Lutalo v. National Railroad Passenger Corporation et al

Filing 113

ORDER granting in part 96 Motion for Sanctions for Spoliation of Evidence and to Strike. Defendants shall file an affidavit in support of the award of fees and costs in accordance with D.C.COLO.LCivR 54.3B. on or before April 5, 2013. Plaintiff may respond on or before April 12, 2013. No reply will be permitted. By Magistrate Judge Kristen L. Mix on 3/28/13. (kfinn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 11-cv-00974-REB-KLM
OJORE N. LUTALO,
Plaintiff,
v.
NATIONAL RAILROAD PASSENGER CORPORATION (“AMTRAK”),
LENINOVA FAYDO, in her official and individual capacities, and
JAMES BULLERWELL, II, in his official and individual capacities,
Defendants.
_____________________________________________________________________
ORDER ON MOTION FOR SPOLIATION SANCTIONS
_____________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Defendants’ Motion for Sanctions for Spoliation
of Evidence and to Strike [Docket No. 96; Filed August 17, 2012] (the “Motion”). Plaintiff
filed a Response to Defendants’ Motion for Sanctions for Spoliation of Evidence and
to Strike [Docket No. 103; Filed September 7, 2012] (the “Response”). Defendants filed
a Reply in Support of Motion for Sanctions for Spoliation of Evidence and to Strike
[Docket No. 104; Filed September 24, 2012] (the “Reply”). The Court has reviewed the
case file, pleadings, and applicable law and is fully advised in the premises. For the
reasons set forth below, the Motion [#96] is GRANTED in part.
I. Background
The facts of the case have been summarized by the District Judge in his Order
Concerning Motions for Summary Judgment [#112; filed March 25, 2013] as follows:
On January 26, 2010, Sue Blesi was a passenger aboard an
Amtrak train known as the Southwest Chief. As the train was
-1-

approaching La Junta, Colorado, Ms. Blesi approached
defendant Leninova Faydo, an Amtrak Car Attendant. Ms.
Blesi told Ms. Faydo that Ms. Blesi was concerned about
statements made by another passenger during phone
conversations between the passenger and others. Ms. Blesi
was sitting near the passenger who had been using the phone.
The passenger on the phone was the plaintiff, Ojore Lutalo.
Ms. Blesi showed Ms. Faydo a card containing significant
statements Ms. Blesi says she overheard. According to the
evidence submitted by the plaintiff, the card read: “[H]ave you
been shot?” “Homeland security is serious.” ‘We work in small
groups.” “Are you willing to go to jail?” The plaintiff’s evidence
indicates that Ms. Blesi never heard and never reported any
statement by Mr. Lutalo involving a bomb or any type of bomb
threat, nor did she hear any statement indicating that Mr.
Lutalo possessed a weapon on the train.
Ms. Faydo notified Assistant Conductor James Bullerwell, III,
who was onboard the train. Assistant Conductor Bullerwell
spoke directly to Ms. Blesi and notified Conductor George
Flores. Mr. Flores apparently reviewed the card written by Ms.
Blesi and spoke to Ms. Blesi. From the train, Conductor Flores
called Trainmaster James Bullerwell, II, who was in La Junta,
Colorado. According to the plaintiff’s evidence, Conductor
Flores read Ms. Blesi’s card to Trainmaster Bullerwell and
asked Trainmaster Bullerwell to have the La Junta Police
Department (LJPD) present as observers when Conductor
Flores talked with Mr. Lutalo when the train was in La Junta.
According to the plaintiff’s evidence, Conductor Flores did not
use the word “bomb” when speaking to Trainmaster Bullerwell,
and said nothing indicating that he thought the passenger
might be planning to bomb a train, a building, or anything else.
Trainmaster Bullerwell called the dispatcher for the LJPD and
reported the situation on the train. When asked by the
dispatcher if Mr. Lutalo had said something about bombing the
train, Trainmaster Bullerwell said, “Yeah. Stuff like, ‘Gonna
bomb this train.’” Plaintiff’s Motion for Summary Judgment
[#59], Exhibit 9 [#59-10] (transcript of call to dispatcher),
CM/ECF p.2. Sgt. Shawn Mobley of the LJPD was among the
officers who met the train at the station in La Junta. According
to Sgt. Mobley, Ms. Faydo told him at the train station that she
personally had heard Mr. Lutalo say something about bombing
the train.

-2-

Based primarily on the reports of Trainmaster Bullerwell and
Ms. Faydo, Sgt. Mobley arrested Mr. Lutalo who was charged
under §18-9-115(1)(c)(II), C.R.S., which defines the crime of
endangering public transportation. Mr. Lutalo was held in jail
until January 28, 2010, when he was released on bond. On
February 3, 2010, the Otero County District Attorney dismissed
the charge against Mr. Lutalo.
This lawsuit was filed in April of 2011. Following the ruling on the parties’ Motions
for Summary Judgment, the following claims will be tried: (1) false arrest against Defendant
Amtrak; (2) malicious prosecution against Defendant Amtrak; (3) false imprisonment
against Defendant Amtrak; (4) race discrimination under 42 U.S.C. §1981 against Ms.
Faydo only; and (5) negligence against all defendants.
II. Analysis
Defendants claim that Plaintiff was using a “no-contract” mobile telephone on the
train, and “despite knowledge that the [phone] was the only source of identifying whom he
spoke with on January 26, 2010 and despite a specific request to stop using the phone for
preservation purposes, Plaintiff continued to use his phone in a manner intended to destroy
evidence that would identify with whom he spoke and then claims to have lost it shortly
thereafter.” Motion [#96] at 1. Defendants seek sanctions for spoliation. More specifically,
they seek an adverse inference instruction, an order preventing Plaintiff or any Plaintiff’s
witness from testifying about what Plaintiff said on the phone, an order striking from the
Plaintiff’s summary judgment briefing all alleged facts offered by Plaintiff regarding the
contents of his cell phone conversations aboard the train1, and their attorneys’ fees and
costs incurred in filing the Motion. Id. at 2-3.
A.

Relevance
1

Because the District Judge has already ruled on the parties’ Motions for Summary
Judgment, this request is moot, and the Court does not address it further.

-3-

The Tenth Circuit Court of Appeals has held that alleged spoliated evidence must
be relevant in order to demonstrate the prejudice necessary to justify imposition of a
spoliation sanction. Henning v. Union Pac. R.R. Co., 530 F.3d 1206, 1220 (10th Cir. 2008).
Plaintiff contends, first and foremost, that the evidence to be gained from the lost phone,
i.e., evidence regarding to whom Plaintiff spoke while on the train and what he said, is not
relevant to his claims. Plaintiff insists that his claims arise from the alleged lack of probable
cause to arrest him as well as Defendants Faydo and Bullerwell’s false statements “that
Plaintiff said something about bombing the train.” He argues that all of his claims “arise
from Defendants’ statements. Plaintiff contends those statements were knowingly false or
made in reckless disregard of the truth. None of his claims are premised on any statement
anyone on the train claims Plaintiff made.” Response [#103] at 1-2.
Defendants assert that “Plaintiff’s call history records in his cell phone are relevant
because they would have identified the additional individuals with whom Plaintiff spoke and
given Defendants the opportunity to question them about the their topics of conversation
with Plaintiff. Moreover, Plaintiff’s [deposition] testimony and partial call records have
accounted for only about an hour of time on his cell phone, while Mr. and Mrs. Blesi both
testified Plaintiff was on the phone for hours. Had Plaintiff preserved the phone, it would
have provided evidence showing when Plaintiff was on the phone on January 26, 2010, and
the telephone numbers he spoke with.” Motion [#96] at 8.
Defendants explain their contention that the phone contained relevant information
in more detail in their Reply. They reiterate that without the phone and its stored telephone
numbers, “Defendants are forever unable to establish the identities of other individuals with
whom Plaintiff spoke or to present evidence from these unknown individuals regarding the

-4-

content of the telephone conversations.” Reply [#104] at 1. Defendants assert that the
information which is no longer available to them is “evidence of comparative negligence”
and “relevant to Plaintiff’s claim he suffered emotional distress by virtue of comments on
the internet. Ultimately, because he failed to preserve his phone, Plaintiff has been able
to self-select witnesses who might appear relatively innocent and support his version of
the conversations.” Id. at 8-9.
The Court agrees. Although the heart of Plaintiff’s remaining claims relates to the
alleged false statements made by Defendants Faydo and Bullerwell, it is difficult to imagine
trial of those claims without some testimony relating to the content of the phone
conversations. The parties’ summary judgment briefing demonstrates that such testimony
may be elicited from Ms. Blesi, Mr. Blesi, Plaintiff or any or all of the three. Relevance is
not so narrowly construed as to limit a story to its final chapter, and neither party is entitled
to make it impossible for all meaningful parts of the story to be told. Most broadly
construed, the case is about what happened on the train and in La Junta as a result of
Plaintiff’s phone conversations. Less broadly construed, the case is indisputably about
Plaintiff’s credibility, whether he was comparatively negligent in the series of events that
led to his arrest, and whether and to what degree he suffered emotional distress from his
arrest. At the very least, then, the content of Plaintiff’s phone conversations is relevant to
his credibility as well as his negligence and emotional distress claims. See, e.g., New
Jersey v. T.L.O.. 469 U.S. 325, 345 (1985) (discussing the relevance of certain evidence
both to the justification of a search and to the defendant’s credibility) (citing Warden v.
Hayden, 387 U.S. 294, 306-07 (1967)); Carbajal v. Warner, No. 10-cv-02862-REB-KLM,
2013 WL 1129429, at *3 (D. Colo. Mar. 18, 2013) (stating that relevancy is broadly

-5-

construed) (citing Sheldon v. Vermonty, 204 F.R.D. 679, 689-90 (D. Kan. 2001).
B.

Duty to Preserve
The Tenth Circuit has held that “a spoliation sanction is proper where (1) a party has

a duty to preserve evidence because [he] knew, or should have known, that litigation was
imminent, and (2) the adverse party was prejudiced by destruction of the evidence.”
Henning, 530 F.3d at1220 (citing Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d
1013, 1032 (10th Cir. 2007)). Plaintiff asserts that he had no duty to preserve the phone
when it was inadvertently lost “around February 20, 2010, because litigation was not
imminent or likely.” Response [#103] at 2, 13-14.
Defendants argue that Plaintiff reasonably anticipated litigation by early February
of 2010, prior to allegedly losing his phone. Defendants point to an email from Plaintiff’s
friend, Bonnie Kerness, dated January 31, 2010, which indicates a desire to “preserve” the
phone and to obtain assistance in providing Plaintiff with a new phone. Motion [#96] at Ex.
K. Plaintiff does not deny receiving Ms. Kerness’ email. Defendants further explain that
Ms. Kerness was retained as a legal assistant to Plaintiff’s counsel for purposes of this
action. Id. at Ex. D, 165:4-7. Ms. Kerness sent the January 31, 2010 email after an
“extensive” conversation with Plaintiff’s counsel. Id. at Ex. K. Although Plaintiff testified in
his deposition that someone spoke to him in Denver about the part of the email relating to
preservation of the old phone and obtaining a new one, he also testified that he “can’t
recall” whether Ms. Kerness told him to preserve his old phone, although “she might have.”
Id. at Ex. E, 387-89:23-3.
Perhaps more significantly, Defendants point to a series of communications between
counsel and Ms. Kerness from early to mid-February, 2010 discussing and evaluating

-6-

Plaintiff’s potential lawsuit. Plaintiff claims that these communications are subject to the
attorney-client privilege and work product protection and has listed them on a privilege log.
Reply [#104] at 3-4. Moreover, on February 18, 2010, Plaintiff’s “close friend,” Tim
Fasnacht, sent an email to the Anarchist Black Cross network “stating unequivocally that
Plaintiff ‘intends to pursue a civil liability suit against Amtrak’ and soliciting money for that
purpose.” Id. at 6-7; Motion [#96] at Ex. M; Plaintiff’s Response to Motion for Summary
Judgment [#91] at Ex. 1, ¶ 3. Two days later, Plaintiff had a new cell phone number.
Motion [#96] at Ex. Q.
Plaintiff asserts that “when the phone was lost, litigation was no more than a
possibility for Plaintiff, a hope he had.” Response [#103] at 14. This contention is explicitly
contradicted by Mr. Fasnacht’s email of February 18, 2010. When a party knows that
“future litigation is likely,” he is obligated to preserve evidence. Cache La Poudre Feeds,
LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007). The Court has no
difficulty finding that Plaintiff had a duty to preserve his phone.
C.

Prejudice
“The burden is on the aggrieved party to establish a reasonable possibility, based

on concrete evidence rather than a fertile imagination, that access to the lost material
would have produced evidence favorable to his cause.” Gates Rubber Co. v. Bando Chem.
Indus., Ltd., 167 F.R.D. 90, 104 (D. Colo. 1996) (citing cases). Plaintiff asserts that the loss
of the phone did not prejudice Defendants, because they do not contend that “anyone
would have provided information that Plaintiff spoke about bombing the train.” Plaintiff
asserts that it is “undisputed that Plaintiff said no such thing and no one on the train claims
he did.” Response [#103] at 15.

-7-

Plaintiff views the case too narrowly. As indicated above, it is about more than
whether Plaintiff said something about bombing the train while on the telephone.2 The case
necessarily encompasses proof of who Plaintiff was talking to and what he was saying for
the “hours” that he was on the phone while riding the train, because that evidence relates
to Plaintiff’s credibility, whether his conduct was comparatively negligent, and whether he
suffered emotional distress from the events that occurred. Defendants have been denied
a complete record of Plaintiff’s phone conversations, which very possibly would have shed
light on those issues. Accordingly, they have been prejudiced by Plaintiff’s loss of his
phone.
D.

Sanctions
When, as here, a party has a duty to preserve evidence which is lost or destroyed

and the adverse party is prejudiced by its absence, sanctions are appropriate. Turner v.
Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009). Defendants seek an adverse
inference instruction3 and an order preventing Plaintiff or his witnesses from testifying about
what he said on the phone. “[I]f the aggrieved party seeks an adverse inference instruction
to remedy the spoliation, it must also prove bad faith.” Id.
Plaintiff argues that a showing of “bad faith” does not require proof of evil intent, but
instead a mere failure to act to preserve evidence within a party’s control. Reply [#104] at
10 (citing McCargo v. Tex. Roadhouse, Inc., 2011 U.S. Dist. LEXIS 49320, at *22 (D. Colo.
2

Indeed, if that were the sole factual issue in the case, one wonders why trial would even be
necessary. As the District Judge concluded, summary judgment is not appropriate on all of Plaintiff’s claims
because “there are a variety of disputed issues of material fact which preclude the entry of summary
judgment.” [#112] at 3.
3

An adverse inference instruction to the jury would advise them that due to Plaintiff’s loss of his
phone and the inability to gather evidence from it about the identity of those he called and the content of their
conversations, the jury may infer that such evidence would be negative to Plaintiff and his claims. See, e.g.,
Smith v. Nichols, No. 12-1029, 2013 WL 11904, at *3 (10th Cir. Jan. 2, 2013).

-8-

May 2, 2011); E.E.O.C. v. Dillon Cos., 839 F. Supp. 2d 1141, 1145 (D. Colo. 2011).
However, neither the McCargo court nor the Dillon Companies court ordered sanctions
based on a mere showing of negligent destruction of evidence. Instead, the McCargo court
imposed sanctions based on the defendant’s “highly culpable” behavior. 2011 WL 1638992
at *9. The Dillon Companies court explicitly held that the defendant had acted intentionally
in “bad faith.” 839 F. Supp. 2d at 1145.
Here, the Court has no basis to assume that the loss of the phone was other than
accidental. Even Defendant acknowledges that Plaintiff “claims to regularly lose phones.”
Reply [#104] at 10. The fact that Plaintiff is an experienced litigant and that he was
“actively collecting evidence in support of his case” does not demonstrate that he
intentionally lost or destroyed the phone at issue here. Although he certainly could have
– and should have – been more careful with the phone, I cannot find that he acted in bad
faith if the phone “slipped out of his coat and onto the train tracks,” as he claims. Response
[#103] at 2.
Nevertheless, I agree that some sanction is appropriate. A person who knows that
he is actively pursuing litigation that involves his use of a disposable cell phone cannot
disregard his duty to preserve it even before the case is filed. Indeed, based on the nature
of the efforts being made by others on Plaintiff’s behalf before the lawsuit was filed (multiple
communications with potential counsel, fund-raising, tracking media coverage of the event,
etc.), Plaintiff was remarkably careless in disregarding his duty to preserve the phone.
However, an adverse jury instruction is too harsh and is unwarranted as a sanction for the
negligent “spoliation” of evidence in the circumstances presented here.
Accordingly, the Court grants the Motion in part. As a sanction, Plaintiff will not be

-9-

permitted to introduce any evidence at trial relating to who he called while on the train or
what he said during his conversations, either through his own testimony, testimony of other
witnesses, or documents. Defendants may introduce such evidence if they wish. In
addition, Defendants will be permitted to present evidence, if they wish, of the preservation
email and Plaintiff’s failure to preserve the phone. Defendants may argue whatever
inference they hope the jury will draw. Plaintiff may present evidence in explanation,
assuming of course that the evidence is otherwise admissible, and argue that no adverse
inference should be drawn. See Christou v. Beatport, LLC, No. 10-cv-02912, 2013 WL
248058, at *14 (D. Colo. Jan. 23, 2013). Further management of such evidence will be left
to the discretion of the District Judge at trial.
Finally, Defendants are awarded their reasonable costs and attorneys’ fees incurred
in filing the Motion. See FatPipe Networks India, Ltd. v. Xroads Networks, Inc., No. 2:09CV-186 TC DN, 2012 WL 192792, at *6-7 (D. Utah Jan. 23, 2012); Asher Assocs., LLC v.
Baker Hughes Oilfield Operations, Inc., No. 07-cv-01379-WYD-CBS, 2009 WL 1328483,
at *12 (D. Colo. May 12, 2009). Defendants shall file an affidavit in support of the award
of fees and costs in accordance with D.C.COLO.LCivR 54.3B. on or before April 5, 2013.
Plaintiff may respond on or before April 12, 2013. No reply will be permitted.

Dated: March 28, 2013

-10-