Gay v. Shaffer

Background

Gay alleges that Amy Parsons and Gregory Goldstein, psychologists employed by the Board of Parole Hearings, interviewed him in 2015 for a psychological evaluation prepared for a parole-suitability hearing. He alleges that they discriminated against him and retaliated against him, including by making comments reflecting bias against Muslim and African American inmates and by assigning him a high risk of future violence.

The discovery dispute concerned Goldstein’s personal notes from the interview. Goldstein had given the notes to the Board, which kept them for about a year in its Sacramento office and then stored them offsite for roughly three years. The Board destroyed the notes around September 2019. The defendants sent the Board a litigation hold in September 2017, and Gay served document requests seeking notes from the interview in May 2019.

Spoliation findings

Spoliation is the destruction or loss of evidence that should have been preserved for litigation. The court held that the Board, although not a party to the lawsuit, had an independent duty to preserve the notes because it was not a disinterested third party. The court relied on the Board’s professional and legal relationships with the defendants, the defendants’ employment by the Board, the Board’s control of the notes, and the notes’ connection to the risk assessment at issue.

The court found the notes relevant because they could have helped prove or disprove Gay’s discrimination allegations and could have helped the jury evaluate witness credibility. The existence of the official report did not make the personal notes irrelevant or duplicative.

The court also found that the Board acted with at least gross negligence, and possibly recklessness, by failing to implement the litigation hold despite having about two years’ notice before destroying the notes. The court rejected the defendants’ argument that the destruction was inadvertent, explaining that the destruction was avoidable because the Board did not suspend or modify its regular document-destruction policy.

Imputation to the defendants

The court held that the defendants had a duty to preserve the notes at least by the filing of the lawsuit in October 2016, and that this duty existed when the notes were destroyed. The court found that the defendants were at least grossly negligent in delaying the litigation hold to the Board until September 2017. It concluded that the Board’s culpability could be attributed to the defendants and that the defendants could therefore be sanctioned for the Board’s spoliation.

Sanction and disposition

Gay requested an instruction requiring the jury to accept as true that Goldstein’s notes contained racially and religiously discriminatory comments, as well as an order preventing the defendants from testifying about the notes. The court found that those requested sanctions would be potentially case-dispositive and were too severe for the defendants’ level of culpability.

The court instead ordered a permissive adverse-inference instruction. At trial, the jury may, but is not required to, conclude that the destroyed notes were relevant and contained information favorable to Gay and unfavorable to the defendants. The court therefore granted in part and denied in part Gay’s request for discovery sanctions.