1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAKENZIE PAULY, Case No. 18-cv-05387-SI
8 Plaintiff, ORDER ADOPTING REPORT AND 9 v. RECOMMENDATION AND DENYING MOTION FOR TERMINATING 10 STANFORD HEALTH CARE, SANCTIONS 11 Defendant. Re: Dkt. Nos. 157, 195, 208, 209
12 13 On July 2, 2022, plaintiff filed a motion for terminating sanctions against defendant “based 14 on the violation of their duty to preserve evidence, the spoilation of relevant evidence, and the 15 resulting prejudice to Plaintiff.” Dkt. No. 157 at 1. On August 22, 2022, Magistrate Judge Hixson 16 issued a Report and Recommendation recommending that the motion be denied. Dkt. No. 195. 17 Plaintiff objects to certain findings and Judge Hixson’s recommendation that the motion be denied. 18 Dkt. No. 209. Plaintiff has also made an administrative motion to excuse late filing of her exhibits 19 in support of her objections. The Court GRANTS the administrative motion to excuse late filing. 20 See Dkt. No. 208. For the reasons discussed below, the Court ADOPTS Judge Hixson’s report and 21 recommendation and DENIES plaintiff’s motion for terminating sanctions. 22 23 BACKGROUND 24 This case concerns defendant’s alleged failure to screen and treat plaintiff when she was a 25 minor in November and December 2008. Dkt. No. 1. Plaintiff filed a motion for terminating 26 sanctions on July 2, 2022, alleging that defendant had failed to preserve evidence. Dkt. No. 157 at 27 1. Magistrate Judge Hixson held a hearing on the motion on August 18, Dkt. No. 193, and issued a 1 her objection to the Report and Recommendation on September 5, 2022.1 Plaintiff objected to the 2 following findings: (1) that there was no failure to preserve the EMTALA Log, (2) that plaintiff 3 failed to prove the requisite intent for terminating sanctions, (3) that all the evidence in question is 4 electronically stored information (ESI) and therefore governed by FRCP 37(e), (4) that a three-part 5 test determines whether spoilation occurred, (5) that Defendant did not redact the Medical Transport 6 Program Call Record (MTPCR), and (7) that destruction of evidence was within defendant’s routine 7 business procedures.2 Dkt. No. 209 at 3. Plaintiff objects to Judge Hixson’s recommendation that 8 the Court deny terminating sanctions. Id. 9 DISCUSSION 10 A district court may “accept, reject, or modify, in whole or in part, the findings or 11 recommendations made by [a] magistrate judge.” 28 U.S.C.A. § 636(b)(1)(C). The Court reviews 12 de novo those portions of a magistrate judge’s report and recommendations to which a party objects. 13 Id. 14 15 A. Whether Stanford failed to preserve the EMTALA log 16 Pauly first objects to Judge Hixson’s finding that there was no showing that Stanford failed 17 to preserve its EMTALA log. Dkt. No. 209 at 1, 5 (objection); Dkt. No. 195 at 4 (finding). Pauly 18 argues that the EMTALA log produced by defendant does not meet requirements for what must be 19 included in an EMTALA log. Dkt. No. 209 at 5. However, the Court agrees with Judge Hixson’s 20 finding that “Pauly failed to demonstrate that the log lacks information that it previously had.” Dkt. 21 No. 195 at 4. The issue is not whether Stanford followed requirements in creating the log, but 22 whether it failed to preserve the information in the original log. Because Pauly has not shown that 23
24 1 Plaintiff appears to have filed the objection on September 5, 2022, after which there was an electronic filing error. Dkt. No. 203. Plaintiff re-filed what appears to be the same objection on 25 September 6, 2022. Dkt. No. 209. Because plaintiff originally filed on September 5, the Court will accept it. 26
2 Plaintiff also asserts that Judge Hixson failed to address Plaintiff’s expert testimony but 27 does not tie that assertion to specific proposed findings or recommendations. See United States v. 1 Stanford failed to preserve this log, the Court adopts Judge Hixson’s finding. 2 3 B. Whether plaintiff proved the requisite intent for terminating sanctions 4 Plaintiff next challenges Judge Hixson’s finding that Pauly failed to establish the requisite 5 intent for terminating sanctions under FRCP 37(e). Dkt. No. 209 at 1, 12–18 (objection); Dkt. No. 6 195 at 7 (finding). After reviewing the record, the Court finds insufficient evidence that Stanford 7 acted with the requisite intent. See U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 8 243 (S.D. Cal. 2015) (noting terminating sanctions “must be supported by some credible evidence, 9 not implications and innuendo”). Therefore, terminating sanctions are unavailable under FRCP 10 37(e), which requires a “finding that the party acted with the intent to deprive another party of the 11 information’s use in the litigation.” 12 13 C. Whether all the evidence in question is ESI and therefore governed by FRCP 37(e) 14 Plaintiff seeks de novo review of Judge Hixson’s determination that the evidence in question 15 was ESI, arguing that “Defendant never stated that all the evidence requested was exclusively 16 retained as electronic evidence.” Dkt. No. 209 at 4. However, plaintiff’s motion for terminating 17 sanctions specifically stated that the evidence in question was electronic. See Dkt. No. 157 at 1 18 (seeking terminating sanctions due to “intentional and willful spoliation of electronic evidence”). 19 Because plaintiff did not allege, and has not shown, any destruction of non-ESI evidence, the Court 20 adopts Judge Hixson’s finding that all the materials in question are ESI. 21 The Ninth Circuit has held that Rule 37(e) “foreclose[s] reliance on inherent authority” to 22 determine whether terminating sanctions are appropriate where ESI that should have been preserved 23 is lost. Newberry v. Cnty. of San Bernardino, 750 F. App'x 534, 537 (9th Cir. 2018). Judge Hixson 24 correctly relied on Rule 37(e) rather than the court’s inherent authority. See id. 25
26 D. Whether a three-part test determines whether spoilation occurred 27 Pauly disputes Judge Hixson’s application of a three-part test to determine whether 1 spoliation occurred. Dkt. No. 209 at 1 (objection); Dkt. No. 195 at 5 (report and recommendation). 2 Plaintiff does not provide any support for her argument that the three-part test should not apply. See 3 Dkt. No. 209. The three-part test applied by Judge Hixson has been used in many courts in the 4 district and was appropriate in this case. See, e.g., Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 5 2d 1132, 1138 (N.D. Cal. 2012). 6 7 E. Whether defendant redacted the MTPCR 8 Pauly next challenges Judge Hixson’s finding that the pixilation and missing information in 9 the MTPCR was the result of “the fact that the original document was in color” and the produced 10 copy is in black and white. Dkt. No. 209 at 1, 5 (objection); Dkt. No. 195 at 3-7 (findings). Pauly 11 argues that the pixilation and missing information were the result of redaction; she submitted an 12 expert report. Dkt. No. 209 at 5; see Dkt. No. 158, Exhibit H (expert report). Judge Hixson did find 13 that Stanford failed to preserve the color copy of the MTPCR but did not find that Stanford acted 14 with the requisite intent for terminating sanctions. Dkt. No. 195 at 3–7. Having reviewed the black 15 and white copy of the MTPCR and the expert report, the Court finds that Pauly has failed to establish 16 the report was redacted.
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MAKENZIE PAULY, Case No. 18-cv-05387-SI
8 Plaintiff, ORDER ADOPTING REPORT AND 9 v. RECOMMENDATION AND DENYING MOTION FOR TERMINATING 10 STANFORD HEALTH CARE, SANCTIONS 11 Defendant. Re: Dkt. Nos. 157, 195, 208, 209
12 13 On July 2, 2022, plaintiff filed a motion for terminating sanctions against defendant “based 14 on the violation of their duty to preserve evidence, the spoilation of relevant evidence, and the 15 resulting prejudice to Plaintiff.” Dkt. No. 157 at 1. On August 22, 2022, Magistrate Judge Hixson 16 issued a Report and Recommendation recommending that the motion be denied. Dkt. No. 195. 17 Plaintiff objects to certain findings and Judge Hixson’s recommendation that the motion be denied. 18 Dkt. No. 209. Plaintiff has also made an administrative motion to excuse late filing of her exhibits 19 in support of her objections. The Court GRANTS the administrative motion to excuse late filing. 20 See Dkt. No. 208. For the reasons discussed below, the Court ADOPTS Judge Hixson’s report and 21 recommendation and DENIES plaintiff’s motion for terminating sanctions. 22 23 BACKGROUND 24 This case concerns defendant’s alleged failure to screen and treat plaintiff when she was a 25 minor in November and December 2008. Dkt. No. 1. Plaintiff filed a motion for terminating 26 sanctions on July 2, 2022, alleging that defendant had failed to preserve evidence. Dkt. No. 157 at 27 1. Magistrate Judge Hixson held a hearing on the motion on August 18, Dkt. No. 193, and issued a 1 her objection to the Report and Recommendation on September 5, 2022.1 Plaintiff objected to the 2 following findings: (1) that there was no failure to preserve the EMTALA Log, (2) that plaintiff 3 failed to prove the requisite intent for terminating sanctions, (3) that all the evidence in question is 4 electronically stored information (ESI) and therefore governed by FRCP 37(e), (4) that a three-part 5 test determines whether spoilation occurred, (5) that Defendant did not redact the Medical Transport 6 Program Call Record (MTPCR), and (7) that destruction of evidence was within defendant’s routine 7 business procedures.2 Dkt. No. 209 at 3. Plaintiff objects to Judge Hixson’s recommendation that 8 the Court deny terminating sanctions. Id. 9 DISCUSSION 10 A district court may “accept, reject, or modify, in whole or in part, the findings or 11 recommendations made by [a] magistrate judge.” 28 U.S.C.A. § 636(b)(1)(C). The Court reviews 12 de novo those portions of a magistrate judge’s report and recommendations to which a party objects. 13 Id. 14 15 A. Whether Stanford failed to preserve the EMTALA log 16 Pauly first objects to Judge Hixson’s finding that there was no showing that Stanford failed 17 to preserve its EMTALA log. Dkt. No. 209 at 1, 5 (objection); Dkt. No. 195 at 4 (finding). Pauly 18 argues that the EMTALA log produced by defendant does not meet requirements for what must be 19 included in an EMTALA log. Dkt. No. 209 at 5. However, the Court agrees with Judge Hixson’s 20 finding that “Pauly failed to demonstrate that the log lacks information that it previously had.” Dkt. 21 No. 195 at 4. The issue is not whether Stanford followed requirements in creating the log, but 22 whether it failed to preserve the information in the original log. Because Pauly has not shown that 23
24 1 Plaintiff appears to have filed the objection on September 5, 2022, after which there was an electronic filing error. Dkt. No. 203. Plaintiff re-filed what appears to be the same objection on 25 September 6, 2022. Dkt. No. 209. Because plaintiff originally filed on September 5, the Court will accept it. 26
2 Plaintiff also asserts that Judge Hixson failed to address Plaintiff’s expert testimony but 27 does not tie that assertion to specific proposed findings or recommendations. See United States v. 1 Stanford failed to preserve this log, the Court adopts Judge Hixson’s finding. 2 3 B. Whether plaintiff proved the requisite intent for terminating sanctions 4 Plaintiff next challenges Judge Hixson’s finding that Pauly failed to establish the requisite 5 intent for terminating sanctions under FRCP 37(e). Dkt. No. 209 at 1, 12–18 (objection); Dkt. No. 6 195 at 7 (finding). After reviewing the record, the Court finds insufficient evidence that Stanford 7 acted with the requisite intent. See U.S. ex rel. Carter v. Bridgepoint Educ., Inc., 305 F.R.D. 225, 8 243 (S.D. Cal. 2015) (noting terminating sanctions “must be supported by some credible evidence, 9 not implications and innuendo”). Therefore, terminating sanctions are unavailable under FRCP 10 37(e), which requires a “finding that the party acted with the intent to deprive another party of the 11 information’s use in the litigation.” 12 13 C. Whether all the evidence in question is ESI and therefore governed by FRCP 37(e) 14 Plaintiff seeks de novo review of Judge Hixson’s determination that the evidence in question 15 was ESI, arguing that “Defendant never stated that all the evidence requested was exclusively 16 retained as electronic evidence.” Dkt. No. 209 at 4. However, plaintiff’s motion for terminating 17 sanctions specifically stated that the evidence in question was electronic. See Dkt. No. 157 at 1 18 (seeking terminating sanctions due to “intentional and willful spoliation of electronic evidence”). 19 Because plaintiff did not allege, and has not shown, any destruction of non-ESI evidence, the Court 20 adopts Judge Hixson’s finding that all the materials in question are ESI. 21 The Ninth Circuit has held that Rule 37(e) “foreclose[s] reliance on inherent authority” to 22 determine whether terminating sanctions are appropriate where ESI that should have been preserved 23 is lost. Newberry v. Cnty. of San Bernardino, 750 F. App'x 534, 537 (9th Cir. 2018). Judge Hixson 24 correctly relied on Rule 37(e) rather than the court’s inherent authority. See id. 25
26 D. Whether a three-part test determines whether spoilation occurred 27 Pauly disputes Judge Hixson’s application of a three-part test to determine whether 1 spoliation occurred. Dkt. No. 209 at 1 (objection); Dkt. No. 195 at 5 (report and recommendation). 2 Plaintiff does not provide any support for her argument that the three-part test should not apply. See 3 Dkt. No. 209. The three-part test applied by Judge Hixson has been used in many courts in the 4 district and was appropriate in this case. See, e.g., Apple Inc. v. Samsung Elecs. Co., 881 F. Supp. 5 2d 1132, 1138 (N.D. Cal. 2012). 6 7 E. Whether defendant redacted the MTPCR 8 Pauly next challenges Judge Hixson’s finding that the pixilation and missing information in 9 the MTPCR was the result of “the fact that the original document was in color” and the produced 10 copy is in black and white. Dkt. No. 209 at 1, 5 (objection); Dkt. No. 195 at 3-7 (findings). Pauly 11 argues that the pixilation and missing information were the result of redaction; she submitted an 12 expert report. Dkt. No. 209 at 5; see Dkt. No. 158, Exhibit H (expert report). Judge Hixson did find 13 that Stanford failed to preserve the color copy of the MTPCR but did not find that Stanford acted 14 with the requisite intent for terminating sanctions. Dkt. No. 195 at 3–7. Having reviewed the black 15 and white copy of the MTPCR and the expert report, the Court finds that Pauly has failed to establish 16 the report was redacted. The expert report does not address the likelihood that pixilation and missing 17 information occurred when a black and white copy was made of the color original rather than due 18 to redaction. See Dkt. No. 158, Exhibit H (expert report). The Court agrees with Judge Hixson’s 19 recommended finding. 20 21 F. Whether destruction of evidence was within defendant’s routine business procedures 22 Finally Pauly disputes Judge Hixson’s finding that destruction of evidence was within the 23 regular course of business. Dkt. No. 209 at 1, 7–10. But Pauly has failed to show that Stanford 24 destroyed evidence outside the normal course of business. See U.S. ex rel. Carter v. Bridgepoint 25 Educ., Inc., 305 F.R.D. 225, 243 (S.D. Cal. 2015) (requiring “credible evidence” of intentional 26 spoliation). 27 G. Judge Hixson’s Recommendation
5 The Court has reviewed the docket, Judge Hixson’s Report and Recommendation, and
3 plaintiff's objections, and concludes that terminating sanctions are not appropriate. Plaintiff has
4 failed to make the requisite intent showing to justify terminating sanctions under FRCP 37(e). 5 CONCLUSION
6 The Court GRANTS plaintiffs motion to excuse late filing of exhibits to her objections to
5 Judge Hixson’s Report and Recommendation. The Court ADOPTS Judge Hixson’s Report and
3 Recommendation and DENIES plaintiff's motion for terminating sanctions.
9 0 IT IS SO ORDERED.
Dated: September 12, 2022 □ . WU tee SUSAN ILLSTON United States District Judge 13
15 16
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