Bosco v. County of Sonoma

Background

Nino Bosco died by suicide while in custody at the Sonoma County Main Adult Detention Facility on July 17, 2019. His mother, Frauka Kozar, sued the County of Sonoma, California Forensic Medical Group, and several individuals. She brought claims individually and as Bosco’s successor-in-interest, alleging that defendants violated Bosco’s Fourteenth Amendment rights by acting with deliberate indifference to his serious medical and mental-health needs.

The sanctions motion concerned approximately fourteen minutes of surveillance footage from cameras recording the outside of Bosco’s safety-cell door. The missing period ran from about 9:52 p.m. to 10:06 p.m., including the discovery of Bosco’s condition and his removal from the cell. The jail’s system automatically deleted video after one year and one day and then overwrote the deleted files. A consultant later confirmed that the missing footage could not be recovered.

Rule 37(e) Analysis

Federal Rule of Civil Procedure 37(e) governs sanctions for lost electronically stored information. The parties did not dispute that the footage was electronically stored information, that it was lost and could not be recovered, or that defendants had a duty to preserve it. The disputed issues were whether defendants took reasonable preservation steps and whether they acted with intent to deprive Kozar of the footage’s use in litigation.

Defendants argued that they acted reasonably and that the loss resulted from a technical error. Jail employees had attempted to export the footage to USB drives, but they encountered error messages. The court found that neither employee confirmed that the export was complete or notified a supervisor about the errors. The detective who received the drives also did not identify that the files ended before the crucial events. The court concluded that these failures were unreasonable, particularly because the jail was a sophisticated party and had policies addressing evidence preservation after an in-custody death.

The court also found prejudice. The missing footage could have shown what jail staff did after discovering Bosco and how long they took to provide medical aid. Those facts were important to Kozar’s deliberate-indifference claim, and the court found that the loss deprived her of critical evidence.

Intent to Deprive

For the more serious sanctions available under Rule 37(e)(2), the court had to find that defendants acted with intent to deprive Kozar of the footage’s use in litigation. The court rejected several of Kozar’s arguments but accepted her argument concerning the failure to obtain complete footage after the detective reviewed the incomplete files during the death investigation.

The court reasoned that the missing period covered the most important events for determining what happened after Bosco was found. It concluded that the detective’s failure to question the missing footage, notify others, or seek the remaining video allowed the footage to go unnoticed until it was overwritten. Based on the circumstances, the court found it reasonable to infer that defendants acted with intent to deprive Kozar of the evidence.

Sanction and Disposition

The court chose a permissive adverse-inference instruction rather than a mandatory one. It ordered that the jury be instructed that defendants spoiled the missing video and that the jury may presume the evidence was unfavorable to defendants. The court noted that witnesses and other evidence remained available, including testimony from Lieutenant Cleek, who had viewed the footage before it was lost.

The court also awarded attorneys’ fees for Kozar’s counsel’s time spent working on the sanctions motion, not for other work in the case. Counsel was ordered to submit evidence of the fees and costs incurred on that motion within 21 days of the order. The order granted the sanctions motion and did not resolve the underlying claims concerning deliberate indifference.