Saxton v. County of Sonoma

Background

Michelle Saxton, acting as guardian ad litem for M.J., and the Estate of Amber Marcotte moved for terminating sanctions under Federal Rule of Civil Procedure 37. They alleged that defendants destroyed electronically stored information, including emails sent or received by Sonoma County Sheriff’s Department employees about Marcotte’s death on October 29, 2020, and the subsequent criminal and Internal Affairs investigations.

Plaintiffs argued that the County should have preserved the emails earlier, that its email system automatically deleted messages after 60 days, and that defendants produced very few substantive emails about the death and investigations. They requested terminating sanctions or, alternatively, an instruction allowing the jury to presume that the missing information was unfavorable to defendants.

Defendants denied destroying any electronically stored information and argued that plaintiffs had assumed, without evidence, that relevant emails ever existed. Defendants submitted declarations stating that investigators and others involved generally did not use email for substantive communications about the investigations and that substantive information received by email was documented in investigation reports. Defendants also stated that they had produced investigation reports, videos, interview recordings, more than 3,700 pages of investigation-related documents, and Sheriff’s Department policies and procedures.

Rule and Analysis

Under Rule 37(e), sanctions for lost electronically stored information require findings that the information should have been preserved, was lost because reasonable preservation steps were not taken, and cannot be restored or replaced through additional discovery. Depending on the circumstances, the court must also find prejudice to the other party or an intent to deprive that party of the information’s use in the litigation. More serious remedies, including an adverse presumption, a jury instruction, dismissal, or default judgment, require a finding of intent to deprive.

The court stated that, even assuming relevant electronically stored information had been lost, the record did not support a finding that plaintiffs were prejudiced or that defendants intentionally destroyed the information. The court found no concrete evidence that relevant emails ever existed or that critical evidence had been destroyed. It also considered the extensive discovery defendants had provided, including reports and video and audio recordings of the investigations.

The court was troubled that the County did not impose a litigation hold until July 15, 2021. It stated that the hold should have been instituted no later than April 2021, and possibly earlier. But the court found that the declarations from the people involved in the investigations were unrebutted and that the available record did not support inferring an intent to deprive plaintiffs of information. The fact that only attorney-client emails were retrieved from two email accounts that had been subject to earlier holds also supported the conclusion that there was no spoliation of evidence.

Disposition

Judge Susan Illston denied plaintiffs’ motion for terminating sanctions. The opinion does not state that the court separately ruled on the alternative request for an adverse jury instruction.