NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOHNNY E. BURRIS, No. 21-16852 22-15775 Plaintiff-Appellant, D.C. No. 2:18-cv-03012-DWL v.
JPMORGAN CHASE & CO.; J.P. MEMORANDUM* MORGAN SECURITIES, LLC,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding
Submitted March 28, 2024** San Francisco, California
Before: PAEZ, NGUYEN, and BUMATAY, Circuit Judges.
Johnny Burris appeals the district court’s order dismissing his case under
Federal Rule of Civil Procedure 37(e)(2) because of his intentional spoliation of
electronically stored information (ESI). We have jurisdiction under 28 U.S.C. §
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1291, and we affirm.
1. Admissibility of Englander Report1
In its order dismissing Burris’s complaint with prejudice, the district court
cited the report of the court-appointed digital forensics specialist, Jefford
Englander. Burris v. JPMorgan Chase & Co., 566 F. Supp. 3d 995, 1000 (D. Ariz.
2021). Burris argues that the district court erred when it relied upon Englander’s
report without first establishing its admissibility.
First, Burris contends that the district court could not rely on the report
without first conducting a Daubert hearing to qualify Englander as an expert in
digital forensics. This argument is unconvincing. At the outset, because Burris
failed to raise a Daubert challenge in the district court, he has waived any
objection to Englander’s qualifications. Skydive Arizona, Inc. v. Quattrocchi, 673
F.3d 1105, 1113–14 (9th Cir. 2012); see also Marbled Murrelet v. Babbitt, 83 F.3d
1060, 1066–67 (9th Cir. 1996).
However, even assuming that Burris had properly raised a Daubert
challenge in the district court, his challenge to the report’s admissibility is
meritless. “District courts are not always required to hold a Daubert hearing to
1 Admission of expert testimony is reviewed for abuse of discretion, except where no objection has been made, in which case we review for plain error. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000).
2 discharge their reliability and relevance gatekeeping duties under Federal Rule of
Evidence 702.” Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730, 737 (9th Cir. 2024).
“Although Daubert sets out factors for district courts to consider when determining
whether expert testimony is admissible under Rule 702, they are ‘illustrative,’ and
‘the inquiry is flexible.’” Id. (quoting Wendell v. GlaxoSmithKline LLC, 858 F.3d
1227, 1232 (9th Cir. 2017)). The record demonstrates that Englander had
significant technical expertise in computer forensics and the use of industry-
standard tools and methods for forensic imaging. And Burris presented no
evidence that undermines Englander’s methodology, which included searching for
digital artifacts of deletions on Burris’s various devices and examining the
metadata on those devices to determine when deletions occurred.
Second, Burris argues that because Englander was selected and paid by
JPMorgan, he had a conflict of interest and was not impartial. This argument
ignores the fact that Burris stipulated to the appointment of a digital forensics
specialist on the sole condition that JPMorgan would select, pay for, and manage
the engagement. Nor did Burris demonstrate any actual conflict arising from
Englander’s work; Burris speculates that JPMorgan impermissibly wrote part of
his report, but the record does not support that claim. We find no error in the
district court relying on Englander’s report.
3 2. Dismissal under Rule 37(e)(2)2
The district court imposed terminating sanctions pursuant to Rule 37(e)(2).
Burris, 566 F. Supp. 3d at 1019. Burris argues that he did not violate Rule 37(e)
because the deleted documents were not relevant ESI.
Rule 37(e) applies when ESI “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.” Fed. R. Civ. P. 37(e). “[I]f the court finds that an offending plaintiff
‘acted with the intent to deprive another party of the information’s use in the
litigation,’ dismissal is authorized.” Jones, 95 F.4th at 735 (quoting Fed. R. Civ. P.
37(e)(2)).
The district court first determined that “large volumes of ESI were lost” and
that Burris was on notice that the destroyed ESI should have been preserved.
Burris, 566 F. Supp. 3d at 1012–13. In its analysis, the district court identified
several categories of destroyed ESI that were potentially relevant to the litigation.
Id. at 1014–15. The court also found that the ESI was “irretrievably lost” and was
“not replaceable through additional discovery.” Id. at 1016.
2 We review for abuse of discretion a district court’s imposition of discovery sanctions. Anheuser–Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995); In re Oracle Corp. Sec. Litig., 627 F.3d 376, 386 (9th Cir. 2010). Findings of fact related to a motion for discovery sanctions are reviewed for clear error. Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997).
4 Finally, the district court determined that Burris acted with intent to deprive
JPMorgan of the information’s use in the litigation, noting that “the sheer number
of obfuscatory actions undertaken by [Burris] . . . evince an unusually clear level of
intent to deprive Defendants of potentially relevant ESI.” Id. at 1017. The district
court noted that Burris had engaged in “systematic efforts” to destroy ESI “from an
array of phones, laptops, email accounts, and external storage devices.” Id. at
1000. The district court observed the temporal proximity of Burris’s spoliation
efforts, noting that Burris wiped at least one of his devices the day before he was
required to produce it for forensic examination. Id. at 1017. Applying the five-
factor test for terminating sanctions articulated in Anheuser-Busch, 69 F.3d at 348,
the court found that dismissal was warranted. Id. at 1018–19.
The district court did not clearly err by finding that Burris deleted potentially
relevant ESI. The court cited Englander’s report, which determined that Burris had
deleted ESI that, based on file names and pathing information, would have been
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JOHNNY E. BURRIS, No. 21-16852 22-15775 Plaintiff-Appellant, D.C. No. 2:18-cv-03012-DWL v.
JPMORGAN CHASE & CO.; J.P. MEMORANDUM* MORGAN SECURITIES, LLC,
Defendants-Appellees.
Appeal from the United States District Court for the District of Arizona Dominic Lanza, District Judge, Presiding
Submitted March 28, 2024** San Francisco, California
Before: PAEZ, NGUYEN, and BUMATAY, Circuit Judges.
Johnny Burris appeals the district court’s order dismissing his case under
Federal Rule of Civil Procedure 37(e)(2) because of his intentional spoliation of
electronically stored information (ESI). We have jurisdiction under 28 U.S.C. §
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1291, and we affirm.
1. Admissibility of Englander Report1
In its order dismissing Burris’s complaint with prejudice, the district court
cited the report of the court-appointed digital forensics specialist, Jefford
Englander. Burris v. JPMorgan Chase & Co., 566 F. Supp. 3d 995, 1000 (D. Ariz.
2021). Burris argues that the district court erred when it relied upon Englander’s
report without first establishing its admissibility.
First, Burris contends that the district court could not rely on the report
without first conducting a Daubert hearing to qualify Englander as an expert in
digital forensics. This argument is unconvincing. At the outset, because Burris
failed to raise a Daubert challenge in the district court, he has waived any
objection to Englander’s qualifications. Skydive Arizona, Inc. v. Quattrocchi, 673
F.3d 1105, 1113–14 (9th Cir. 2012); see also Marbled Murrelet v. Babbitt, 83 F.3d
1060, 1066–67 (9th Cir. 1996).
However, even assuming that Burris had properly raised a Daubert
challenge in the district court, his challenge to the report’s admissibility is
meritless. “District courts are not always required to hold a Daubert hearing to
1 Admission of expert testimony is reviewed for abuse of discretion, except where no objection has been made, in which case we review for plain error. United States v. Alatorre, 222 F.3d 1098, 1100 (9th Cir. 2000).
2 discharge their reliability and relevance gatekeeping duties under Federal Rule of
Evidence 702.” Jones v. Riot Hosp. Grp. LLC, 95 F.4th 730, 737 (9th Cir. 2024).
“Although Daubert sets out factors for district courts to consider when determining
whether expert testimony is admissible under Rule 702, they are ‘illustrative,’ and
‘the inquiry is flexible.’” Id. (quoting Wendell v. GlaxoSmithKline LLC, 858 F.3d
1227, 1232 (9th Cir. 2017)). The record demonstrates that Englander had
significant technical expertise in computer forensics and the use of industry-
standard tools and methods for forensic imaging. And Burris presented no
evidence that undermines Englander’s methodology, which included searching for
digital artifacts of deletions on Burris’s various devices and examining the
metadata on those devices to determine when deletions occurred.
Second, Burris argues that because Englander was selected and paid by
JPMorgan, he had a conflict of interest and was not impartial. This argument
ignores the fact that Burris stipulated to the appointment of a digital forensics
specialist on the sole condition that JPMorgan would select, pay for, and manage
the engagement. Nor did Burris demonstrate any actual conflict arising from
Englander’s work; Burris speculates that JPMorgan impermissibly wrote part of
his report, but the record does not support that claim. We find no error in the
district court relying on Englander’s report.
3 2. Dismissal under Rule 37(e)(2)2
The district court imposed terminating sanctions pursuant to Rule 37(e)(2).
Burris, 566 F. Supp. 3d at 1019. Burris argues that he did not violate Rule 37(e)
because the deleted documents were not relevant ESI.
Rule 37(e) applies when ESI “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.” Fed. R. Civ. P. 37(e). “[I]f the court finds that an offending plaintiff
‘acted with the intent to deprive another party of the information’s use in the
litigation,’ dismissal is authorized.” Jones, 95 F.4th at 735 (quoting Fed. R. Civ. P.
37(e)(2)).
The district court first determined that “large volumes of ESI were lost” and
that Burris was on notice that the destroyed ESI should have been preserved.
Burris, 566 F. Supp. 3d at 1012–13. In its analysis, the district court identified
several categories of destroyed ESI that were potentially relevant to the litigation.
Id. at 1014–15. The court also found that the ESI was “irretrievably lost” and was
“not replaceable through additional discovery.” Id. at 1016.
2 We review for abuse of discretion a district court’s imposition of discovery sanctions. Anheuser–Busch, Inc. v. Natural Beverage Distribs., 69 F.3d 337, 348 (9th Cir. 1995); In re Oracle Corp. Sec. Litig., 627 F.3d 376, 386 (9th Cir. 2010). Findings of fact related to a motion for discovery sanctions are reviewed for clear error. Payne v. Exxon Corp., 121 F.3d 503, 507 (9th Cir. 1997).
4 Finally, the district court determined that Burris acted with intent to deprive
JPMorgan of the information’s use in the litigation, noting that “the sheer number
of obfuscatory actions undertaken by [Burris] . . . evince an unusually clear level of
intent to deprive Defendants of potentially relevant ESI.” Id. at 1017. The district
court noted that Burris had engaged in “systematic efforts” to destroy ESI “from an
array of phones, laptops, email accounts, and external storage devices.” Id. at
1000. The district court observed the temporal proximity of Burris’s spoliation
efforts, noting that Burris wiped at least one of his devices the day before he was
required to produce it for forensic examination. Id. at 1017. Applying the five-
factor test for terminating sanctions articulated in Anheuser-Busch, 69 F.3d at 348,
the court found that dismissal was warranted. Id. at 1018–19.
The district court did not clearly err by finding that Burris deleted potentially
relevant ESI. The court cited Englander’s report, which determined that Burris had
deleted ESI that, based on file names and pathing information, would have been
responsive to the parties’ joint definition of “potentially relevant ESI.” Id. at 1015.
The district court’s finding that Burris intentionally deleted ESI to deprive
JPMorgan of the information’s use in litigation is well-supported by the record.
The district court properly relied on the temporal proximity of Burris’s spoliation
records as evidence of his intent. “Because intent can rarely be shown directly, a
district court may consider circumstantial evidence in determining whether a party
5 acted with the intent required for Rule 37(e)(2) sanctions . . . [r]elevant
considerations include the timing of destruction, affirmative steps taken to delete
evidence, and selective preservation.” Jones, 95 F.4th at 735 (internal citations
omitted).
Considering the nature of the spoliated ESI and Burris’s repeated violation
of the October 2020 protective order, the district court’s finding that Burris
engaged in spoliation of potentially relevant ESI was not clearly erroneous. The
district court did not abuse its discretion in dismissing Burris’s complaint with
prejudice.
3. Attorneys’ Fees and Costs3
Finally, Burris challenges the district court’s award of attorneys’ fees and costs.
The district court awarded JPMorgan $296,490.50 in attorneys’ fees and
$66,973.62 in costs based on its prior determination that Burris violated the district
court’s October 2020 order. On appeal, Burris contends that “[t]he court had no
legal authority to award fees in addition to the underlying dismissal sanction.”
The district court awarded JPMorgan its attorneys’ fees and costs based on its
“inherent authority,” which allows district courts “to sanction a litigant for bad-
3 We review for abuse of discretion a district court’s award of attorneys’ fees and costs. Marchand v. Mercy Med. Ctr., 22 F.3d 933, 936 (9th Cir. 1994).
6 faith conduct by ordering it to pay the other side’s legal fees.” Goodyear Tire &
Rubber Co. v. Haeger, 581 U.S. 101, 103 (2017).
This was not error. It is well-established that a district court may award
attorneys’ fees and costs in addition to imposing terminating sanctions due to
discovery misconduct. Leon v. IDX Sys. Corp., 464 F.3d 951, 961 (9th Cir. 2006);
Jones, 95 F.4th at 738–39. Here, the district court properly determined that
Burris’s spoliation misconduct explicitly amounted to bad faith. Burris, 566 F.
Supp. 3d at 1019.
In its order appointing a forensic specialist, the district court warned Burris
that JPMorgan might seek reimbursement of its fees and costs in addition to
sanctions. Despite that warning, Burris continued his spoliation efforts and
withheld some of his devices from Englander, causing the parties to hold additional
meetings to address the deficiencies, and thereby increasing their litigation costs.
The district court correctly found that these were “attorneys’ fees incurred because
of the misconduct at issue.” Goodyear Tire & Rubber Co., 581 U.S. at 108.
Burris next argues that the award was “excessive” and “not reasonable”
because not all the attorneys’ fees requested by JPMorgan were attributable to the
motion for terminating sanctions. This argument also fails. A fees award based on
a district court’s inherent authority “is limited to the fees the innocent party
incurred solely because of the misconduct—or put another way, to the fees that
7 party would not have incurred but for the bad faith. A district court has broad
discretion to calculate fee awards under that standard.” Id. at 104. Here, the
district court properly limited its award to the fees that JPMorgan incurred because
of Burris’s misconduct. The district court did not abuse its “broad discretion,” id.,
by determining that the attorneys’ fees and costs resulting from JPMorgan’s
attempt to settle its spoliation-related costs with Burris out-of-court “were related
to the spoliation motion and were reasonable.” Leon, 464 F.3d at 961.
AFFIRMED.