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Session v. Romero

United States District Court, D. Colorado

January 10, 2019

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

          Kristen L. Mix United States Magistrate Judge.

         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 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 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 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, 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 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 testified he knew Plaintiff wanted to return to Unit 4A “as of April 4, 2013.” In light of ...

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