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Martinez v. Salazar

United States District Court, D. New Mexico

January 26, 2017

JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
v.
JOSEPH SALAZAR, in his individual capacity, GREG ESPARZA, in his individual capacity, THE ESPANOLA DEPARTMENT OF PUBLIC SAFETY, LEO MONTOYA, and THE CITY OF ESPANOLA, Defendants.

          MEMORANDUM OPINION AND ORDER

         This matter comes before the Court upon Plaintiff Jackie Martinez's Motion for Sanctions for Defendants' Failure to Preserve Taser Data (“Motion”), (Doc. 196), filed June 30, 2016; Defendants' Response to Plaintiff's Motion for Sanctions for Defendants' Failure to Preserve Taser Data (Doc. 198); and Plaintiff's Reply in Support of Motion for Sanctions For Defendants' Failure to Preserve Taser Data. (Doc. 199). The Motion came before the Court at a hearing on January 19, 2017. See (Doc. 221). Having heard Counsels' argument and reviewed the Motion and the accompanying briefs, the Court GRANTS IN PART and DENIES IN PART the Motion.

         I. Background

         This is a police excessive force case arising from interactions between Russell Martinez (“Mr. Martinez”), a paraplegic, and Defendants Joseph Salazar and Greg Esparza on May 11, 2012. Specifically, Plaintiff's First Amended Complaint for Damages Resulting from Civil Rights Violations, Intentional Torts, Negligence, and Violations of Title II of the Americans with Disabilities Act (“Amended Complaint”) alleges that Espanola Police Department Officer Joseph Salazar responded to a 911 call reporting a domestic disturbance between Mr. Martinez and his wife in a Sonic parking lot. Plaintiff claims that in investigating the incident, Defendant Salazar pulled Mr. Martinez from his car, beat him, and Tased him multiple times. (Doc. 88). Based on these allegations, the Amended Complaint alleges claims under 42 U.S.C. § 1983, the New Mexico Tort Claims Act (“NMTCA”), and the Americans with Disabilities Act (“ADA”).

         On August 6, 2012, Plaintiff sent the City of Espanola a letter describing the incident, including that Mr. Martinez was Tased by officers several times. (Doc. 172-1) at 2. The letter announced the intent to sue based on the events, and demanded that the City preserve all evidence, including electronically-stored information. Id. Plaintiff then filed suit on May 5, 2014. (Doc. 1-1).

         During discovery on October 6, 2015, Plaintiff moved to compel the production of electronic data from Defendant Salazar's Taser. (Doc. 107) at 2-5. Defendants could not identify the serial number for Defendant Salazar's Taser and, thus, the electronic information regarding Defendant Salazar's Taser use was effectively lost. Id. In response, Defendants claimed that the Safety Officer responsible for maintaining documents related to Taser issuance during the relevant time period left the Espanola Police Department, of the Espanola Department of Public Safety (“EDPS”) in December 2011 under “acrimonious circumstances, ” and “took all records maintained by him.” (Doc. 142) at 2. As a result, Defendants maintained that they had not acted in bad faith, and that the records simply could not be found or were not in their possession. Id.

         The Honorable William P. Lynch found this argument unpersuasive, as the records showed that Defendant Salazar was hired in February 2012, at least two months after the Safety Officer could have retired and absconded with the records. Id. (citing (Doc. 124-1)). Because Defendants had affirmatively stated that Defendant Salazar's Taser is likely still being used in the field, Judge Lynch ordered that Defendants conduct a search of all Tasers within their possession and all Taser data to which they have access in an effort to locate the Taser used by Defendant Salazar on May 11, 2012. Id. Defendants produced electronic data for 29 Tasers, but because several Tasers had their internal calendars and clocks reset, and because the serial number of Defendant Salazar's Taser remains unknown, it appears that none of the data could be definitively linked to the May 11, 2012, incident. (Doc. 172) at 3-5.

         Subsequently, Plaintiff moved for a Fed.R.Civ.P. 30(b)(6) deposition regarding Defendants' efforts to preserve Defendant Salazar's Taser data, to which Defendants consented. (Docs. 172, 177, & 192). Plaintiff deposed Francisco Galvan, Records Supervisor and Evidence Custodian at EDPS (“Mr. Galvan”), who the City of Espanola designated to testify on its behalf. (Doc. 196-1). Mr. Galvan testified, and Defendants acknowledge, that the City received the letter on August 6, 2012, and scanned it into a Laserfiche records management system, but never conveyed the letter to him or EDPS. Id. at 9:6-10, 12-18, 11:13-12:16, 30:24-31:1, 31:22-32:7. As a result, no litigation hold or effort to preserve evidence was made upon receiving the August 6, 2012, letter. Id. at 31:12-32:23.

         In addition, Mr. Galvan testified that, had he received the letter, he only would have placed a copy of the letter in the evidence locker related to this incident. (Doc. 196-1) at 49:17- 50:3. He also testified that, because Defendant Salazar used the Taser in “drive-stun” mode, the Taser did not deploy a cartridge, which would normally be placed in the evidence locker. (Doc. 198-2) at 40:1-14. As a result there was no cartridge to preserve. Id. Mr. Galvan further testified that neither he, nor anyone else, would have made any effort to locate the serial number of Defendant Salazar's Taser, or preserve any of the associated electronic data. (Doc. 196-1) at 51:15-20. Mr. Galvan also noted that Defendant Salazar failed to complete a Taser Use Report, documenting his use of the Taser during the incident, in violation of EDPS policy. Id. at 45:12- 46:4. It appears that Defendant Salazar has never completed a Taser Use Report during his tenure as an EPD officer. Id.

         Plaintiff then filed the instant Motion seeking sanctions against Defendants the City of Espanola, EDPS, and Joseph Salazar for their failure to take any action to preserve Defendant Salazar's Taser Data. (Doc. 196). Plaintiff maintains that Defendants' complete failure to take any steps to preserve evidence in this case favors a finding of bad faith, and that Plaintiff has been prejudiced by this failure. Id. at 4-7. As a result, Plaintiff asks this Court to give a permissive adverse inference instruction to the jury at trial, and to award Plaintiff costs and fees related to her efforts to discover Defendant Salazar's Taser data. Id. at 9-10.

         Defendants oppose the Motion in its entirety, and argue that there can be no finding of bad faith in this case. (Doc. 198). It is Defendants' position that the destruction or loss of Defendant Salazar's Taser data is the result of sloppy paperwork amounting only to negligence and that, as a result, sanctions would be improper. While Defendants admit that no litigation hold was placed as a result of the letter, they maintain that had a litigation hold been instituted, the Taser data would still not have been available. Specifically, Defendants assert that, had he received the preservation letter, Mr. Galvan would only have placed copy of the letter in the evidence locker associated with this case. Because Defendant Salazar used the Taser in “drive-stun” mode, the Taser did not deploy a cartridge, which would normally be kept in the evidence locker. Thus, Defendants argue there was no evidence to preserve. Defendants state that they would have made no other effort to identify the serial number of the Taser used by Defendant Salazar.

         II. The Law on Spoliation

         “Spoliation is the ‘destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'” Linnebur v. United Tel. Ass'n, Inc., No. 10-1379-RDR, 2012 WL 2370110, at *1 (D. Kan. June 21, 2012) (citing Sch.-Link Techs., Inc. v. Applied Res., Inc., No. CIV.A. 05-2088-JWL, 2007 WL 677647, at *3-4 (D. Kan. Feb. 28, 2007)). To prevent spoliation, litigants are under an “obligation to preserve evidence . . . when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001)).

         Generally, the rule is that “‘[o]nce a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a “litigation hold” to ensure the preservation of relevant documents'” and other tangible evidence. Browder v. City of Albuquerque, No. CIV 13-0599 RB/KBM, 2016 WL 3397659, at *4 (D.N.M. May 9, 2016) (citing United States ex rel. Baker v. Community Health Systems et al., No. CIV. 05-279 WJ/ACT, 2012 WL 12294413, at * 3 (D.N.M. Aug. 31, 2012) and Jordan F. Miller Corp. v. Mid-Continent Aircraft Service Inc., 139 F.3d 912, at *3 (10th Cir. Feb. 20, 1998)). However, “[a] party's discovery obligations do not end with the implementation of a ‘litigation hold'-to the contrary, that's only the beginning.” Baker, 2012 WL 12294413, at *2 (internal citations omitted). Indeed, merely notifying employees of a litigation hold is insufficient. Id. Rather, “[c]ounsel must take affirmative steps to monitor compliance so that all sources of discoverable information are identified and searched. Id. Counsel must also “talk to key employees in an effort to understand how evidence will be stored, to continually ensure that the party is preserving relevant evidence.” Browder, 2016 WL 3397659, at *4 (citing Baker, 2012 WL 12294413, at *2).

         Where a party fails to fulfill its duty to preserve evidence, federal courts have the inherent authority to fashion an appropriate sanction. See Baker, 2012 WL 12294413, at * 3; Browder, 2016 WL 3397659, at *4. Indeed “[f]ederal courts possess inherent powers necessary ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases[, ]'” including imposing sanctions. Browder, 2016 WL 3397659, at *4 (citing Jordan F. Miller Corp. v. Mid-Continent Aircraft Service Inc., 139 F.3d 912, at *3 (10th Cir. Feb. 20, 1998)). “A spoliation sanction is proper where (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007) (citing 103 Inv'rs I, L.P. v. Square D Co., 470 F.3d 985, 989 (10th Cir. 2006)). ...


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