Session v. Romero

          ORDER

          PHILIP A. BRIMMER, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on the Recommendation of the United States Magistrate Judge [Docket No. 427] filed on January 10, 2019. The magistrate judge recommends that the Court grant in part Plaintiff's Motion for Spoliation Sanctions [Docket No. 387] and allow the parties “to present evidence relating to the lost or destroyed Review Board records and to argue whatever inferences they hope the jury will draw from their absence.” Docket No. 427 at 15-16. Plaintiff filed a timely objection to the magistrate judge's recommendation on January 17, 2019, Docket No. 434, to which defendants responded on January 23, 2019. Docket No. 438.

         I. BACKGROUND^[1]

         This case arises out of plaintiff's pretrial detention at the Denver Detention Center (“DDC”) in 2013. Plaintiff asserts that defendants violated his due process rights under the Fourteenth Amendment by keeping him in administrative segregation for a period of eight and one-half months without a legitimate reason. Docket No. 300 at 2-3. Plaintiff proceeded pro se throughout most of the litigation, but was appointed pro bono counsel in August 2018. Docket No. 352. On September 28, 2018, plaintiff, through pro bono counsel, moved to reopen discovery to seek additional information regarding the DDC's policies and procedures for placing inmates in administrative segregation. Docket No. 364. As a result of defendants' subsequent disclosure of unredacted policy documents, plaintiff learned that defendants were required to keep written records of the Administrative Review Board's weekly reviews of plaintiff's housing placement. See Docket No. 376 at 4 n.1 (discussing new categories of documents sought by plaintiff as a result of defendants' production of unredacted Post Orders and DDC regulations); Docket No. 387 at 3 (discussing written records defendants were required to keep regarding plaintiff's housing placement). On November 9, 2018, the Court granted in part plaintiff's request to modify the scheduling order and ordered defendants to produce, within thirty days: “(1) any DDC regulations governing the classification, housing, and/or placement of inmates in Unit 4D during 2013; (2) any records of weekly interviews conducted by an administrative review board Classification officer between March 24, 2013 and December 18, 2013; (3) any DDC weekly administrative board reports dated between March 24, 2013 and December 18, 2013; and (4) any classification review forms for plaintiff, dated between March 24, 2013 and December 18, 2013.” Docket No. 376 at 5. On December 17, 2018, plaintiff moved for spoliation sanctions, arguing that defendants had lost or destroyed “weekly interviews and reports” that “they created . . . as part of their duties on the Administrative Review Board (the ‘Review Board').” Docket No. 387 at 1. On January 10, 2019, the magistrate judge recommended that plaintiff's motion be granted in part. Docket No. 427 at 1. The magistrate judge found that, although plaintiff had demonstrated both spoliation of relevant evidence and resulting prejudice, he had not made an adequate showing of bad faith to warrant the giving of an adverse inference instruction at trial. Id. at 6-15.

         II. STANDARD OF REVIEW

         The Court must “determine de novo any part of the magistrate judge's disposition that has been properly objected to.” Fed.R.Civ.P. 72(b)(3). An objection is “proper” if it is both timely and specific. United States v. One Parcel of Real Property Known as 2121 East 30th St., 73 F.3d 1057, 1059 (10th Cir. 1996).

         In the absence of a proper objection, the Court reviews the magistrate judge's recommendation to satisfy itself that there is “no clear error on the face of the record.”^[2]Fed. R. Civ. P. 72(b), Advisory Committee Notes.

         III. ANALYSIS

         Plaintiff objects to the magistrate judge's report and recommendation to the extent that the magistrate judge found insufficient evidence of bad faith. Docket No. 434 at 1.^[3] Plaintiff argues that the “recommendation fails to recognize the significant evidence of bad faith in the record and, in effect, imposes such a high legal standard for showing bad faith that litigants will have license to ‘lose' clearly relevant documents long after litigation has commenced.” Id.

         Regarding the issue of bad faith, the magistrate judge determined that, although the evidence presented was “consistent with bungled record-keeping, bungled records management, and extreme carelessness, ” it did not show that defendants were responsible for the loss or destruction of the weekly Review Board records. Docket No. 427 at 14.

         In his objection, plaintiff argues that four factors warrant a finding of bad faith: (1) defendants' violation of DDC's record-keeping requirements; (2) defendants' failure to preserve the Review Board records after the case was filed; (3) defendants' attempts to conceal the Review Board records from plaintiff while he was proceeding pro se; and (4) defendants' inability to explain the loss of the Review Board records. Docket No. 434 at 4-9.

         With regard to the first factor, plaintiff argues that defendants' failure to maintain electronic records of administrative review board decisions in violation of DDC policy is sufficient evidence, by itself, to warrant a finding of bad faith. Docket No. 434 at 4. Plaintiff relies on Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987), in which the Tenth Circuit held that a plaintiff was entitled to a presumption that certain personnel records would have supported her case because the defendant had destroyed the records in violation of a federal regulation. Id. at 1419. Plaintiff argues that Hicks stands for the proposition “that a violation of policies and procedures can be sufficient evidence alone to show bad faith.” Docket No. 434 at 4-5. As defendants point out, however, the court in Hicks held that plaintiff was entitled to a presumption notwithstanding the fact that the record did not demonstrate bad faith. See 833 F.2d at 1419 n.5. Hicks therefore does not support plaintiff's position. This case is also distinguishable from Hicks because plaintiff has presented no evidence that defendants themselves were responsible for the loss or destruction of the Review Board records. See Alvariza v. Home Depot, 241 F.R.D. 663, 668 (D. Colo. 2007) (distinguishing Hicks, where the employer admitted to intentionally destroying documents in violation of a federal regulation, from a situation in which a defendant “agreed to provide certain documents, looked for such documents, and was unable to find them”).^[4]

         Plaintiff also argues that defendants' failure to preserve the Review Board records when litigation was already pending constitutes evidence of bad faith. Docket No. 434 at 5, 8-9. The Court disagrees. While the failure to preserve records after a litigation hold is in place supports the imposition of spoliation sanctions, see E.E.O.C. v. Jetstream Ground Servs., 878 F.3d 960, 964 (10th Cir. 2017) (stating that “spoliation sanctions are proper when (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence” (internal quotation marks and brackets omitted), it does not, standing alone, establish bad faith. To hold otherwise would collapse the spoliation and bad faith inquiries into one and mandate the giving of an adverse inference instruction in every case where evidence is improperly lost or destroyed. Such a result would be inconsistent with Tenth Circuit law. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (explaining that an adverse inference instruction requires proof of bad faith in addition to evidence of spoliation).^[5]

         Plaintiff next contends that defendants' discovery conduct - specifically, their efforts to conceal policy documents that would have revealed the existence of the Review Board records - is indicative of bad faith. Docket No. 434 at 6. Plaintiff bases his argument on defendants' failure to produce three categories of documents: (1) the Review Board records themselves which, plaintiff asserts, were responsive to plaintiff's 2016 request for “[a]ny and all documents . . . created by any Denver Sheriff Staff member or any Denver Sheriff Department or official concerning ‘Franky L. Session,' from January 22, 2013 to May 20, 2015”; (2) DDC policy documents that would have revealed defendants' record-keeping obligation; and (3) unredacted Post Orders discussing the Review Board records. Id. at 6-7.^[6] Defendants respond that it was proper for them to redact non-public portions of the DDC Post Orders because plaintiff was a prisoner in the custody of the Colorado Department of Corrections at the time those documents were produced. Docket No. 418 at 13; Docket No. 438 at 12-13. They further contend that the production of the redacted Post Orders in 2016 does not suggest an effort to conceal spoliation, as the evidence indicates that the Review Board records were not lost ...