Steshenko v. McKay et al
Filing
923
ORDER by Judge Seeborg denying 913 Motion for Sanctions or Summary Judgment (rslc1, COURT STAFF) (Filed on 12/29/2014)
1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
NORTHERN DISTRICT OF CALIFORNIA
9
10
11
GREGORY NICHOLAS STESHENKO,
Case No. 09-cv-05543-RS
United States District Court
Northern District of California
Plaintiff,
12
v.
13
14
THOMAS MCKAY, et al.,
ORDER DENYING MOTION FOR
SANCTIONS OR SUMMARY
JUDGMENT
Defendants.
15
16
Pursuant to Civil Local Rule 7-1(b), plaintiff’s motion “to impose sanctions for spoliation
17
18
of evidence, or, in the alternative, motion for summary judgment /partial summary judgment in
19
favor of plaintiff or defendants” is suitable for disposition without oral argument, and the hearing
20
set for January 8, 2015 is vacated. The further Case Management Conference set for that date
21
remains on calendar.
The motion is denied. Plaintiff argues there are inconsistencies in orders regarding
22
23
spoliation that, in his view, require entry of summary judgment for one side or the other. In the
24
alternative, plaintiff effectively requests reconsideration of the order entered on December 1,
25
2014.
26
On March 25, 2013, an order issued stating, among other things, that “the jury will be
27
given an instruction that they may draw an adverse inference in light of the email destruction.”
28
Plaintiff is correct that the order issued on December 1, 2014 reaches a contrary conclusion, and
1
determines no such jury instruction is warranted. The fact that the two orders differ, however, is
2
not improper, and is not a basis for reconsideration or any other relief. “As long as a district court
3
has jurisdiction over the case, then it possesses the inherent procedural power to reconsider,
4
rescind, or modify an interlocutory order for cause seen by it to be sufficient.” City of Los Angeles,
5
Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001)(quoting Melancon v.
6
Texaco, Inc., 659 F.2d 551, 553 (5th Cir. 1981).
7
Plaintiff contends the orders were entered on the same evidentiary record, and therefore no
change in result would be warranted. Whether or not there was any additional or different
9
evidence on the specific, narrow, issue of spoliation, the March 25, 2013 order and earlier orders
10
regarding plaintiff’s spoliation claims all issued prior to consideration of the extensive summary
11
United States District Court
Northern District of California
8
judgment motions brought by the parties in June of 2013. Those proceedings, and the record
12
developed therein, provided substantially more context regarding the events at issue in this
13
litigation and the contours of the parties’ factual disputes. It was the lack of such context at the
14
time of the March 25, 2013 order that resulted in the decision to postpone determining the scope
15
of any instruction to be given. For the reasons explained in the December 1, 2014, consideration
16
of the entire record, and the parties’ recent offers of proof regarding spoliation, support the finding
17
that no further sanctions are appropriate at this juncture.
18
Plaintiff further argues that in the absence of a presumption that destroyed emails
19
contained evidence supporting his claims, the remaining evidence must either (1) be so strong as
20
to mandate entry of summary judgment in his favor, or (2) be so lacking as to require that
21
summary judgment be granted to defendants. Plaintiff’s suggestion that summary judgment in his
22
favor might be warranted rests on his premise that any lost emails necessarily were material unless
23
his case otherwise is so compelling that any defense must fail. No basis exists for making such an
24
assumption.
25
Plaintiff’s request that summary judgment be entered in defendants’ favor appears to be
26
more a rhetorical device than a genuine admission that his claims lack merit. Accordingly, even
27
though the doctrine of invited error might foreclose any viable appeal, at this juncture his
28
CASE NO.
2
09-cv-05543-RS
1
invitation to enter judgment against him will be declined. Plaintiff’s argument, in effect, is that
2
without a presumption that emails existed in which defendants demonstrated their wrongful
3
motives and conduct, his various claims simply cannot be proven, and it therefore is “manifestly
4
unjust” to have applied such a presumption during summary judgment but not allow it at trial.
5
The fallacy in plaintiff’s argument is that it would mean defendants could never be liable in cases
6
of this nature unless they memorialized their wrongful motives and actions in writing. In fact,
7
wrongful motives and conspiracies often must be inferred from circumstantial evidence.
8
9
Indeed, plaintiff himself reached the conclusion that he had been the subject of
discrimination and retaliation based on the circumstances and on his perceptions of his interactions
with defendants and their employees, not from seeing any written communications containing
11
United States District Court
Northern District of California
10
admissions or other incontrovertible evidence of wrongdoing. Even if there were no question that
12
every email had been preserved and produced, and yet none of them even hinted at any wrongful
13
motive or improper action, plaintiff likely would insist the conspiracy had been carried out
14
through verbal communication. Without suggesting that a trier of fact is likely to find
15
wrongdoing from the facts and evidence here, it simply does not follow that there can be no issue
16
for the jury to decide absent imposition of an evidentiary presumption at trial.
17
Plaintiff is entitled to testify as to what he perceived in his interactions with defendants and
18
their employees. Defendants are entitled to present their version of events. It will be for the jury
19
to decide what to believe.
20
21
22
IT IS SO ORDERED.
23
24
25
26
Dated: December 29, 2014
______________________________________
RICHARD SEEBORG
United States District Judge
27
28
CASE NO.
3
09-cv-05543-RS
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?