Bollinger 328092 v. NaphCare Incorporated

• Court: District Court, D. Arizona
• Decided: March 19, 2025
• Docket: 2:23-cv-02008
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Johnny Ray Bollinger, No. CV-23-02008-PHX-DGC (MTM)

10 Plaintiff, ORDER

11 v.

12 NaphCare Incorporated, et al.,

13 Defendants. 14 15 Plaintiff Johnny Bollinger is an inmate at the Arizona State Prison Complex-Lewis. 16 He brought this civil rights action pursuant to 42 U.S.C. § 1983, asserting that deficient 17 medical care violated his Eighth Amendment rights. Doc. 1. Plaintiff requested copies of 18 all his medical records from the date of his intake at ASPC. Doc. 79 at 3. After receiving 19 the records, Plaintiff filed a motion for spoliation sanctions, alleging that a “significant 20 number” of his medical records were deleted, altered, or falsified “in some way, shape, or 21 form.” Doc. 51 at 4, 8. Magistrate Judge Morrissey denied the motion and Plaintiff filed 22 an objection with this Court. Docs. 51, 72, 79. For reasons stated below, the Court will 23 affirm Judge Morrissey’s order. 24 II. Legal Standard. 25 Under Federal Rule of Civil Procedure 72(a), a magistrate judge can “hear and 26 decide” non-dispositive pretrial matters. Upon timely objection, a district court may 27 “modify or set aside any part of the order that is clearly erroneous or is contrary to law.” 28 Fed. R. Civ. P. 72(a); see also Rivera v. NIBCO, Inc., 364 F.3d 1057, 1063 (9th Cir. 2004). 1 “A magistrate judge’s factual findings or discretionary decisions are ‘clearly erroneous’ 2 when the district court is left with the definite and firm conviction that a mistake has been 3 committed.” Perez v. City of Fresno, 519 F. Supp. 3d 718, 722 (E.D. Cal. 2021) (citing 4 Sec. Farms v. Int’l Bhd. Of Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997)). An order is 5 “contrary to law” if it “fails to apply or misapplies relevant statutes, case law, or rules of 6 procedure.” Id. (citations omitted). 7 III. Discussion. 8 The records in dispute appear to be electronically stored. See Doc. 51-1 through 51- 9 8. Since its revision in 2015, Rule 37(e) has provided the exclusive source of sanctions for 10 the spoliation of electronically stored information (“ESI”), foreclosing reliance on inherent 11 authority. See Rule 37(e) advisory committee note to 2015 amendment (Rule 37(e) 12 “forecloses reliance on inherent authority or state law to determine when certain measures 13 should be used.”); Mannion v. Ameri-Can Freight Sys. Inc., No. CV-17-03262-PHX-DWL, 14 2020 WL 417492, at *5 (D. Ariz. Jan. 27, 2020). 15 Plaintiff asserts that Judge Morrissey did not properly consider his motion for 16 sanctions under Rule 37(e) because the judge did not analyze whether Plaintiff was 17 prejudiced by the alleged spoliation or whether Defendants acted with intent to deprive 18 Plaintiff of the evidence. Doc. 79 at 6. Although it is true that Rule 37(e) authorizes 19 sanctions for ESI spoliation only upon a finding of prejudice or an intent to prevent a party 20 from using ESI in litigation, see Fed. R. Civ. P. 37(e)(1)-(2), the rule includes a threshold 21 requirement that the evidence be lost. It applies only “[i]f electronically stored information 22 that should have been preserved in the anticipation or conduct of litigation is lost because 23 a party failed to take reasonable steps to preserve it[.]” Fed. R. Civ. P. 37(e); see also Fast 24 v. GoDaddy.com LLC, 340 F.R.D. 326, 335 (D. Ariz. 2022) (“This rule establishes three 25 prerequisites to sanctions: the ESI should have been preserved in the anticipation or 26 conduct of litigation, it is lost through a failure to take reasonable steps to preserve it, and 27 it cannot be restored or replaced through additional discovery.”). 28 1 Plaintiff requested his medical records through the ADCRR internal process, not 2 through discovery under the Federal Rules. Doc. 79 at 3. Plaintiff received documents in 3 response to his request, and now claims that some have been deleted, altered, or falsified 4 in some manner. Doc. 51 at 4, 8. Defendants assert that Plaintiff did not share the 5 documents he received with defense counsel, did not request copies of medical records 6 from Defendants for comparison, and did not provide an opportunity for Defendants to 7 supplement or correct the allegedly spoliated records. Doc. 65 at 2. 8 Judge Morrissey noted that “[i]n support of his motion, Plaintiff identifies 33 pages 9 (without explanation) and submits over 350 pages of medical records and other exhibits 10 attempting to demonstrate that his records were tampered with, removed, or deleted by 11 Defendants. . . . Plaintiff has failed to demonstrate that any Defendant has intentionally or 12 even negligently failed to preserve evidence relevant to the pending litigation.” Doc. 72 at 13 2, 4. Based on this record, Judge Morrissey found that Plaintiff had not shown that 14 Defendants altered or failed to preserve his medical records. Id.1 15 This Court has examined Plaintiff’s filings before Judge Morrissey and cannot 16 determine how the documents Plaintiff received were deleted, altered, or falsified as he 17 claims. For example, the motion asserts that Plaintiff identified “19 separate records that 18 were tampered with in some way, shape, or form” and “several sections where records of 19 appointments and other entries either were deleted or certain date ranges stopped[.]” 20 Doc. 51 and 4. In support, Plaintiff cites “Exhibit Two,” but that exhibit contains 50 pages 21 of medical records with no indication of which records were allegedly tampered with. See 22 Doc. 51-2. The motion asserts that Plaintiff contacted defense counsel and “specifically 23 identified” the “omission and/or tampering of numerous documents.” Doc. 51 at 4. In

24 1 Judge Morrissey referred to a negligence standard for ESI spoliation, but Rule 37(e) deliberately superseded some existing caselaw, including cases applying a negligence 25 standard. See Fast v. GoDaddy.com LLC, 340 F.R.D. 326, 334 n.2 (D. Ariz. 2022). The parties’ and lower court’s references to negligence, while legally incorrect, do not affect 26 this appeal because Plaintiff failed to satisfy his initial burden of proof, as discussed below. The 2015 Advisory Committee chose not to establish a new standard for spoliation of 27 nonelectronically stored information. See Rule 37(e) advisory committee note to 2015 amendment (“The new rule applies only to electronically stored information”). Thus, if 28 Plaintiff’s medical records were stored in paper form, the traditional rules for spoliation cited by Judge Morrissey are correct. || support, Plaintiff cites “Exhibit Four,” which contains a different set of 50 pages of medical || records with no indication of which records were tampered with. See Doc. 51-4. □□□□□□□□□□□ 3 || motion cites medical records where he has hand-written numbers on the bottom of pages, but these pages also lack any indication of what information was altered or lost. See, e.g., || Doc. 51 at 3 (citing pages 214, 325, 327, which appear, respectively, at Docs. 51-3 at 28, 6|| S1-1 at 12, 51-1 at 10); Doc. 51 at 6 (citing page 216, which appears at Doc. 51-3 at 30). In other places, Plaintiff cites documents he asserts are incomplete, without explaining why 8 || they are incomplete or whether further information can be found elsewhere in the 300+ pages he attached to his motion. See, e.g., Doc. 51 at 6 (citing page 170, which appears at Doc. 51-4 at 17); Doc. 51 at 9 (citing “Exhibit Eight,” which is Doc. 51-8); Doc. 51 at 15 n.2 (citing pages 170-75, which appear at Doc. 51-4 at 13-17). In all these citations, Plaintiff never explains what is missing. 13 As the party seeking sanctions, Plaintiff bears the burden of proving spoliation under Rule 37(e). Fast, 340 F.R.D. at 335 (“the relevant standard of proof for spoliation sanctions 15 || is a preponderance of the evidence’). He has not met that burden. The Court accordingly cannot conclude that Judge Morrissey’s ruling was clearly erroneous or contrary to law.” 17 IT IS ORDERED that Judge Morrissey’s order denying Defendants motion for 18 || spoliation sanctions (Doc. 72) is affirmed. 19 Dated this 19th day of March, 2025. 20 Dan Co 22 aw phil 73 David G. Campbell Senior United States District Judge 24 25 26 2 Plaintiff also asserts that Judge Morrissey improperly considered Defendants’ response 28|| Cannot conclude that accepting the late filing was clearly erroneous oF contrary to Taw." Doc. 78 at 3.