KRISTEN L. MIX, Magistrate Judge.
This matter is before the Court on Plaintiff's
This case involves Plaintiff's allegations that his Fourteenth Amendment due process rights were violated when, in short, Defendants refused to permit Plaintiff to leave 23-hour lockdown to reside in less restrictive housing between March 24, 2013, and December 18, 2013. See Final Pretrial Order [#300] at 2-3. Plaintiff frames the central factual issue in this lawsuit as "whether Defendants had a legitimate reason to keep Plaintiff in 23-hour lockdown (referred to as "Unit 4D") for eight-and-a-half-months." Motion [#387] at 3. While Plaintiff was in Unit 4D, Defendants, who were two of the three members of the Review Board at the Van Cise-Simonet Denver Detention Center ("DDC"), interviewed Plaintiff every week and made a written decision about why he was being kept in segregation. See Ex. 1 [#387] at 35. These written decisions were supposed to be kept both in hard copy and electronically. See id. Plaintiff asserts that "[t]he Review Board's weekly interviews and decisions are clearly relevant to this lawsuit as they should provide contemporaneous evidence of the reason Defendants stated for keeping Plaintiff in Unit 4D." Motion [#387] at 3-4. A record for only a single week (May 31, 2013) has been produced by Defendants.
Plaintiff filed this lawsuit on August 28, 2014. See Compl. [#1]. Plaintiff provides evidence that "Defendants admit that the Review Board records for Plaintiff existed and were within their control after this lawsuit was filed." Motion [#387] at 4. Defendant Jordan was a Sergeant in the DDC's Special Management Unit (which includes Unit 4D) until August 2015 and has been a Captain in the DDC's Central Records Unit from August 2015 to present. Pl.'s Ex. 2 [#388-1] at 23, 26. In his deposition taken November 27, 2018, he testified that in August 2015, when he left DDC's Special Management Unit, Plaintiff's Review Board records still existed but at some unknown time after that they were lost or destroyed. Id. at 97, 109. In July 2017 he looked for the records but was unable to find them. Id. at 98.
From 2014 to June 2017, Defendant Romero was a watch commander in the DDC and the Captain overseeing the Special Management Unit. Pl.'s Ex. 3 [#388-2] at 11-12. In his deposition taken November 28, 2018, Defendant Romero testified that the Review Board compiled weekly notes of its decisions, that those notes were kept in the sergeant's office, and that he himself saw those notes in the sergeant's office in 2013. Id. at 155-58. He further testified that, despite the DDC requirement that the Review Board's written decisions be kept in the jail management system as well as in hard copy, the Review Board's decisions were not kept in the jail management system. Id. at 99-100.
Plaintiff argues that the evidence demonstrates three crucial points. Motion [#387] at 9. First, "Defendants lost or destroyed the Review Board's 2013 records relating to Plaintiff after this lawsuit was filed." Id. Second, "Plaintiff has been prejudiced because he cannot use the Review Board's records to refute Defendants' testimony and show that Defendants kept Plaintiff in 23-hour-lockdown without a legitimate reason and as punishment." Id. Third, "Defendants acted with bad faith by intentionally not preserving the Review Board records, trying to cover up their existence, seeking to dismiss Plaintiff's claims on the basis of the Review Board meetings without revealing that the Review Board records had been lost or destroyed, and violating DDC policies and procedures." Id. As a result, Plaintiff seeks a jury instruction at trial "that Defendants have lost or destroyed weekly Review Board records that contained information about the reasons Plaintiff was kept in Unit 4D between March 24, 2013 and December 18, 2013, and the jury should infer that the missing records contained evidence unfavorable to Defendants and favorable for Plaintiff." Id. at 14.
"Destruction of evidence, or spoliation, is a discovery offense . . . ." Gates Rubber Co. v. Bando Chem. Indus. Ltd., 167 F.R.D. 90, 101 (D. Colo. 1996). To ensure that discovery as permitted under the Federal Rules of Civil Procedure is not rendered futile, "litigants have a duty to preserve documents that may be relevant to pending or imminent litigation." Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 620 (D. Colo. 2007). The Court may impose sanctions for destruction or loss of evidence. Id. "A spoliation sanction is proper where (1) a party has a duty to preserve evidence because [he] knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of evidence." Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007) (citing 103 Investors I, L.P. v. Square D Co., 470 F.3d 985, 989 (10th Cir. 2006)). The movant has the burden of proving, by a preponderance of the evidence, that the opposing party failed to preserve evidence or destroyed it. In re Krause, 367 B.R. 740, 764 (D. Kan. 2007).
A court may find that spoliation has occurred when a party either negligently or intentionally fails to produce relevant evidence in litigation. The failure may, of course, occur because evidence has been destroyed or lost. Turner v. Pub. Serv. Co., 563 F.3d 1136, 1149 (10th Cir. 2009). Plaintiff has the burden of proving that relevant evidence has been lost or destroyed by Defendants. Oldenkamp v. United Am. Ins. Co., 619 F.3d 1243, 1251 (10th Cir. 2010). Defendants do not assert that the Review Board records are irrelevant. See generally Response [#418]. They also do not contest that these records have been "misplaced," although they do dispute whether they personally bear any responsibility for the misplacement. Compare id. at 6 with id. at 14 n.6.
A party is under a duty to preserve evidence when litigation is imminent. Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 620 (D. Colo. 2007). Here, the evidence demonstrates that the relevant Review Board records existed in August 2015, a year after Plaintiff filed this lawsuit. Pl.'s Ex. 2 [#388-1] at 97, 109. Thus, the Court finds that Defendants had a clear duty to preserve the relevant Review Board records at whatever time they were lost or destroyed because litigation had already commenced. In the absence of an adequate explanation or substantial substitute evidence, a party's inability to locate relevant evidence may be construed as spoliation. See, e.g., Lutalo v. Nat'l R.R. Passenger Corp., No. 11-cv-00974-REB-KLM, 2013 WL 1294125, at *5 (D. Colo. Mar. 28, 2013) (holding that the plaintiff's loss of cell phone was spoliation justifying imposition of sanctions); Novick v. AXA Network, LLC, No. 07-CV-7767(AKH)(KNF), 2014 WL 5364100, at *6 (S.D.N.Y. Oct. 22, 2014) (finding that the defendants spoliated audio tapes when they failed to provide any explanation for why or how the tapes came to be missing); Victor v. Lawler, Civil No. 3:08-cv-1374, 2012 WL 1642603, at *5 (M.D. Pa. May 10, 2012) (finding that inability to recover certain evidence was not spoliation in light of reasonable explanations for inability to recover it and existence of other substantial evidence); Pub. Serv. Mut. Ins. Co. v. Empire Comfort Sys., Inc., 573 F.Supp.2d 372, 382 n.13 (D. Mass. 2008) (granting summary judgment and holding that inability of the plaintiff to find heater which was the subject of breach of warranty claim was spoliation); Puerto Rico Telephone Co., Inc. v. San Juan Cable LLC, Civil No. 11-2315(GAG/BJM), 2013 WL 5533711, at *1 (D.P.R. Oct. 7, 2013) (finding that the defendant's failure to preserve, locate and produce emails was spoliation). Plaintiff has therefore sustained his burden of showing that relevant evidence was lost and/or destroyed.
"The burden is on the aggrieved party to establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the lost material would have produced evidence favorable to his cause." Gates Rubber Co., 167 F.R.D. at 104. The degree of prejudice suffered by a party who experiences spoliation is generally measured in terms of how the unavailability of the spoliated evidence affects proof of the party's claim or claims. See, e.g., Lutalo, 2013 WL 1294125, at *4.
In short, Plaintiff argues that he "has been prejudiced because he cannot use the Review Board's records to refute Defendants' testimony and show that Defendants kept Plaintiff in 23-hour-lockdown without a legitimate reason and as punishment." Motion [#387] at 9; see also id. at 10-12. Specifically, Plaintiff argues:
Motion [#387] at 11 (internal citations omitted).
For their part, Defendants contend:
Response [#418] at 6-10 (internal citations and footnotes omitted).
Although Defendants make several compelling points, the Court notes that the absence of the vast majority of the Review Board records from the applicable period eliminates the best possibility of telling the whole story about why Plaintiff remained in segregation for so many months. It does not take much imagination to envision that the missing records could tell a different story from Defendants' version of events. Without those records, Plaintiff's opportunity to establish and/or contradict Defendants' reasons why he was kept in segregation is diminished. As a result, the Court finds that his ability to prove the alleged violation of his Constitutional rights has been prejudiced. See Farmer v. Brennan, 511 U.S. 825, 837 (1994).
As part of its analysis, the Court must consider whether Defendants were culpable in the loss or destruction of evidence. See Grant, 505 F.3d at 1032. Defendants concede that the Denver Sheriff Department ("DSD") had a duty to preserve the Board's 2013 records pursuant to its classification policies and to preserve records related to Plaintiff's time in special management pursuant to a 2014 litigation hold from the City Attorney's Office, but they argue that there is no evidence that either Defendant was responsible for the misplacement of the records. Response [#418] at 10. At the outset, the Court notes that all sources agree that the hard copy records of the Review Board's written decisions were never entered into the electronic jail management system, despite the DDC policy requirement that this back-up action be taken. See, e.g., Pl.'s Ex. 2 [#388-1] at 99-100. Thus, although there may be an issue of records mismanagement and failure to follow internal policy, there is not an issue that any such electronic records were spoliated by any party or non-party.
From 2014 to June 2017, Defendant Romero was a watch commander in the DDC and the Captain overseeing the Special Management Unit, which included Unit 4D. Pl.'s Ex. 3 [#388-2] at 11-12. In his deposition taken November 28, 2018, Defendant Romero testified that the Review Board compiled weekly notes of its decisions, that those notes were kept in the sergeant's office, and that he last saw those notes in the sergeant's office in 2013. Id. at 155-58.
Defendant Jordan testified that he had custody and control of the relevant Review Board records until he transferred out of DDC's Special Management Unit in August 2015. Pl.'s Ex. 2 [#388-1] at 23, 26. In his deposition taken November 27, 2018, he testified that he was very sure in August 2015, when he left DDC's Special Management Unit, that Plaintiff's Review Board records still existed and therefore it must have been at some unknown time after that when they were lost or destroyed. Id. at 97, 109. In July 2017 he conducted a thorough search for the records but was unable to find them. Id. at 98.
Defendants concede that they "have not learned definitively what may have happened to the Board's 2013 records or precisely when they were misplaced." Response [#418] at 11. However, they offer the following theory. Sergeant Garry Tribble ("Tribble) has worked in the Classification unit since 2015. Decl. of Tribble [#418-4] ¶ 1. He states that since he started there, the Board's weekly records were kept with other Classification documents "in a drawer in one of three cabinets that were in the Classification office on the third floor of the DDC." Id. ¶ 4. When space in the cabinets was needed for newer records, Sgt. Tribble and others moved the records from the drawers into boxes, which were then kept in the storage closet of the Classification office. Id. ¶¶ 5, 7. Sgt. Tribble did not recall either Defendant ever participating in this boxing process. Id. ¶ 6. When the storage closet became full, a second closet was also utilized to store the boxed records. Id. ¶ 7. The boxes were still in the closets when Defendant Romero retired in June 2017. Id. ¶ 8. Shortly after that, the new Captain of Classification "directed that the boxes be sent to the Imaging Department to be scanned." Id. ¶ 9. After the boxes were removed from Classification, Sgt. Tribble is unaware exactly what happened to them or where they are now. Id. Thus, Defendants theorize that the records were lost sometime after they were sent to the Imaging Department. Response [#418] at 11. The parties have presented no evidence regarding whether the relevant records were ever actually scanned by the Imaging Department.
Sgt. Tribble does not recall seeing the specific documents at issue during his time working in Classification, although there is no assertion that he ever looked for these particular documents either. Id. ¶ 10. As outlined above, Defendant Romero states that he last saw the records in 2013, but he would have had access to them until June 2017. Defendant Jordan states that he last saw the records in August 2015, which means that he would have had access to the notes from 2013 to August 2015, and then again, if (for the sake of argument) they were there, when he searched for them in July 2017.
Beyond the fact that both Defendants may have had the opportunity to spoliate the relevant records, there is no direct evidence that either one actually did so. There is no evidence from any non-party stating that he or she saw the records at any given point in time. Defendants have provided an alternative explanation for when the records were lost, although there is no evidence conclusively proving that the records were still in the boxes when the boxes were sent to the Imaging Department. It is also troubling that, given the obvious relevance of these documents, Defendants did not take any affirmative step prior to a search in July 2017 to make sure these documents were located and to protect them from loss during the time when Defendants did, in fact, have custody and control over them. See Cache La Poudre Feeds, LLC, 244 F.R.D. at 620 (stating that "litigants have a duty to preserve documents that may be relevant to pending or imminent litigation"). In short, though, there is nothing but circumstantial evidence and conflicting explanations for what could have happened to the missing records, including whether one or both of these Defendants may have been culpable in their loss.
At the outset, the Court notes that the Tenth Circuit has recently conceded that "[t]here is some tension in precedents of this court" regarding whether an adverse inference "instruction is proper absent a court finding of bad faith by the party that possessed the records that were lost or destroyed." E.E.O.C. v. JetStream Ground Servs., Inc., 878 F.3d 960, 965 (10th Cir. 2017). "The more recent precedents insist on a finding of bad faith before giving an adverse-inference instruction." Id. (citing Aramburu v. Boeing Co., 112 F.3d 1398 (10th Cir. 1997); Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136 (10th Cir. 2009)). "An earlier case, however, suggests that such a finding is unnecessary." Id. (citing Hicks v. Gates Rubber Co., 833 F.2d 1406 (10th Cir. 1987)).
Regardless, the Court finds that Hicks is distinguishable from the facts of the present case. See JetStream, 878 F.3d at 966-67. There, the Circuit Court held that the plaintiff was entitled to a "presumption that the destroyed documents would have bolstered [the plaintiff's] case" because the documents were destroyed in violation of EEOC regulations. Hicks, 833 F.2d at 1419. Here, Plaintiff has not demonstrated that the relevant Board Review documents were destroyed by Defendants in violation of DDC policy—in fact, there is no evidence that they have been destroyed by Defendants at all. Rather, the evidence demonstrates only that the documents have been lost. Although the documents may have been destroyed—and if they were destroyed prior to scanning by the Imaging Department, this would likely constitute a violation of DDC policy—there is no clear evidence to that effect before the Court. Accordingly, the Court "compl[ies] with the post-Hicks precedents," see JetStream, 878 F.3d at 966, and finds that Plaintiff must provide evidence of bad faith to be permitted an adverse inference instruction here.
When, as here, a party has a duty to preserve evidence which is lost or destroyed and the adverse party is prejudiced by its absence, sanctions are appropriate. Turner, 563 F.3d at 1149. "If the aggrieved party seeks an adverse inference to remedy the spoliation, it must also prove bad faith." Id. "Mere negligence in losing or destroying records is not enough because it does not support an inference of consciousness of a bad case." Aramburu, 112 F.3d at 1407.
Plaintiff argues that "Defendants acted with bad faith by intentionally not preserving the Review Board records, trying to cover up their existence, seeking to dismiss Plaintiff's claims on the basis of the Review Board meetings without revealing that the Review Board records had been lost or destroyed, and violating DDC policies and procedures." Id. at 9; see also id. at 12-13. Defendants argue that, even if Plaintiff could prove culpability, he has not demonstrated bad faith:
Response [#418] at 12-14 (internal citations and footnotes omitted). At most, Defendants assert that the Court should allow presentation of the evidence that Defendants failed to preserve the Review Board records and allow the parties to argue for whatever inference they believe is appropriate by the trier of fact. Response [#387] at 39.
As noted above, the determination of proper sanctions turns on the culpability of Defendants' alleged conduct. After a full review, the Court notes that the evidence presented is consistent with bungled record-keeping, bungled records management, and extreme carelessness, but the Court cannot find that Plaintiff has met his burden of proving that the evidence is consistent with bad faith. Taken as a whole, the evidence paints a portrait of ineptitude, not malfeasance. An adverse inference instruction is appropriate only if the Court finds that the moving party has shown that the party who lost or destroyed the evidence did so intentionally or in bad faith, because "[m]ere negligence in losing or destroying records is not enough." Turner, 563 F.3d at 1149 (quoting Aramburu, 112 F.3d at 1407). Although it is possible that Defendants may have contributed to the loss or destruction of the Review Board records, the evidence demonstrates that it is probable on this record that other employees at DDC, which is not a defendant in this action, caused their loss or destruction. Thus, the Court declines to find that the severe sanctions sought by Plaintiff in this case should be imposed:
Gates Rubber Co., 167 F.R.D. at 106-07 (citations omitted). Although it is apparent that the relevant Review Board records existed, that most of them have been lost or destroyed, and that Plaintiff has been prejudiced, the Court does not find that Plaintiff has sustained his burden of demonstrating that Defendants were culpable and acted in bad faith. Turner, 563 F.3d at 1149.
Nevertheless, some sanction is appropriate due to the apparently negligent spoliation of evidence demonstrated here and the facts that the relevant records were indeed in the custody and control of Defendants for varying periods after this litigation began and that some affirmative steps should have been taken at that time for their preservation. Accordingly, the Court
For the reasons discussed above,
IT IS HEREBY
IT IS FURTHER
