United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
ROMERO, Deputy Sheriff Captain, in his individual capacity, and JORDAN, Deputy Sheriff Sergeant, in his individual capacity, Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE
Kristen L. Mix United States Magistrate Judge.
matter is before the Court on Plaintiff's Motion
for Spoliation Sanctions [#387] (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.
Factual Background and Procedural History
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.Pl.'s Ex 6 [#388-5].
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.
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.
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.
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).
Duty to Preserve Relevant Evidence
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.
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.
Prejudice Resulting From Destruction of Relevant
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.
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
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 ...