United States District Court, E.D. California
ORDER ON PLAINTIFF'S MOTION FOR SANCTIONS DUE TO
SPOILATION OF VIDEO EVIDENCE (DOC. 95)
JENNIFER L. THURSTON, UNITED STATES MAGISTRATE JUDGE.
action, Plaintiff is proceeding on the Second Amended
Complaint on claims of excessive force and deliberate
indifference to his serious medical needs based on two
incidents that occurred in the Fresno County Jail -- on
December 25, 2013 and March 11, 2014. (Docs. 16, 17.) Pending
before the Court is Plaintiff's motion for sanctions
against Defendants for spoliation of surveillance video which
Plaintiff asserts exists. (Doc. 95.)
of evidence is the “destruction or significant
alteration of evidence, or the failure to preserve property
for another's use as evidence, in pending or reasonably
foreseeable litigation.” Keamev v.
Folev&Lardner. L.L.P.. 590 F.3d 638, 649 (9th Cir.
2009) (quoting Hernandez v. Garcetti, 68 Cal.App.4th
675, 680 (1998)). The authority to impose sanctions for
spoliation arises from a court's inherent power to
control the judicial process. Medical Laboratory
Mgmt. Consultants v. American Broadcasting Companies,
Inc., 306 F.3d 806, 824 (9th Cir. 2002). The exercise of
a court's inherent powers must be applied with
“restraint and discretion” and only to the degree
necessary to redress the abuse. Chambers v. NASCO,
Inc., 501 U.S. 32, 45 (1991); see also Schmid v.
Milwaukee Electric Tool Corp., 13 F.3d 76, 79 (3rd Cir.
1994) (courts should choose “the least onerous sanction
corresponding to the willfulness of the destructive act and
the prejudice suffered by the victim”).
seeking an adverse inference instruction (or other sanctions)
based on the spoliation of evidence must establish the
following three elements: (1) that the party having control
over the evidence had an obligation to preserve it at the
time it was destroyed; (2) that the records were destroyed
with a “culpable state of mind” and (3) that the
evidence was “relevant” to the party's claim
or defense such that a reasonable trier of fact could find
that it would support that claim or defense. Zubulake v.
USB Warburg LLC (“Zubulake IV”), 220 F.R.D.
212, 220 (S.D.N.Y. 2003) (citing Residential Funding
Corp. v. DeGeorge Fin'l Corp., 306 F.3d 99, 108 (2d
Cir. 2002)); see also Apple Inc. v. Samsung Electronics
Co., Ltd. (“Apple II”), 888 F.Supp.2d 976,
989-90 (N.D.Cal. 2012); Surowiec v. Capital Title Agency,
Inc., 790 F.Supp.2d 997, 1005 (D.Ariz. 2011); Lewis
v. Ryan, 261 F.R.D. 513, 521 (S.D.Cal. 2009); Rev
973 LLC v. Mouren-Laurens, 2009 WL 273205 at *3
(C.D.Cal. 2009); cf. Victor Stanley v. Creative Pipe,
Inc., 269 F.R.D. 497, 520-21 & App'x (D.Md.
2010) (analyzing standards for spoliation sanctions by
circuit). “After considering these factors, a court
must then consider all available sanctions and determine the
appropriate one.” Apple Inc. v. Samsung Electronics
Co., Ltd. (“Apple I”), 881 F.Supp.2d 1132,
1138 (N.D.Cal. 2012). The party seeking spoliation sanctions
has the burden of establishing the elements of a spoliation
claim. Centrifugal Force, Inc. v. Softnet Communication,
Inc., 783 F.Supp.2d 736, 740 (S.D.N.Y.2011).
the elements of a spoliation claim can be evaluated, it is
fundamental that the party seeking sanctions establish that
the evidence in question actually currently exists in an
altered form, or previously existed. This is an essential
prerequisite to any spoliation claim and is where
Plaintiff's motion is wanting.
motion, Plaintiff asserts that he “went to court on the
new criminal charges and twice the judge ordered the
Plaintiff be provided a copy of the video, ” but that
“no video was ever provided to the Plaintiff and the
District Attorney dropped all charges.” (Doc. 95, p.
3.) This does not establish that any surveillance video of
the incidents exists or has ever existed. Rather, this
contention suggests that no such video has ever existed since
-- if it did exist, it would have been produced in the
criminal proceeding against Plaintiff. The Court takes
judicial notice of the docket entries in The State of
California v. Michael Neil Jacobsen, Fresno Superior
Court Case No. F14902385. Fed.R. Evid. 201, 28 U.S.C.A.;
Harris v. County of Orange, 682 F.3d 1126, 1131-32
(2012). Charges were filed against Plaintiff in that case on
March 13, 2014 for battery upon a custodial officer and
resisting public of peace officer. On March 19, 2014, the
parties stipulated to discovery pursuant to California Penal
Code § 1054. On March 28, 2014, Plaintiff requested the
items of discovery that were described in the March 19, 2014
hearing and the Court found discovery was not provided to
Plaintiff, and ordered it be provided to him by May 2, 2014.
On May 2, 2014, Plaintiff was released on all counts and the
case was dismissed.
appears to point to the events in that criminal case against
him to suggest that a video existed which exonerated him in
that action and would have proved his claims here. However,
no such definitive conclusion can be made since the docket
entries in that action do not show that a video was produced
and played, let alone what any such video may have depicted;
nor is there a docket entry finding Plaintiff not guilty of
the charges against him. The fact that no video was produced
in the criminal proceedings, despite the judge twice ordering
it, may more likely, but not definitively be construed to
imply that no surveillance video exists or has ever exited of
the incidents in question here.
also asserts that the “sheriff detective (arresting
officer) and the jail Sergeant who heard the write up both
told Plaintiff that there was a video and that it would be
preserved due to the criminal charges” which were filed
against him from the incidents. (Doc. 95, p. 4.) However,
Plaintiff did not attach declarations from the detective or
the sergeant to his motion to establish that such video
exists and his motion is not signed under penalty of perjury.
the discovery issues which have arisen in this action over
the video all support the conclusion that no such
surveillance video has ever existed. (See Docs. 67,
104, 108.) In their opposition, Defendants Barajas and Diaz
present a declaration from Officer Juan M. Gonzalez, who
oversees the security cameras in the jail, and is familiar
with the security camera set up in the main jail which
definitively states: “No video was recorded of the
alleged incidents on December 25, 2013 and March 11, 2014.
Thus, video of the alleged incidents never existed.”
(Doc. 103, pp. 5-6.) In his reply, Plaintiff asserts that
Officer Gonzalez's declaration contradicts a response
that Defendants provided to his discovery request, but the
discovery response Plaintiff points to states that there was
no security camera pointed to capture images of the incidents
on the dates at issue in this action. (Doc. 106, pp. 12-13.)
That discovery response does not bolster Plaintiff's
argument; rather it is consistent with Officer Gonzalez's
declaration -- the fact that no security camera was set up
that could capture the incidents at issue in this action
logically leads to the conclusion that video of the alleged
incidents never existed.
in his reply Plaintiff submits his own declaration containing
several statements of FCJ employees as well as a declaration
from Plaintiff's cellmate that indicates he overheard
Plaintiff's conversations with the FCJ employees and
agrees that Plaintiff has truthfully represented those
statements. A statement made outside of court, which is
offered for the truth of the matter asserted in the statement
is hearsay. Fed.R.Evid. 801. Hearsay is not admissible,
Fed.R.Evid. 802, unless it meets an exception, Fed.R.Evid.
803. Plaintiff offers the statements of the FCJ employees in
his declaration for the truth of the matter asserted in each
statement --that a surveillance camera has been pointed at
the legal research room for the 4 years Officer M. Rocha has
worked at FCJ; that the camera has probably been there since
before Officer M. Bejar was born; that there has been a
camera there for many, many years (Officers J. Valenzuela
& J. DeLaCruz); that a camera has been there for the 4 or
5 years Corporal D. Nichols has been employed at FCJ; and
that though a new system is being installed, that the old
system was tied to a company in Texas that recorded all of
the video from all of the cameras within FCJ which held the
video for two years before recording over it (Corporal V.
Soun). (Doc. 106, pp. 6-9.) Plaintiff seeks to use each of
these statements for the truth of the matter asserted
therein, bolstered by the declaration of his cellmate that
those statements in Plaintiff's declaration are true.
However, none of the statements by FCJ employees recited in
Plaintiff's declaration are considered since none of the
exceptions to the rule against hearsay apply.
does not provide any admissible evidence for the Court to
find that surveillance video was taken of the two incidents
upon which he is proceeding in this action. Further, even if
Plaintiff provided admissible evidence, he fails to make any
showing that Defendants Barajas, Diaz, or Nurse Monica Choe
had control over any asserted surveillance video, an
obligation to preserve it at the time it was destroyed, and
that any destruction thereof was done with a “culpable
state of mind.” Zubulake IV.
not to say that Plaintiff is unable to present admissible
evidence on the existence and spoliation of the surveillance
video which he seeks. He has simply not done so here and has
not overcome the Defendants' evidence that no such video
has ever existed. It is noted that, as of the last notice of
change of address which Plaintiff filed, he is out of
custody. Thus, Plaintiff is not prohibited from filing
further motions on this issue if he is able to obtain
admissible evidence from a third party. However, Defendants
need not respond to ...