The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
SUMMARY DECISION FOLLOWING EVIDENTIARY HEARING REGARDING PLAINTIFF'S MOTION FOR ISSUE AND EVIDENTIARY SANCTIONS (Document 159)
RELEVANT PROCEDURAL BACKGROUND
On July 1, 2010, Plaintiff filed a Motion for Issue and Evidentiary Sanctions Against the County of Stanislaus for its failure to produce traffic counts concerning Claribel Road, the area of the accident giving rise to this litigation. (Doc. 159.) On July 23, 2010, the County of Stanislaus filed its opposition to the motion. (Doc. 177.) A supplemental declaration in support of the opposition was filed July 29, 2010. (Doc. 178.) Thereafter, on July 30, 2010, Plaintiff filed his reply to the opposition. (Doc. 181.)
On August 2, 2010, Magistrate Judge Gary S. Austin vacated the hearing and took the motion under submission pursuant to Local Rule 230(g). On September 28, 2010, Magistrate Judge Austin issued an order setting the matter for an evidentiary hearing before the undersigned because a number of inconsistencies existed that required further inquiry before Plaintiff's motion could be decided. (Doc. 191.)
An evidentiary hearing was held on October 13, 2010. Joseph W. Carcione appeared on behalf of Plaintiff Lucio Corral Rodriguez, Danilo J. Becerra appeared on behalf of the remaining and related Plaintiffs, and Eric D. Farrar appeared on behalf of Defendant County of Stanislaus. Additionally, Public Works Director Matthew Joseph Machado testified on behalf of Defendant County. (See Doc. 194.) The Court found Mr. Machado to be a credible witness. Finally, at the request of Plaintiff's counsel, the Court has subsequently reviewed the transcript of the Deposition of William Cardoza, taken March 31, 2010. There is no evidence that the alleged documents exist.
Plaintiff seeks an order imposing a number of issue and evidentiary sanctions against Defendant County of Stanislaus for its failure to produce traffic counts and documents relevant to the intersection of Claribel Road and Terminal Avenue as previously ordered by the Court. (Doc. 159 at 1-2, 8.) Defendant County of Stanislaus opposes the motion, arguing that it has complied with this Court's orders to the extent possible and that such sanctions would greatly prejudice the County in its defense of this action. More particularly, the County contends its records retention policy provides for a retention period of five years, and therefore it is simply unable to comply with Plaintiff's requests. (Doc. 177.) In reply, Plaintiff contends the County's unsupported references to a document retention policy are insufficient to prevent the sanctions Plaintiff seeks. (Doc. 181.)
Rule 37 of the Federal Rules of Civil Procedure
Plaintiff seeks issue and evidentiary sanctions as specifically provided for in Rule 37(b)(2)(A)(i) and (ii) of the Federal Rules of Civil Procedure:
For Not Obeying a Discovery Order
If a party or a party's officer, director, or managing agent - or a witness designated under Rule 30(b)(6) or 31(a)(4) - fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders. They may include the following:
(i) directing that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims; [and]
(ii) prohibiting the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence . . ..
There is no requirement that the failure to respond to an order compelling discovery be willful before sanctions may be imposed. Lew v. Kona Hosp., 754 F.2d 1420, 1426 (9th Cir. 1985). Sanctions are appropriate where a party or someone under the party's control is guilty of failing to produce documents or things as ordered by the court. Wanderer v. Johnston, 910 F.2d 652, 657 (9th Cir. 1990). The court may order the matters at issue or other designated facts to be "established" for purposes of the action. Insurance Corp. of Ireland, Ltd. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 695, 102 S.Ct. 2099, 2100 (1982). The court may also order that the disobedient party be precluded ...