Lakey v. Taylor

IN THE UNITED STATES DISTRICT COURT FOR THE

EASTERN DISTRICT OF OKLAHOMA

CYNTHIA LAKEY and DOUGLAS

LAKEY, as co-Special Administrators for the

Estate of Jared Lakey,

Plaintiffs,

v. Case No. CIV-20-152-RAW

1. CITY OF WILSON,

2. JOSHUA TAYLOR, in his official and

individual capacities,

3. BRANDON DINGMAN, in his individual

capacity,

4. CHRIS BRYANT, in his official and

individual capacities as Sheriff of Carter

County,

5. DAVID DUGGAN, in his individual

capacity,

6. LONE GROVE,

7. TERRY MILLER, in his individual

capacity, and

8. KEVIN COOLEY, in his official and

individual capacities,

Defendants.

ORDER

This matter comes before the court upon Plaintiff’s Motion for Spoliation Sanctions

Against Chris Bryant in his Individual and Official Capacities. [Docket No. 336]. Plaintiff,

Estate of Jared Lakey, seeks spoliation sanctions including any one or combination of the

following: (1) a mandatory adverse inference, with the Estate to provide proposed language; (2)

an evidentiary sanction precluding Bryant from contesting that Duggan acted consistent with

official CCSO policy, while allowing the estate to introduce, Bryant’s contradictory testimony;

(3) a rebuttable adverse inference with proposed language provided by the estate; (4) an order

waiving privilege related to communications between Bryant and litigation counsel both before

and after the destruction; (5) an order precluding Bryant from asserting the defense of qualified

immunity in his individual capacity; (6) referral of Bryant’s conduct to the Office of the U.S.

Attorney for the Eastern District of Oklahoma; (7) an order awarding Estate’s costs and fees

throughout the litigation regardless of the outcome; (8) an order awarding Estate’s costs and

reasonable attorney fees for obtaining the relief requested; (9) Default judgment; and (10) any

sanction the court deems just.

FACTS

The present motion for spoliation sanctions concerns an iPhone 6 belonging to defendant

Chris Bryant (“Bryant”). Defendant Bryant was the supervisor over Deputy Duggan both before

and after the events giving rise to this litigation. Defendant Bryant used this phone on the on night

of July 4 and early morning of July 5, 2019 and continued to use it to conduct both personal and

professional business until late January 2020 when it was run over by a car. Later, the phone was

sent to his carrier AT&T after the company sent him a replacement. The plaintiff served a records

preservation letter on July 19, 2019 to defendant requiring the retention of all electronically stored

information (ESI) related to the incident including data on cellphones. Additionally, plaintiff

served the Carter County Sheriff’s Office (“CCSO”) with a notice pursuant to the Oklahoma

Governmental Tort Claims Act (“OGTCA”) on August 30, 2019. The present lawsuit was filed on

May 26, 2020.

Apparently, this phone was not backed up to any cloud storage prior to its destruction.

Bryant also did not back up the phone before sending it to AT&T, and the data it contained is now

lost. Defendant’s text logs reveal that he sent three texts to Deputy Mitchell on the morning of July

5, 2019 and that he received a message from Deputy Mitchell during that same time frame [Docket

No. 357 at 2]. During that time Deputy Mitchell was accompanying defendant Duggan to the

hospital for drug testing after the incident with Lakey. Plaintiff argues that the text messages

exchanged with Mitchell could contain evidence showing that Bryant approved of Duggan’s

conduct during his interactions with Jared Lakey. Plaintiff’s main basis for inferring that Bryant is

not truthfully stating that Duggan’s conduct violated policy are texts sent by officer Duggan in

July 2020 stating that “Chris doesn’t agree with [the resignation] and “Chris has been behind

me...”. Bryant testified in his deposition that, in his opinion, Duggan’s conduct during the Lakey

arrest violated CCSO policy and Duggan’s force was unreasonable. Bryant also placed Duggan on

leave following the incident and referred the case to the OSBI. The record in this case shows that

the plaintiff already has call logs and text message logs from the Defendant and has some of the

text messages that were sent from the phone prior to its destruction. [Docket no. 357 p. 3-4].

Notably, Plaintiff has possession of Deputy Duggan’s text messages to and from defendant Bryant

discussing the incident. See Id.

ANALYSIS

Federal courts have inherent powers to manage their own affairs and to impose appropriate

sanctions, including sanctions for spoliation of evidence. Jordan F. Miller Corp. v. Mid-Continent

Aircraft Service, Inc., 1998 WL 68879, No. 97-5089 (10th Cir. Feb. 20, 1998). Spoliation sanctions

are proper when (1) a party has a duty to preserve evidence because it knew or should have knowns

that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the

evidence. Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007). The

court’s discretion to choose a sanction is limited in that the chosen sanction must be both just and

related to the claim which is at issue. Ehrenhaus v. Reynolds, 965 F.2d 916, 920 (10th Cir. 1992)

(citations omitted).

The Federal Rules of Civil Procedure also provides for sanctions where a party fails to

take reasonable steps to preserve electronically stored information that should have been preserved

in anticipation of litigation or during litigation when such information is not recoverable through

additional discovery. Fed. R. Civ. P. 37(e). If a court finds that the party acted “with intend to

deprive the other party of the information’s use”, the court may impose sanctions permitting a jury

to “(A) presume that the lost information was unfavorable to the party; [or] (B) instruct the jury

that it may or must presume the information was unfavorable to the party; or … (C) enter default

judgment” Fed. R. Civ. P. 37 (e)(2). Notably, the rule also states that the sanctions may be no

greater than necessary to cure the prejudice unless the party acted with the intent to deprive another

party of the information’s use in litigation.

A. DEFENDANT BRYANT HAD A DUTY TO PRESERVE THE CELL PHONE DATA.

In the present case, defendant Bryant had a duty to preserve the cell phone. Defendant does

not dispute that he received the July 19, 2019 preservation letter and admits that he communicated

with Deputies Duggan and Mitchell on the subject phone after the incident. Bryant, having been

warned of the potential for litigation, should have known that the device he used to contact his

employee who was directly involved in the incident might be relevant to that litigation. Courts

have acknowledged that a party is obligated to retain information reasonably likely to be relevant

to anticipated or ongoing litigation. Jones v. Norton, 809 F.3d 564, 580 (10th Cir. 2015). Thus,

because Bryant was aware of the potential for litigation following the preservation letter and the

notice to CCSO, and it was reasonably likely that the phone he used the night of the incident

contained relevant information, Deputy Bryant had a duty to preserve the phone.

B. PLAINTIFF WAS NOT PREJUDICED BY THE LOSS OF THE IPHONE DATA.

The moving party has the burden to show it was prejudiced by a defendant’s actions, not

merely that there is some theoretical prejudice. Turner v. Pub. Serv. Co. of Colo., 563 F.3d1149,

1150 (10th Cir. 2009) (“[T]here is no evidence that Turner was ‘rather than merely theoretically’

prejudiced by their loss.”). When considering whether the spoliation was prejudicial, a court must

first determine whether the evidence “would be relevant to an issue at trial.” Cache La Poudre

Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. 2007). Relevance in this context

means not only that the “evidence has any tendency to make the existence of any fact that is of

consequence to the action more probable or less probable” but also that it would be favorable to

the movants case. See Fed. R. Evid. 401; Gates Rubber Co. v. Bando Chem. Indus., Ltd., 167

F.R.D. 90, 104 (D. Colo. 1996). Instead, “[t]he burden is on the aggrieved party to establish “a

reasonable possibility, based on concrete evidence rather than a fertile imagination that access to

the [lost material] would have produced evidence favorable to [her] cause.” Id. (citations omitted).

Defendant Bryant’s texts with Mitchell1 could be relevant as they may reflect his thoughts

on Duggan’s conduct immediately after the incident with Mr. Lakey. [Docket No. 357 at 2.]

Plaintiff, however, does not provide any evidence that these texts or other data on the phone would

be favorable to its case. The estate merely speculates that the phone contains evidence of Bryant’s

secret approval of Duggan’s actions. Therefore, for the purposes of sanctions, the relevance of the

phone’s missing data to the plaintiff’s case is merely speculative. Thus, plaintiff failed to

demonstrate that it was prejudiced by the destruction of the phone. Furthermore, even if plaintiff

was prejudiced, because Bryant did not destroy the phone data in bad faith, sanctions are not

warranted.

1 Apparently, Mitchell also discarded the device he was using at the time and no longer has access to the data stored

in it. Therefore, these messages cannot be obtained simply by pulling them from Mitchell’s phone. [Docket No. 336

at 2-3].

C. BECAUSE THE DEFENDANT DID NOT DESTROY THE PHONE IN BAD FAITH OR WITH

AN INTENT TO DEPRIVE THE PLAINTIFF, SANCTIONS ARE NOT WARRANTED.

The record shows that the that defendant did not act in bad faith or intended to deprive the

plaintiff of the data on the phone, accordingly sanctions are not warranted. If “the aggrieved party

seeks an adverse inference to remedy the spoliation, it must also prove bad faith”. Equal Emp.

Opportunity Comm'n v. JetStream Ground Servs., Inc., 878 F.3d 960, 965 (10th Cir. 2017); See

Chambers v. NASCO, Inc., 501 U.S. 32, 49 (1991); Jones v. Norton, 809 F. 3d 564 580 (10th Cir.

2015) (“The entry of default judgment or the imposition of adverse inferences require a showing

of bad faith. Mere negligence in losing or destroying evidence is not enough to support imposition

of either of these harsh sanctions.”) (internal quotations omitted) (citations omitted). See also, Fed.

R. Civ. P. 37 (e) (2) (providing for sanctions of adverse inference and default judgment “only upon

a finding that the party acted with the intent to deprive”). Plaintiff’s request for fees also requires

a finding of bad faith. The Supreme Court has held that, “narrow exceptions to the American Rule

effectively limit a court's inherent power to impose attorney fees as a sanction to cases in which a

litigant has engaged in bad-faith conduct.” Chambers, 501 U.S. at 47, 111 S.Ct. 2123.

In the present case, Defendant Bryant handled the iPhone 6 at issue negligently, but the

record does not show that he acted in bad faith or with an intent to deprive. Defendant Bryant’s

phone was rendered unusable when it was run over after he inadvertently dropped it in the road

[Docket No. 357 at 3]. It is unclear the data on the phone would have been recoverable after it was

crushed. Nevertheless, upon receiving the preservation notice and the notice pursuant to the

GTCA, the defendant should have taken more care to ensure the data on the phone was backed up

especially before sending it back to AT&T. Nevertheless, “[m]ere negligence in losing or

destroying records is not enough because it does not support an inference of consciousness of a

weak case”. Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997). Here, Bryant intended

to keep the phone and only lost it because it was accidentally destroyed. While his failure to back

up the phone after being notified of the potential for litigation was negligent, he clearly did not

destroy the phone or the data on it in bad faith nor did he intend to deprive the plaintiff of the

phone’s contents. Thus, sanctions, particularly severe sanctions such as default judgment or an

adverse inference, are not warranted in this case.

Additionally, Plaintiff requests that this court refer the matter for prosecution to the U.S.

Attorney’s Office for the Eastern District of Oklahoma pursuant to 18 U.S.C. § 1512 (C). This

statute provides for criminal fine or imprisonment for individuals who destroy or conceal

documents, or other objects “in an intent to impair the object’s integrity or availability for use in

an official proceeding”. As discussed above in detail, there is no evidence in the record that the

phone or the data on it was discarded with the intent to hinder an investigation or the present case.

Thus, referral for prosecution would be inappropriate.

CONCLUSION

Given the lack of prejudice posed by the unavailability of phone and the lack of bad faith

or intentional destruction of evidence, this Court does not find that sanctions are appropriate.

Accordingly, Plaintiff’s Motion for Spoliation Sanctions Against Chris Bryant in his Individual

and Official Capacities [Docket No. 336] is hereby DENIED.

Dated this 18th day of October, 2023.