Doe et al v. City and County of San Francisco et al

Filing 162

ORDER ON MOTION REGARDING SPOLIATION by Judge Thelton Henderson denying 123 Motion for Sanctions (tehlc2, COURT STAFF) (Filed on 1/5/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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JANE DOE and ANNE RASKIN,

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Plaintiffs,
v.
CITY AND COUNTY OF SAN
FRANCISCO, et al.,

NO. C10-04700 TEH
ORDER ON PLAINTIFFS’
MOTION REGARDING
SPOLIATION

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Defendants.
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For the Northern District of California

United States District Court

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On December 22, 2011, Plaintiffs filed a motion requesting sanctions for the
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spoliation of evidence by Defendants. They rely on the report of their expert, Winston
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Krone, in arguing that the data missing from the hard drive of the computer from which
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Plaintiff Jane Doe’s email was printed is indicative of a non-automated deletion process, and
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therefore suggests interference on the part of Defendants. They note that Defendants were
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alerted as early as December 4, 2009 to the import of the hard drive on the computer in
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question, and failed to preserve the evidence contained therein. They request a default
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judgment as a sanction under Fed. R. Civ. P. 37, or, in the alternative, jury instructions
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stating that Defendants deliberately deleted electronic data on the hard drive in question, and
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monetary sanctions.
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It bears mention that the destruction of evidence was raised in the hearing held before
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this Court on Defendant’s motion for summary judgment, on November 28, 2011. As the
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argument of counsel at that hearing demonstrated that counsel was aware of the deleted
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information as of that date, the Court finds the timing of the Plaintiffs’ spoliation motion to
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be concerningly delayed. The Court indicated its concern at the pretrial conference held on
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December 19, 2011, but nevertheless granted Plaintiffs’ request to file the instant motion. As
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1 the Court granted the Plaintiffs permission to bring this motion, the Court will rule on the
2 motion’s merits.
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Spoliation occurs when “(1) the party having control over the evidence had an

4 obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was
5 accompanied by a ‘culpable state of mind;’ and (3) the evidence that was destroyed or altered
6 was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated
7 evidence[.]” Surowiec v. Capital Title Agency, Inc., 790 F.Supp.2d 997, 1005 (D. Ariz. 2011)
8 (quoting Goodman v. Praxair Servs., Inc., 632 F.Supp.2d 494, 509 (D. Md. 2009)).
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Plaintiffs persuasively argue that the parties with control over the evidence were

11 However, the Plaintiffs are unable to demonstrate that there was a destruction or loss
For the Northern District of California

United States District Court

10 aware of its import in this case, and therefore of their duty to preserve the evidence.

12 accompanied by a “culpable state of mind”, as required by the second element above. Their
13 expert, Mr. Krone, is only able to conclude that the forensic image of the hard drive is
14 inconsistent with that created by an automated deletion process, and that, therefore, it is
15 suggested that someone manually deleted files. The plaintiffs make no mention of specifics
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17 This is not enough to meet the second element required for a showing of spoliation. For this
18 reason, Plaintiffs’ motion is DENIED.
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20 IT IS SO ORDERED.
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22 Dated: 1/5/12
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THELTON E. HENDERSON, JUDGE
UNITED STATES DISTRICT COURT

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