United States District Court, W.D. Washington, Tacoma
REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION
FOR SANCTIONS FOR SPOLIATION OF EVIDENCE
THERESA L. FRICKE UNITED STATES MAGISTRATE JUDGE
has moved for sanctions concerning spoliation of evidence.
Dkt. 156. The evidence that plaintiff argues was destroyed is
a portable flash drive. Plaintiff's Motion for Sanctions
for Spoliation of Evidence, Dkt. 156 at 2, 156-3: Ex. 3
(plaintiff's demand to defendants and request for
preservation of evidence, dated 3-27-2017); Dkt. 147, 147-1
at p. 139 (Sealed) Ex. A. The defense admits that the flash
drive contained confidential and proprietary information
relevant to this lawsuit, and admits that defendant
Sykes-Bonnett destroyed the flash drive, but the defense
opposes the motion. Defendant's Response, Dkt. 173.
Plaintiff requests either default judgment against the
defendants, or other relief the Court determines to be
appropriate. Plaintiff's Reply, Dkt. 156 at 1, Dkt. 174
and defendants agree: Defendant Sykes-Bonnett destroyed
evidence, i.e. the flash drive and electronic contents of the
flash drive, the defendant had notice that the evidence he
destroyed had potential relevance to the litigation, and he
knew this before he destroyed the flash drive. Therefore, the
Court finds plaintiff has met its burden of proof by a
preponderance of evidence, that spoliation has occurred.
Ryan Editions Ltd. West, 786 F.3d 754, 766 (9th Cir.
2015); Apple Inc. v. Samsung Elecs. Co., 888
F.Supp.2d 976, 989 (N.D. Cal. 2012).
questions for the Court, under Fed.R.Civ.P. 37(e), are:
Whether the ESI from that flash drive is “lost”;
and under both Rule 37(e) and the Court's inherent
authority to control the discovery process and uphold the
integrity of litigation -- if the ESI is lost -- then should
the Court issue an order of default, or some other sanction,
in response to the spoliation?
spoliation of electronic discovery is covered by Fed.R.Civ.P.
37(e), “which essentially functions as a decision
tree”. Oracle America, Inc. v. Hewlett Packard
Enterprise Company, 328 F.R.D. 543, 549 (N.D. Cal.
2018). As amended December 1, 2015 to clarify when United
States District Courts should use certain measures to respond
to allegations of spoliation of ESI, Fed.R.Civ.P. 37(e)
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
(A) presume that the lost information was unfavorable to the
(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.
decision tree starts with an inquiry of whether the data is
forever gone: The Court must consider three questions to
determine whether ESI has been “lost” - (a) did
the discoverable ESI exist at the time a duty to preserve
arose, (b) did the party fail to take reasonable steps to
preserve the ESI, and (c) is the evidence irreplaceably lost?
Oracle America, Inc. v. Hewlett Packard Enterprise
Company, 328 F.R.D. at 549. If the answer to any of
these questions (a)-(c) is “no”, then a motion
for spoliation sanctions must be denied. If all the questions
are answered “yes”, then the Court proceeds to
determine whether the moving party has been prejudiced and
whether the party subject to potential sanctions had an
intent to deprive.
moving party is not required to prove the likely contents of
destroyed evidence; information is not “lost”
under Fed.R.Civ.P. 37(e) unless the moving party shows there
are categories of irreplaceable relevant documents. See
e.g., Leon v. IDX Sys. Corp., 464 F.3d 951, 959 (9th
Cir. 2006); Neely v. Boeing Co., 2019 U.S. Dist.
LEXIS 68726 (W.D. Wash. April 23, 2019) (information was not
lost - plaintiff did not show that allegedly spoliated data
could not be restored or re-constructed by making discovery
requests of other potential custodians of data); Alabama
Aircraft Industries, Inc. v. Boeing Company, 319 F.R.D.
730, 742-43 (N.D. Alabama, Southern Division 2017) (ESI was
“lost” under circumstances where the defendant
could not even identify some of the lost data, other ESI that
could be identified was nevertheless not preserved, and the
allegedly spoliated data could not be restored or found by
conducting additional discovery).
courts have inherent power to take action when a party
destroys evidence, yet the Court must carefully determine
whether a case-dispositive sanction is warranted, or a lesser
remedy should be imposed. Valley Eng'rs v. Electric
Eng'g Co., 158 F.3d 1051, 1057 (9th Cir. 1998).
“Courts may sanction parties responsible for spoliation
of evidence in three ways. First a court can instruct the
jury that it may draw an inference adverse to the party or
witness responsible for destroying the evidence. See
Glover v BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)
[…]. Second, a court can exclude witness testimony
proffered by the party responsible for destroying the
evidence and based on the destroyed evidence. See,
Glover, 6. F.3d at 1329; Unigard Sec. Ins. Co. v.
Lakewood Eng'g Mfg. Corp. 982 F.2d 363, 368 (9th
Cir. 1992). Finally, a court may dismiss the claim of the
party responsible for destroying the evidence.” UMG
Recordings, Inc. v. Hummer Winblad Venture Partners (In re
Napster, Inc. Copyright Litig.), 462 F.Supp.2d 1060
(N.D. Cal. 2006); Fed.R.Civ.P. 37(e).
or default is an appropriate sanction if a party acted
deliberately, used deceptive practices, and thereby
undermined the integrity of the judicial process. Leon v.
IDX Sys. Corp.,464 F.3d 951, 958-59 (9th Cir. 2006).
The District Court must make a finding that the party's
acts were willful, the party was at fault, or there is a
showing of bad faith. Id. And, the trial court must
consider five factors when evaluating whether a
case-dispositive sanction should be imposed: (1) the
public's interest in expeditious resolution of
litigation; (2) the court's need to manage its dockets;
(3) the risk of prejudice to the party seeking sanctions; (4)
the public policy favoring ...