1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Wine Education Council, No. CV-19-02235-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Arizona Rangers,
13 Defendant. 14 15 Pending before the Court are Plaintiff Wine Education Counsel and Third-Party 16 Defendant Grant Winthrop’s (“The Movants”) Motion for Spoilation and Sanctions. (Doc. 17 178.) Defendant/Third-Party Plaintiff Arizona Rangers (“AZR”) filed a response, (Doc. 18 184), and the Movants filed a reply. (Doc. 188.) Also pending before the Court is AZR’s 19 Motion to Strike the Motion for Spoilation and Sanctions, (Doc. 182), to which the 20 Movants have filed a response, (Doc. 189), and AZR a reply. (Doc. 196.) Having 21 considered the parties briefing and applicable law, the Court will grant AZR’s Motion to 22 Strike the Motion for Spoliation and Sanctions finding it is untimely and violates the Case 23 Management Order (“CMO”) of this case. 24 I. BACKGROUND 25 The Movants request sanctions against AZR for its alleged violation of Rule 37(e), 26 Fed. R. Civ. P., or alternatively for sanctions based on the Court’s “inherent power…to 27 levy sanctions in response to abusive litigation practices.” Leon v. IDX Sys. Corp., 464 F.3d 28 951, 958 (9th Cir. 2006). The Movants allege these sanctions are merited based on actions 1 or omissions of AZR which allegedly led to the destruction or unavailability of evidence 2 relevant to interpretation of the parties’ contracts. The parties’ central remaining dispute in 3 this case concerns the interpretation of a clause contained in one of grant agreements (“the 4 recovery clause”). WEC alleges the terms of the clause, either of its own force or 5 independent oral agreement, gives WEC a right to recovery property and money associated 6 with all six grants. AZR disputes the scope of the clause claiming it applies only to one of 7 the six grants, and was not triggered in this case. 8 The Movants allege that AZR’s behavior during the discovery period of this case 9 has resulted in the spoliation of relevant evidence. The allegedly spoliated evidence 10 includes the following: (1) meeting minutes recorded by the development committee and 11 the East Valley Company between November 30, 2016 and October 3, 2017, (2) additional 12 emails, notes and documents retained by the AZR board of directors concerning the 13 conditions of the grants which the Movants’ allege were not produced, (3) text messages 14 among individual rangers discussing the terms of the grants, and (4) documents describing, 15 showing, or relating to the rangers’ internal audit report for the grants. (Doc. 188 at 3.) 16 AZR has filed a response to the motion while simultaneously bringing a Motion to 17 Strike the request for sanctions. (Docs. 182, 184.) In its substantive response, AZR argues 18 there is no grounds to sanction it as Movants request because it has complied with all its 19 discovery obligations and no evidence was destroyed or otherwise lost. (Doc. 184 at 1-3.) 20 Further, AZR argues that, as it has explained several times in this litigation, it has no control 21 over documents or records retained by its individual volunteer members and cannot 22 produce such materials. (Id. at 3.) Separate from its substantive response to the Motion for 23 Spoliation, AZR also filed a Motion to Strike the request for sanctions as improper and 24 untimely. (Doc. 182.) AZR argues (1) that the movants have failed to “meet and confer” as 25 required by LRCiv. 7.2(j), (2) that the motion violates the Court’s scheduling order by 26 filing a “written discovery motion” without leave of the Court, and (3) that any request for 27 discovery sanctions is untimely because the movants waited until well after the close of 28 discovery. (Doc. 182.) The Movants responded arguing the Motion to Strike was not 1 permitted under LRCiv. 7.2(m) and that its Motion for Spoliation was not a “discovery 2 motion.” The Movants further argue they were not required to “meet and confer” with AZR 3 under the Federal Rules of Civil Procedure. Finally, the Movants argue that the motion is 4 not untimely because there is no requirement that a motion seeking spoilation sanctions be 5 brought prior to the close of discovery. (Doc. 189.) The Court heard oral argument on both 6 motions on April 6, 2021. (Doc. 212.) After hearing from both parties, the Court took both 7 motions under advisement. 8 II. LEGAL STANDARD 9 The deadline by which a party must file a motion for spoliation is a rather unsettled 10 matter in this circuit. Multiple courts have held a Motion for Spoliation untimely when a 11 party raises it after the close of discovery. See Mannion v. Ameri-Can Freight Sys., 2020 12 U.S. Dist. LEXIS 12695, at *9 (D. Ariz. 2020) ("Spoliation is a discovery offense, so issues 13 surrounding alleged spoliation should be resolved during discovery—not on the eve of 14 trial.") (quoting Sherwood v. BNSF Ry. Co., 2019 U.S. Dist. LEXIS 33378, 2019 WL 15 1004563, *2 (D. Idaho 2019)); accord EEOC v. Autozone, Inc., 2008 U.S. Dist. LEXIS 16 69472, at *16 (D. Ariz. 2008); Rhabarian v. Cawley, No. 10-cv-00767, 2014 U.S. Dist. 17 LEXIS 17265, 2014 WL 546015, at *3 (E.D. Cal. 2014). Other courts permit parties to 18 raise issues of spoliation after discovery has closed so long as the claim is raised “as soon 19 as reasonably possible after [uncovering] the facts that underlie the motion.” See, e.g., 20 Larios v. Lunardi, 442 F. Supp. 3d 1299, 1305-6 (E.D. Cal. 2020) (quoting Sherwin- 21 Williams Co. v. JB Collision Services, Inc., No. 13-cv-1946-LAB-WVG, 2015 U.S. Dist. 22 LEXIS 87439, 2015 WL 4077732, at *2 (S.D. Cal. 2015); Montoya v. Orange County 23 Sheriff's Dept., No. SACV 11-cv-1922-JGB-RNB, 2013 U.S. Dist. LEXIS 180682, 2013 24 WL 6705992, at *6 (C.D. Cal. Dec. 18, 2013)). However, even courts adopting this more 25 flexible timeline have stated that spoliation motions are subject to chambers discovery rules 26 and applicable deadlines. See Mahboob v. Educ. Credit Mgmt. Corp., 2021 U.S. Dist. 27 LEXIS 38309, at *4 (S.D. Cal. 2021) (“spoliation motions are subject to chambers 28 discovery rules.”); Cottle-Banks v. Cox Commc'ns, Inc., No. 10CV2133-GPC WVG, 2013 1 WL 2244333, at *16 (S.D. Cal. May 21, 2013) (rejecting a spoliation motion because it 2 violated a chambers rule imposing a 30-day deadline to bring discovery disputes). 3 III. ANALYSIS 4 The Court finds the Motion for Spoliation must be struck as untimely under either 5 of the tests listed above. Under the strict bright line rule used by Mannion, Sherwood, 6 EEOC, and Rhabarian, the Motion for Spoliation must be struck because Movants did not 7 file the motion until after the close of discovery. 8 Even if the Court were to adopt the more permissive standard used in Larios, 9 Sherwin-Williams Co., Montoya, Mahboob, and Cottle-Banks, the result would not change. 10 While these cases simply require spoliation be raised without “undue delay” and “as soon 11 as reasonably possible,” both Mahboob and Cottle-Banks indicate that such motions are 12 still “subject to chambers discovery rules” and may be struck for failing to follow such 13 procedures. Mahboob, 2021 U.S. Dist. LEXIS 38309, at *4; Cottle-Banks, 2013 WL 14 2244333, at *16 (“a discovery dispute must be filed ‘within thirty (30) days’ …[so] the 15 Court alternatively denies the motion for spoliation as untimely.”) As AZR argues, the 16 CMO issued in this case required parties to seek leave of the Court before filing any written 17 motion regarding a discovery dispute. (Doc.
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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA
9 Wine Education Council, No. CV-19-02235-PHX-SMB
10 Plaintiff, ORDER
11 v.
12 Arizona Rangers,
13 Defendant. 14 15 Pending before the Court are Plaintiff Wine Education Counsel and Third-Party 16 Defendant Grant Winthrop’s (“The Movants”) Motion for Spoilation and Sanctions. (Doc. 17 178.) Defendant/Third-Party Plaintiff Arizona Rangers (“AZR”) filed a response, (Doc. 18 184), and the Movants filed a reply. (Doc. 188.) Also pending before the Court is AZR’s 19 Motion to Strike the Motion for Spoilation and Sanctions, (Doc. 182), to which the 20 Movants have filed a response, (Doc. 189), and AZR a reply. (Doc. 196.) Having 21 considered the parties briefing and applicable law, the Court will grant AZR’s Motion to 22 Strike the Motion for Spoliation and Sanctions finding it is untimely and violates the Case 23 Management Order (“CMO”) of this case. 24 I. BACKGROUND 25 The Movants request sanctions against AZR for its alleged violation of Rule 37(e), 26 Fed. R. Civ. P., or alternatively for sanctions based on the Court’s “inherent power…to 27 levy sanctions in response to abusive litigation practices.” Leon v. IDX Sys. Corp., 464 F.3d 28 951, 958 (9th Cir. 2006). The Movants allege these sanctions are merited based on actions 1 or omissions of AZR which allegedly led to the destruction or unavailability of evidence 2 relevant to interpretation of the parties’ contracts. The parties’ central remaining dispute in 3 this case concerns the interpretation of a clause contained in one of grant agreements (“the 4 recovery clause”). WEC alleges the terms of the clause, either of its own force or 5 independent oral agreement, gives WEC a right to recovery property and money associated 6 with all six grants. AZR disputes the scope of the clause claiming it applies only to one of 7 the six grants, and was not triggered in this case. 8 The Movants allege that AZR’s behavior during the discovery period of this case 9 has resulted in the spoliation of relevant evidence. The allegedly spoliated evidence 10 includes the following: (1) meeting minutes recorded by the development committee and 11 the East Valley Company between November 30, 2016 and October 3, 2017, (2) additional 12 emails, notes and documents retained by the AZR board of directors concerning the 13 conditions of the grants which the Movants’ allege were not produced, (3) text messages 14 among individual rangers discussing the terms of the grants, and (4) documents describing, 15 showing, or relating to the rangers’ internal audit report for the grants. (Doc. 188 at 3.) 16 AZR has filed a response to the motion while simultaneously bringing a Motion to 17 Strike the request for sanctions. (Docs. 182, 184.) In its substantive response, AZR argues 18 there is no grounds to sanction it as Movants request because it has complied with all its 19 discovery obligations and no evidence was destroyed or otherwise lost. (Doc. 184 at 1-3.) 20 Further, AZR argues that, as it has explained several times in this litigation, it has no control 21 over documents or records retained by its individual volunteer members and cannot 22 produce such materials. (Id. at 3.) Separate from its substantive response to the Motion for 23 Spoliation, AZR also filed a Motion to Strike the request for sanctions as improper and 24 untimely. (Doc. 182.) AZR argues (1) that the movants have failed to “meet and confer” as 25 required by LRCiv. 7.2(j), (2) that the motion violates the Court’s scheduling order by 26 filing a “written discovery motion” without leave of the Court, and (3) that any request for 27 discovery sanctions is untimely because the movants waited until well after the close of 28 discovery. (Doc. 182.) The Movants responded arguing the Motion to Strike was not 1 permitted under LRCiv. 7.2(m) and that its Motion for Spoliation was not a “discovery 2 motion.” The Movants further argue they were not required to “meet and confer” with AZR 3 under the Federal Rules of Civil Procedure. Finally, the Movants argue that the motion is 4 not untimely because there is no requirement that a motion seeking spoilation sanctions be 5 brought prior to the close of discovery. (Doc. 189.) The Court heard oral argument on both 6 motions on April 6, 2021. (Doc. 212.) After hearing from both parties, the Court took both 7 motions under advisement. 8 II. LEGAL STANDARD 9 The deadline by which a party must file a motion for spoliation is a rather unsettled 10 matter in this circuit. Multiple courts have held a Motion for Spoliation untimely when a 11 party raises it after the close of discovery. See Mannion v. Ameri-Can Freight Sys., 2020 12 U.S. Dist. LEXIS 12695, at *9 (D. Ariz. 2020) ("Spoliation is a discovery offense, so issues 13 surrounding alleged spoliation should be resolved during discovery—not on the eve of 14 trial.") (quoting Sherwood v. BNSF Ry. Co., 2019 U.S. Dist. LEXIS 33378, 2019 WL 15 1004563, *2 (D. Idaho 2019)); accord EEOC v. Autozone, Inc., 2008 U.S. Dist. LEXIS 16 69472, at *16 (D. Ariz. 2008); Rhabarian v. Cawley, No. 10-cv-00767, 2014 U.S. Dist. 17 LEXIS 17265, 2014 WL 546015, at *3 (E.D. Cal. 2014). Other courts permit parties to 18 raise issues of spoliation after discovery has closed so long as the claim is raised “as soon 19 as reasonably possible after [uncovering] the facts that underlie the motion.” See, e.g., 20 Larios v. Lunardi, 442 F. Supp. 3d 1299, 1305-6 (E.D. Cal. 2020) (quoting Sherwin- 21 Williams Co. v. JB Collision Services, Inc., No. 13-cv-1946-LAB-WVG, 2015 U.S. Dist. 22 LEXIS 87439, 2015 WL 4077732, at *2 (S.D. Cal. 2015); Montoya v. Orange County 23 Sheriff's Dept., No. SACV 11-cv-1922-JGB-RNB, 2013 U.S. Dist. LEXIS 180682, 2013 24 WL 6705992, at *6 (C.D. Cal. Dec. 18, 2013)). However, even courts adopting this more 25 flexible timeline have stated that spoliation motions are subject to chambers discovery rules 26 and applicable deadlines. See Mahboob v. Educ. Credit Mgmt. Corp., 2021 U.S. Dist. 27 LEXIS 38309, at *4 (S.D. Cal. 2021) (“spoliation motions are subject to chambers 28 discovery rules.”); Cottle-Banks v. Cox Commc'ns, Inc., No. 10CV2133-GPC WVG, 2013 1 WL 2244333, at *16 (S.D. Cal. May 21, 2013) (rejecting a spoliation motion because it 2 violated a chambers rule imposing a 30-day deadline to bring discovery disputes). 3 III. ANALYSIS 4 The Court finds the Motion for Spoliation must be struck as untimely under either 5 of the tests listed above. Under the strict bright line rule used by Mannion, Sherwood, 6 EEOC, and Rhabarian, the Motion for Spoliation must be struck because Movants did not 7 file the motion until after the close of discovery. 8 Even if the Court were to adopt the more permissive standard used in Larios, 9 Sherwin-Williams Co., Montoya, Mahboob, and Cottle-Banks, the result would not change. 10 While these cases simply require spoliation be raised without “undue delay” and “as soon 11 as reasonably possible,” both Mahboob and Cottle-Banks indicate that such motions are 12 still “subject to chambers discovery rules” and may be struck for failing to follow such 13 procedures. Mahboob, 2021 U.S. Dist. LEXIS 38309, at *4; Cottle-Banks, 2013 WL 14 2244333, at *16 (“a discovery dispute must be filed ‘within thirty (30) days’ …[so] the 15 Court alternatively denies the motion for spoliation as untimely.”) As AZR argues, the 16 CMO issued in this case required parties to seek leave of the Court before filing any written 17 motion regarding a discovery dispute. (Doc. 22 at 4-5.) Further, the CMO stated that absent 18 extraordinary circumstances, the Court would “not entertain fact discovery disputes after 19 the deadline of fact discovery.” (Id.) Thus, even under the more permissive “undue delay” 20 test, the Motion for Spoliation must be struck for its failure to abide by the rules and 21 procedures of the CMO. 22 The Movants’ response says little to counter this point. The majority of their 23 response is dedicated to proving the Movants were not required “meet and confer” with 24 AZR prior to bringing a Motion for Spoliation. To the extent the Movants address the 25 timeliness issue, their response simply argues that AZR “cannot point to any rule requiring 26 a spoliation motion…be brought prior to the close of discovery” and that a “[m]otion for 27 [s]poliation is not a discovery dispute subject to discovery deadlines.” (Doc. 189 at 3.) The 28 cited caselaw demonstrates this contention is incorrect. Mannion, 2020 WL 417492, at *9 □□ C'Spoliation is a discovery offense...[and] should be resolved during discovery” (quoting Sherwood, 2019 WL 1004563, *2)); EEOC v. Autozone, Inc., 2008 U.S. Dist. LEXIS || 69472, at *16 (D. Ariz. 2008) (“AutoZone correctly notes that spoliation is a discovery 4|| offense.”); Rhabarian, 2014 WL 546015, at *3 (E.D. Cal. 2014) (“the time to raise [Spoliation] was during discovery”); Mahboob, 2021 U.S. Dist. LEXIS 38309, at *4 || (“spoliation motions are subject to chambers discovery rules.”); Cottle-Banks, 2013 WL 7\| 2244333, at *16 (rejecting a spoliation motion because “a discovery dispute must be filed 8 || ‘within thirty (30) days[.]’”). In light of these cases, the Court is confident that a Motion 9|| for Spoliation is subject to the Court’s CMO provisions regarding discovery disputes. || Because Movants request is prohibited by the CMO, the Motion for Spoliation and |} Sanctions will be struck. LRCiv. 7.2(m) 12 IV. CONCLUSION 13 Accordingly, 14 IT IS ORDERED that AZR’s Motion to Strike the Motion for Spoliation and 15 || Sanctions, (Doc. 182), is granted. 16 Dated this 11th day of August, 2021. 17 18 — . RP 19 SO 20 Gnvted States District ude. 21 22 23 24 25 26 27 28
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