Estate of Cindy Lou Hill et al v. Naphcare Inc et al

Filing 88

ORDER GRANTING 28 PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT AGAINST SPOKANE COUNTY AND DENYING AS MOOT 37 SPOKANE COUNTY'S MOTION FOR SUMMARYJUDGMENT. DEFAULT JUDGMENT as to liability is entered in favor of Plaintiffs on their negligence and § 1983 claims against Defendant Spokane County. This matter will proceed to trial for a determination of damages against Defendant Spokane County. Counsel for all parties shall file a status report by May 16, 2022. Signed by Judge Mary K. Dimke. (LAS, Case Administrator)

Case 2:20-cv-00410-MKD

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FILED IN THE
U.S. DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

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May 09, 2022
SEAN F. MCAVOY, CLERK

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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ESTATE OF CINDY LOU HILL, by
and through its personal representative,
Joseph A. Grube, and CYNTHIA
METSKER, individually,

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Plaintiffs,
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vs.
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NAPHCARE, INC., an Alabama
corporation; HANNA GUBITZ,
individually; and SPOKANE COUNTY,
a political subdivision of the State of
Washington,
Defendants.

No. 2:20-cv-00410-MKD
ORDER GRANTING PLAINTIFFS’
MOTION FOR DEFAULT
JUDGMENT AGAINST SPOKANE
COUNTY AND DENYING AS
MOOT SPOKANE COUNTY’S
MOTION FOR SUMMARY
JUDGMENT
ECF Nos. 28, 37

Before the Court are Plaintiffs’ Rule 37(e) Motion for Default Judgment and

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Other Sanctions Against Defendant Spokane County for Spoliation of Evidence,

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ECF No. 28, and Defendant Spokane County’s Motion for Summary Judgment,

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ECF No. 37.

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This case involves the death of Cindy Lou Hill, who died after spending
approximately four days at the Spokane County Jail. At issue is Defendant

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Spokane County’s spoliation of six hours of relevant jail surveillance video. The

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Court finds Spokane County spoliated the video evidence with an intent to avoid

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its litigation obligations. The Court finds default judgment is the only spoliation

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sanction that addresses the substantial risk of prejudice to Plaintiffs without

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prejudicing the remaining defendants who are not responsible for the spoliation.

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Accordingly, the Court grants Plaintiffs’ Motion for Default Judgment and denies

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as moot Spokane County’s Motion for Summary Judgment.

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FACTUAL AND PROCEDURAL BACKGROUND
A. Ms. Hill’s Booking and Transfer to Medical Watch
Ms. Hill was arrested on August 21, 2018 for possession of a controlled

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substance and taken to the Spokane County Jail. ECF No. 1 at 7-8; ECF No. 38 at

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1. Throughout Ms. Hill’s detention, Spokane County contracted with Defendant

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NaphCare, Inc., a private correctional healthcare company, to provide medical

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services to individuals confined at the jail. ECF No. 1 at 4; see ECF No. 38. On

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August 22, 2018, Ms. Hill informed a NaphCare nurse that she was a heroin user

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and she was thereafter placed on the Clinical Opiate Withdrawal Scale (COWS)

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protocol. ECF No. 1 at 8; ECF No. 38 at 1. Her score on the initial COWS

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assessment was 5, and assessments over the next few days continued to document

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scores ranging from 5-12, indicating mild to moderate withdrawal symptoms. ECF

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No. 45 at 69-101.

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At 8:45 a.m. on August 25, 2018, Defendant Hanna Gubitz, RN, a registered

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nurse and NaphCare employee, attempted to perform a COWS assessment on

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Ms. Hill. ECF No. 45 at 77. Ms. Hill was laying partially dressed on the floor of

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her cell; her cellmate told Nurse Gubitz that Ms. Hill was experiencing severe

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abdominal pain. ECF No. 45 at 77. Ms. Hill was in distress and could not move to

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the edge of her cell to be evaluated; instead, her cellmate had to place her on a

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blanket and drag her to the cell door where she laid screaming in pain. ECF No. 45

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at 77. Nurse Gubitz could not conduct a full abdominal assessment because of

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Ms. Hill’s pain and documented the encounter as follows:

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Patient laying on the floor on arrival to cell wearing pants but no shirt.
Patient indicated she did want to be checked but stated she was too
sick to move. Notified patient we could not enter the cell without an
additional officer. Patient’s roommate rolled her in a blanket and
dragged her to the cell door where she lay next to the toilet screaming.
Patient’s cellmate indicated patient was having severe abdominal pain
and it was most likely her appendix. Patient curled in fetal position on
floor, barely allowed this RN to check vitals. Patient allowed minimal
assessment of abdomen. No bruising, swelling, redness, or masses
noted on visual assessment or palpation. Patient screamed even louder
before this RN even touched abdomen shouting that this RN was
hurting her. Patient would not answer questions about what her pain
was on a scale of 1-10, when it started, or what it felt like. She stated
it was on her right lower abdomen but screamed in pain on gentle
palpation of entire abdomen and back. Patient taken to 2W via
wheelchair for medical watch.

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ECF No. 45 at 77.
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Nurse Gubitz directed Ms. Hill to be transferred to a section of the jail called

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“2 West”— referred to in the above documentation as “2W”—to be subject to

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“medical watch.” ECF No. 45 at 77; ECF No. 29-2 at 27; ECF No. 38 at 1.
“Medical watch” in the Spokane County Jail consists of corrections officers

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conducting periodic checks on the inmate or detainee and documenting their

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observations on a “Medical Watch General Observation” form that is posted

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outside the individual’s cell. ECF No. 45 at 156-58, 162-65; ECF No. 38 at 2. The

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medical watch form lists “examples of important changes to report to medical,”

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which include the following: nausea/vomiting; unequal pupil size; unable to

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answer simple questions (i.e. where are you/who are you?); weakness to one side

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of the body; difficult to wake; change in speech; increased drowsiness; unsteady

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while walking; difficulty breathing; seizure like activity; facial droop; severe

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headache; worsening chest pain; worsening abdominal pain; and other. ECF No.

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29-4 at 2.1 The medical watch form also contains a code list, which includes the

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and NaphCare. Plaintiffs contend both entities are liable in negligence and under

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Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978), for

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maintaining unconstitutional practices, including “relying on untrained jail guards

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to medically monitor seriously ill inmates.” ECF No. 43; ECF No. 75 at 18.

Plaintiffs challenge the “medical watch” practice employed by Spokane County

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following: A=Awake; B=Reading; C=Court; E=Eating; G=Talking with officer;

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H=Toilet/Shower; J=Telephone Call; K=Standing at Door; L=Yelling/Screaming;

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M=Mental Health/Medication/Medical; P=Pacing; S=Sleeping; T=Talking to Self;

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U=Upset/Crying; and V=Visit. ECF No. 29-4 at 2.

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At 9:10 a.m., Ms. Hill was transferred via wheelchair to cell 2W27, a 2 West

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cell used for medical watch. See ECF No. 29-2 at 23-24; ECF No. 41-2.

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According to the “Medical Watch General Observation” log, Nurse Gubitz

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initiated Ms. Hill’s medical watch at 9:30 a.m. and directed corrections officers to

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check on Ms. Hill every 30 minutes. ECF No. 29-4 at 2. The log documented that

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corrections officers visited Ms. Hill’s cell at the following times and made the

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following code notations: 10:15 (S), 11:09 (A), 11:23 (S), 12:07 (S), 12:40 (S),

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13:10 (S), 13:43 (A), 13:58 (S), 14:30 (S), 15:00 (A), and 15:20 (A). ECF No. 29-

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4 at 2. The observational entry for 11:09 contains a narrative notation: “refused

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lunch.” There are no observational entries after 15:20 (3:20 p.m.).2 However,

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video surveillance from the camera showing the hallway outside cell 2W27

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(“2W27 hallway camera”) shows that a corrections officer visited Ms. Hill’s cell at

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4:07 p.m. and again at 4:26-4:29 p.m., at which time the officer placed a meal in

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code, only the following narrative: “was taken to Hospital.” ECF No. 45 at 130.

There is a final entry on the medical watch form that does not reflect a time or a

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the meal slot of Ms. Hill’s cell. See ECF No. 41-2. Corrections conducted the

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next check at 5:24 p.m., at which time Ms. Hill was found unresponsive. ECF No.

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1 at 13-14; ECF No. 38 at 3.

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B. Ms. Hill’s Death

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Ms. Hill was transported to the hospital and pronounced dead. ECF No. 38

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at 3. The Spokane County Medical Examiner determined Ms. Hill’s death was

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caused by acute bacterial peritonitis due to ruptured duodenal-liver adhesions with

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perforation of duodenum. ECF No. 33 at 31. In simplified terms, Ms. Hill

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suffered a ruptured intestine that caused gastric contents to leak into her abdomen.

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C. Plaintiffs Initiate the Present Action
On November 4, 2020, Plaintiffs (Ms. Hill’s Estate and her surviving

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daughter, Cynthia Metsker) filed a Complaint against Nurse Gubitz, NaphCare,

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and Spokane County, alleging violations of 42 U.S.C. § 1983 and negligence under

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state law. ECF No. 1. Plaintiffs allege Nurse Gubitz is liable under § 1983

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because she denied Ms. Hill constitutionally required medical care and did so with

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deliberate indifference, leading to Ms. Hill’s death, all in violation of Ms. Hill’s

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rights as a pretrial detainee under the Fourteenth Amendment. ECF No. 1 at 14,

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20. Plaintiffs allege Naphcare and Spokane County are also liable under § 1983

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because each maintained constitutionally deficient policies, practices, and customs

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that subjected detainees like Ms. Hill to a substantial risk of serious harm and

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which policies and customs were a moving force in Ms. Hill’s death. ECF No. 1 at

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15-16, 21. In addition, Plaintiff Cynthia Metsker alleges that she has “suffered the

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loss of her mother’s society and companionship, in violation of her own Fourteenth

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Amendment rights.” ECF No. 1 at 21.

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With respect to their negligence claims, Plaintiffs allege that Nurse Gubitz

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and NaphCare proximately caused Ms. Hill’s death by failing to follow accepted

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standards of care and that Spokane County is liable for the negligent acts of

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NaphCare and its employees under the non-delegable duty doctrine. ECF No. 1 at

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20-21. Plaintiffs allege Spokane County is also liable for its own negligence that

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proximately caused Ms. Hill’s suffering and death. ECF No. 1 at 20, 22.
D. The Parties Dispute What Occurred on Medical Watch
Nurse Gubitz asserts that she visited Ms. Hill’s cell around 3:00 p.m., asked

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Ms. Hill whether she wanted to be checked, and Ms. Hill “indicated she did want

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to be checked and sat up some in bed.” ECF No. 29-12 at 2; ECF No. 33 at 7-8.

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Nurse Gubitz asserts Ms. Hill was “responsive and forthcoming and was not

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screaming at all during this conversation. She made a comment that her stomach

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still hurt and then said she didn’t want to be checked and laid back down.” ECF

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No. 29-12 at 2. Plaintiffs challenge this assertion based on the expert opinion of

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Sebastian D. Schubl, M.D., who opined that Nurse Gubitz’s account of Ms. Hill’s

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actions was “physically impossible” given the rigidity of her abdomen and the

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unrelenting pain her condition would have caused. ECF No. 29-9 at 7, 9.

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Plaintiffs also question whether the visits conducted by the corrections officers

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took place at the times noted on the medical watch form and, if they did, whether

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they were so cursory as to be meaningless.

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E. Production of Jail Video Showing Cell 2W27 Where Ms. Hill Was
Housed on Medical Watch
Cameras installed throughout the Spokane County Jail continuously record
activity in the jail. At the outset of this litigation, Plaintiffs issued the following
requests for production to Spokane County:
Request for Production No. 8: Produce all video footage showing
Cindy Lou Hill or showing the outside of any cells in which she was
confined.
Request for Production No. 9: Produce all video footage showing cell
2W27 (the cell in which Cindy Hill was housed on the day of her
death) as well as all video footage showing the hallway and exterior of
her cell from the moment she was confined there on the morning of
August 25, 2018 until her body was removed from the jail.
ECF No. 29-16 at 3. Spokane County’s initial response was that efforts were being
made to locate the requested video. ECF No. 29-16 at 3. After providing certain
video footage, it later supplemented its response and stated that, “All video has
been provided.” ECF No. 29-16 at 3. At this time, Spokane County had produced
only portions of the video surveillance footage from the 2W27 hallway camera.
Plaintiffs’ Rule 37(e) motion is based on the missing video from this camera.

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From the 2W27 hallway camera for the time period between 9:10 a.m. and

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5:24 p.m.—the time Ms. Hill was housed in cell 2W27 on medical watch—

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Spokane County produced video for an approximately 32-minute period between

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8:43 a.m. and 9:15 a.m. and an approximately 2-hour-and-30-minute period

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between 4:00 p.m. and 6:30 p.m. ECF No. 29-18 at 20. Spokane County did not

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produce video from the 2W27 hallway camera for the period between 9:15 a.m.

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and 4:00 p.m., which is when the documented 30-minute medical watch checks

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would have occurred and when Nurse Gubitz stated she visited Ms. Hill at

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approximately 3:00 p.m. ECF No. 29-18 at 20.

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F. Plaintiffs Depose Spokane County Officials
1. Lieutenant Don Hooper
Plaintiffs conducted a Rule 30(b)(6) deposition of Administrative Lieutenant

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Don Hooper of Spokane County Detention Services, the department that operates

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the Spokane County Jail, regarding the missing video. ECF No. 29-18 at 2.

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Lieutenant Hooper testified about the jail’s video preservation system, including

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that: all surveillance video is automatically preserved for 60 days; each camera

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automatically overwrites its footage beginning on day 61; after a significant event

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at the jail such as a death, surveillance video could be permanently preserved by

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saving it to a disc; and the jail had a policy to retain video on significant events,

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such as a death. ECF No. 29-18 at 8.

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Lieutenant Hooper also testified about the events specific to Ms. Hill’s

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death, including that: Spokane County Detention Services was aware of Ms. Hill’s

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death by the early evening of August 25, 2018—the day of her death; as of August

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25, 2018, all jail surveillance video from that day existed and could have been

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permanently preserved; Spokane County Detention Services knew, as of the time it

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became aware of Ms. Hill’s death, that it had 60 days from the day of her death to

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choose what video to preserve and what video to allow to be destroyed by the

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system’s automatic overwriting procedure; and it would have been the standard

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operating procedure following Ms. Hill’s death to preserve evidence relating to her

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confinement on August 25, 2018. ECF No. 29-18 at 10, 13. Lieutenant Hooper

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further testified that Spokane County Detention Services knew that Ms. Hill’s

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death would likely be investigated by law enforcement, that Ms. Hill’s family

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members might submit public records requests related to her death, and that

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Ms. Hill’s death was reasonably likely to result in civil litigation. ECF No. 29-18

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at 17. He testified he believed Spokane County had an obligation to preserve the

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evidence related to Ms. Hill’s confinement. ECF No. 29-18 at 13.

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As confirmed by Lieutenant Hooper, the surveillance video from the 2W27

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hallway camera would have shown the identity of any person that came to

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Ms. Hill’s cell on the day of her death, the time at which any visits occurred, and

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for how long any visit lasted. ECF No. 29-18 at 15.

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Lieutenant Hooper did not know why some portions of the video from the

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2W27 hallway camera were preserved and others were not, and he could not

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identify the individual that would have been responsible for deciding which

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footage to permanently preserve. ECF No. 29-18 at 18. Although he did not know

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who, Lieutenant Hooper testified that someone at Spokane County Detention

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Services made the conscious choice to preserve only certain portions of the video

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from August 25, 2018, and someone likewise made a conscious decision not to

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preserve other portions, allowing them to be permanently erased. ECF No. 29-18

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at 19. In particular, Lieutenant Hooper said that “if they didn’t record it in 60 more

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days, the officers that would’ve been in charge of recording it knew that it would

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write over itself.” ECF No. 29-18 at 19. Lieutenant Hooper confirmed that,

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despite having the means and ability to preserve the entire video from the 2W27

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hallway camera from August 25, 2018, Spokane County Detention Services

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preserved only the video for the periods between 8:43 a.m. and 9:15 a.m. and 4:00

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p.m. and 6:30 p.m. ECF No. 29-18 at 20. He also confirmed that the footage in

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between these periods from 9:15 a.m. and 4:00 p.m. was not preserved and can no

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longer be restored. ECF No. 29-18 at 20.

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2. Director Michael Sparber

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Plaintiffs deposed Michael Sparber, the Director of Spokane County

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Detention Services, who testified that Spokane County Detention Services had an

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understanding that Ms. Hill’s death, like any death at the jail, might result in civil

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litigation and it understood that, given the possibility of litigation, it had an

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obligation to preserve all electronically stored information pertaining to Ms. Hill.

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ECF No. 29-19 at 4, 5. Mr. Sparber also testified that it would not have been

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appropriate for Spokane County Detention Services to fail to preserve a portion of

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the video from the 2W27 hallway camera from 9:15 a.m. to 4:00 p.m. and that he

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would see no reason for the video to be destroyed. ECF No. 29-19 at 9-11.

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G. Plaintiffs File the Present Motion for Rule 37(e) Terminating Sanctions
and Spokane County Erroneously Denies Spoliation
On December 17, 2021, Plaintiffs filed the instant Rule 37(e) motion for
terminating sanctions based on the missing six hours and 45 minutes of
surveillance video from the 2W27 hallway camera. ECF No. 28. Plaintiffs
contend that Spokane County was aware of Ms. Hill’s death shortly after it
occurred, it knew it had a duty to preserve all electronically stored information
pertaining to Ms. Hill’s confinement given the likelihood of litigation as a result of
her death, and yet it preserved only some portions of the surveillance video from
the day of Ms. Hill’s death. They contend that Spokane County failed to preserve
the most crucial video evidence that would have allowed Plaintiffs to confirm that
corrections staff and Nurse Gubitz visited Ms. Hill at the times and in the manner
proclaimed. Plaintiffs argue, based on the deposition testimony of Lieutenant
Hooper and Director Sparber, that the decision to allow the video evidence to be

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deleted was an intentional choice by Spokane County. Plaintiffs seek default

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judgment against Spokane County, contending it is the only remedy that addresses

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the risk of prejudice caused by the intentional spoliation without unfairly punishing

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Nurse Gubitz and NaphCare.

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In response, Spokane County asserts spoliation has not actually occurred,

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stating that “[t]here is no basis for a spoliation sanction against Spokane County

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because it preserved the evidence in question.” ECF No. 32 at 1. Spokane County

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explains that, while preparing the response to Plaintiffs’ motion, “additional video

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was located that … somehow went unviewed when it arrived and was

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inadvertently not produced during production of other Jail video.” ECF No. 32 at

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3. According to Spokane County, the inadvertently omitted video “captures the

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date, time and location of Ms. Hill’s custody that is at issue in this motion: namely

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the hallway outside cell 2W27 for 7 hours and 26 minutes on August 25, 2018,

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following Ms. Hill’s arrival at that cell location.” ECF No. 32 at 3.

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In addition to arguing the evidence in question was preserved, Spokane
County also argues that Plaintiffs’ Rule 37(e) motion was untimely. ECF No. 32

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at 5. One week after filing its response to Plaintiff’s Rule 37(e) motion, Spokane

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County moved for summary judgment on all claims against it. ECF No. 37.3
In reply, Plaintiffs contend Spokane County’s response is “wholly

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inaccurate” as the “six hours and 45 minutes of crucial hallway surveillance video

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that is the subject of Plaintiffs’ motion remains permanently erased.” ECF No. 34

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at 2. Plaintiffs explain the video referenced by Spokane County was previously

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produced near the outset of the litigation and is not the missing video from the

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2W27 hallway camera. ECF No. 34 at 3-4. Plaintiffs attach a series of screenshots

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demonstrating the distinction between the view from the 2W27 hallway camera

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and the view from the video Spokane County produced and which it claimed to be

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the missing video. ECF Nos. 35-1, 35-2, 35-3, 35-4, 35-5. The screenshots

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demonstrate that the video produced by Spokane County in response to Plaintiffs’

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motion is not the missing video that is the subject of that motion.

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Despite Plaintiffs’ demonstration that Spokane County had not produced the

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missing video from the 2W27 hallway camera, Spokane County did not seek the

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Court’s leave to file a sur-reply or otherwise address its erroneous response.

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not seeking summary judgment on Plaintiffs’ negligence claim based on the

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alleged negligent acts of Nurse Gubitz and NaphCare. ECF No. 50 at 2, 10.

Spokane County’s reply clarifies that, given the non-delegable duty doctrine, it is

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Indeed, Spokane County did not correct the factual assertions in its response filed

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on January 7, 2022, until the Court heard oral argument on Plaintiffs’ Rule 37(e)

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motion on February 8, 2022. Thus, at the time of the hearing on the motion,

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Spokane County had not submitted any written argument that addressed whether

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the standard for sanctions under Rule 37(e) had been met and what remedy, if any,

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the Court should impose.

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H. February 8, 2022 Hearing on Plaintiffs’ Rule 37(e) Motion
At the February 8, 2022 hearing on Plaintiffs’ Rule 37(e) motion, Spokane

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County conceded that its response was factually erroneous and that the missing six

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hours and 45 minutes of footage from the 2W27 hallway camera was not produced

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or preserved. Spokane County was unable to explain why this portion of the video

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was not preserved when other portions were. However, it argued that there was no

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duty to preserve the evidence because there was no express request in the record

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for the video to be produced at the time it was deleted. It also argued that Plaintiffs

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had not demonstrated the spoliation was intentional as opposed to the result of

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negligence or human error.

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While maintaining that sanctions were not warranted, Spokane County

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argued that, were the Court to find intentional spoliation, the remedy should be an

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adverse jury instruction, which it argued would be sufficient to cure the spoilation,

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not a default judgment against it. However, Spokane County did not propose

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language for a potential jury instruction and did not explain how an instruction

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would operate in this multi-defendant case in which the liability of all three

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defendants is intertwined but in which NaphCare and Nurse Gubitz are not

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responsible for the spoliation.

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I. The Court Seeks Supplemental Briefing
Following the hearing, the Court ordered that the parties could submit
additional briefing on the following two questions:
1) Does the Court have authority to enter default judgment for
discovery violations under Fed. R. Civ. P. 37(e)(2) against a party that
contests its underlying liability and for which a motion for summary
judgment on that basis is pending?

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2) If a sanction under Fed. R. Civ. P. 37(e)(2) is warranted,
should the Court consider any impact of an adverse jury instruction
against Spokane County on the other defendants in the action when
determining the appropriate sanction?

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ECF No. 49. In its supplemental briefing, Spokane County states it could find no

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case prohibiting the entry of default judgement as a spoliation sanction against a

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party who contests its liability in a pending motion for summary judgment. ECF

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No. 53 at 5. It argues that the missing video is not relevant or material to

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Plaintiffs’ claims against it and the Court should decide the summary judgment

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motion first. ECF No. 53 at 6, 10.

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As to the Court’s second question, Spokane County states it has found no
case which would prevent the Court “from seeking to avoid or limit any negative

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impact of a sanction on NaphCare and Nurse Gubitz.” ECF No. 53 at 9. With

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respect to a potential remedy, it argues the Court could award reasonable fees

3

associated with the spoliation motion and could also consider an adverse inference

4

instruction. ECF No. 53 at 9-10. Spokane County ultimately argues that an

5

adverse jury instruction is unwarranted, ECF No. 53 at 10, but states that, if the

6

Court decides to issue an adverse instruction,

7
8
9

it can instruct the jury that Spokane County and not NaphCare or
Nurse Gubitz had control over the video recording system and if it
instructs the jury to draw any adverse inferences, it can also instruct
[the jury] that those adverse inferences should not be drawn against
NaphCare or Nurse Gubitz. Juries are presumed to follow the Court’s
instructions.

10
ECF No. 53 at 10-11. Spokane County does not further explain how the Court can
11
guard against the improper impact an adverse jury instruction against Spokane
12
County could have on NaphCare and Nurse Gubitz given Nurse Gubitz’s actions
13
are linked to Spokane County’s potential liability. See ECF No. 53 at 11. It
14
simply reiterates its view that terminating sanctions are not warranted and that,
15
“[i]f the Court concludes that any sanction is required, the sanction should not
16
punish NaphCare and Nurse Gubitz.” ECF No. 53 at 11.
17
Plaintiffs’ supplemental briefing argues the Court can “unequivocally” grant
18
the motion for default against Spokane County while a motion for summary
19
judgment on the issue of liability is pending. ECF No. 54 at 2. In support,
20
Plaintiffs cited Estate of Moreno v. Correctional Healthcare Companies, Inc., No.
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1

4:18-cv-5171-RMP, 2020 U.S. Dist. LEXIS 108370 (E.D. Wash. June 1, 2020), in

2

which the District Court granted default judgment against correctional health care

3

entities despite their pending motion for summary judgment on the issue of

4

liability.4
As to the Court’s second question, Plaintiffs argue default judgment is the

5
6

only tenable solution in this case because “no adverse jury instruction can suitably

7
8

4

9

Benton County Jail and later died from cardiac arrhythmia and dehydration.

In Estate of Moreno, an 18-year-old man was placed in an isolation cell at the

10

Pursuant to Monell and § 1983, the Estate of Moreno plaintiffs sued the

11

correctional healthcare companies with which Benton County Jail contracted to

12

provide healthcare services to inmates and detainees. In the course of the

13

litigation, the correctional healthcare companies spoliated a “startling” amount of

14

ESI, prompting the plaintiffs to file a Rule 37(e) motion for terminating sanctions.

15

Estate of Moreno, No. 4:18-CV-5171-RMP, 2020 WL 5740265, at *9. Later, the

16

correctional healthcare companies filed a partial motion for summary judgment,

17

seeking dismissal of the plaintiffs’ Monell claims against them. The district court

18

granted the plaintiffs’ motion for terminating sanctions and denied as moot the

19

correctional healthcare companies’ motion for partial summary judgment. Id. at

20

*10.

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1

and fairly remedy the potential harm to Plaintiffs without impermissibly penalizing

2

the County’s independent co-defendants, who were innocent to the spoliation.”

3

ECF No. 54 at 3. Plaintiffs assert that, “despite every opportunity to propose an

4

adequate remedy short of default, Spokane County did not advocate for a jury

5

instruction or even propose one as a practical, workable, or even possible remedy

6

in its written response to the instant motion.” ECF No. 54 at 11.

7

In their supplemental briefing, NaphCare and Nurse Gubitz object “to any

8

jury instruction that would have an adverse impact, or lead to an adverse

9

inference” against them. ECF No. 52 at 3.

10
11
12
13
14
15
16
17
18
19
20

J. Additional Argument on Plaintiffs’ Motion for Default Judgment
Permitted at the March 23, 2022 Hearing
At the conclusion of a subsequent hearing on Spokane County’s motion for
summary judgment, the Court took additional argument on Plaintiffs’ Rule 37(e)
motion. See ECF No. 68. Plaintiffs reiterated their position that the standard for
terminating sanctions under Rule 37(e) had been satisfied and that an adverse
inference instruction would unfairly punish NaphCare and Nurse Gubitz. Plaintiffs
also argued, contrary to Spokane County’s assertion, that the spoliated video is
relevant to their case against Spokane County because the video would have shown
the nature and extent of the corrections officers’ checks on Ms. Hill. Those checks
are relevant to their independent negligence claim against Spokane County. ECF
No. 75 at 35. Plaintiffs emphasized that nothing can replace the value of the video

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evidence as direct visual proof about how Ms. Hill was monitored on the day of

2

her death. ECF No. 75 at 37-38.

3

On the issue of intent, the Court inquired of Spokane County how it could

4

conclude that the failure to preserve the complete video from the 2W27 hallway

5

camera was anything other than intentional given Spokane County preserved some

6

of the video but not the most relevant portion and failed to provide the Court with

7

any information about how that decision-making process was conducted. Counsel

8

for Spokane County responded that he “wish[ed] [he] had some explanation for the

9

Court.” ECF No. 75 at 41-42.

10

As for an appropriate remedy in the event the Court were to find intent under

11

Rule 37(e)(2), Spokane County argued this case does not involve the type of

12

extreme circumstances that warrant default judgment. ECF No. 75 at 42. In

13

support, Spokane County distinguished Estate of Moreno, in which evidence was

14

destroyed mid-litigation after a formal production request for the evidence had

15

been issued, which circumstances are absent from this case. Spokane County

16

further argued that the Court should consider that a second jail video exists,

17

although it admitted the second video is not a substitute for the missing video.

18

ECF No. 75 at 43.

19
20

Finally, Spokane County again argued that it believed an adverse inference
instruction could be crafted. However, Spokane County again did not propose

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language for the Court’s consideration and again failed to articulate how, given the

2

intertwined liability issues, an adverse inference instruction could be fairly

3

fashioned and implemented so as to direct an adverse inference against only

4

Spokane County and not against NaphCare or Nurse Gubitz. ECF No. 75 at 56-59.

5

K. The Court Requests Proposed Jury Instruction and Additional Briefing
in Support

6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Following the March 23, 2022 hearing, the Court directed that:
[A]ny party in this matter may within 7 days of the date of this Order
submit a proposed adverse jury instruction and a 5-page brief in
support for the Court's consideration. Within 14 days of [the] date of
this Order, any party may submit a 5-page response to any instruction
proposed by any party.
ECF No. 72.
Spokane County proposes the following instruction:
Plaintiffs contend that Spokane County at one time possessed a
video recording from a camera located in the hallway outside Cell
2W27 in the Spokane County Jail covering the period from 9:43 a.m.
to 4 p.m. on August 25, 2018. Spokane County contends that the loss
of this videorecording was unintentional and not done to deprive
Plaintiffs of the use of the information in the litigation.
You may assume that such evidence would have been
unfavorable to Spokane County only if you find by a preponderance
of the evidence that Spokane County acted with the intent to deprive
Plaintiffs of the information’s use in the litigation.
ECF No. 78 at 1 (citing 7th Circuit Model Jury Instruction, 1.20 (2017)).
With respect to the Court’s concern that an adverse inference instruction
could potentially prejudice NaphCare and Gubitz, Spokane County states only that,

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“[t]he above proposed instruction allows counsel for NaphCare and Nurse Gubitz

2

to argue to the Jury that any adverse inference can only be used against Spokane

3

County because that is what the instruction in fact says.” ECF No. 78 at 3

4

(emphasis in original).

5

In response, Plaintiffs argue Spokane County’s proposed instruction

6

sidesteps the task of proposing an instruction that remedies the prejudice to

7

Plaintiffs without prejudicing Nurse Gubitz and NaphCare. ECF No. 79 at 3.

8

NaphCare asserts that, if an instruction is given, “there must be language informing

9

the Jury that that lack of evidence cannot be used against Defendants NaphCare

10

and Gubitz in any way.” ECF No. 84 at 2.

11
12
13

ANALYSIS
A. Federal Law Governs Spoliation Sanctions in Federal Cases
“Federal law governs the imposition of spoliation sanctions as ‘spoliation

14

sanctions constitute an evidentiary matter.’” Alabama Aircraft Indus., Inc. v.

15

Boeing Co., 319 F.R.D. 730, 739 (N.D. Ala. 2017), aff'd, No. 20-11141, 2022 WL

16

433457 (11th Cir. Feb. 14, 2022); Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir.

17

2009) (“[A] spoliation ruling is evidentiary in nature and federal courts generally

18

apply their own evidentiary rules in both federal question and diversity matters.”).

19
20

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B. Timeliness of Plaintiffs’ Motion
Spokane County argues the spoliation motion is untimely because Plaintiffs

3

“wait[ed] nearly nine months before filing th[e] motion.” ECF No. 32 at 5.

4

“Although Rule 37 does not contain an express time limit for filing a motion for

5

sanctions, unreasonable delay may render a motion for sanctions untimely.”

6

Jarrell v. Wal-Mart Stores, Inc., No. 218CV01219APGVCF, 2021 WL 1169889,

7

at *2 (D. Nev. Mar. 26, 2021) (internal quotations and alteration omitted).

8

Plaintiffs initiated this action on November 4, 2020. After engaging in

9

discovery and learning that relevant portions of the video from the 2W27 hallway

10

camera were not produced, Plaintiffs deposed Spokane County officials. Plaintiffs

11

deposed Lieutenant Hooper on July 21, 2021; the transcript for that deposition was

12

produced on July 27, 2021, and Lieutenant Hooper had 30 days to review and

13

correct it. See ECF No. 29-18 at 23 (Lieutenant Hooper reserved the right of

14

signature); Fed. R. Civ. P. 30(e). Plaintiffs deposed Director Sparber on August

15

16, 2021; the transcript was produced on August 23, 2021, and Director Sparber

16

had 30 days to correct it. See ECF No. 29-19 at 12 (Director Sparber reserved the

17

right of signature); Fed. R. Civ. P. 30(e). Plaintiffs filed their Rule 37(e) motion

18

on December 17, 2021, approximately two months after the time for Director

19

Sparber to correct his deposition transcript had expired. Based on this timeline, the

20

Court concludes that Plaintiffs did not unreasonably delay the filing of the motion.

ORDER - 23

Case 2:20-cv-00410-MKD

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2
3
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5
6
7
8
9
10
11
12
13
14

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C. Fed. R. Civ. P. 37(e) Sanctions
1. Legal Standard
Plaintiffs move for default judgment under Rule 37(e), which governs the
failure to preserve electronically stored information (ESI) and provides:
(e) Failure to Preserve Electronically Stored Information. If
electronically stored information that should have been preserved in the
anticipation or conduct of litigation is lost because a party failed to take
reasonable steps to preserve it, and it cannot be restored or replaced
through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information’s use in the litigation
may:
(A) presume that the lost information was unfavorable to
the party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e).

15

Whether sought under subdivision (1) or (2), Rule 37(e) sets forth

16

prerequisites to sanctions. First, the ESI “should have been preserved in

17

anticipation or conduct of litigation.” Second, the ESI must be “lost because a

18

party failed to take reasonable steps to preserve it.” Finally, the ESI cannot be

19

restored or replaced through additional discovery. The Court may impose

20

sanctions only if all three criteria are met. “The applicable standard of proof for

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spoliation motions in the Ninth Circuit is the preponderance of evidence.”

2

OmniGen Research v. Yongqiang Wang, 321 F.R.D. 367, 372 (D. Or. 2017).

3
4

a. Duty to Preserve
Rule 37(e) is based on the common-law duty to “preserve relevant

5

information when litigation is reasonably foreseeable.” Fed. R. Civ. P. 37 advisory

6

committee’s note to 2015 amendment. “[I]t does not attempt to create a new duty

7

to preserve.” Id. The rule applies “if the lost information should have been

8

preserved in the anticipation or conduct of litigation.” Id. “The duty to preserve

9

relevant evidence must be viewed from the perspective of the party with control of

10

the evidence and is triggered not only when litigation is pending but also when it is

11

reasonably foreseeable to that party.” Alabama Aircraft, 319 F.R.D. at 740

12

(determining propriety of sanctions under Rule 37(e)).

13

Director Sparber and Lieutenant Hooper both testified that Spokane County

14

Detention Services reasonably anticipated civil litigation as the result of Ms. Hill’s

15

death and that Spokane County Detention Services became aware of Ms. Hill’s

16

death on the evening of her death, August 25, 2018. ECF No. 29-18 at 10, 17;

17

ECF No. 29-19 at 4. Spokane County does not contest these assertions, and it

18

therefore had a reasonable anticipation of civil litigation as of August 25, 2018.

19

Lieutenant Hooper testified in his Rule 30(b)(6) deposition that the missing 2W27

20

jail video existed and was capable of preservation at that time, ECF No. 29-18 at

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10, which Spokane County does not challenge. Thus, Spokane County had a duty

2

to preserve the missing 2W27 jail video, which duty arose when the video still

3

existed and was capable of permanent preservation.

4
5
6
7
8
9
10
11
12
13
14
15
16

b. Whether Reasonable Steps Were Taken to Preserve the Jail
Video
There is no dispute that the missing 2W27 jail video is lost. Lieutenant
Hooper testified in his Rule 30(b)(6) deposition that someone made a conscious
decision to preserve some portions of the jail video within 60 days of Ms. Hill’s
death and likewise made a conscious decision to not preserve the missing 2W27
jail video and thus allow it to be overwritten. ECF No. 29-18 at 19. When asked,
Lieutenant Hooper could not explain why the missing 2W27 jail video was not
preserved and stated the standard operating procedure would have required
preserving video related to Ms. Hill’s confinement on August 25, 2018. ECF No.
29-18 at 13, 18. Notably, portions of the 2W27 hallway video were preserved,
demonstrating that reasonable measures were available and were taken to preserve
these portions. Plaintiffs have established that the missing portion of the 2W27
video is lost because Spokane County failed to take reasonable steps to preserve it.

17

c. Whether the Jail Video Can Be Restored or Replaced Through
Additional Discovery

18
19
20

There is no dispute the missing 2W27 jail video cannot be restored or
replaced through additional discovery. Lieutenant Hooper testified that the video

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1

would have been written over many times by the surveillance system’s automatic

2

procedures and that it is not possible to restore or replace it. ECF No. 29-18 at 20.

3

Plaintiffs have met their burden under Rule 37(e) and established that the

4

missing jail video should have been preserved, that the missing video was not

5

preserved because reasonable measures were not taken to preserve it, and that the

6

missing video is permanently lost.

7

D.

8

Under Rule 37(e), “[t]wo categories of sanctions exist.” Newberry v. Cty. of

9

Sanctions Under Subdivision (e)(2)

San Bernardino, 750 F. App’x 534, 537 (9th Cir. 2018) (unpublished). “First,

10

where the district court finds that the loss of information has prejudiced the moving

11

party, the district court may order ‘measures no greater than necessary to cure the

12

prejudice.’” Id. (citing Fed. R. Civ. P. 37(e)(1)). “Second, where the district court

13

finds that the offending party ‘acted with the intent to deprive another party of the

14

information’s use in the litigation,’ the district court may require an adverse

15

evidentiary presumption, dismiss the case, or enter default judgment.” Id. (citing

16

Fed. R. Civ. P. 37(e)(2)).

17

The “very severe” measures in Rule 37(e)(2) are authorized only on a

18

finding that the offending party intended to deprive another party of the use of

19

electronically stored information. Fed. R. Civ. P. 37 advisory committee’s note to

20

2015 amendment. Rule 37(e)(2), however, does not define “intent.” See Fed. R.

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Civ. P. 37(e)(2). The 2015 Advisory Committee Notes to Rule 37(e)(2) clarify that

2

negligent or even grossly negligent behavior is not sufficient to support the severe

3

sanctions authorized by Rule 37(e)(2). Fed. R. Civ. P. 37 advisory committee’s

4

note to 2015 amendment. Accordingly, “since the 2015 Amendment was adopted,

5

district courts in the Ninth Circuit have found that a party’s conduct satisfies Rule

6

37(e)(2)’s intent requirement when the evidence shows or it is reasonable to infer

7

that [the] party purposefully destroyed evidence to avoid its litigation obligations.”

8

Estate of Moreno, 2020 WL 5740265, at *6 (internal quotation marks omitted);

9

Porter v. City & Cty. of San Francisco, No. 16-CV-03771-CW(DMR), 2018 WL

10

4215602, at *3 (N.D. Cal. Sept. 5, 2018) (not reported). “Intent may be inferred if

11

a party is on notice that documents were potentially relevant and fails to take

12

measures to preserve relevant evidence, or otherwise seeks to keep incriminating

13

facts out of evidence.” Colonies Partners, L.P. v. Cty. of San Bernardino, No.

14

518CV00420JGBSHK, 2020 WL 1496444, at *9 (C.D. Cal. Feb. 27, 2020), report

15

and recommendation adopted, No. 518CV00420JGBSHK, 2020 WL 1491339

16

(C.D. Cal. Mar. 27, 2020) (internal quotation marks omitted) (citing Leon v. IDX

17

Sys. Corp., 464 F.3d 951, 959 (9th Cir. 2006)).

18

“Finding an intent to deprive another party of the lost information’s use in

19

the litigation does not require a court to adopt any of the measures listed in

20

subdivision (e)(2).” Fed. R. Civ. P. 37 advisory committee’s note to 2015

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1

amendment. “The remedy should fit the wrong, and the severe measures

2

authorized by [subdivision (e)(2)] should not be used when the information lost

3

was relatively unimportant or lesser measures such as those specified in

4

subdivision (e)(1) would be sufficient to redress the loss.” Id.

5

1. Intent to Deprive

6

Plaintiffs rely on the deposition testimony of Lieutenant Hooper, who

7

testified as discussed above that an individual at Spokane County Detention

8

Services made an intentional decision to allow more than six hours of the 2W27

9

jail video to be destroyed. Plaintiffs note that Spokane County has offered no

10

explanation for the decision to preserve less relevant portions while failing to

11

preserve the more relevant portion, thus allowing its destruction.

12

For its part, Spokane County contends Plaintiffs have not demonstrated that

13

the spoliation was intentional as opposed to the result of negligence or human

14

error. In particular, Spokane County argues there is no evidence that the County

15

viewed the video, decided it was harmful to them, and then destroyed it. Such

16

evidence, however, would be known only to Spokane County. Indeed, intent is

17

rarely susceptible to direct proof, and Plaintiffs are not required to produce such

18

direct evidence. Rather, circumstantial evidence can establish “intent to deprive”

19

under Rule 37(e)(2). See Auer v. City of Minot, 896 F.3d 854, 858 (8th Cir. 2018)

20

(intent required by Rule 37(e)(2) “can be proved indirectly”); Alabama Aircraft,

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1

319 F.R.D. at 746 (“[T]here certainly is sufficient circumstantial evidence for the

2

court to conclude that Boeing’s agents acted with an intent to delete (or destroy)

3

ESI on Blake’s computer”); CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d

4

488, 500 (S.D.N.Y. 2016) (“[C]ircumstantial evidence may be accorded equal

5

weight with direct evidence” when determining Rule 37(e)(2) intent).

6

Courts have found the requisite “intent to deprive” when a litigant fails to

7

provide a credible explanation for departing from standard operating procedure and

8

intentionally failing to preserve ESI. Alabama Aircraft, 319 F.R.D. at 746 (“No

9

credible explanation has been given as to why they departed from the ... protocols

10

and intentionally deleted Blake’s information.... This type of unexplained, blatantly

11

irresponsible behavior leads the court to conclude that Boeing acted with the intent

12

to deprive.”). Courts have also found the “intent to deprive” when a litigant

13

selectively preserves ESI which it knows to be relevant without a credible

14

explanation, allowing some portions to be overwritten by automatic procedures.

15

Culhane v. Wal-Mart Supercenter, 364 F. Supp. 3d 768, 774 (E.D. Mich. 2019).

16

Here, Spokane County has not identified the individual responsible for

17

making the relevant decision at issue. Moreover, Spokane County offers the Court

18

no explanation—credible or otherwise—about why someone at Spokane County

19

Detention Services made the intentional choice to preserve video from 8:43 a.m. to

20

9:15 a.m. and 4:00 p.m. to 6:30 p.m. yet chose to allow the portion from 9:15 a.m.

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to 4:00 p.m. to be permanently destroyed. The destroyed portion of the video from

2

9:15 a.m. to 4:00 p.m. is the most relevant surveillance video to Plaintiffs’ claims

3

as it would have captured whether corrections officers and Nurse Gubitz checked

4

on Ms. Hill at the times and in the manner alleged. The absence of any

5

explanation for preserving less relevant video while permitting the destruction of

6

the most relevant video is notable given Lieutenant Hooper’s testimony that

7

Spokane County Detention Services’ standard operating procedure would have

8

been to preserve the video related to Ms. Hill’s confinement from the day of her

9

death. ECF No. 29-18 at 13. Moreover, in Lieutenant Hooper’s view, anyone

10

would have known to retain all the video relevant to Ms. Hill’s death. ECF No.

11

29-18 at 17.

12

Based on the testimony of Lieutenant Hooper that an intentional decision

13

was made to preserve some portions of the relevant jail video but not others and

14

given the absence of a credible explanation for why the most relevant video was

15

the portion to be permanently destroyed, the Court finds it is reasonable to infer

16

that Spokane County allowed the missing 2W27 jail video to be overwritten “with

17

an intent to avoid its litigation obligations.” Estate of Moreno, 2020 WL 5740265,

18

at *6. Accordingly, the Court finds Spokane County acted with the intent to

19

deprive under Rule 37(e)(2). The Court now turns to the question of the

20

appropriate remedy.

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In crafting an appropriate spoliation sanction, the Court should impose a
sanction that:

6

(1) sufficiently penalizes the spoliating party;
(2) has a sufficient deterrent value to the immediate spoliating party
and future litigants;
(3) sufficiently cures any prejudice to an affected party by restoring
that party to the position it would have been in but for the spoliation;
(4) sufficiently restores the accuracy of the fact-finding process; and
(5) places the risk of an erroneous judgment on the spoliating party.

7

Peschel v. City Of Missoula, 664 F. Supp. 2d 1137, 1143 (D. Mont. 2009) (internal

8

citations omitted).

4
5

9

The loss of more than six hours of highly relevant video evidence in a case

10

in which an individual died while detained in jail is a significant spoliation

11

incident. The Court finds that a concomitant sanction is warranted. Specifically,

12

the Court finds that only the severe measures authorized by Rule 37(e)(2) would

13

sufficiently penalize Spokane County, deter similar future conduct, cure the

14

prejudice to Plaintiffs to the best of the Court’s ability, and place the risk of an

15

erroneous judgment on Spokane County as the spoliating party.

16
17
18
19
20

E. The Leon Factors
The Ninth Circuit has set forth a five-factor test to help guide district courts
in determining whether terminating sanctions are warranted in a particular case.
Before imposing the ‘harsh sanction’ of dismissal [or default
judgment] … the district court should consider the following factors:
(1) the public’s interest in expeditious resolution of litigation;
(2) the court’s need to manage its dockets;

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2

(3) the risk of prejudice to the party seeking sanctions;
(4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.

3

Leon, 464 F.3d at 958 (citations and internal quotation marks omitted). “The first

4

two of these factors favor the imposition of sanctions in most cases, while the

5

fourth cuts against a default or dismissal sanction. Thus the key factors are

6

prejudice and availability of lesser sanctions.” Wanderer v. Johnston, 910 F.2d

7

652, 656 (9th Cir. 1990).

8
9

The Court’s inquiry regarding the propriety of terminating sanctions is
“intensely fact-specific.” GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d 76, 83

10

(3d Cir. 2019). Indeed, the Leon test “is not a rigid, mechanical test but ‘a way for

11

a district judge to think about what to do, not a series of conditions precedent

12

before the judge can do anything.’” Garrison v. Ringgold, No. 19-CV-0244 GPC-

13

DEB, 2020 WL 6537389, at *5 (S.D. Cal. Nov. 6, 2020) (quoting Valley Eng’rs

14

Inc. v. Elec. Eng’g Co., 158 F.3d 1051, 1057 (9th Cir. 1998)).

15
16

1. First and Second Leon Factors
The Court considers the first two Leon factors together, which address “the

17

public’s interest in expeditious resolution of litigation” and the Court’s “need to

18

manage its dockets.” Leon, 464 F.3d at 958. “The first two [Leon] factors favor

19

the imposition of sanctions in most cases.” Wanderer, 910 F.2d at 656. This case

20

is no exception. Here, the expeditious resolution of this litigation has been

ORDER - 33

Case 2:20-cv-00410-MKD

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1

impeded by the spoliation, which has engendered depositions and motion practice

2

which would not otherwise be necessary, in turn requiring the expenditure of party

3

and judicial resources which would otherwise be put to different use. Moreover,

4

the necessary motion practice has been unduly extended due to Spokane County’s

5

inaccurate initial response to the motion, in which it contended the missing 2W27

6

jail video was actually produced, the subsequent failure to correct that inaccurate

7

assertion, and the multiple additional rounds of briefing made necessary due to the

8

inaccurate response. The Court finds that the first two Leon factors weigh in favor

9

of terminating sanctions in this case.

10
11

2. Third, Fourth, and Fifth Leon Factors
In this case, as in many cases, the third, fourth, and fifth Leon factors are

12

linked. Respectively, these factors address the risk of prejudice to the party

13

seeking sanctions, the public policy favoring disposition of cases on the merits, and

14

the availability of less drastic sanctions. Leon, 464 F.3d at 958.

15

“In deciding whether to impose case-dispositive sanctions, the most critical

16

factor is not merely delay or docket management concerns, but truth.” Connecticut

17

Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091, 1097 (9th Cir.

18

2007). “What is most critical for case-dispositive sanctions, regarding risk of

19

prejudice and of less drastic sanctions, is whether the discovery violations threaten

20

to interfere with the rightful decision of the case.” Id. (citations and internal

ORDER - 34

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1

quotation marks omitted). Stated differently, “[t]he most critical factor to be

2

considered in case-dispositive sanctions is whether a party’s discovery violations

3

make it impossible for a court to be confident that the parties will ever have access

4

to the true facts.” Id. (citations and internal quotation marks omitted). “Where a

5

party so damages the integrity of the discovery process that there can never be

6

assurance of proceeding on the true facts, a case dispositive sanction may be

7

appropriate.” Id. (citations and internal quotation marks omitted).

8
9

a. Risk of Prejudice
Here, Spokane County’s failure to preserve the missing video from the

10

2W27 hallway camera has created a serious and irreparable risk of prejudice to

11

Plaintiffs. A central issue is whether Ms. Hill received adequate medical care after

12

she was transferred to cell 2W27 and placed on medical watch. The spoliated

13

video evidence would have provided visual evidence relevant to this inquiry,

14

including who came to Ms. Hill’s cell on August 25, 2018, what kind of visit

15

occurred, how long each visit lasted, and potentially what the visitor did or did not

16

do while visiting the cell. Without it, Plaintiffs are unable to evaluate whether

17

Ms. Hill was monitored by corrections officers at the times or in the manner

18

alleged. Plaintiffs are also deprived of the opportunity to use the video evidence to

19

evaluate whether and to what extent Nurse Gubitz checked on Ms. Hill at

20

approximately 3:00 p.m. Plaintiffs contend that Nurse Gubitz’s account of that

ORDER - 35

Case 2:20-cv-00410-MKD

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PageID.1715 Page 36 of 45

1

check has been called into question by Plaintiffs’ expert who opined that Nurse

2

Gubitz’s version was not medically possible.

3

As for the scope of the potential prejudice, the lack of access to the missing

4

jail video has created a risk of prejudice with respect to Plaintiffs’ claims against

5

all three defendants in this action. Indeed, the unique and complicating factor in

6

this case is that the spoliation creates a risk of prejudice as to Plaintiffs’ claims

7

against not just Spokane County as the spoliating party, but also the claims against

8

Nurse Gubitz and NaphCare, neither of whom are responsible for the spoliation.

9

With respect to Plaintiffs’ § 1983 claim against Nurse Gubitz and their

10

negligence claims against Nurse Gubitz and NaphCare, the risk of prejudice is

11

substantial. These claims are premised in part on their theory that Nurse Gubitz’s

12

account about the 3:00 p.m. visit is not accurate. The inability to compare Nurse

13

Gubitz’s account with the spoliated video evidence creates a void in Plaintiffs’

14

case for which there is no comparable evidence. Spokane County argues a second

15

video exists that shows Nurse Gubitz entering the 2 West hallway at approximately

16

3:00 p.m. However, it is undisputed that the video referenced by Spokane County

17

does not show whether Nurse Gubitz stopped at Ms. Hill’s cell; it shows only that

18

Nurse Gubitz entered the 2 West hallway. In contrast, the spoliated 2W27 hallway

19

footage shows a direct view down the hallway outside of cell 2W27 and would

20

have shown who visited Ms. Hill’s cell door and the nature of any visit. Because

ORDER - 36

Case 2:20-cv-00410-MKD

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1

NaphCare and Nurse Gubitz’s liability can flow to Spokane County, the spoliation

2

creates an equal risk of prejudice to Plaintiffs’ negligence claim against Spokane

3

County that is based on the non-delegable duty doctrine.
The spoliated video also creates a risk of prejudice to Plaintiffs’ separate

4
5

theory that Spokane County was negligent for the actions of its corrections

6

officers. Plaintiffs contend corrections officers conducted meaningless and cursory

7

checks on Ms. Hill and may not have conducted the checks documented in the log.

8

Without the direct visual evidence of the checks that the spoliated video would

9

have provided, Plaintiffs have only the medical watch log and testimony of the

10

corrections officers, most of whom have little to no memory of the incident.5
The Court finds that Spokane County’s spoliation creates a substantial risk

11
12

of prejudice with respect to Plaintiffs’ claims against all three defendants in this

13

action.6 Plaintiffs’ ability to access the facts of this case has been seriously and

14
15

5

16

the video might have been valuable impeachment evidence. The Court agrees that

17

it is possible the video had impeachment value, and its spoliation creates some risk

18

of prejudice to Plaintiffs’ Monell claims.

19

6

20

sanctions, but the Court notes it is not only Plaintiffs who are prejudiced. Nurse

As for the Monell claims against Spokane County and NaphCare, Plaintiffs argue

The prejudice inquiry focuses on the risk of prejudice to the party seeking

ORDER - 37

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1

irreversibly impeded due to the spoliated video. The third Leon factor, therefore,

2

weighs heavily in favor of granting default judgment.

3
4

b. Preference to Dispose of Cases on the Merits
As for the fourth Leon factor, the preference to dispose of cases on their

5

merits, this factor generally weighs against terminating sanctions. Wanderer, 910

6

F.2d at 656. However, the Court notes that spoliation of evidence such as the

7

video surveillance in this case poses challenges to disposing of the case on the

8

merits given the lack of access to evidence that could shed light on the events that

9

took place. Therefore, the Court finds that this factor weighs only slightly, if at all,

10

against default judgment in this case.

11
12

c. Availability of Less Drastic Sanctions
The fifth Leon factor asks the Court to consider whether a sanction less

13

drastic than default judgment can sufficiently cure the risk of prejudice while also

14

penalizing the spoliating party. In this case, Rule 37(e)(2) sanctions are

15

appropriate. The question is whether an adverse jury instruction is sufficient to

16

remedy the prejudice to Plaintiffs without penalizing the non-spoliating

17

defendants.

18
19

Gubitz also cannot rely on the video surveillance evidence from the 2W27 hallway

20

camera to support her assertions regarding the nature of the 3:00 p.m. visit.

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1

This case presents an unusual circumstance in which the spoliated evidence

2

for which only Spokane County is responsible is relevant to the claims against all

3

three defendants in this action, and all three defendants have interconnected

4

liability. Because of this complexity, the Court has given the parties multiple

5

opportunities to propose appropriate remedies in the event the Court found, as it

6

now has, that Spokane County acted with intent to deprive under Rule 37(e)(2).

7

Spokane County has on three separate occasions argued that, if the Court were to

8

impose a Rule 37(e)(2) sanction, the sanction should be an adverse inference jury

9

instruction rather than the most extreme sanction of default judgment sought by

10

Plaintiffs. While it advocated for a jury instruction, Spokane County repeatedly

11

failed to propose language for the Court’s consideration or more specifically

12

address how an adverse inference instruction could fairly and effectively operate

13

under the unique facts of this particular case.

14

After multiple rounds of briefing and oral argument, Spokane County

15

proposes an adverse inference instruction that includes a permissive direction that

16

the jury “may assume that [the spoliated video] would have been unfavorable to

17

Spokane County” if the jury finds by a preponderance of the evidence that Spokane

18

County acted with the intent to deprive. Spokane County argues the proposed

19

instruction “allows counsel for NaphCare and Nurse Gubitz to argue to the Jury

20

that any adverse inference can only be used against Spokane County because that

ORDER - 39

Case 2:20-cv-00410-MKD

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PageID.1719 Page 40 of 45

1

is what the instruction in fact says.” ECF No. 78 at 3 (emphasis in original). The

2

Court finds the proposed instruction does not sufficiently remedy the prejudice to

3

Plaintiffs and mitigate the risk of improper prejudice to NaphCare and Nurse

4

Gubitz. Moreover, the Court is not convinced that any adverse jury instruction

5

could adequately remedy the prejudice to Plaintiffs while not unfairly prejudicing

6

the remaining defendants.

7

The events in the missing video about which the Court would instruct the

8

jury to draw an adverse inference against Spokane County include the conduct of

9

Nurse Gubitz. Because Nurse Gubitz is acting as an arm of Spokane County when

10

providing medical care to detainees and her actions are attributed to Spokane

11

County under the non-delegable duty doctrine,7 an adverse inference against

12

Spokane County can equate to an adverse inference about Nurse Gubitz’s conduct.

13

For example, one adverse inference the jury could draw against Spokane County is

14

that Nurse Gubitz’s account of visiting Ms. Hill at 3:00 p.m. is inaccurate. An

15

instruction would permit or require the jury to apply that adverse inference against

16
17

7

18

P.2d 42 (Wash. 1978); see also King v. Kramer, 680 F.3d 1013, 1020 (7th Cir.

19

2012) (“The County cannot shield itself from § 1983 liability by contracting out its

20

duty to provide medical services.”).

Shea v. City of Spokane, 562 P.2d 264, 268 (Wash. Ct. App. 1977), aff’d, 578

ORDER - 40

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1

Spokane County when evaluating the negligence and § 1983 claims against it.

2

However, the jury would not be permitted to apply the same adverse inference

3

about Nurse Gubitz’s conduct to the claims against Nurse Gubitz herself or her

4

employer, NaphCare. Thus, the jury would be permitted to assume facts that could

5

establish Nurse Gubitz’s own liability in negligence8 and potentially under § 1983

6

(that she did not check on Ms. Hill as she claimed) but would be prohibited from

7

applying that fact to the determination about whether Nurse Gubitz or her

8

employer are liable.

9

The Court finds it is unreasonable to expect that jurors can comply with

10

instructions that create such an analytical conundrum. Such an instruction would

11

confuse the jury and create a risk that the jury would impermissibly consider the

12

adverse inference when determining the liability of Nurse Gubitz and NaphCare.

13

The Court finds that an adverse jury instruction is not a viable spoliation sanction

14
15
16

8

17

could be imputed to her employer, NaphCare. Anderson v. Soap Lake Sch. Dist.,

18

423 P.3d 197, 214 (Wash. 2018) (“Vicarious liability imposes liability on an

19

employer for the torts of an employee who is acting on the employer’s behalf.”)

20

(internal quotation marks omitted).

Under Washington law, if there were negligent actions by Nurse Gubitz, those

ORDER - 41

Case 2:20-cv-00410-MKD

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PageID.1721 Page 42 of 45

1

in this case.9 The fifth Leon factor, therefore, weighs in favor of default judgment

2

against Spokane County on both claims.

3

F. Remedy
The Court finds there is no sanction short of default judgment that

4
5

appropriately remedies the risk of prejudice to Plaintiffs while also avoiding unfair

6

prejudice to NaphCare and Nurse Gubitz, both of whom had no part in the

7

spoliation. For these reasons, the Court grants Plaintiffs’ Motion for Default

8

Judgment as to liability against Spokane County as to the § 1983 and negligence

9

claims.
G. Monetary Sanctions

10

Plaintiffs request the Court impose a monetary sanction “calibrated to the

11
12
13

risk caused by the loss of the punitive damages evidence.” ECF No. 38. However,
monetary sanctions imposed pursuant to civil procedures or a court’s inherent

14
15

9

16

it called for the jury to make a finding of intent, it contained a permissive rather

17

than mandatory direction, and it lacked sufficient information about what the

18

spoliated video would have shown. ECF No. 79. Because the Court finds that the

19

proposed instruction does not sufficiently prevent prejudice to NaphCare and

20

Nurse Gubitz, it need not and does not address Plaintiffs’ additional arguments.

Plaintiffs objected to the proposed instruction on multiple grounds, including that

ORDER - 42

Case 2:20-cv-00410-MKD

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filed 05/09/22

PageID.1722 Page 43 of 45

1

authority “must be compensatory rather than punitive in nature.” Goodyear Tire &

2

Rubber Co. v. Haeger, 137 S. Ct. 1178, 1186 (2017); see also United Mine

3

Workers of Am. v. Bagwell, 512 U.S. 821, 826-30 (1994) (distinguishing coercive

4

and avoidable civil contempt sanctions meant to compel obedience from punitive

5

criminal sanctions for acts already completed). Goodyear involved a district

6

court’s decision to sanction a bad-faith litigant by ordering the bad-faith litigant to

7

pay the opposing party’s legal fees and costs, including those that were not tied to

8

the misconduct at issue. The Supreme Court reversed the award because a “fee

9

award may go no further than to redress the wronged party ‘for losses sustained’; it

10

may not impose an additional amount as punishment for the sanctioned party’s

11

misbehavior.” Goodyear, 137 S. Ct. at 1186. To levy a monetary punishment for

12

a party’s misbehavior would require “procedural guarantees applicable in criminal

13

cases, such as a ‘beyond a reasonable doubt’ standard of proof.” Id. Absent such

14

protections, monetary sanctions are limited to reimbursement. See id. As the

15

Court explained:

16
17
18
19
20

Compensation for a wrong, after all, tracks the loss resulting from that
wrong. So as we have previously noted, a sanction counts as
compensatory only if it is “calibrate[d] to [the] damages caused by”
the bad-faith acts on which it is based. A fee award is so calibrated if
it covers the legal bills that the litigation abuse occasioned. But if an
award extends further than that—to fees that would have been
incurred without the misconduct—then it crosses the boundary from
compensation to punishment. Hence the need for a court, when using
its inherent sanctioning authority (and civil procedures), to establish a

ORDER - 43

Case 2:20-cv-00410-MKD

1

ECF No. 88

filed 05/09/22

PageID.1723 Page 44 of 45

causal link—between the litigant’s misbehavior and legal fees paid by
the opposing party.

2
Id. (internal citations omitted). The causal connection “is appropriately framed as
3
a but-for test: The complaining party … may recover ‘only the portion of his fees
4
that he would not have paid but for’ the misconduct.” Id. at 1187.
5
Accordingly, while this Court can award Plaintiffs their reasonable costs and
6
attorney’s fees which would not have occurred but for Spokane County’s
7
spoliation, this Court cannot impose the punitive monetary sanction that Plaintiffs
8
appear to request. Id. at 1186; Mine Workers, 512 U.S. at 826-30. The Court
9
therefore denies Plaintiffs’ motion to the extent it seeks a punitive monetary
10
sanction. The Court will, however, entertain an appropriate motion for attorney’s
11
fees and costs incurred as a result of the spoliation.
12
IT IS ORDERED:
13
1.

Plaintiffs’ Rule 37(e) Motion for Default Judgment and Other

14
Sanctions Against Defendant Spokane County for Spoliation of Evidence, ECF
15
No. 28, is GRANTED.
16
2.

DEFAULT JUDGMENT as to liability shall be entered in favor of

17
Plaintiffs on their negligence and § 1983 claims against Defendant Spokane
18
County. This matter will proceed to trial for a determination of damages against
19
Defendant Spokane County.
20

ORDER - 44

Case 2:20-cv-00410-MKD

1
2
3

3.

ECF No. 88

filed 05/09/22

PageID.1724 Page 45 of 45

Accordingly, Spokane County’s Motion for Summary Judgment, ECF

No. 37, is DENIED AS MOOT.
4.

Counsel for all parties are directed to meet and confer and file a status

4

report by May 16, 2022 as to their proposed scheduling plan for and procedure to

5

address the remaining liability and damage issues in this matter.

6

DATED May 9, 2022.

7

s/Mary K. Dimke
MARY K. DIMKE
UNITED STATES DISTRICT JUDGE

8
9
10
11
12
13
14
15
16
17
18
19
20

ORDER - 45