The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Previously pending on this court's law and motion calendar for February 14, 2013, was plaintiffs' motion for sanctions, filed December 24, 2013. Steven Campora appeared for plaintiffs. J. Earlene Gordon represented defendant. After reviewing the papers filed in conjunction with the motion and having heard oral argument, the court now issues the following findings and recommendations.
Over the course of hearing several motions to compel brought by plaintiffs, it has become all too apparent that defendant has purposely destroyed material evidence in this case, specifically the retaining wall that caused Tommy Botell's death and injury to his sister, plaintiff K.B. For this reason, the court must recommend sanctions in the form of a finding of negligence by defendant in causing this death and injury. What is less clear, although highly suspicious, is whether defendant spoliated evidence, other than the wall, that pertains to its defense of discretionary function exception. Based on the evidence presented herein, the court cannot conclusively determine that such spoliation occurred without holding an evidentiary hearing. As such matters must be presented to the district court as fact finder, the undersigned is of the opinion that this issue must await decision by Judge Burrell. Therefore, plaintiffs' second request, that the court establish that the discretionary function exception is not a bar to plaintiffs' claims, should not be granted at the present time.
This is a wrongful death and personal injury action, filed June 8, 2011. Plaintiffs are the Botell family, who allege that while visiting Lassen Volcanic National Park ("LAVO" or "Park") on July 29, 2009, children Tommy and K.B. Botell were sitting on a mortared rock wall to rest during a hike, when it gave way and rolled downhill, causing Tommy's death and injuring K.B. Plaintiffs are K.B., her sister B.B., through their guardian ad litem, Jennifer Botell, who were present and their parents, Thomas and Jennifer Botell, who were also present at the incident. The complaint alleges wrongful death, personal injury - negligence, and negligent infliction of emotional distress. As one of its defenses to this FTCA action, defendant relies on the discretionary function exception.
Plaintiffs seek sanctions for spoliation and failure to maintain indispensable evidence pursuant to the court's inherent power. The issues raised by plaintiffs' motion can best be categorized as follows: (1) whether defendant spoliated evidence in regard to the condition of the subject retaining wall; and (2) whether spoliation of evidence occurred with respect to defendant's claimed discretionary function exemption.
Rule 37 authorizes "a wide range of sanctions" for a party's failure to comply with discovery rules or court orders enforcing them. Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983). Penalizing a party "for dilatory conduct during discovery proceedings" is discretionary. Bollow v. Federal Reserve Bank of San Francisco, 650 F.2d 1093, 1102 (9th Cir. 1981) (citing Fed. R. Civ. P. 37(a)(4)).
In addition to Rule 37 sanctions, "[c]courts are invested with inherent powers that are 'governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.'" Unigard Sec. Ins. Co. v. Lakewood Engineering & Mfg. Corp., 982 F.2d 363, 368 (9th Cir. 1992) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43, 111 S. Ct. 2123, 2132 (1991)); accord Anheuser-Busch, Inc. v. Natural Beverage Distributors, 69 F.3d 337, 348 (9th Cir. 1995) (recognizing inherent power to dismiss counterclaim for concealing discovery documents); Winn v. Associated Press, 903 F. Supp. 575, 580 (S.D.N.Y. 1995) (imposing monetary sanctions for deliberately impeding discovery and willful noncompliance with document production).
Precluding evidence so that the recalcitrant party cannot support defenses is comparable to entering dismissal, which "represent[s] the most severe penalty that can be imposed." U.S. v. Kahaluu Const., 857 F.2d 600, 603 (9th Cir. 1988); accord, Valley Engineers v. Electric Engineering Co., 158 F.3d 1051 (9th Cir. 1998). Accordingly, such sanctions are authorized only in "extreme circumstances" for violations "due to willfulness, bad faith, or fault of that party." Kahaluu Const., 857 F.2d at 603; see also Commodity Futures Trading Com'n v. Noble Metals Intern., Inc., 67 F.3d 766,770 (9th Cir. 1995) (affirming standard and upholding sanctions in egregious circumstances).*fn1 Bad faith does not require actual ill will; substantial and prejudicial obduracy may constitute bad faith. B.K.B. v. Maui Police Dept., 276 F.3d 1091, 1108 (9th Cir. 2002).
Five relevant factors also determine whether severe sanctions are appropriate:
(1) the public's interest in expeditious resolution of litigation;
(2) the court's need to manage its docket;
(3) the risk of prejudice to the other party;
(4) the public policy favoring disposition of cases on their merits; and
(5) the availability of less drastic sanctions.
Wanderer v. Johnston, 910 F.2d 652 (9th Cir. 1990) (default judgment for defendants' failure to comply with discovery); Malone v. U.S. Postal Service, 833 F.2d 128, 130 (9th Cir.1987).
This circuit has acknowledged that "[l]ike most elaborate multifactor tests, our test has not been what it appears to be, a mechanical means of determining what discovery sanction is just." Valley Engineers Inc. 158 F.3d at 1056. Inevitably where a court order is violated or discovery belatedly is produced, factors 1 and 2 support preclusive sanctions, and factor 4 cuts against them. Prejudice to the opposing party and the availability of less drastic sanctions, factors 3 and 5, are most often decisive. Id. Most critical for evaluating the risk of prejudice and whether less drastic sanctions would suffice is whether the discovery violations "so damage the integrity of the discovery process that there can never be assurance of proceeding on the true facts." Valley Engineers Inc.,158 F.3d at 1058.
A. Spoliation in Regard to the Physical Condition of the Retaining Wall After the incident which is the subject of this action, the facts indicate a willful spoliation of the retaining wall by Park staff. First, on the day of the incident, John Roth told Investigative Services Branch Special Agent Alan Foster that he wanted the investigation to be conducted by LAVO employees, contrary to NPS policy, even though he did not go to the scene until 30 days after the accident, for unrelated reasons. LAVO delayed commencement of an investigation until three weeks after the accident, and then NPS Investigative Services Branch took over, through Alan Foster. (Foster Dep., dkt. no. 77-3 at 4.)
Second, NPS-50 provides that where there is a serious accident, the area must be secured and a Board of Inquiry is required. (NPS-50, Chap. 6 at 13, dkt. no. 77-3 at 20; Martin Dep., dkt. no. 77-3 at 24-25.) Darlene Koontz violated this policy by ordering the remaining portion of the retaining wall knocked down before NSP Special Agent Foster could inspect. (Martin Dep., dkt. no. 77-3 at 26-27.) Foster testified that this act compromised his investigation, and the scene was not documented to the level he thought it needed to be. (Foster Dep., dkt. no. 77-3 at 7-8.) Plaintiffs are unsure of the date of the destruction; it may have been after defendant received plaintiffs' preservation of evidence letter, but was sometime between July 29 and August 12, 2009. (Baxter Dep., dkt. no. 77-3 at 58-63; Lamkins Dep., dkt. no. 77-4 at 4-8.)
Furthermore, according to Special Agent Foster at his deposition, LAVO made no effort to close the trail. He testified: "There was no -- aside from a barrier closing the trail, which consisted of some plastic safety fencing stretched between fence posts and a sign indicating that the area was closed to the public, there was no restriction otherwise within that area that would mark it as consistent with, for instance, a crime scene to preserve it and keep people out of it." (Foster Dep., dkt. no. 77-3 at 6.) Defendant responds that "the Trail was in fact closed to the public following the accident;" however, defendant does not point to evidence supporting this statement. (Opp. at 6:19-20.) In fact, defendant could point to no documentation of the decision to keep the trail open rather than close it. At hearing, defense counsel, in discussing why the wall was knocked down, conceded that "[p]eople were -- although the trail was closed to the public, people were still accessing the trail. David Harry and Susan Dolan climbed the trail so that she could examine the walls for purposes of determining their historical significance for the environmental assessment." (Hr'g Tr., dkt. no. 90 at 6:7-11.) Defendant's position is difficult to maintain. If the trail was closed to the public, why was it necessary to knock down the remaining portion of the wall? If the trail was not completely closed off because certain Park individuals had to access it and the wall was purportedly dangerous to them, why was it not completely closed off in light of NPS-50, and the serious accident that had occurred there? Mr. Martin's testimony contradicts defendant's purported reason. He stated that Ms. Koontz ordered the wall knocked down because she wanted the trail to be re-opened to the public, not for anyone's safety. (Martin Dep., dkt. no. 77-3 at 26-27.)
In regard to documentation of the condition of the trail directly following the accident, Foster testified that in his professional opinion, although some work had been done, it was necessary to more closely photograph, document, measure and capture global position system coordinates and such work had not been done. (Id. at 29-30.) Ron Martin, LAVO Ranger Operation Supervisor, testified that the area was not secured because people were able to go and knock the wall down. (Martin Dep., dkt. no. 77-3 at 25.)
Plaintiffs further point to a Directive entitled, "Inspection and Hazard Control," which requires a notice of unsafe condition be drafted and signed by the Superintendent and immediately posted, to remain at the site until the danger has abated. Furthermore, if there are hazards, employees shall correct them if possible and if they cannot be corrected, and pose a threat, they should be blocked off to prevent an accident and closed. (Pls.' Reply, dkt. no. 88-3 at ...