquire about the spoliated supervisor-

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II.

Monetary Sanctions

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Plaintiff argues that defendants’ spoliation, as well as defendants’ repeated failure to

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produce responsive documents, is sanctionable pursuant to both the Court’s inherent authority and

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Federal Rule of Civil Procedure 37(b). Plaintiff seeks nearly $100,000 in attorneys’ fees for his

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Court-appointed pro bono counsel in this case based on the alleged discovery misconduct.

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Certain sanctions under Rule 37(b)(2) are discretionary. See Fed. R. Civ. P. 37(b)(2)

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(emphasis added) (“[T]he court where the action is pending may issue further just orders. They

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may include the following . . . .”); cf. Ollier v. Sweetwater Union High Sch. Dist., 768 F.3d 843,

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859 (9th Cir. 2014) (citation and internal quotation marks omitted) (“[W]e give particularly wide

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latitude to the district court’s discretion to issue sanctions under Rule 37(c)(1). . . .”). However,

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where a party “fails to obey an order to provide or permit discovery,” “the court must order the

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disobedient party . . . to pay the reasonable expenses, including attorney’s fees, caused by the

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failure, unless the failure was substantially justified or other circumstances make an award of
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expenses unjust.” Fed. R. Civ. P. 37(b)(2)(A), (C).

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The discovery record in this matter is far from perfect. Although plaintiff’s counsel

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expended great effort in obtaining certain discovery – discovery that likely would have been

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omitted if not for counsel’s efforts – defendants eventually produced whatever they could. Now

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that many of the requested items have been produced, plaintiff will have the benefit of these items

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(to the extent admissible) at trial. Relying on its “wide discretion in controlling discovery,” Ollier,

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768 F.3d at 862, the Court declines to levy such significant monetary sanctions.
However, defendants’ failure to produce Tab VII of the PSU file related to Mr. Garcia,

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despite representations that the entire file had been produced, is different. Plaintiff’s counsel,

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suspicious that some documents were missing, conducted an in-person review of SCPD records,

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United States District Court
Northern District of California

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and only then discovered that defendants had failed to produce an entire section of the PSU file.

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The Court sees no indication that defendants intentionally concealed this information, especially in

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light of the limited evidentiary value of new materials contained in Tab VII. But defendants were

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nonetheless careless in producing an incomplete investigative file. Accordingly, under Rule 37(b),

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the Court will award counsel its fees for conducting the in-person document review, which would

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not have been necessary but for defendants’ carelessness.

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Plaintiff’s counsel submitted a number of declarations regarding fees. Plaintiffs state that

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two associates spent a combined 7.1 hours to conduct the in-person review of SCPD files.

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Because the Court sees no need for a senior associate to have conducted the bulk of this document

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review, the Court awards all 7.1 hours at the junior associate’s hourly rate of $400. Accordingly,

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the Court GRANTS plaintiff’s request for fees in the amount of $2,840.

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CONCLUSION

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For the foregoing reasons, the Court ORDERS as follows:

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Plaintiff’s request for an adverse inference instruction is DENIED. However, plaintiff may

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inquire as to the spoliated supervisor-initialed police report during trial, and the jury may then

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draw whatever inferences it chooses.

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Plaintiff’s request for monetary sanctions is GRANTED in the amount of $2,840. In all
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other respects, plaintiff’s fees request is DENIED.

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This order resolves Dkt. No. 186.

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IT IS SO ORDERED.
Dated: April 19, 2017
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SUSAN ILLSTON
United States District Judge

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United States District Court
Northern District of California

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