Khan v. City and County of San Francisco

Background

Plaintiff Mahroofa I. Khan filed a discovery brief asking the court to compel Defendant City and County of San Francisco to provide additional documents responsive to two requests for production. Request for Production No. 4 sought electronic badge-access records from June 10, 2023, through January 4, 2024, concerning Khan’s physical access to the building. Request for Production No. 6 sought EPIC Systems software user-activity records for Khan from August 1, 2023, through December 31, 2023.

Khan also asked the court to treat it as established that she was present and performing her duties during the relevant period if the records were unavailable. The court construed that request as a request for spoliation sanctions under Federal Rule of Civil Procedure 37(e). Spoliation concerns the loss of electronically stored information that should have been preserved for litigation.

Rulings on the Discovery Requests

The court denied Khan’s request for further production under Request No. 4. The City stated that it had conducted a diligent search and reasonable inquiry but did not have responsive badge records because it did not retain activity records dating back to the requested period. The court held that the City’s response was sufficient. It also explained that Rule 34 did not require the City to provide a sworn declaration under penalty of perjury confirming that it conducted a diligent search. The court found no asserted or demonstrated violation of the certification requirement in Rule 26(g), and concluded that no further response was necessary.

Regarding Request No. 6, the City represented that it had produced responsive EPIC records on February 26, 2026, with some third-party information redacted. Because the parties appeared to agree that the City had to produce responsive, nonprivileged records within its possession, custody, or control, but it was unclear what dispute remained, the court directed them to meet and confer in person or by video conference by March 20, 2026. If they could not resolve the issue, they could file a supplemental joint brief of no more than three pages by March 25, 2026.

Ruling on the Requested Adverse Inference

The court denied Khan’s request for an adverse inference without prejudice. An adverse inference can allow a court or jury to treat lost evidence as unfavorable to the party responsible for its loss. The court noted that the duty to preserve relevant evidence can arise before a lawsuit formally begins, and expressed some concern about the City’s statement that it began retaining information after receiving notice of the lawsuit in March 2025. However, the court expressly did not reach the merits of any spoliation dispute.

Instead, the court ruled that a discovery letter was not the proper way to request spoliation sanctions. The request had to be made through a separately filed and properly noticed motion complying with the applicable federal and local rules. The court stated that Khan could file such a motion by April 3, 2026.

Disposition

The court denied further production under Request No. 4, directed the parties to meet and confer regarding Request No. 6, and denied without prejudice Khan’s request for an adverse inference. The opinion’s judge signature is not legible in the provided text, so the judge cannot be identified by name.