United States District Court, D. New Mexico
JACKIE MARTINEZ, as Personal Representative on behalf of the Estate of Russell Martinez, Plaintiff,
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
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.
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
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).
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.
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.
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
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.
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.
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.
Law on 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)).
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).
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)). ...