2 UNITED STATES DISTRICT COURT 3 DISTRICT OF NEVADA 4 * * * 5 Victor Sanchez, Case No. 2:19-cv-2017-JAD-DJA 6 Plaintiff, 7 Order v. and 8 Report and Recommendation Albertson’s, LLC, 9 Defendant. 10 11 12 This is a personal injury action arising out of an umbrella that fell on Plaintiff Victor 13 Sanchez’s head while he was shopping at Defendant Albertson’s store. Plaintiff sues Defendant 14 for damages, claiming that it was negligent in maintaining its premises; hiring and supervising its 15 employees; and warning Plaintiff of the dangerous condition. Defendant moves for sanctions a 16 second time, arguing that Plaintiff has failed to comply with two court orders to produce his 17 social media accounts and texts, emails, and messages. (ECF No. 51). Plaintiff moves to hold 18 Defendant’s experts in contempt for failing to comply with a subpoena. (ECF No. 52). Plaintiff 19 also moves for spoliation sanctions, asserting that Defendant sold the umbrella that fell on his 20 head. (ECF No. 59). Defendant moves for Rule 11 sanctions, asserting that Plaintiff’s motion to 21 hold Defendant’s experts in contempt was brought for an improper purpose. (ECF No. 63). 22 Because the Court finds that Plaintiff has failed to comply with two court orders and has 23 spoliated evidence, it grants Defendant’s motion for sanctions in part. Because the Court finds 24 that Defendant’s experts had an adequate excuse not to respond to Plaintiff’s subpoena, it denies 25 Plaintiff’s motion to hold the experts in contempt. Because the Court finds that Defendant did 26 spoliate evidence of the umbrella and that an adverse jury instruction is appropriate, it 27 recommends granting Plaintiff’s motion for sanctions in part. Because the Court finds that 1 grants Defendant’s motion for Rule 11 sanctions. The Court finds these matters properly resolved 2 without a hearing. LR 78-1. 3 I. Background. 4 Plaintiff alleges that he was shopping in Defendant’s store when he opened a freezer door, 5 causing a patio umbrella to fall on his head, resulting in serious injuries. (ECF No. 1 at 9). In his 6 initial disclosures, Plaintiff claimed $115,511.02 in past medical damages and $15,225,835.26 in 7 future medical damages. (ECF No. 32-17 at 14-15). Plaintiff claims that he has sustained injuries 8 to his back, head, hip, and neck, and has problems with his posture and feet. (ECF No. 32-9 at 7). 9 Plaintiff asserts that his social life, personal relationships, and ability to work, play tennis, ping 10 pong, softball, and lift weights have all been impacted. (ECF No. 32-9 at 10). 11 A. Defendant’s second motion for sanctions. 12 Plaintiff initiated this litigation on August 29, 2019. (ECF No. 1). Defendant served 13 requests for production and interrogatories to Plaintiff in January of 2020 asking him to identify 14 his social media accounts and produce posts, messages, and photos regarding his physical or 15 emotional condition. (ECF No. 32-6 at 5-6; ECF No. 32-8 at 11). Plaintiff responded that he 16 “had an active Facebook” and was in the process of gathering the documents requested. (ECF 17 No. 32-7 at 5-6; ECF No. 32-9 at 11-12). A year later, after Plaintiff still had not produced the 18 social media information requested, Defendant served more specific requests, to which Plaintiff 19 objected. (ECF No. 32-12 at 4-6). Defendant then moved to compel the responses. (ECF No. 20 32). 21 The Court granted Defendant’s motion to compel in part, finding Plaintiff had been 22 evasive in responding, but limiting the scope of certain of Defendant’s requests. (ECF No. 40). 23 The Court ordered Plaintiff to produce: 24 complete copies of his Facebook accounts under the names “Victor Sanchez,” “Vic Sanchez,” and “Wayde King Water Filtration – for 25 the Whole House,” along with complete copies of his Twitter 26 accounts under the names “Wayde King Water Filtration – for the Whole House,” and “VIC” from April 14, 2017 (a year before the 27 incident) up to and including the date that Plaintiff downloads the data. 1 (Id. at 7). The Court ordered Plaintiff to produce all written communication including but 2 not limited to text messages, Facebook messenger, and/or email between Plaintiff, Carrie Comrie, 3 David Lack, Michael Escobedo, and Celia Reynolds related to the subject incident. (Id. at 6). 4 The Court also ordered Plaintiff to provide a privilege log for any information he redacted from 5 the production. (Id. at 7). 6 The day these items were due, Plaintiff produced the wrong things. He provided a few 7 screenshots of disjointed messages, many of which were cut off, cropped, or lacked a recipient 8 name. (ECF No. 41-5). He also provided the “activity log”1 for an entirely different Facebook 9 account titled “Vitar Sancho.” (ECF No. 41-4). Plaintiff did not produce a privilege log. 10 The next day, Plaintiff’s counsel emailed Defendant’s counsel, explaining for the first 11 time that Plaintiff was having difficulty accessing his accounts. (ECF No. 41 at 9). 12 The other accounts you’ve asked for Victor cannot access. They 13 have 2 factor authentication required and the authentication goes to a phone number Victor doesn’t have anymore…you said you have 14 an IT company that can help? 15 16 (ECF No. 46-3 at 4). Defendant moved again for sanctions. (ECF No. 41). After reading 17 the motion, Plaintiff’s counsel sent a privilege log. (ECF No. 46-3 at 3). The Court granted 18 Defendant’s motion for sanctions in part, finding that Plaintiff had violated his discovery 19 obligations and ordering him to pay for the IT company. (ECF No. 49 at 4-5). The Court found 20 that evidentiary and dispositive sanctions were not yet warranted because there was a chance the 21 IT company would be able to help Plaintiff gather the information. (Id. at 4-6). The Court noted 22 that Plaintiff’s late-produced privilege log was insufficient for its purposes. (Id. at 7). 23 Defendant again moved for sanctions—the instant motion—after Plaintiff’s counsel 24 explained that the IT company could not access the data because the two-factor authentication 25
26 1 Defendant had requested a “complete copy” of Plaintiff’s accounts rather than the “activity log” 27 and had provided detailed instructions for downloading the “complete copy” it sought. (ECF No. 32-12 at 4 n. 1). The Court also ordered Plaintiff to produce a “complete copy.” (ECF No. 40 at 1 code for the accounts went to the phone Plaintiff no longer had. (ECF No. 51-14 at 3-4). 2 Plaintiff’s counsel further explained that the IT company could not find any emails with Carrie 3 Comrie on Plaintiff’s new phone. (Id.). Otherwise, Plaintiff’s counsel asserted that there was 4 nothing else to produce (despite the Court’s order that Plaintiff was required to produce more 5 complete texts and messages because the previous production was cropped and cut off). 6 Compare (Id.) with (ECF No. 53 at 1-2, 4-6). On October 20, 2021 Plaintiff’s counsel asserted in 7 an email, “[r]egarding the text messages produced, nothing is cut off or cropped…I did not 8 withhold any responsive messages. I produced exactly what was asked so there is no need for a 9 privilege log.” (Id.). Communications appear to have broken down after this email and 10 Defendant moved for sanctions on October 25, 2021. (ECF No. 51). 11 In his response to Defendant’s motion, Plaintiff provided multiple explanations, many of 12 which he raised for the first time in his response. (ECF No. 61). These are organized to 13 correspond to the ordered discovery below: 14
15 Victor Sanchez Facebook account items Plaintiff asserts for the first time that he gave 16 depicting items which show or discuss the counsel access to the account but “Plaintiff’s incident, Plaintiff’s injuries, or the impact of counsel simply forgot about it and neglected 17 the incident on Plaintiff’s personal to produce it…The ‘complete account’ for this relationships, his ability to work, or his ability account has been produced…” (ECF No. 61 18 at 5-6).2 19 20 21 2 Plaintiff asserts that he is, aware of a third Facebook account, which is the one that appears to 22 be the most concern to defense counsel. This is the account that was previously public that Albertson’s was able to download all of the 23 posts. This is also the account associated with the Wayde King 24 Facebook profile. As previously discussed, this account has two- factor authentication requiring Plaintiff to receive a text message 25 and enter a code sent by the text message in order to log into his account…Without the phone number, it is impossible to get access 26 to the account while two-factor authentication is active. (ECF No. 27 61 at 6). But this “third account” appears to have the same name as the one Plaintiff just produced: “Victor to engage in activities he had previously 1 enjoyed. 2
3 Vic Sanchez Facebook account items Plaintiff does not address this account in his 4 depicting items which show or discuss the response. incident, Plaintiff’s injuries, or the impact of 5 the incident on Plaintiff’s personal 6 relationships, his ability to work, or his ability to engage in activities he had previously 7 enjoyed.
9 Wayde King Water Filtration – for the Whole Plaintiff asserts that this account is associated 10 House Facebook account items depicting with his private Facebook account—it is items which show or discuss the incident, unclear which—that he can no longer access. 11 Plaintiff’s injuries, or the impact of the (ECF No. 61 at 6). incident on Plaintiff’s personal relationships, 12 his ability to work, or his ability to engage in activities he had previously enjoyed. 13
15 Wayde King Water Filtration – for the Whole Plaintiff asserts for the first time that “[t]he House Twitter account items depicting items Wayde King Twitter account is associated 16 which show or discuss the incident, Plaintiff’s with an email that does not belong to Plaintiff injuries, or the impact of the incident on and, therefore it is not his and he has not [sic] 17 Plaintiff’s personal relationships, his ability to access to it so there is nothing to produce.” 18 work, or his ability to engage in activities he (ECF No. 61 at 5). had previously enjoyed. 19
20 VIC Twitter account items depicting items Plaintiff asserts for the first time that “there 21 which show or discuss the incident, Plaintiff’s was no activity on the page since 2013, thus 22 injuries, or the impact of the incident on there were no responsive documents for this Plaintiff’s personal relationships, his ability to item.” (ECF No. 61 at 4) 23 work, or his ability to engage in activities he had previously enjoyed. 24
27 Defendant address this discrepancy and sifting through the parties’ motions and exhibits at length 1 Text messages, Facebook messages, and/or Plaintiff claims to have produced the entirety 2 emails with Carrie Comrie relating to this of his email chain with Comrie but that his subject incident. messages with her (that she referenced in her 3 deposition) “must have been on phones Plaintiff had prior to the current phone. As 4 Mr. Sanchez set forth in his declaration, given his financial struggles following his injury, he 5 has had several phones and numbers over the 6 years that are no longer available for various reasons.” (ECF No. 61 at 4). 7
8 Text messages, Facebook messages, and/or Plaintiff asserts that he believes he took a 9 emails with David Lack relating to this subject screen shot of all relevant messages and that 10 incident. the Court “assumes that there is more to the conversation,” as the Court pointed out in its 11 order. “[D]ue to Mr. Sanchez’s phone being stolen, this message is no longer accessible.” 12 (ECF No. 61 at 4).
14 Text messages, Facebook messages, and/or Plaintiff does not address these messages in 15 emails with Michael Escobedo relating to this his response. subject incident. 16
18 Text messages, Facebook messages, and/or Plaintiff does not address these messages in emails with Celia Reynolds relating to this his response. 19 subject incident.
20 21 Plaintiff ultimately places the blame for the missing data on Defendant. He asserts that 22 because an umbrella fell on his head at Defendant’s store, he suffered a traumatic brain injury that 23 has made it hard to find a job, which has caused him financial difficulty, which has resulted in 24 him not paying his bills, losing his phone, having his phone stolen, and having his phone kept as 25 collateral. (ECF No. 61; ECF No. 61-1). Plaintiff’s motion and his declaration do not explain 26 how may phones he has had, how many numbers he has had, or the timelines during which he lost 27 his phones. (ECF No. 61; ECF No. 61-1). 1 Defendant pokes holes in Plaintiff’s explanations in reply. (ECF No. 62). It points out 2 that: (1) Plaintiff originally “stated his original phone was ‘destroyed’ (not lost)”; (2) Plaintiff 3 accessed his “Victor Sanchez” account on March 18, 2021 (after Defendant sought the account in 4 its February 19, 2021 requests for production) but has not attempted to log in since; and 5 (3) Plaintiff was unemployed and diagnosed with bi-polar disorder since before the accident. (Id. 6 at 2-3). Defendant adds that, although Plaintiff amended his privilege log after the Court pointed 7 out its deficiencies, it still only states that certain messages are “irrelevant” without more 8 explanation. (Id. at 7). Defendant requests case dispositive sanctions. (Id. at 7). Alternatively, it 9 requests an adverse inference that prohibits Plaintiff from offering evidence of his subjective 10 medical complaints and a jury instruction to disregard Plaintiff’s subjective medical complaints. 11 (Id. at 8). Defendant also asks the Court to review the produced and redacted information in 12 camera. (Id. at 8-9). 13 B. Plaintiff’s motion to hold Defendant’s experts in contempt. 14 Plaintiff moves to hold Defendant’s experts in contempt for not responding to his 15 subpoenas, sent by his prior counsel. (ECF No. 5). He explains that his counsel subpoenaed the 16 experts on February 5, 2021, asking in relevant part for: 17 Publications in which the accepted principles (including basis for test administration and interpretation) and theories upon which you 18 relied to reach your conclusion and opinions, including professional 19 journals, text, or published position papers emanating from seminars and/or symposiums. 20 Any and all articles and published material authored by you, 21 including the title, date and publishing company of any text, and the name and page numbers of any periodical which contains any article 22 authored by you which you feel are relevant in this case. 23 A list of ALL cases (not limited to three years) in which you have 24 received referrals from the named defendant, or the law firm defending this case or the insurance company who engaged the law 25 firm defending this case, specifying:
26 A. The names of the parties; 27 B. The amount of all monies paid to you on the case in question and from what source; C. The identity of the party who retained you and 1 whether it was plaintiff or defense. 2 A record or records evidencing the total amount of all income 3 received from attorneys or insurance companies for forensic work including reports, inspections, records reviews, meeting and 4 conferences with attorneys and testimony in the prior 4 years. For clarification, this request just seeks a document showing the total 5 amount of income received for this category of work during the 6 requested period. 7 (ECF No. 52 at 3-4). Plaintiff explains that Defendant initially objected to the subpoenas 8 on behalf of the experts. (ECF No. 52 at 2). Defendant’s counsel and Plaintiff’s former counsel 9 engaged in discussions between February 19, 2021 and March 8, 2021 regarding the subpoenas. 10 (ECF No. 52 at 2-3; ECF No. 52-13; ECF No. 54 at 3-4). However, while Defendant’s counsel 11 asserts that the parties had reached an agreement about what else the experts needed to produce 12 and how Plaintiff’s counsel would request additional items, Plaintiff’s current counsel argues that 13 the parties had only tabled the issue. Compare (ECF No. 54 at 9) with (ECF No. 52 at 2-3). On 14 September 21, 2021, Plaintiff’s counsel requested that Defendant’s experts provide all the 15 outstanding subpoenaed items. (ECF No. 52 at 3; ECF No. 52-14). The parties met and 16 conferred, and Defendant asserted its experts would provide no further documents. (ECF No. 52 17 at 3; ECF No. 52-17). 18 In his motion, Plaintiff asserts that holding the experts in contempt is the appropriate 19 remedy for their non-response under Rule 45. (ECF No. 52 at 4). He adds that Defendant had no 20 standing to object on its experts’ behalf and even if it did, the objections were inappropriately 21 boilerplate. (Id. at 4-5). Plaintiff adds that the information sought is relevant and discoverable. 22 (Id. at 5-8). 23 Defendant responds and notes that Plaintiff’s counsel waited six months, and until the eve 24 of the close of discovery, to bring up the subpoenas. (ECF No. 54 at 6). It adds that Plaintiff’s 25 motion for contempt is procedurally improper and a motion to compel would have been the 26 appropriate step in requesting the documents. (Id. at 10-11). Defendant had standing to assert 27 1 objections on behalf of its experts, it argues, because its experts are not third-party witnesses. (Id. 2 at 11-13). Additionally, Defendant asserts that its objections were proper. (Id. at 13-17). 3 In reply, Plaintiff argues that he timely brought his request and motion. (ECF No. 57 at 4 2). He adds that Defendant’s response did not address the issue of whether Defendant had 5 standing to object on behalf of its expert witnesses or the issue of the boilerplate nature of its 6 objections. (Id. at 3-4). Plaintiff concludes with his request that the Court issue an order for the 7 expert witnesses to show cause why they should not be held in contempt. (Id. at 5). 8 C. Plaintiff’s motion for sanctions. 9 Plaintiff moves for sanctions, arguing that Defendant spoliated evidence by selling the 10 umbrella that fell on his head in violation of company policy. (ECF No. 59). He explains that, 11 because the umbrella is no longer available, it is impossible to know how much it weighed. (Id. 12 at 5). This is important, Plaintiff argues, because Defendant had umbrellas weighing up to 13 seventy pounds on display, but Defendant’s expert tested a twenty-pound sample umbrella to 14 reach the conclusion that the umbrella could not have caused a brain injury. (Id. at 5). Plaintiff 15 thus asks for severe sanctions, arguing that dispositive sanctions are appropriate and the minimum 16 sanction should be a rebuttable presumption instruction that: “(a) Albertsons did not comply with 17 its legal duties and disposed of the umbrella, (b) the relevance of the umbrella; [sic] and (c) that 18 the jury should therefore presume that the umbrella and its actual specifications were unfavorable 19 to Albertson’s and was heavy enough to cause a brain hemorrhage and traumatic brain injury to 20 Mr. Sanchez.” (Id. at 10). 21 Defendant responds that it was not on notice of litigation at the time it sold the umbrella 22 and thus, sanctions are unwarranted. (ECF No. 65) It explains that, after the umbrella fell on 23 Plaintiff on April 13, 2018, Plaintiff handwrote a statement. (Id. at 2). However, because it was 24 handwritten, the statement was recorded under “Victor Sandy.” (Id.). After Defendant received a 25 litigation preservation letter on April 18, 2018—identifying Victor Sanchez and dating the injury 26 April 14th, instead of the 13th—it took Defendant two weeks to confirm that the letter was 27 referencing Plaintiff. (Id. at 3). In that time, Defendant sold the umbrella. (Id.). Sanctions are 1 umbrella, it did not sell the umbrella in bad faith, and its internal policies do not create a 2 heightened standard of preservation. (Id. at 4-7). Regarding prejudice, Defendant explains that 3 its expert searched for comparable umbrellas based on Plaintiff’s picture of the umbrella and the 4 shipment summary (which does not include individual umbrella weight) and concluded through 5 testing that the umbrella that hit Plaintiff was 19.14 pounds. (Id. at 3-4). Defendant concludes 6 that Plaintiff’s proposed “minimal” sanctions are effectively dispositive. (Id. at 10). 7 Plaintiff argues in reply that Defendant’s argument that it was not aware of potential 8 litigation is disingenuous because it should have been easy to connect the “Victor Sandy” report 9 with the letter from Plaintiff’s attorneys. (ECF No. 67). Plaintiff adds that the list of customer 10 claims for the store that week make it obvious that he was referencing the “Victor Sandy” report. 11 (Id. at 3). Moreover, Defendant’s own claim report states that the umbrella weighed seventy 12 pounds. (Id. at 3). Plaintiff points out that the information about the umbrella given to 13 Defendant’s expert referenced an umbrella that Defendant did not even purchase, resulting in a 14 fifty-pound discrepancy between what fell on Plaintiff and what the expert tested. (Id. at 5). 15 Plaintiff concludes that Defendant’s retention policy is relevant because—unlike a policy 16 governing inspection or standard of care, which Defendant’s cited cases discuss—a retention 17 policy can show whether Defendant was on notice of the umbrella’s relevance. (Id. at 6). 18 D. Defendant’s motion for Rule 11 sanctions. 19 Defendants moved for Rule 11 sanctions, arguing that Plaintiff moved to hold Defendant’s 20 experts in contempt to intimidate them. (ECF No. 63). Defendant reasserts many of its 21 arguments raised in its response to Plaintiff’s motion to hold Defendant’s experts in contempt. 22 (Id.). It adds that, along with being intended to intimidate the experts and having no factual basis, 23 Plaintiff’s motion was mailed directly to one of the expert’s home address, an improper 24 communication. (Id. at 8). 25 Plaintiff responds and argues that the only motivation for the motion was to obtain the 26 documents at issue. (ECF No. 69). He adds that he was required to provide the experts with 27 notice of the contempt request and simply used the addresses provided in Defendant’s initial 1 apparent agreement and after discovery closed—and form—a motion for contempt rather than 2 one to compel—of Plaintiff’s motion belie that it was well intentioned. (ECF No. 71 at 2). 3 Defendant reiterates that a motion for contempt was improper and that communicating with its 4 experts was a violation. (Id. at 3-4). 5 II. Discussion. 6 A. The Court grants Defendant’s second motion for sanctions in part. 7 1. The Court denies Defendant’s request for case-dispositive sanctions but grants Defendant’s request for evidentiary sanctions. 8 9 Federal Rule of Civil Procedure 37(b)(2) authorizes the Court to impose sanctions when a 10 party fails to comply with a court order related to discovery. See Fed. R. Civ. P. 37(b)(2). The 11 Court will first determine whether a discovery violation occurred and second, what sanction is 12 appropriate. See Greene v. Wal-Mart Stores, Inc., No. 2:15-cv-00677-JAD-NJK, 2016 WL 13 829981, at *4 (D. Nev. Jan. 26, 2016).3 The sanctions available under Rule 37(b) include striking 14 pleadings. Fed. R. Civ. P. 37(b)(2)(i)-(iii). Courts in the Ninth Circuit apply a five-factor test 15 when deciding whether to impose the harsh penalty of case dispositive sanctions. See Porter v. 16 Martinez, 941 F.2d 732, 733 (9th Cir. 1991). The court evaluates: (1) the public’s interest in 17 expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 18 prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on 19 their merits; and (5) the availability of less drastic sanctions. Wanderer v. Johnston, 910 F.2d 20 652, 656 (9th Cir. 1990). The first two of these factors favors the imposition of sanctions in most 21 cases, while the fourth cuts against a default or dismissal sanction. Id. Thus, the key factors are 22 prejudice and availability of lesser sanctions. Id. 23 24 3 Plaintiff asserts that Defendant did not properly meet and confer before bringing the motion for 25 sanctions because the meet and confer should have been more complete. (ECF No. 61 at 6). As an example of this, Plaintiff argues that Defendant never brought up the difference between the 26 “activity log” and the “complete Facebook download.” (Id.). But Defendant provided an 27 explanation of this distinction in its requests for production. (ECF No. 32-12 at 4 n. 1). The Court also ordered Plaintiff to produce a “complete copy” (ECF No. 40 at 7). The Court thus 1 Courts are also empowered to impose evidentiary sanctions under Rule 37 when a party 2 fails to comply with a discovery order. See Fed. R. Civ. P. 37(b)(2). Rule 37(b)(2) contains two 3 standards—one general and one specific—that limit a district court’s discretion. First, any 4 sanction must be ‘just’; second, the sanction must be specifically related to the particular ‘claim’ 5 which was at issue in the order to provide discovery.” Navellier v. Sletten, 262 F.3d 923, 947 (9th 6 Cir. 2001). Sanctions must bear a reasonable relationship to the subject of discovery that was 7 frustrated by the sanctionable conduct. See id. Under Rule 37(b)(2), the court may direct that 8 designated facts be taken as established for the purposes of the action, as the prevailing party 9 claims. Fed. R. Civ. P. 37(b)(2)(i). The Rule also permits the court to prohibit the disobedient 10 party from supporting or opposing designated claims or defenses or from introducing designated 11 matters in evidence. Fed. R. Civ. P. 37(b)(1)(ii). 12 Here, Plaintiff has failed to comply with this Court’s orders and evidentiary sanctions are 13 warranted. The Court first ordered Plaintiff to produce nine categories of documents. (ECF No. 14 40). After a weak production purporting to comply with four of these categories—the text 15 messages, Facebook messages, and/or emails—the Court ordered Plaintiff to produce more 16 complete responses. (ECF No. 49). To date, Plaintiff has not complied with either order.4 Nor 17 can he, because he has lost the ability to access this information. Thus, sanctions are warranted. 18 However, dispositive sanctions are not warranted under the Ninth Circuit’s five-factor 19 test. While the first and second factors—the age of this case and the multiple discovery motions 20 which have made the docket difficult to manage—weigh in favor of dismissal, lesser sanctions 21
22 4 Plaintiff asserts that he has produced a complete account for the Facebook titled “Victor Sanchez.” (ECF No. 61 at 5-6). As discussed more fully above, it is unclear whether this was the 23 account that Defendants sought through their discovery or another account under the same name. 24 Compare id. at 5 (describing the “Victor Sanchez” account) with id. at 6 (describing a “third Facebook account…that was previously public”). The Court will not attempt to untangle this 25 here. Nor does it need to. Regardless of what Plaintiff produced from this account, he violated this Court’s orders. It took two Court orders for Plaintiff to produce this information, even 26 though Defendant requested social media evidence in its first requests for production in January 27 of 2020. And even if Plaintiff had—through his belated production—complied with part of the Court’s orders, he has failed to comply with the order in its entirety because he has not addressed 1 can address the prejudice to Defendant. Defendant asserts that it is prejudiced in bringing its case 2 because Plaintiff’s medical condition primarily consists of subjective reports, the validity of 3 which Defendant cannot discern without Plaintiff’s social media or messages. It adds that 4 Plaintiff’s conduct has diminished the integrity of the judicial process. But, while Defendant’s 5 concerns are compelling, Plaintiff’s social media postings and messages to friends—although 6 relevant to show the extent of his claimed injuries—are not case dispositive. Additionally, 7 although Plaintiff does not provide evidence to support his excuses, the Court is not convinced 8 that Plaintiff destroyed access to his phones maliciously such that the integrity of the entire 9 process is threatened. 10 Lesser available sanctions of evidentiary findings are more appropriate and tailored to 11 address Plaintiff’s missing social media and messaging evidence. However, Defendant’s 12 proposed sanctions—ordering “matters embraced in the Court’s order located at ECF No. 40” and 13 “Plaintiff’s prolific physical activities”—are too broad to be workable. Similarly, Defendant’s 14 proposal that Plaintiff be prohibited from entering and the jury be prohibited from considering 15 any evidence related to his subjective medical complaints would exclude evidence unrelated to 16 Plaintiff’s social media or messages. Instead, the Court orders that the following facts should be 17 taken as established for the purposes of this action: (1) that Plaintiff maintained his ability to 18 exercise—including using a boxing speed bag—after the subject incident on April 14, 20185; 19 (2) that Plaintiff’s exercise habits helped alleviate symptoms of depression.6 The Court further 20 orders that Plaintiff may not use evidence of his social media accounts7 or his texts, emails, or 21 messages with Carrie Comrie, David Lack, Michael Escobedo, and Celia Reynolds to support his 22 damages claim. 23
24 5 ECF No. 32-2. (“I’m working out using supplements…New speed bag, old heavy bag better than nothing…”) 25 6 ECF No. 32-3. (“If I wasn’t working out I would probably [be] so depressed…”). 26 7 Specifically, Plaintiff’s Facebook accounts under the names “Victor Sanchez,” Vic Sanchez,” 27 “Wayde King Water Filtration – for the Whole House,” and “Vitar Sancho,” along with his Twitter accounts under the names “VIC” and “Wayde King Water Filtration – for the Whole 1 2. The Court denies Defendant’s request for in-camera review. 2 In its reply, Defendant requests that the Court review the documents Plaintiff has 3 produced and redacted in-camera. (ECF No. 62 at 8). However, as this Court has previously 4 explained, in-camera review is generally disfavored. See Diamond State Ins. Co. v. Rebel Oil 5 Co., Inc., 157 F.R.D. 691, 700 (D. Nev. 1994). Because Defendant has re-raised the issue—along 6 with raising a request for sanctions related to Plaintiff’s privilege log—in reply, rather than in its 7 motion for sanctions, the issue is not fully briefed. It is unclear how many pages Defendant asks 8 the Court to review, or which privileges (if any) Plaintiff has asserted over his previous and new 9 redactions. The Court thus denies Defendant’s request with leave to re-raise the issue in a fully 10 briefed motion. 11 3. The Court grants Defendant’s request for attorneys’ fees. 12 Rule 37(b)(2)(C) provides that “in addition to the orders above, the court must order the 13 disobedient party, the attorney advising that party, or both to pay the reasonable expenses, 14 including attorney’s fees, caused by the failure, unless the failure was substantially justified or 15 other circumstances make an award of expenses unjust.” Fed. R. Civ. P. 37(b)(2)(C). The fact 16 that a party might consider its own position reasonable does not establish substantial justification. 17 See, e.g., Wood v. GEICO Casualty Co., No. 2:16-cv-00806-GMN-NJK, 2016 WL 6069928, at 18 *2 (D. Nev. Oct. 14, 2016). “A party’s inability to pay an award of attorneys’ fees is a factor that 19 the Court may consider in deciding whether to make an award of expenses under Rule 37(a)(5).” 20 Schlonbachler v. Karol Western Corp., 2:08-cv-01157-LDG-GWF, 2010 WL 5100840, at *4 (D. 21 Nev. Nov. 12, 2010). 22 The Court grants Defendant’s request for sanctions. Plaintiff and his counsel must pay 23 Defendant’s reasonable expenses and attorneys fees incurred in bringing the instant motion. 24 While Defendant also requests its costs and fees in bringing its initial motion for sanctions (ECF 25 No. 41), the Court already granted sanctions related to that motion in requiring Plaintiff to pay for 26 an IT company (ECF No. 49). Moreover, Plaintiff has expressed that he has limited means. The 27 Court thus confines sanctions to the instant motion for sanctions (ECF No. 51). 1 Plaintiff and his counsel shall both be responsible for paying Defendant’s costs and fees 2 and it is up to Plaintiff and his counsel to decide how to divide the cost. Plaintiff’s counsel and 3 Defendant’s counsel are also directed to meet and confer and reach an agreement on the 4 appropriate amount for this sanction. If the parties do not reach an agreement, Defendant’s 5 counsel shall file, no later than April 4, 2022, an affidavit of reasonable expenses and attorneys’ 6 fees incurred in bringing its second motion for sanctions. Defendant must show that its request is 7 reasonable. See Walker v. North Las Vegas Police Dep’t, No. 2:14-cv-01475-JAD-NJK, 2016 8 WL 8732300, at *5 (D. Nev. May 13, 2016). Failure to file the affidavit within that time will 9 result in no award. Response and reply briefs shall be due in the ordinary course. 10 B. The Court denies Plaintiff’s motion to hold Defendant’s experts in contempt. 11 The court may hold a person in contempt if they have been served with a subpoena and 12 fail “without adequate excuse” to obey it or an order related to it. See Fed. R. Civ. P. 45(g). 13 “Adequate excuse” is not a defined standard. See Fed. R. Civ. P. 45 Advisory Committee’s Note 14 to 1991 Amendment. Instead, it is factually dependent. See Residential Constructors, LLC v. Ace 15 Property and Casualty Ins. Co., No. 2:05-cv-01318-BES-GWF, 2006 WL 8442461, at *4 (D. 16 Nev. Aug 8, 2008) (compiling cases). 17 Residential Constructors, LLC v. Ace Property and Casualty Insurance Company stands 18 for the proposition that whether a non-party has an “adequate excuse” for not responding to a 19 subpoena does not turn on another party’s standing to object to that subpoena. See id. In 20 Residential Constructors, this Court determined that a non-party did not act in contempt by 21 refusing to respond to a subpoena on the grounds that the plaintiff had objected to it. See id. 22 While the Court separately found that the plaintiff had standing to object, it did not find that the 23 non-party had an adequate excuse because the plaintiff had standing. See id. 24 This distinction matters here, where Plaintiff’s entire argument is that the experts did not 25 have an adequate excuse not to respond to the subpoena because Defendant lacked standing and 26 made improper objections to that subpoena. But the Rule 45(g) analysis does not concern 27 Defendant’s objections, only the experts’ reasons for not responding, which here, are reasonable. 1 believed (as did Defendant’s counsel) that the parties reached an agreement on February 19, 2021 2 about what else the experts needed to produce. (ECF No. 54 at 9). While Plaintiff now argues 3 that the parties had just tabled the issue for later, if even counsel cannot agree what else the 4 experts were obligated to produce, Plaintiff cannot reasonably ask to hold the experts in contempt 5 for not knowing either. That the experts believed the issue resolved is an adequate excuse for 6 them not responding to Plaintiff’s renewed requests for additional subpoena responses over six 7 months after they believed their obligations fulfilled. 8 Plaintiff’s decision to file a motion to hold the experts in contempt, rather than moving to 9 compel, is also procedurally unsound. Plaintiff argues that the experts’ failure to respond was not 10 adequately excused because Defendant lacked standing and made improper objections. But 11 Plaintiff never moved the Court to decide whether Defendant had standing or whether 12 Defendant’s objections were improper. Plaintiff now essentially asks the Court to find that the 13 experts should have known that Defendant lacked standing to object and made improper 14 objections before the Court even decided these issues. The Court declines. Plaintiff’s motion to 15 hold Defendant’s experts in contempt is thus denied. 16 C. The Court recommends granting Plaintiff’s motion for sanctions in part. 17 1. The Court recommends evidentiary sanctions. 18 The Court has “inherent discretionary power to make appropriate evidentiary rulings in 19 response to the destruction or spoliation of relevant evidence.” Leon v. IDX Sys. Corp., 464 F.3d 20 951, 959 (9th Cir. 2006).8 Spoliation of evidence includes the failure to preserve property for 21
22 8 Courts in this district have interpreted the 2015 Amendment to Federal Rule of Civil Procedure 37(e) as foreclosing a court’s ability to impose sanctions for destruction of electronically stored 23 information based on the court’s inherent authority. See Snap Lock Industries, Inc. v. Swisstrax Corp., No. 2:17-cv-02742-RFB-BNW, 2021 WL 864054, at *2-4 (D. Nev. Mar. 5, 2021) 24 (compiling cases). However, the Advisory Committee Notes to that amendment provide that “[t]he new rule applies only to electronically stored information…” Fed. R. Civ. P. 37 Advisory 25 Committee Notes to the 2015 Amendment. The Ninth Circuit has not addressed whether courts 26 are foreclosed from using their inherent authority to impose sanctions for the destruction of physical—as opposed to electronic—evidence. In cases following this amendment, certain courts 27 in this district have continued to apply inherent authority when deciding physical evidence spoliation while others have postulated that the Ninth Circuit will likely apply Rule 37(e) 1 another’s use as evidence in a pending or reasonably foreseeable litigation. See United States v. 2 Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). A party’s duty to preserve evidence 3 begins with the party reasonably should have known that the evidence is relevant to anticipated 4 litigation. Asfaw v. Wal-Mart Stores, Inc., No. 2:19-cv-01292-GMN-NJK, 2021 WL 2006283, at 5 *1 (D. Nev. May 19, 2021). 6 The party requesting spoliation sanctions bears the burden of establishing the elements of 7 a spoliation claim. Id. The threshold question in a spoliation decision is whether evidence was 8 altered or destroyed. See Lemus v. Olaveson, No. 2:14-cv-01381-JCM-NJK, 2015 WL 995378, at 9 *9 (D. Nev. Mar. 5, 2015). If a party alters or destroys evidence, the party requesting spoliation 10 sanctions must further demonstrate that: (1) the party having control over the evidence had an 11 obligation to preserve it at the time it was destroyed; (2) the evidence was destroyed with a 12 culpable state of mind; and (3) the evidence was relevant to the party’s claim or defense such that 13 a reasonable trier of fact could find that it would support that claim or defense. Asfaw, 2021 WL 14 2006283, at * 1 (D. Nev. May 19, 2021). Many courts in the Ninth Circuit hold that a “culpable 15 state of mind includes negligence.” Soule v. P.F. Chang’s China Bistro, Inc., No. 2:18-cv-02239- 16 GMN-EJY, 2020 WL 959245, at *4 (D. Nev. Feb. 26, 2020) (compiling cases). 17 When considering what sanction is proper upon a finding of spoliation, the court should 18 choose the least onerous sanction corresponding to the willfulness of the destructive act and the 19 prejudice suffered by the victim. Soule, 2020 WL 959245, at *4. The most severe sanction is to 20 strike the defendant’s answer, which should not be imposed unless there is clear and convincing 21 evidence of both bad faith spoliation and prejudice to the opposing party. See id. (quoting Micron 22
23 Manufacturing Co., No. c19-0062-JCC, 2020 WL 1492676, at *3-4 (W.D. Wash. Mar. 27, 2020) 24 (using inherent authority); see State Farm Fire and Casualty Co. v. General Motors, LLC, 542 F.Supp.3d 1124, 1128 (D. Idaho June 3, 2021) (using inherent authority); see Sherwood v. BNSF 25 Railway Co., No. 2:16-cv-00008-BLW, 2019 WL 1413747, at *1 (D. Idaho Mar. 28, 2019) (stating that, “[w]hile Rule 37(e) only addresses ESI, I can think of no reason why the same 26 principle should not govern the resolution under common law of a claim that physical evidence 27 was spoliated.”). Given the lack of mandatory authority on this issue and that courts continue to utilize inherent authority to address spoliation of physical evidence, the Court employs its 1 Technology, Inc. v. Rambus, Inc., 645 F.3d 1311, 1328-29 (9th Cir. 2011) (internal quotations 2 omitted)). The middle available sanction is to order a rebuttable presumption against the 3 offending party that the evidence, if it had not been despoiled, would have been detrimental to the 4 despoiler. Id. To warrant a rebuttable presumption, the offending party must have consciously 5 disregarded its obligation to preserve lost evidence, meaning it must have willfully destroyed the 6 evidence with the intent to harm. Id. 7 The least severe sanction is to enter an adverse jury instruction that an offending party 8 destroyed evidence and that the evidence was unfavorable to the offending party. Id. A finding 9 of bad faith is not a prerequisite to an adverse jury instruction. See id. (quoting Glover v. BIC 10 Corp., 6 F.3d 1318, 1329 (9th Cir. 1993)). Rather, simple notice of potential relevance to the 11 litigation will suffice. Id. To ensure that a defendant is not prevented from introducing other 12 potentially relevant evidence, the instruction should be crafted to accurately refer only to the 13 information the missing items could have actually provided. Id. at *6. 14 The Court finds that minimal spoliation sanctions are appropriate here and thus 15 recommends jury instructions to the District Judge. The threshold question—whether evidence 16 was altered or destroyed—is met because Defendant sold the umbrella that landed on Plaintiff’s 17 head. Plaintiff has also demonstrated the three elements of a spoliation claim. 18 First, while the issue of whether Plaintiff demonstrated that Defendant was obligated to 19 preserve the umbrella when Defendant sold it is a close question, the Court finds that Plaintiff has 20 met his burden. Defendant argues that it took about ten days to connect Plaintiff’s litigation hold 21 letter with Plaintiff’s written claim because the letter had the wrong day and because Plaintiff’s 22 report was listed under “Victor Sandy” because of his handwriting. (ECF No. 65 at 5). While 23 this argument is compelling, it is unclear from Defendant’s brief or the email showing when 24 Defendant connected the letter with the “Victor Sandy” report, that Defendant could not have 25 discovered this sooner. As Plaintiff points out, the letter identified the store number, which store 26 had only one claim for a “Victor.” (ECF No. 65-5). Additionally, Defendant’s internal policy of 27 retaining items related to incidents is relevant to the analysis of whether Defendant had an 1 issue only had one “Victor” report, the Court decides the close question of whether Plaintiff 2 demonstrated the first element in Plaintiff’s favor. 3 Second, while the Court does not find that Defendant sold the umbrella in bad faith, 4 Plaintiff has demonstrated that Defendant was at least negligent in selling it. Defendant points to 5 the deposition of Defendant’s 30(b)(6) witness, who stated that store employees “didn’t follow 6 the instructions that they’re supposed to” in preserving the umbrella. (ECF No. 59 at 3). 7 Additionally, Defendant has not provided a record of when it sold the umbrella or facts about the 8 sale. Because negligence is sufficient to constitute a culpable state of mind, Plaintiff has 9 demonstrated the second element. 10 Third, Plaintiff has demonstrated that the umbrella would have been relevant to his claim. 11 If Defendant had preserved the umbrella, its expert could have used an exact replica to replicate 12 the accident, rather than an umbrella that may or may not have been the same weight. The fifty- 13 pound difference between the weight Plaintiff alleges and the weight Defendant’s expert used is 14 also significant. The Court thus finds that Defendant destroyed evidence of the umbrella. 15 Considering that the first element was a close call, the Court cannot find that Defendant 16 willfully sold the umbrella with the intent to harm. And it certainly cannot find the type of bad 17 faith that would support the case terminating sanctions or rebuttable presumptions that Plaintiff 18 requests. Instead, an adverse jury instruction—limited only to the information the umbrella could 19 have provided (the weight range)—is more appropriate. The Court thus recommends to the 20 District Judge to enter a jury instruction that: (1) Defendant sold the umbrella that fell on 21 Plaintiff’s head; and (2) the umbrella may have weighed anywhere from twenty to seventy 22 pounds. 23 2. The Court denies Plaintiff’s request for attorneys’ fees. 24 When the court imposes spoliation sanctions using its inherent powers, the court may also 25 award sanctions in the form of attorneys’ fees against a party or counsel who acts in “bad faith, 26 vexatiously, wantonly, or for oppressive reasons.” Leon, 464 F.3d at 961. Before awarding such 27 sanctions, the court must make an express finding that the sanctioned party’s behavior amounted 1 Defendant has not acted in bad faith. Because the Court has imposed spoliation sanctions using 2 its inherent powers—rather than under Rule 37—it can only impose attorneys’ fees if it finds that 3 Defendant acted in bad faith. While Defendant should have retained the umbrella that fell on 4 Plaintiff, it does not appear to have acted in bad faith when it sold the umbrella. Attorneys’ fees 5 are not warranted. 6 D. The Court grants Defendant’s motion for Rule 11 sanctions. 7 Under Rule 11, by signing a motion, an attorney certifies to the court that the motion is 8 not being presented for any improper purpose, such as to harass, cause unnecessary delay, or 9 needlessly increase the cost of litigation. See Fed. R. Civ. P. 11(b)(1). Harassment under Rule 11 10 focuses on the improper purpose of the signer, objectively tested, rather than the consequences of 11 the signer’s act, subjectively viewed by the signer’s opponent. See Zalvidar v. City of Los 12 Angeles, 780 F.2d 823, 831 (9th Cir. 1986) (abrogated on other grounds). If, after notice and a 13 reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the 14 court may impose an appropriate sanction on any attorney, law firm, or party that violated the 15 rule. Fed. R. Civ. P. 11(c)(1). 16 The Court grants Defendant’s motion for Rule 11 sanctions.9 Defendant asserts that 17 Plaintiff’s contempt motion was intended to harass its experts. Defendant also asserts that, 18 although it served the motion on Plaintiff twenty-one days before filing it, Plaintiff did not 19 withdraw his motion. (ECF No. 63 at 5). While Defendant highlights the consequences of 20 Plaintiff’s contempt motion—the chilling effect that the motion could have on Defendant’s 21 experts—the Court instead considers Plaintiff’s stated purpose for filing the motion. Plaintiff 22 states that he “did not want to bring the motion for contempt, Plaintiff simply wanted the 23 documents that were lawfully subpoenaed.” (ECF No. 69 at 3). But Plaintiff did not file a 24 motion to compel these documents. Nor did he seek these documents through his motion for 25 contempt. Plaintiff’s motive—to obtain missing documents—does not square with his requested 26 27 9 Because the Court grants Defendant’s motion for Rule 11 sanctions on improper purpose grounds, it does not reach the question of whether it was appropriate for Plaintiff to mail a copy 1 relief—to hold Defendant’s experts in contempt. The Court thus finds that Rule 11 sanctions are 2 appropriate. Plaintiff’s counsel must pay Defendant’s reasonable costs and attorneys’ fees 3 incurred in defending against the contempt motion. 4 Plaintiff’s counsel and Defendant’s counsel are directed to meet and confer regarding a 5 reasonable amount of costs and attorneys’ fees. If the parties do not reach an agreement, 6 Defendant’s counsel shall file, no later than March 31, 2022, an affidavit of reasonable expenses 7 and attorneys’ fees incurred in defending against the contempt motion. Defendant must show that 8 its request is reasonable. See Walker v. North Las Vegas Police Dep’t, No. 2:14-cv-01475-JAD- 9 NJK, 2016 WL 8732300, at *5 (D. Nev. May 13, 2016). Failure to file the affidavit within that 10 time will result in no award. Response and reply briefs shall be due in the ordinary course. 11 12 ORDER 13 IT IS THEREFORE ORDERED that Defendant’s motion for sanctions (ECF No. 51) is 14 granted in part. 15 • The following facts should be taken as established for the purposes of this action: 16 o Plaintiff maintained his ability to exercise—including using a boxing speed 17 bag—after the subject incident on April 14, 2018; and 18 o Plaintiff’s exercise habits helped alleviate symptoms of depression. 19 • Plaintiff may not use evidence of his social media accounts10 or his texts, emails, 20 or messages with Carrie Comrie, David Lack, Michael Escobedo, and Celia 21 Reynolds to support his damages claim. 22 • Plaintiff and his counsel must pay Defendant’s reasonable costs and fees incurred 23 in bringing the motion (ECF No. 51). Plaintiff’s counsel and Defendant’s counsel 24 are also directed to meet and confer and reach an agreement on the appropriate 25
26 10 Specifically, Plaintiff’s Facebook accounts under the names “Victor Sanchez,” Vic Sanchez,” 27 “Wayde King Water Filtration – for the Whole House,” and “Vitar Sancho,” along with his Twitter accounts under the names “VIC” and “Wayde King Water Filtration – for the Whole 1 amount for this sanction. If the parties do not reach an agreement, Defendant’s 2 counsel shall file, no later than March 31, 2022, an affidavit of reasonable 3 expenses and attorneys’ fees incurred in bringing its second motion for sanctions. 4 Defendant must show that its request is reasonable. Failure to file the affidavit 5 within that time will result in no award. Response and reply briefs shall be due in 6 the ordinary course. 7 IT IS FURTHER ORDERED that Plaintiff’s motion to hold Defendant’s experts in 8 contempt (ECF No. 52) is denied. 9 IT IS FURTHER ORDERED that Plaintiff’s motion for spoliation sanctions (ECF No. 10 59) is denied in part as it relates to Plaintiff’s request for attorneys’ fees and costs. 11 IT IS FURTHER ORDERED that Defendant’s motion for Rule 11 sanctions (ECF No. 12 63) is granted. 13 • Plaintiff’s counsel must pay Defendant’s reasonable costs and attorneys’ fees 14 incurred in defending against the contempt motion. Plaintiff’s counsel and 15 Defendant’s counsel are directed to meet and confer regarding a reasonable 16 amount of costs and attorneys’ fees. If the parties do not reach an agreement, 17 Defendant’s counsel shall file, no later than March 31, 2022, an affidavit of 18 reasonable expenses and attorneys’ fees incurred in defending against the 19 contempt motion. Defendant must show that its request is reasonable. Failure to 20 file the affidavit within that time will result in no award. Response and reply 21 briefs shall be due in the ordinary course. 22 23 REPORT AND RECOMMENDATION 24 IT IS RECOMMENDED that Plaintiff’s motion for spoliation sanctions (ECF No. 59) 25 be granted in part and that the District Judge enter a jury instruction that: 26 • Defendant sold the umbrella that fell on Plaintiff’s head; and 27 • The umbrella may have weighed anywhere from twenty to seventy pounds. 1 NOTICE 2 Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be 3 in writing and filed with the Clerk of the Court within fourteen (14) days after service of this 4 Notice. The Supreme Court has held that the courts of appeal may determine that an appeal has 5 been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 6 U.S. 140, 142 (1985) reh’g denied, 474 U.S. 1111 (1986). The Ninth Circuit has also held that 7 (1) failure to file objections within the specified time and (2) failure to properly address and brief 8 the objectionable issues waives the right to appeal the District Court’s order and/or appeal factual 9 issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); 10 Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983). 11 12 13 DATED: March 3, 2022 14 DANIEL J. ALBREGTS 15 UNITED STATES MAGISTRATE JUDGE 16 17 18 19 20 21 22 23 24 25 26 27