Session v. Clemings et al

Filing 427

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE by Magistrate Judge Kristen L. Mix on 1/10/2019. IT IS HEREBY RECOMMENDED that the Motion [# 387 ] be GRANTED in part, to the extent that the parties be permitted to present evidence relating to the lost or destroyed Review Board records and to argue whatever inferences they hope the jury will draw from their absence. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 14-cv-02406-PAB-KLM
FRANKY L. SESSION,
Plaintiff,
v.
ROMERO, Deputy Sheriff Captain, in his individual capacity, and
JORDAN, Deputy Sheriff Sergeant, in his individual capacity,
Defendants.
______________________________________________________________________
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
______________________________________________________________________
ENTERED BY MAGISTRATE JUDGE KRISTEN L. MIX
This matter is before the Court on Plaintiff’s Motion for Spoliation Sanctions
[#387]1 (the “Motion”). Defendants filed a Response [#418] in opposition to the Motion.
The Motion has been referred to the undersigned for a recommendation pursuant to 28
U.S.C. § 636(b)(1)(A) and D.C.COLO.LCivR 72.1(c)(3). See [#389]. The Court has
reviewed the entire case file and the applicable law and is sufficiently advised in the
premises. For the reasons set forth below, the Court RECOMMENDS that the Motion
[#387] be GRANTED in part.
I. Factual Background and Procedural History
This case involves Plaintiff’s allegations that his Fourteenth Amendment due process
rights were violated when, in short, Defendants refused to permit Plaintiff to leave 23-hour

1

“[#387]” is an example of the convention the Court uses to identify the docket number
assigned to a specific paper by the Court’s case management and electronic case filing system
(CM/ECF). This convention is used throughout this Recommendation.

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lockdown to reside in less restrictive housing between March 24, 2013, and December 18,
2013. See Final Pretrial Order [#300] at 2-3. Plaintiff frames the central factual issue in
this lawsuit as “whether Defendants had a legitimate reason to keep Plaintiff in 23-hour
lockdown (referred to as “Unit 4D”) for eight-and-a-half-months.” Motion [#387] at 3. While
Plaintiff was in Unit 4D, Defendants, who were two of the three members of the Review
Board at the Van Cise-Simonet Denver Detention Center (“DDC”), interviewed Plaintiff
every week and made a written decision about why he was being kept in segregation. See
Ex. 1 [#387] at 35. These written decisions were supposed to be kept both in hard copy
and electronically. See id. Plaintiff asserts that “[t]he Review Board’s weekly interviews
and decisions are clearly relevant to this lawsuit as they should provide contemporaneous
evidence of the reason Defendants stated for keeping Plaintiff in Unit 4D.” Motion [#387]
at 3-4. A record for only a single week (May 31, 2013) has been produced by Defendants.2
Pl.’s Ex 6 [#388-5].
Plaintiff filed this lawsuit on August 28, 2014. See Compl. [#1]. Plaintiff provides
evidence that “Defendants admit that the Review Board records for Plaintiff existed and
were within their control after this lawsuit was filed.” Motion [#387] at 4. Defendant Jordan
was a Sergeant in the DDC’s Special Management Unit (which includes Unit 4D) until
August 2015 and has been a Captain in the DDC’s Central Records Unit from August 2015
to present. Pl.’s Ex. 2 [#388-1] at 23, 26. In his deposition taken November 27, 2018, he
testified that in August 2015, when he left DDC’s Special Management Unit, Plaintiff’s
Review Board records still existed but at some unknown time after that they were lost or

2

Plaintiff asserts that even this one record was incomplete, but his evidentiary citation does
not clearly support that statement. See Motion [#387] at 7 (citing Pl.’s Ex 2 [#388-1] at 160:13-25).

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destroyed. Id. at 97, 109. In July 2017 he looked for the records but was unable to find
them. Id. at 98.
From 2014 to June 2017, Defendant Romero was a watch commander in the DDC
and the Captain overseeing the Special Management Unit. Pl.’s Ex. 3 [#388-2] at 11-12.
In his deposition taken November 28, 2018, Defendant Romero testified that the Review
Board compiled weekly notes of its decisions, that those notes were kept in the sergeant’s
office, and that he himself saw those notes in the sergeant’s office in 2013. Id. at 155-58.
He further testified that, despite the DDC requirement that the Review Board’s written
decisions be kept in the jail management system as well as in hard copy, the Review
Board’s decisions were not kept in the jail management system. Id. at 99-100.3
II. Analysis
Plaintiff argues that the evidence demonstrates three crucial points. Motion [#387]
at 9. First, “Defendants lost or destroyed the Review Board’s 2013 records relating to
Plaintiff after this lawsuit was filed.” Id. Second, “Plaintiff has been prejudiced because he
cannot use the Review Board’s records to refute Defendants’ testimony and show that
Defendants kept Plaintiff in 23-hour-lockdown without a legitimate reason and as
punishment.” Id. Third, “Defendants acted with bad faith by intentionally not preserving the
Review Board records, trying to cover up their existence, seeking to dismiss Plaintiff’s

3

The third member of the Review Board, who is not a party to this lawsuit, testified that at
some point she shredded her notes from the administrative review board meetings with Plaintiff.
Pl.’s Ex. 4 [#388-3] at 40. She testified that she typically kept her personal notes for only a few
months. Id. The Court observes that the evidence therefore shows that (1) she likely shredded her
last relevant notes many months before Plaintiff filed this lawsuit in August 2014, and (2) Plaintiff
has not directed the Court’s attention to evidence demonstrating any requirement that Review
Board members keep their notes, but rather simply that “[p]roper documentation of the board’s
decisions for each inmate . . . be maintained . . . .” See Pl.’s Ex. 1 [#387-1] at 35.

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claims on the basis of the Review Board meetings without revealing that the Review Board
records had been lost or destroyed, and violating DDC policies and procedures.” Id. As
a result, Plaintiff seeks a jury instruction at trial “that Defendants have lost or destroyed
weekly Review Board records that contained information about the reasons Plaintiff was
kept in Unit 4D between March 24, 2013 and December 18, 2013, and the jury should infer
that the missing records contained evidence unfavorable to Defendants and favorable for
Plaintiff.” Id. at 14.
“Destruction of evidence, or spoliation, is a discovery offense . . . .” Gates Rubber
Co. v. Bando Chem. Indus. Ltd., 167 F.R.D. 90, 101 (D. Colo. 1996). To ensure that
discovery as permitted under the Federal Rules of Civil Procedure is not rendered futile,
“litigants have a duty to preserve documents that may be relevant to pending or imminent
litigation.” Cache La Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 620 (D.
Colo. 2007). The Court may impose sanctions for destruction or loss of evidence. Id. “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 the destruction of evidence.” Burlington N. & Santa Fe Ry. Co. v. Grant,
505 F.3d 1013, 1032 (10th Cir. 2007) (citing 103 Investors I, L.P. v. Square D Co., 470 F.3d
985, 989 (10th Cir. 2006)). The movant has the burden of proving, by a preponderance of
the evidence, that the opposing party failed to preserve evidence or destroyed it. In re
Krause, 367 B.R. 740, 764 (D. Kan. 2007).
A.

Duty to Preserve Relevant Evidence
A court may find that spoliation has occurred when a party either negligently or

intentionally fails to produce relevant evidence in litigation. The failure may, of course,
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occur because evidence has been destroyed or lost. Turner v. Pub. Serv. Co., 563 F.3d
1136, 1149 (10th Cir. 2009). Plaintiff has the burden of proving that relevant evidence has
been lost or destroyed by Defendants. Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243,
1251 (10th Cir. 2010). Defendants do not assert that the Review Board records are
irrelevant. See generally Response [#418]. They also do not contest that these records
have been “misplaced,” although they do dispute whether they personally bear any
responsibility for the misplacement. Compare id. at 6 with id. at 14 n.6.
A party is under a duty to preserve evidence when litigation is imminent. Cache La
Poudre Feeds, LLC v. Land O’Lakes, Inc., 244 F.R.D. 614, 620 (D. Colo. 2007). Here, the
evidence demonstrates that the relevant Review Board records existed in August 2015, a
year after Plaintiff filed this lawsuit. Pl.’s Ex. 2 [#388-1] at 97, 109. Thus, the Court finds
that Defendants had a clear duty to preserve the relevant Review Board records at
whatever time they were lost or destroyed because litigation had already commenced. In
the absence of an adequate explanation or substantial substitute evidence, a party’s
inability to locate relevant evidence may be construed as spoliation. See, e.g., Lutalo v.
Nat’l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125, at *5 (D. Colo.
Mar. 28, 2013) (holding that the plaintiff’s loss of cell phone was spoliation justifying
imposition of sanctions); Novick v. AXA Network, LLC, No. 07-CV-7767(AKH)(KNF), 2014
WL 5364100, at *6 (S.D.N.Y. Oct. 22, 2014) (finding that the defendants spoliated audio
tapes when they failed to provide any explanation for why or how the tapes came to be
missing); Victor v. Lawler, Civil No. 3:08-cv-1374, 2012 WL 1642603, at *5 (M.D. Pa. May
10, 2012) (finding that inability to recover certain evidence was not spoliation in light of
reasonable explanations for inability to recover it and existence of other substantial
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evidence); Pub. Serv. Mut. Ins. Co. v. Empire Comfort Sys., Inc., 573 F. Supp. 2d 372, 382
n.13 (D. Mass. 2008) (granting summary judgment and holding that inability of the plaintiff
to find heater which was the subject of breach of warranty claim was spoliation); Puerto
Rico Telephone Co., Inc. v. San Juan Cable LLC, Civil No. 11-2315(GAG/BJM), 2013 WL
5533711, at *1 (D.P.R. Oct. 7, 2013) (finding that the defendant’s failure to preserve, locate
and produce emails was spoliation). Plaintiff has therefore sustained his burden of showing
that relevant evidence was lost and/or destroyed.
B.

Prejudice Resulting From Destruction of Relevant Evidence
“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., 167 F.R.D. at
104. The degree of prejudice suffered by a party who experiences spoliation is generally
measured in terms of how the unavailability of the spoliated evidence affects proof of the
party’s claim or claims. See, e.g., Lutalo, 2013 WL 1294125, at *4.
In short, Plaintiff argues that he “has been prejudiced because he cannot use the
Review Board’s records to refute Defendants’ testimony and show that Defendants kept
Plaintiff in 23-hour-lockdown without a legitimate reason and as punishment.” Motion
[#387] at 9; see also id. at 10-12. Specifically, Plaintiff argues:
Here, Plaintiff will be prejudiced by not being able to use the missing records.
The few 2013 records produced to date contradict Defendants’ story,
including the May 31, 2013 Review Board record produced . . . , as well as
other documents from 2013 which expressly state that Plaintiff wanted to
return to Unit 4A. Deposition testimony provides further support that the
missing records would contradict Defendants’ current story. Defendant
Romero testified that his Review Board notes would document Plaintiff’s
refusal to return to Unit 4A. Yet Dr. Gafford testified that Plaintiff did not
refuse to return to Unit 4A prior to September. And Defendant Jordan
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testified he knew Plaintiff wanted to return to Unit 4A “as of April 4, 2013.”
In light of the testimony and the documents from 2013 that have been
produced, there is more than a “reasonable possibility” that the missing
records would be helpful to Plaintiff’s case.
Moreover, Plaintiff is unfairly limited in how he can refute Defendants’
recollection of events by not being able to compare Defendants’ current
testimony to their contemporaneous notes. This puts Plaintiff in a difficult
position, as he is forced to rely in large part on his word against the word of
a Denver Sheriff Department Captain and Sergeant. Indeed, Defendants
themselves admit that the missing records would provide important evidence
that could be consequential to Plaintiff’s case.
Motion [#387] at 11 (internal citations omitted).
For their part, Defendants contend:
Plaintiff’s theory that the Board’s 2013 Packets would contain evidence
favorable to his claims is speculative and insufficient to warrant a spoliation
sanction, let alone an adverse inference jury instruction. Again, Plaintiff
alleges that Defendants during their weekly Board rounds ignored him and
would walk past his cell “really fast.” Plaintiff repeatedly testified that there
were only three times between March 24, 2013, and December 18, 2013, in
which the Board stopped at his cell and conversed with him. Plaintiff claimed
that other than those three times, Defendants walked past him and did not
answer his questions. Plaintiff testified that he could not hear Defendants
through his closed cell door as they allegedly walked by and does not know
if they could hear him.
Plaintiff fails to explain how the Board’s notes in the misplaced 2013 Packets
would be favorable to his case. On the contrary, the Packets would contain
documentation of the Board’s visits to the inmates listed on the Excel
spreadsheets, including Plaintiff. Such notes would not only contradict
Plaintiff’s testimony, but also support Defendants’ assertion that they met
with him practically every week. Defendant Jordan testified that the Board
spoke with Plaintiff “very frequently” when he was in 4D, and that “every time”
the Board spoke with him, he refused to return to 4A. Romero testified that
every time he participated in the Board’s weekly rounds, he recalls meeting
with Plaintiff. Plaintiff fails to explain how the Board’s handwritten notes
documenting its weekly rounds with all inmates in special management would
likely be favorable to his case.
In addition, Plaintiff’s argument that the May 2013 Board record supports his
claim of prejudice fails because it relies on incomplete information. The very
same information that Plaintiff claims is critical in that record exists in other
available documents. Specifically, Plaintiff contends that the May 2013
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record “does not support Defendants’ claim, as it does not state that Plaintiff
refused to return to Unit 4A, and instead lists the code for ‘OSO’ or ‘other
sexual offense,’ which supports Plaintiff’s claim that he was punished for
fighting his charges.” Plaintiff neglects to mention, however, that the native
Excel spreadsheets for 2013 contain the very same alert codes as would be
reflected in the misplaced paper documents. The availability of this
information on the native spreadsheets forecloses Plaintiff from claiming
prejudice from the absence of the printed versions of those same documents.
...
. . . Further, for a time period in 2014 when Plaintiff returned to special
management, the Board’s Packets show that they merely consisted of a
cover page summarizing the number of inmates the Board saw that week;
the questions that the classification deputy asked every inmate that week; tier
sheets with the deputy’s notes of the inmates’ answers to each question; and
the Board’s notes on each inmate reflecting whether he would remain or
leave segregation. The 2014 documents, like the May 2013 document, are
consistent with Defendants’ testimony and simply stated “remain” or “refer to”
another housing unit, or documented an alert code change. Plaintiff’s
assertion that the Board’s notes from 2013 would “supposedly state[] the
reason Plaintiff was held in 23-hour lockdown for approximately
eight-and-a-half months” is speculative and inconsistent with the evidence.
Further, while Plaintiff also contends that he is “unfairly limited in how he can
refute Defendants’ recollection of events by not being able to compare
Defendants’ current testimony to their contemporaneous notes,” he provides
no support for his position. This case turns on the parties’ different
explanations of why Plaintiff remained housed in 4D. Plaintiff’s counsel can
raise these issues with Defendants and Dr. Gafford on cross-examination,
and the jury can evaluate the Defendants’ testimony without the Board
documentation.
Response [#418] at 6-10 (internal citations and footnotes omitted).
Although Defendants make several compelling points, the Court notes that the
absence of the vast majority of the Review Board records from the applicable period
eliminates the best possibility of telling the whole story about why Plaintiff remained in
segregation for so many months. It does not take much imagination to envision that the
missing records could tell a different story from Defendants’ version of events. Without
those records, Plaintiff’s opportunity to establish and/or contradict Defendants’ reasons why
he was kept in segregation is diminished. As a result, the Court finds that his ability to
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prove the alleged violation of his Constitutional rights has been prejudiced. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994).
C.

Culpability
As part of its analysis, the Court must consider whether Defendants were culpable

in the loss or destruction of evidence. See Grant, 505 F.3d at 1032. Defendants concede
that the Denver Sheriff Department (“DSD”) had a duty to preserve the Board’s 2013
records pursuant to its classification policies and to preserve records related to Plaintiff’s
time in special management pursuant to a 2014 litigation hold from the City Attorney’s
Office, but they argue that there is no evidence that either Defendant was responsible for
the misplacement of the records. Response [#418] at 10. At the outset, the Court notes
that all sources agree that the hard copy records of the Review Board’s written decisions
were never entered into the electronic jail management system, despite the DDC policy
requirement that this back-up action be taken. See, e.g., Pl.’s Ex. 2 [#388-1] at 99-100.
Thus, although there may be an issue of records mismanagement and failure to follow
internal policy, there is not an issue that any such electronic records were spoliated by any
party or non-party.
From 2014 to June 2017, Defendant Romero was a watch commander in the DDC
and the Captain overseeing the Special Management Unit, which included Unit 4D. Pl.’s
Ex. 3 [#388-2] at 11-12. In his deposition taken November 28, 2018, Defendant Romero
testified that the Review Board compiled weekly notes of its decisions, that those notes
were kept in the sergeant’s office, and that he last saw those notes in the sergeant’s office
in 2013. Id. at 155-58.
Defendant Jordan testified that he had custody and control of the relevant Review
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Board records until he transferred out of DDC’s Special Management Unit in August 2015.
Pl.’s Ex. 2 [#388-1] at 23, 26. In his deposition taken November 27, 2018, he testified that
he was very sure in August 2015, when he left DDC’s Special Management Unit, that
Plaintiff’s Review Board records still existed and therefore it must have been at some
unknown time after that when they were lost or destroyed. Id. at 97, 109. In July 2017 he
conducted a thorough search for the records but was unable to find them. Id. at 98.
Defendants concede that they “have not learned definitively what may have
happened to the Board’s 2013 records or precisely when they were misplaced.” Response
[#418] at 11. However, they offer the following theory. Sergeant Garry Tribble (“Tribble)
has worked in the Classification unit since 2015. Decl. of Tribble [#418-4] ¶ 1. He states
that since he started there, the Board’s weekly records were kept with other Classification
documents “in a drawer in one of three cabinets that were in the Classification office on the
third floor of the DDC.” Id. ¶ 4. When space in the cabinets was needed for newer records,
Sgt. Tribble and others moved the records from the drawers into boxes, which were then
kept in the storage closet of the Classification office. Id. ¶¶ 5, 7. Sgt. Tribble did not recall
either Defendant ever participating in this boxing process. Id. ¶ 6. When the storage closet
became full, a second closet was also utilized to store the boxed records. Id. ¶ 7. The
boxes were still in the closets when Defendant Romero retired in June 2017. Id. ¶ 8.
Shortly after that, the new Captain of Classification “directed that the boxes be sent to the
Imaging Department to be scanned.” Id. ¶ 9. After the boxes were removed from
Classification, Sgt. Tribble is unaware exactly what happened to them or where they are
now. Id. Thus, Defendants theorize that the records were lost sometime after they were
sent to the Imaging Department. Response [#418] at 11. The parties have presented no
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evidence regarding whether the relevant records were ever actually scanned by the
Imaging Department.
Sgt. Tribble does not recall seeing the specific documents at issue during his time
working in Classification, although there is no assertion that he ever looked for these
particular documents either. Id. ¶ 10. As outlined above, Defendant Romero states that
he last saw the records in 2013, but he would have had access to them until June 2017.
Defendant Jordan states that he last saw the records in August 2015, which means that he
would have had access to the notes from 2013 to August 2015, and then again, if (for the
sake of argument) they were there, when he searched for them in July 2017.
Beyond the fact that both Defendants may have had the opportunity to spoliate the
relevant records, there is no direct evidence that either one actually did so. There is no
evidence from any non-party stating that he or she saw the records at any given point in
time. Defendants have provided an alternative explanation for when the records were lost,
although there is no evidence conclusively proving that the records were still in the boxes
when the boxes were sent to the Imaging Department. It is also troubling that, given the
obvious relevance of these documents, Defendants did not take any affirmative step prior
to a search in July 2017 to make sure these documents were located and to protect them
from loss during the time when Defendants did, in fact, have custody and control over
them. See Cache La Poudre Feeds, LLC, 244 F.R.D. at 620 (stating that “litigants have
a duty to preserve documents that may be relevant to pending or imminent litigation”). In
short, though, there is nothing but circumstantial evidence and conflicting explanations for
what could have happened to the missing records, including whether one or both of these
Defendants may have been culpable in their loss.
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D.

Bad Faith and Sanctions
At the outset, the Court notes that the Tenth Circuit has recently conceded that

“[t]here is some tension in precedents of this court” regarding whether an adverse inference
“instruction is proper absent a court finding of bad faith by the party that possessed the
records that were lost or destroyed.” E.E.O.C. v. JetStream Ground Servs., Inc., 878 F.3d
960, 965 (10th Cir. 2017). “The more recent precedents insist on a finding of bad faith
before giving an adverse-inference instruction.” Id. (citing Aramburu v. Boeing Co., 112
F.3d 1398 (10th Cir. 1997); Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136 (10th Cir.
2009)). “An earlier case, however, suggests that such a finding is unnecessary.” Id. (citing
Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)).
Regardless, the Court finds that Hicks is distinguishable from the facts of the present
case. See JetStream, 878 F.3d at 966-67. There, the Circuit Court held that the plaintiff
was entitled to a “presumption that the destroyed documents would have bolstered [the
plaintiff’s] case” because the documents were destroyed in violation of EEOC regulations.
Hicks, 833 F.2d at 1419. Here, Plaintiff has not demonstrated that the relevant Board
Review documents were destroyed by Defendants in violation of DDC policy—in fact, there
is no evidence that they have been destroyed by Defendants at all. Rather, the evidence
demonstrates only that the documents have been lost. Although the documents may have
been destroyed—and if they were destroyed prior to scanning by the Imaging Department,
this would likely constitute a violation of DDC policy—there is no clear evidence to that
effect before the Court. Accordingly, the Court “compl[ies] with the post-Hicks precedents,”
see JetStream, 878 F.3d at 966, and finds that Plaintiff must provide evidence of bad faith
to be permitted an adverse inference instruction here.
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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, 563
F.3d at 1149. “If the aggrieved party seeks an adverse inference to remedy the spoliation,
it must also prove bad faith.” Id. “Mere negligence in losing or destroying records is not
enough because it does not support an inference of consciousness of a bad case.”
Aramburu, 112 F.3d at 1407.
Plaintiff argues that “Defendants acted with bad faith by intentionally not preserving
the Review Board records, trying to cover up their existence, seeking to dismiss Plaintiff’s
claims on the basis of the Review Board meetings without revealing that the Review Board
records had been lost or destroyed, and violating DDC policies and procedures.” Id. at 9;
see also id. at 12-13. Defendants argue that, even if Plaintiff could prove culpability, he has
not demonstrated bad faith:
. . . First, . . . the preservation of the documents was beyond the control of
either Defendant, and therefore, contrary to Plaintiff’s suggestion, neither
Defendant is responsible for failing to preserve the DSD’s records of the
Board’s 2013 weekly reviews.
Second, Plaintiff’s accusation that Defendants tried to take advantage of
Plaintiff when he was pro se by improperly redacting information from DSD
policies is wholly unsupported. At the time that Defendants produced DSD
policies to Plaintiff, he was a prisoner in the Department of Corrections,
making it entirely appropriate for defense counsel to redact the non-public
portions of the DSD’s internal Post Order from copies sent to Plaintiff. In
addition, the timing of Defendants’ production of the redacted Post Order
does not support Plaintiff’s insinuation that counsel acted with a motive to
conceal information related to the Board’s records. The Defendants
produced the redacted copies of the Post Order in August 2016, a year
before the 2013 records are believed to have been misplaced in 2017. There
was no way of knowing in August 2016 that the 2013 records would be
misplaced a year later, and therefore it defies logic that counsel had a motive
to hide the existence of documents that, as of then, were likely in the
classification office. Furthermore, there was no reason to hide the existence
of notes from Plaintiff, who said he had observed Defendants write notes
during rounds.
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Third, Plaintiff’s allegation that the pleadings drafted by defense counsel in
this case somehow constitute a pattern of “hiding the existence of missing
records” is untrue and unsupported. Notably, Plaintiff fails to identify any
statement in Defendants’ pleadings that is false. Contrary to the accusation
of engaging in a cover-up, counsel directly informed the Court that the weekly
Board reports could not be located after an extensive search. Furthermore,
instead of resisting Plaintiff’s new counsel’s request for un-redacted copies
of the Post Order, defense counsel promptly and voluntarily cooperated by
agreeing to provide un-redacted documents. These actions are directly at
odds with Plaintiff’s claim of a “cover up.”
Fourth, Defendants’ inability to follow a DDC written policy due to technology
and staffing limitations does not demonstrate bad faith. The 2013 Packets
were stored in paper form. While DDC policy stated the records should also
be stored in JMS, the technology was not in place to store the Board’s
weekly records in the system. Additionally, because the Board was seeing
approximately 170 inmates per week, there was not enough staffing to
manually input all information from the Board’s weekly reviews into JMS.
There is no evidence that either Defendant had the authority to implement
that process within the DDC despite the policy requirement. Accordingly,
there is again no evidence that Defendants acted in bad faith.
Response [#418] at 12-14 (internal citations and footnotes omitted). At most, Defendants
assert that the Court should allow presentation of the evidence that Defendants failed to
preserve the Review Board records and allow the parties to argue for whatever inference
they believe is appropriate by the trier of fact. Response [#387] at 39.
As noted above, the determination of proper sanctions turns on the culpability of
Defendants’ alleged conduct. After a full review, the Court notes that the evidence
presented is consistent with bungled record-keeping, bungled records management, and
extreme carelessness, but the Court cannot find that Plaintiff has met his burden of proving
that the evidence is consistent with bad faith. Taken as a whole, the evidence paints a
portrait of ineptitude, not malfeasance. An adverse inference instruction is appropriate only
if the Court finds that the moving party has shown that the party who lost or destroyed the
evidence did so intentionally or in bad faith, because “[m]ere negligence in losing or
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destroying records is not enough.” Turner, 563 F.3d at 1149 (quoting Aramburu, 112 F.3d
at 1407). Although it is possible that Defendants may have contributed to the loss or
destruction of the Review Board records, the evidence demonstrates that it is probable on
this record that other employees at DDC, which is not a defendant in this action, caused
their loss or destruction. Thus, the Court declines to find that the severe sanctions sought
by Plaintiff in this case should be imposed:
Judges must be careful to tailor the remedy to the problem, and ‘take pains
neither to use an elephant gun to slay a mouse nor to wield a cardboard
sword if a dragon looms.’ The sanction to be applied needs to be one which
is appropriate to the truth-finding process, not one that serves only further to
suppress evidence . . . . Sanctions which preclude the admission of certain
evidence or provide for a negative inference in the place of destroyed
evidence operate in the same fashion as a default judgment. They intrude
into the ‘truth-finding process’ of a trial, and represent ‘grave steps’ for a trial
judge to take. Such sanctions should be considered with very great restraint.
Gates Rubber Co., 167 F.R.D. at 106-07 (citations omitted). Although it is apparent that
the relevant Review Board records existed, that most of them have been lost or destroyed,
and that Plaintiff has been prejudiced, the Court does not find that Plaintiff has sustained
his burden of demonstrating that Defendants were culpable and acted in bad faith. Turner,
563 F.3d at 1149.
Nevertheless, some sanction is appropriate due to the apparently negligent
spoliation of evidence demonstrated here and the facts that the relevant records were
indeed in the custody and control of Defendants for varying periods after this litigation
began and that some affirmative steps should have been taken at that time for their
preservation. Accordingly, the Court recommends that the Motion [#387] be granted in
part to the extent that the parties be permitted to present evidence relating to the lost or
destroyed Review Board records and to argue whatever inferences they hope the jury will
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draw from their absence.
III. Conclusion
For the reasons discussed above,
IT IS HEREBY RECOMMENDED that the Motion [#387] be GRANTED in part, to
the extent that the parties be permitted to present evidence relating to the lost or destroyed
Review Board records and to argue whatever inferences they hope the jury will draw from
their absence.
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall
have fourteen (14) days after service of this Recommendation to serve and file any written
objections in order to obtain reconsideration by the District Judge to whom this case is
assigned. A party’s failure to serve and file specific, written objections waives de novo
review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn,
474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal
questions. Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v.
Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996).

A party’s objections to this

Recommendation must be both timely and specific to preserve an issue for de novo review
by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73
F.3d 1057, 1060 (10th Cir. 1996).
Dated: January 10, 2019

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