United States District Court, D. New Mexico
MEMORANDUM OPINION AND ORDER DENYING DEFENDANT'S
MOTION FOR SANCTIONS FOR SPOLIATION OF AUDIO
C. YARBROUGH UNITED STATES MAGISTRATE JUDGE
MATTER comes before the Court on Plaintiff Nicolita
Montoya's Motion For Sanctions For Spoliation Of Audio
Recording Evidence, filed June 10, 2019. Doc. 75. Defendant
Loya Insurance Company filed a response in opposition on June
24, 2019. Doc. 80. Defendant filed a reply on July 29, 2019.
Doc. 96. The Court orders that the Motion be denied for the
reasons explained below.
brings this bad faith claim against her insurance company for
its handling of her claim under her uninsured motorist
benefits. Plaintiff was in a motor vehicle accident on
October 3, 2016. Compl. ¶ 8 (Doc. 1-1). Plaintiff made a
claim for Uninsured Insurance Benefits with her auto
insurance company, Defendant Loya Insurance Company. Compl.
¶ 11. In the course of its investigation, Defendant took
a recorded statement from Plaintiff but lost it. Compl.
¶¶ 18-19. Plaintiff was forced to file suit against
Defendant in state court in February 22, 2017. Compl. ¶
20. On January 25, 2018, the jury rendered a verdict in favor
of Plaintiff against Defendant in the amount of $23, 742.82.
Compl. ¶¶ 45-46. The Complaint brings claims for
Breach of Contract, Insurance Bad Faith, Unfair Insurance
Claim Practices, and Unfair Trade Practices. Doc. 1-1 at 5-9.
present motion seeks a finding of liability against Defendant
as a sanction for its failure to preserve the recorded
statement Defendant took from Plaintiff during its
investigation of her claim. Doc. 75 at 1. Pursuant to 28
U.S.C. § 636(c), the parties consented to the
undersigned to conduct any or all proceedings and to enter an
order of judgment. Docs. 11, 13 & 15.
STANDARD OF REVIEW
courts have ‘substantial weaponry' in their arsenal
to shape the appropriate relief for a party's spoliation
of evidence.” Helget v. City of Hays, Kan.,
844 F.3d 1216, 1225-26 (10th Cir. 2017). Such rulings are
reviewed for abuse of discretion. Id. at 1225.
“Among the options, a court may strike witnesses, issue
an adverse inference, exclude evidence, or, in extreme
circumstances, dismiss a party's claims.”
Id. at 1226 (citations omitted). “The 2015
revisions to Federal Rule of Civil Procedure 37(e) provide
courts further guidance on issuing sanctions for destroying
or failing to preserve electronically stored information
(ESI).” Id. at 1226 n.7. “The Rule
instructs courts to ‘order measures no greater than
necessary to cure the prejudice.'” Id.
(quoting Fed.R.Civ.P. 37(e)(1)). “But where a party
acts with the intent to deprive another from using the ESI in
litigation, a court may ‘presume that the lost
information is unfavorable to the party,' issue an
adverse-inference instruction, or ‘dismiss the action
or enter a default judgment.'” Id.
(quoting Fed.R.Civ.P. 37(e)(2)(A)-(C)).
sanctions are proper when (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.”
Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136,
1149 (10th Cir. 2009). “But 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 weak case.” Id. (internal quotation marks
omitted). “Without a showing of bad faith, a district
court may only impose lesser sanctions.” Id.
Dismissal with prejudice is an extreme sanction, appropriate
only in cases involving “willfulness, bad faith, or
some fault” on the part of the party to be sanctioned.
The Procter & Gamble Co. v. Haugen, 427 F.3d
727, 738 (10th Cir. 2005) (internal quotation marks and
alterations omitted). “Because dismissal with prejudice
defeats altogether a litigant's right of access to the
courts, it should be used as a weapon of last, rather than
first, resort.” Id. (internal quotation marks
motion asks for a finding of liability against Defendant and
a jury trial limited to Plaintiff's damages. Doc. 75 at
8. In other words, Plaintiff asks for the most severe of
sanctions, a default judgment. Because Plaintiff has not
demonstrated any prejudice for the loss of the recording,
Plaintiff's motion is denied. The Court does not consider
whether lesser sanctions would be appropriate because
Plaintiff does not request any.
recorded statement in question is a recording of a telephone
call wherein Plaintiff gave a statement to a Loya claims
adjustor, Marivel Boneo, regarding the car accident. Ms.
Boneo preserved the notes she took contemporaneously to the
telephone call, and also testified about the notes and the
telephone conversation in her deposition. Doc. 75-1 at 3
& 6. Plaintiff argues that she has suffered prejudice
because in that deposition Ms. Boneo gave more information
about the telephone conversation than was contained in her
notes. Doc. 75 at 5; Doc. 96 at 2-3. The Court agrees that
the loss of the recording caused Plaintiff some prejudice, as
it prevented her from obtaining a full transcript of the
conversation rather the parts that Ms. Boneo chose to record
in her notes. This prejudice, however, is minimal.
Plaintiff herself was part of the conversation. Thus, the
loss of the recording did not deny her access to the
conversation. Plaintiff therefore retains the ability to
testify about conversation despite the loss of the recording.
Plaintiff was able to depose the adjustor and thereby obtain
the adjuster's testimony about the conversation. Because
Plaintiff has independent personal knowledge of this
conversation that she was part of and because Plaintiff
obtained the adjuster's notes and testimony about the
conversation, Plaintiff has the means to adequately prepare
for trial. See Turner v. Pub. Serv. Co. of Colo.,
563 F.3d 1136, 1150 (10th Cir. 2009) (no prejudice results
from loss of information where the adverse party “had
access to a significant amount of evidence regarding”
the same subject); McCauley v. Bd. of Comm'rs for
Bernalillo Cnty., 603 Fed.Appx. 730, 736 (10th Cir.
2015) (no prejudice where the missing recordings “were
not [plaintiff's] only source of information about”
and most importantly, there is no dispute over the relevant
contents of the telephone conversation. Plaintiff testified
in her deposition that she agreed with the substance of Ms.
Boneo's testimony regarding the contents of
Plaintiff's statement. Doc. 80-1 at 3. Both Ms. Boneo and
Plaintiff testified that Plaintiff said she was at the
Smith's gas station on Coors and Central. Doc. 80-1 at 3;
Doc. 75-1 at 3. She pulled out of that gas station intending
to make a left-hand turn to head east on Central. Doc. 80-1
at 3; Doc. 75-1 at 3. She looked but did not see any traffic
coming. Doc. 80-1 at 3; Doc. 75-1 at 3. She was struck on the
right front fender of her vehicle by another vehicle that she
did not see. Doc. 80-1 at 3; Doc. 75-1 at 3. She didn't
know what happened or where the other vehicle came from. Doc.
80-1 at 3; Doc. 75-1 at 3. Plaintiff then testified that