Cordoba v. Pulido

Filing 205

ORDER by Judge Saundra Brown Armstrong denying without prejudice to renewal 155 Motion for Adverse Inference Instruction; Magistrate's Report and Recommendation is ACCEPTED except with respect to recommendation to give an adverse inference instruction which is rejected as premature. (fs, COURT STAFF) (Filed on 9/6/2017)

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UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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OAKLAND DIVISION

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Case No: C 12-04857 SBA

8 WILLIAM CORDOBA,

ORDER RE PLAINTIFF’S MOTION
FOR ADVERSE INFERENCE
INSTRUCTION

Plaintiff,

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vs.

Dkt. 155, 184, 189

11 SILVIA PULIDO,
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Defendant.

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The Court previously referred Plaintiff’s Motion for Adverse Inference Instruction to

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Magistrate Judge Sallie Kim (“Magistrate”) for resolution. In her Report and

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Recommendation, the Magistrate found that the Defendant destroyed her file regarding

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Stanley Kelly, an inmate with whom she allegedly had a sexual relationship. In evaluating

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whether an adverse inference instruction was warranted in light of Defendant’s conduct, the

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Magistrate found that: (1) Defendant had an obligation to preserve the file when it was

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destroyed; (2) she acted with “a culpable state of mind”; and (3) the evidence was

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potentially relevant to the claims made by Plaintiff. Dkt. 184 at 4-6 (applying Clear-View

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Techs., Inc. v. Rasnick, 2015 WL 2251005 at *7 (N.D. Cal. May 13, 2015)). The

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Magistrate recommended that – “if evidence about Defendant’s allegedly inappropriate

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relationship with Mr. Kelley is admitted into evidence at trial” – the Court should give a

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permissive adverse inference instruction pertaining to Defendant’s spoliation of evidence

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Dkt. 184 at 4. However, she recommended denying Plaintiff’s request for an adverse

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inference instruction based on Defendant’s failure to preserve electronic mail and a draft

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report evaluation of Plaintiff. Id. at 7.

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In response to the Magistrate’s Report and Recommendation, Defendant filed an

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objection solely with respect to the language of the adverse inference instruction proposed

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by the Magistrate. Dkt. 163. Neither party has objected to any other aspect of the

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Magistrate’s Report and Recommendation.

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Notwithstanding its prior referral of Plaintiff’s motion, the Court finds, upon further

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review of the matter, that it is premature to address Plaintiff’s request for an adverse

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inference instruction. The resolution of whether such an instruction is warranted (and the

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appropriate language of the instruction, if given) is dependent, as a threshold matter, on

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whether and to what extent evidence regarding Defendant’s alleged sexual relationship with

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Stanley Kelley is admitted during trial. Since these admissibility issues have yet to be

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resolved, the Court finds it preferable from both a procedural and substantive standpoint to

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revisit this issue after the admissibility of such evidence is fully briefed. In view of the

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parties’ dispute regarding the relevance of Defendant’s sexual relationship with Mr. Kelley,

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they should address the admission of such evidence in their motions in limine.

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Accordingly,

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IT IS HEREBY ORDERED THAT Magistrate’s Report and Recommendation is

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ACCEPTED, except with respect to her recommendation to give an adverse inference

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instruction, which is REJECTED as premature. Plaintiff’s Motion for Adverse Inference

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Instruction is DENIED without prejudice to renewal upon the Court’s resolution of the

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admissibility of evidence pertaining to Defendant’s relationship with Mr. Kelley. The

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Clerk shall terminate Docket Nos. 155, 184 and 189.

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IT IS SO ORDERED.
Dated: 9/6/17

______________________________
SAUNDRA BROWN ARMSTRONG
Senior United States District Judge

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