Carrie Gregory v. State of Montana

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CARRIE GREGORY, No. 22-35674

Plaintiff-Appellee, D.C. No.

4:20-cv-00051-

v. BMM

STATE OF MONTANA and

TOMEKA WILLIAMS, Probation OPINION

Officer,

Defendants-Appellants.

Appeal from the United States District Court

for the District of Montana

Brian M. Morris, District Judge, Presiding

Argued and Submitted September 12, 2023

Seattle, Washington

Filed September 27, 2024

Before: Michael Daly Hawkins, Ryan D. Nelson, and

Daniel P. Collins, Circuit Judges.

Opinion by Judge Collins

2 GREGORY V. STATE OF MONTANA

SUMMARY*

42 U.S.C. § 1983 / Sanctions

The panel reversed the district court’s sanctions orders,

reversed the verdict and judgment against Montana

Probation Officer Tomeka Williams on Carrie Gergory’s 42

U.S.C. § 1983 claim that Williams used excessive force

during an encounter in a parking lot, vacated the award of

attorneys’ fees to Gregory, and remanded for a new trial on

Gregory’s excessive-force claim.

The relevant surveillance footage of the parking lot was

auto-deleted. The district court found that the State acted

recklessly in failing to take appropriate steps to preserve the

surveillance footage before it was deleted, and—invoking its

inherent authority—sanctioned the State by instructing the

jury that it was established as a matter of law that Williams

used excessive force against Gregory. The jury awarded

Gregory $75,000 on the excessive-force claim.

The panel held that the district court committed legal

error by relying on its inherent authority in imposing the

sanctions because Fed. R. Civ. P. 37(e) governs both the loss

of electronically stored information and the sanctions

imposed in this case, and by its plain terms displaces the

district court’s power to invoke its inherent authority in

imposing sanctions. Under Rule 37(e)(2), the conclusive

adverse-determination sanction at issue here may be

imposed only upon a finding that the party acted with the

intent to deprive another party of the information’s use in the

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

GREGORY V. STATE OF MONTANA 3

litigation. Because the district court’s findings confirmed

that no such intent was operative here, the sanctions were

unlawful. Because the district court’s error was prejudicial

to Williams, the panel reversed the adverse judgment against

Williams on the excessive-force claim, remanded for a new

trial on that claim, and vacated the award of attorneys’ fees

to Gregory.

COUNSEL

Paul Gallardo III (argued) and Daniel Flaherty (argued),

Flaherty Gallardo Lawyers, Great Falls, Montana, for

Plaintiff-Appellee.

Patricia H. Klanke (argued), Drake Law Firm PC, Helena,

Montana; Paul R. Haffeman, Davis Hatley Haffeman &

Tighe PC, Great Falls, Montana; for Defendants-Appellants.

OPINION

COLLINS, Circuit Judge:

In this action under 42 U.S.C. § 1983, Plaintiff Carrie

Gregory alleged that Defendant Tomeka Williams, a

Montana Probation Officer, used excessive force on Gregory

during a May 15, 2020 encounter that occurred in a parking

lot adjacent to the Montana Department of Corrections

Probation and Parole Office (“Probation Office”) in the City

of Great Falls. Despite Gregory’s repeated efforts to ensure

that the relevant surveillance footage of the parking lot

would be preserved by the Montana authorities, the original

4 GREGORY V. STATE OF MONTANA

footage was auto-deleted from the recording system due to

what the district court characterized as “recklessness on the

part of the State in failing to take appropriate steps to

preserve the recordings before they were deleted.”1 The

district court specifically found, however, that the State and

its employees had not acted with either “gross negligence or

willfulness.” Invoking its inherent authority, the district

court sanctioned the State for its recklessness by instructing

the jury, in the § 1983 claim against Williams, that “it has

been established as a matter of law that Defendant Williams

used excessive force against [Gregory] in violation of the

Fourth Amendment of the United States Constitution during

their encounter on May 15, 2020.” As to that § 1983 claim,

the district court only submitted to the jury the questions of

causation and damages. The jury awarded $75,000 to

Gregory on the § 1983 claim against Williams, but the jury

ruled against Gregory on a related common-law claim

against the State. The court also subsequently awarded

attorneys’ fees to Gregory under 42 U.S.C. § 1988.

Williams and the State (“Appellants”) appeal from the

judgment against Williams, and from the sanctions orders

against the State on which that judgment was based. We

conclude that the district court lacked the authority to impose

the sanctions that it did. By its plain terms, Federal Rule of

Civil Procedure 37(e)(2) displaces the district court’s power

to invoke inherent authority in fashioning sanctions for the

sort of failure to preserve “electronically stored information”

that occurred in this case. And under that rule, the

1

As a result of the State’s failure to preserve the original footage, the

only copy that survived was a cellphone video of the relevant footage

that, at Gregory’s counsel’s suggestion, a State officer recorded from a

playback of the surveillance video on the State’s system before it was

auto-deleted.

GREGORY V. STATE OF MONTANA 5

conclusive adverse-determination sanction at issue here may

be imposed “only upon finding that the party acted with the

intent to deprive another party of the information’s use in the

litigation.” FED. R. CIV. P. 37(e)(2). Because the district

court’s findings confirm that no such intent was operative

here, its sanctions were unlawful. Accordingly, we reverse

the sanctions orders, reverse the judgment against Williams

on the § 1983 claim, and vacate the attorneys’ fees award.

I

A

Gregory’s encounter with Williams in the Probation

Office parking lot on May 15, 2020 arose from that office’s

supervision of her son, Daniel Gregory (“Daniel”). At the

time, Daniel was being supervised by the Probation Office

in connection with his deferred sentence for a conviction of

assault with a weapon. Daniel was ordered to report to the

Probation Office on May 15 after that office developed

grounds to believe that he had possessed a firearm in

violation of the terms of his supervision.

Specifically, on May 13, 2020,2 Charlie Martin, a

Montana Probation Officer who also worked a part-time job

as a loss prevention investigator at a local sporting-goods

store, observed a woman purchase ammunition at that store,

exit the store and enter a pickup truck, and hand the

ammunition to the male driver of the truck. The male driver

then appeared to grab something from under his seat, and

Martin concluded that he was loading the ammunition into a

firearm. Martin thought that “the male driver looked

familiar to me as being on supervision.” He took down the

2

The relevant transcript in the record actually says “October 13,” but

that is obviously an error.

6 GREGORY V. STATE OF MONTANA

truck’s license-plate number, and the next day, at the

Probation Office, he ran the number and discovered that the

truck was registered to Daniel. Daniel was being supervised

by Probation Officer Heather Moore, who, coincidentally,

was married to Martin. Martin alerted Moore to what he had

observed, and Moore attempted unsuccessfully to locate

Daniel. The next morning, on May 15, 2020, Daniel called

Moore and asked why she had been looking for him. Moore

told him that she was investigating a suspected violation of

his supervision terms and that he needed to report to the

Probation Office immediately. Daniel said he would be

there within 15 minutes.

About an hour later, Daniel parked his truck in the lot

adjoining the Probation Office. Another vehicle

immediately followed him into the lot, and Daniel exited his

truck and got into the passenger side of the second vehicle.

Moore watched the exchange from the Probation Office and

then walked into the parking lot accompanied by several

other probation officers, including Williams, as well as

officers from the Great Falls Police Department, including

Scott Fisher. The officers approached the vehicle, and

Moore directed Daniel to get out of the car and raise his

hands. As Moore did so, the driver of the second vehicle,

who was Gregory, stepped out of that vehicle.

The parties dispute what happened next. According to

Williams, Gregory disobeyed several instructions to stay

back from the officers as they arrested and handcuffed

Daniel. Williams asserts that, sensing a “threat

approaching,” she placed herself between Gregory and the

other officers, but that Gregory “continued to take small

steps forward.” Williams states that, to prevent Gregory

from coming any closer, Williams used two hands to push

Gregory in her chest, away from the officers. According to

GREGORY V. STATE OF MONTANA 7

Williams, Gregory then began “flailing at,” “hitting,” and

“scratching” Williams. Williams allegedly sustained bruises

and other injuries as a result. According to Gregory,

however, she did not hear any commands from Williams and

was observing Daniel’s arrest at a distance when Williams

approached her and, without any prompting, violently lifted

and twisted her left arm. Gregory alleged that the force

bruised and fractured her left elbow and severely injured her

left wrist. It is undisputed that, after the encounter between

Williams and Gregrory, Fisher handcuffed Gregory and

placed her into a police car.

The entire encounter was captured by an external

surveillance camera that monitored the parking lot and that

was operated by the Probation Office.

B

As a result of the incident, the City charged Gregory with

misdemeanor obstruction of a peace officer in violation of

Montana Code Annotated § 45-7-302(1). Four days after the

incident, Gregory’s retained defense counsel, Dan Flaherty,

called Wayne Bye, Deputy Chief for Region 3 of the

Montana Department of Corrections, to request the relevant

May 15, 2020 surveillance footage of the parking lot. Bye

responded that he “would do [his] best to get [it],” but

warned that the surveillance system was “old.” Flaherty

suggested that Bye record a copy of the footage with his

cellphone, which Bye agreed to do. Later that day, Flaherty

followed up with an email addressed to Bye and Neil

Anthon, the chief prosecutor for the City, memorializing his

request for the footage.

While Bye had some experience with reviewing footage

from the internal surveillance system that monitored the

inside of the Probation Office, he had no experience with

8 GREGORY V. STATE OF MONTANA

preserving footage from the external surveillance system

that monitored the parking lot. Bye knew that the internal

surveillance system preserved footage for up to “two to three

months.” He did not check the retention policy for the

external surveillance system, however, and simply assumed

that the May 15, 2020 footage was subject to a standard 30-

day retention period. As it turned out, the footage was

actually subject to only a 17-day retention period.

On May 21, 2020, two days after his phone call and

email requesting the footage, Flaherty followed up with

another email asking Bye to preserve the now almost week-

old footage, expressing concern about how long the external

surveillance system would retain it. The next day, Bye asked

another probation officer, Tim Hides, to assist him with

preserving the footage. Bye and Hides first planned to burn

the footage from the external surveillance system onto a CD,

but they were unable to do so, due to the fact that the power

cord for the CD burner had been misplaced. As an

alternative, Bye and Hides recorded two copies of the

footage using Bye’s state cellphone. The pair then dropped

off “disk copies” of the cellphone recording at Flaherty’s and

the City Attorney’s offices.

On May 26, 2020, Flaherty reviewed the cellphone

recording and concluded that the quality was too poor to

clearly make out what was depicted. Flaherty reached out to

Bye, asking if Flaherty could transfer the original footage

onto his flash drive or laptop. Bye explained that applicable

state policy prohibited any such connection of a private

external device to a state computer. Instead, Bye purchased

a new power cord for the CD burner, and he and Hides then

attempted to burn the footage onto a CD. However, when

they made that attempt, either on May 27 or 28, they

discovered that “the files were too large to put on the CDs.”

GREGORY V. STATE OF MONTANA 9

On either June 2 or June 3, Bye and Hides tried instead to

transfer the footage onto state flash drives. Because that was

now more than 17 days after the footage was recorded, the

surveillance system had already automatically deleted the

footage. Bye promptly informed County Attorney Josh

Racki of the loss of the footage.

On June 10, 2020, Racki informed Flaherty that the

footage had been lost. Soon thereafter, the City dropped the

misdemeanor charge against Gregory.

C

On June 19, 2020, Gregory sued Bye, Williams, Fisher,

the State, and the City. Gregory’s operative complaint

asserted a variety of causes of action against multiple

defendants, but by the start of trial only three claims

remained: (1) a § 1983 claim against Williams for excessive

force during the May 15, 2020 incident; (2) a state-law claim

against Williams for assault and battery; and (3) a state-law

claim against the State for negligent infliction of emotional

distress.

Gregory filed a motion for sanctions against the State

based on its loss of the May 15, 2020 surveillance footage.

In her motion, Gregory asked the district court to grant her a

default judgment and to do so pursuant to the court’s

inherent authority, rather than under Rule 37. After

receiving additional briefing on the propriety of applying

sanctions with respect to a § 1983 claim asserted only

against Williams, the district court ultimately granted the

motion for sanctions in part. The court rejected Gregory’s

request to enter a default judgment. Instead, invoking its

inherent authority, the court stated that it would instruct the

jury that it was established that “Officer Tomeka Williams

used unreasonable force in the seizure of Carrie Gregory,”

10 GREGORY V. STATE OF MONTANA

and the court further held that it would bar any testimony

about the lost footage’s content, as well as Bye’s cellphone

recording of the footage. The court would, however, submit

to the jury the issues of causation and damages, as well as

the question whether Williams acted with malice warranting

punitive damages. The court acknowledged that its decision

“effectively grant[ed] summary judgment to Gregory on the

issue of unreasonable force,” but the court concluded that

this sanction was nonetheless warranted. In making its

assessment as to the propriety of the sanction, the court

expressly found that “Gregory cannot sustain her burden to

establish gross negligence or willfulness on the part of the

State” and that the State’s conduct amounted only to

“recklessness.” The court also rejected Williams’s

arguments that it would be unfair to effectively impose a

sanction on her when it was the State that had lost the

footage.

On March 21, 2022, the case proceeded to trial. About

an hour before opening arguments, Gregory objected to the

defense’s stated intention to present the testimony of six

parole officers who had been present at the May 15, 2020

incident. The defense responded that the remaining issues

for the jury—including the assault and battery claim and the

issues of causation and damages on the § 1983 excessive-

force claim—required testimony about those events. In view

of the State’s intention to indemnify Williams on the claims

against her, and in order to simplify the proof, Gregory then

voluntarily dismissed the assault and battery claim. In ruling

on this dispute about the officers’ testimony, the district

court acknowledged that, in the earlier written sanctions

order, the court had “not specifically sa[id] that [it] would

not allow testimony of officers about the incident.” But to

enforce the sanctions awarded, and in light of the dismissal

GREGORY V. STATE OF MONTANA 11

of the assault and battery claim against Williams, the court

held that the officers would not be allowed to testify about

what they saw during the actual “engagement” between

Williams and Gregory. They could, however, testify about

“what Ms. Gregory was doing after the encounter,” and the

defense could also address causation by relying upon

Gregory’s medical records.

However, the witnesses at trial did not succeed in staying

within the lines that the court had drawn. As a result, at the

conclusion of the testimony, Gregory asked the court to play

Bye’s cellphone recording for the jury. Over the defense’s

objection, the court agreed to do so. The court first

instructed the jury that, because the State had failed to

preserve the video, the jury was permitted, but not required,

to infer “that the lost surveillance [footage] would have been

favorable to [Gregory].” The cellphone recording was then

played to the jury, and that concluded the parties’

presentation of the evidence.

The court’s subsequent jury instructions told the jury that

“it has been established as a matter of law that Defendant

Williams used excessive force against [Gregory] in violation

of the Fourth Amendment of the United States Constitution

during their encounter on May 15, 2020.” During its

deliberations, a juror sent a note to the court asking it to state

“[w]hat during the altercation determined that Tomeka used

excessive force.” The court responded that the jury “need

not evaluate the evidence bearing on this issue” and that it

had “been determined, as a matter of law, [that] Tomeka

Williams used excessive force against [Gregory] on May

15th of 2020.”

In its ensuing verdict, the jury awarded Gregory $75,000

in damages for her excessive-force claim against Williams,

12 GREGORY V. STATE OF MONTANA

but it determined that Williams had not acted with malice.

The jury rendered a defense verdict on Gregory’s sole

remaining claim against the State, which was for negligent

infliction of emotional distress. Gregory thereafter moved

for attorneys’ fees and costs under 42 U.S.C. § 1988. While

that motion was still pending, judgment was entered on the

jury’s verdict on May 6, 2022. On May 20, 2022, Williams

moved to amend the judgment to reduce the monetary award

in light of Gregory’s settlement with Fisher and the City,

which Williams claimed should result in an offset.

In an August 3, 2022 ruling, the district court denied

Williams’s motion to reduce the judgment and granted

Gregory’s motion for attorneys’ fees. Appellants timely

appealed from the judgment on August 19, 2022.3 We have

jurisdiction under 28 U.S.C. § 1291.4

II

We review a district court’s imposition of sanctions for

abuse of discretion. Leon v. IDX Sys. Corp., 464 F.3d 951,

957–58 (9th Cir. 2006). Whether the district court applied

the correct legal standards in imposing sanctions raises a

3

Appellants contend that their appeal was timely because, on June 6,

2022, the district court granted their motion to extend the time to appeal

until “30 days from entry of the order disposing” of the pending motions

to reduce the judgment and to award attorneys’ fees. This order,

however, was unnecessary and irrelevant. Because Williams had filed a

timely motion to amend the judgment to take account of an alleged

offset, the time to appeal did not begin to run until that motion was

denied on August 3, 2022. See FED. R. APP. P. 4(a)(4)(A)(iv).

4

Although the jury ruled for the State on the sole remaining claim against

it, the State has standing to appeal the resulting judgment against

Williams in light of the fact that the adverse written sanctions orders that

resulted in that judgment were issued against the State. Gregory has not

challenged the State’s standing to appeal in this court.

GREGORY V. STATE OF MONTANA 13

question of law that we review de novo. Fjelstad v.

American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir.

1985). An “[a]pplication of the wrong legal standard” by the

district court automatically “constitutes an abuse of

discretion.” United States v. Ruiz, 257 F.3d 1030, 1033 (9th

Cir. 2001) (en banc). We review any underlying factual

findings, including any findings concerning “bad faith and

prejudice,” only for clear error. Leon, 464 F.3d at 958.

Applying these standards, we conclude that the district

court committed legal error by relying on its inherent

authority in imposing the sanctions that it did rather than

applying the provisions of Rule 37(e). We further conclude

that, in light of the district court’s factual findings, which are

not clearly erroneous, the requirements for imposing such

sanctions under Rule 37 were not met. And because the

sanctions imposed were obviously prejudicial to Williams,

we reverse the adverse judgment against her on the § 1983

excessive-force claim and remand for a new trial on that

claim.

A

Well before the promulgation of the Federal Rules of

Civil Procedure in 1937, the Supreme Court had recognized

that federal courts have inherent authority to “impose . . .

submission to their lawful mandates.” Chambers v. NASCO,

Inc., 501 U.S. 32, 43 (1991) (quoting Anderson v. Dunn, 19

U.S. 204, 227 (1821)). Such “inherent powers” include the

“discretion . . . to fashion an appropriate sanction for

conduct which abuses the judicial process.” Id. at 44–45.

This inherent authority often remains available as an

alternative source of sanctioning power even when there are

statutes or rules that also provide for sanctions. See id. at

42–43. Thus, for example, in Chambers, the Court held that

14 GREGORY V. STATE OF MONTANA

the express authority to impose attorneys’ fees as a sanction

under 28 U.S.C. § 1927 and the Federal Rules of Civil

Procedure did not preclude a district court from relying on

its inherent authority in imposing such fees as a sanction for

bad-faith litigation conduct. Chambers, 501 U.S. at 46–51.

However, the Court has also held that “the exercise of

the inherent power of lower federal courts can be limited by

statute and rule, for these courts were created by act of

Congress.” Id. at 47 (emphasis added) (simplified).

Accordingly, a court may not invoke inherent authority in

order to contravene the “clear mandate” of an applicable

statute or rule. Id. at 51 (citing Bank of Nova Scotia v. United

States, 487 U.S. 250, 254–55 (1988)); see also Atchison,

Topeka & Santa Fe Ry. Co. v. Hercules Inc., 146 F.3d 1071,

1074 (9th Cir. 1998). “Nevertheless, ‘[the courts] do not

lightly assume that Congress has intended to depart from

established principles’ such as the scope of a court’s inherent

power.” Chambers, 501 U.S. at 47 (citation omitted).

Appellants contend that Rule 37(e) exclusively governs

the availability of the sort of sanctions that were imposed for

the loss of evidence that occurred here and that, as a result,

the district court erred by relying on its inherent authority.

In evaluating this contention, we begin with the language of

the rule.

As amended in 2015, Rule 37(e) provides:

If electronically stored information that

should have been preserved in the

anticipation or conduct of litigation is lost

because a party failed to take reasonable steps

to preserve it, and it cannot be restored or

GREGORY V. STATE OF MONTANA 15

replaced through additional discovery, the

court:

(1) upon finding prejudice to another

party from loss of the information, may

order measures no greater than necessary to

cure the prejudice; or

(2) only upon finding that the party

acted with the intent to deprive another

party of the information’s use in the

litigation may:

(A) presume that the lost information

was unfavorable to the party;

(B) instruct the jury that it may or

must presume the information was

unfavorable to the party; or

(C) dismiss the action or enter a

default judgment.

FED. R. CIV. P. 37(e). By its terms, the rule states that, if a

specified loss of “electronically stored information” occurs,

then the court “may” impose certain sanctions upon making

the findings required, respectively, under paragraph (1) or

paragraph (2). To determine whether this rule might be

applicable here in a way that precludes reliance on inherent

authority, we first consider whether this case involves the

sort of information loss that is covered by the rule.

Gregory’s own expert acknowledged that the

surveillance system used by the State to record the Probation

Office parking lot was a digital system that was operated

using a computer and software. The video footage at issue

in this case thus readily qualifies as “electronically stored

16 GREGORY V. STATE OF MONTANA

information” within the meaning of the Federal Rules of

Civil Procedure. See Leonard v. St. Charles Cnty. Police

Dep’t, 59 F.4th 355, 364 (8th Cir. 2023); Wall v. Rasnick, 42

F.4th 214, 221–23 (4th Cir. 2022). We also have little

difficulty concluding that the footage at issue here “should

have been preserved in the anticipation or conduct of

litigation.” FED. R. CIV. P. 37(e). The State had actual

knowledge of its obligation to preserve the footage in

connection with Williams’s misdemeanor criminal case, and

it was certainly foreseeable that civil litigation could arise

from the disputed incident as well. We further reject, as

wholly unpersuasive, the State’s contention that it took

“reasonable steps to preserve” the footage from being “lost.”

In particular, failing to promptly determine how long the

surveillance system preserved its information was

unreasonable, as was failing to proceed with appropriate

dispatch in taking the actual steps necessary to download the

video from the system before it was deleted. And the State’s

actions in making a poor-quality, second-level copy did not

satisfy its obligation to take reasonable steps to preserve the

information. Furthermore, it is undisputed that the footage

here could not “be restored or replaced through additional

discovery.” Id. Thus, all of the conditions that are required

to trigger Rule 37(e) were satisfied here: “electronically

stored information that should have been preserved in the

anticipation or conduct of litigation [wa]s lost because a

party failed to take reasonable steps to preserve it, and it

cannot be restored or replaced through additional

discovery.” Id.

The text of Rule 37(e) then specifies that, when such a

covered loss of information occurs, the court must make the

specified findings required by paragraphs (1) or (2) before it

may impose a sanction, and those paragraphs require

GREGORY V. STATE OF MONTANA 17

different findings depending upon the nature and severity of

the sanction. Paragraph (1) sets forth a general authority,

“upon [a] finding of prejudice to another party from loss of

the information,” to impose remedial sanctions that are “no

greater than necessary to cure the prejudice” resulting from

the loss. FED. R. CIV. P. 37(e)(1). Paragraph (2), however,

establishes a more demanding standard before the court may

impose certain types of severe sanctions. Such sanctions, the

rule states, may be imposed “only upon finding that the party

[who caused the loss] acted with the intent to deprive another

party of the information’s use in the litigation.” FED. R. CIV.

P. 37(e)(2) (emphasis added).

The severe sanctions that are subject to paragraph (2)’s

more demanding standard are: (1) “presum[ing] that the lost

information was unfavorable to the party” that caused the

loss; (2) “instruct[ing] the jury that it may or must presume

the information was unfavorable to th[at] party”; or

(3) “dismiss[ing] the action or enter[ing] a default

judgment.” FED. R. CIV. P. 37(e)(2)(A)–(C). The advisory

committee notes that accompanied the adoption of the

amended Rule 37(e) in 2015 explicitly confirm an important

point that its text already suggests, namely, that any more

severe sanction that rests on one of the sanctions listed in

paragraph (2), and that has the same effect as such a sanction,

is subject to paragraph (2). See FED. R. CIV. P. 37(e)(1)

advisory committee’s note to 2015 amendment (“Care must

be taken . . . to ensure that curative measures under

subdivision (e)(1) do not have the effect of measures that are

permitted under subdivision (e)(2) only on a finding of intent

to deprive another party of the lost information’s use in the

18 GREGORY V. STATE OF MONTANA

litigation.”).5 Thus, for example, a sanction “precluding a

party from offering any evidence in support of[] the central

or only claim or defense in the case” effectively rests on a

conclusive presumption that the lost information was

unfavorable to that party and simply implements that

implicit presumption in an even more severe form. Id.

Here, the sanctions selected by the district court fall

within the scope of paragraph (2) of Rule 37(e). The district

court’s order instructing the jury to take as established that

Williams had used excessive force in violation of the Fourth

Amendment was simply a more severe form of the sort of

presumptions covered by Rule 37(e)(2). Indeed, the

instruction was effectively a conclusive presumption that the

lost video was so unfavorable to the State on the issue of

excessive force that that ultimate fact at issue should be

taken as resolved in Gregory’s favor. See FED. R. CIV. P.

37(e)(2)(A), (B).6 Moreover, the district court’s subsequent

further instruction to the jury—when the cellphone copy of

the footage was introduced—that the jury could infer “that

the lost surveillance [footage] would have been favorable to

[Gregory]” falls squarely within the language of

Rule 37(e)(2)(B). Accordingly, under the plain language of

Rule 37(e)(2), these sanctions were “only” available if the

court first made the finding of intent required by the rule.

FED. R. CIV. P. 37(e)(2).

5

As the Supreme Court has stated, “the Advisory Committee Notes

provide a reliable source of insight into the meaning of a rule, especially

when, as here, the rule was enacted precisely as the Advisory Committee

proposed.” United States v. Vonn, 535 U.S. 55, 64 n.6 (2002).

6

Strictly speaking, the relevant subparagraph on this point would be

subparagraph (2)(A), because it was the court that conclusively

presumed that the lost video was unfavorable when it decided to instruct

the jury that Williams’s use of excessive force had been established.

GREGORY V. STATE OF MONTANA 19

Given Rule 37(e)’s careful specification of the findings

that must be made before any sanction may be imposed for a

covered loss of information, it is clear that the rule, by its

terms, precludes a court from resorting to inherent authority

to evade its strictures. Indeed, the advisory committee notes

confirm that this effect of the rule’s language was

intentional. The committee stated that, because the rule

“authorizes and specifies measures a court may employ if

information that should have been preserved is lost, and

specifies the findings necessary to justify these measures,”

the rule “forecloses reliance on inherent authority or state

law to determine when certain measures should be used.”

FED. R. CIV. P. 37(e) advisory committee’s note to 2015

amendment (emphasis added). That is especially true here,

given that the rule specifically states that the particular

sanctions that the district court selected may “only” be

imposed if the court first makes the specific finding of intent

required by that rule. FED. R. CIV. P. 37(e)(2).

Because Rule 37(e) governs both the loss of information

and the sanctions imposed in this case, and because the rule’s

specific requirements preclude invocation of a court’s

inherent authority, the district court erred as a matter of law

by relying upon its inherent authority rather than applying

Rule 37(e). See Chambers, 501 U.S. at 51 (stating that

courts may not rely on inherent authority to “circumvent[]

the clear mandate of a procedural rule”); cf. Jones v. Riot

Hosp. Grp. LLC, 95 F.4th 730, 735 (9th Cir. 2024) (holding

that, when Rule 37(e)(2) applies, its standards govern rather

than the standards applicable under the court’s inherent

authority (citing Anheuser-Busch, Inc. v. Natural Beverage

Distribs., 69 F.3d 337, 348 (9th Cir. 1995) (describing

standards applicable to sanctions “pursuant to the court’s

inherent power”))).

20 GREGORY V. STATE OF MONTANA

B

Although the district court thus invoked the wrong

source of legal authority in imposing the sanctions that it did,

its error on that score would be harmless if the record reflects

that the district court did in fact make the findings that are

required by Rule 37(e)(2). Here, the record confirms that the

opposite is true.

As we have explained, Rule 37(e)(2) states that, before

the court may impose one of the listed sanctions, it must first

find that “the party”—meaning the “party” who “failed to

take reasonable steps to preserve” the information—“acted

with the intent to deprive another party of the information’s

use in the litigation.” FED. R. CIV. P. 37(e)(2). On its face,

that is a demanding specific-intent standard, and purposely

so. The advisory committee notes confirm that the amended

rule was specifically intended to abrogate “cases such as

Residential Funding Corp. v. DeGeorge Financial Corp.,

306 F.3d 99 (2d Cir. 2002), that authorize the giving of

adverse-inference instructions on a finding of negligence or

gross negligence.” FED. R. CIV. P. 37(e)(2) advisory

committee’s note to 2015 amendment.

We have held that the intent required by Rule 37(e)(2)

“is most naturally understood as involving the willful

destruction of evidence with the purpose of avoiding its

discovery by an adverse party.” Jones, 95 F.4th at 735

(citing Skanska USA Civ. SE Inc. v. Bagelheads, Inc., 75

F.4th 1290, 1312 (11th Cir. 2023) (stating that Rule 37(e)(2)

requires finding “purpose of hiding adverse evidence”

(citation omitted))). The district court did not find any such

intent, either on the part of the State or any of its agents,

including Williams. On the contrary, the district court

specifically rejected even Gregory’s lesser argument that the

GREGORY V. STATE OF MONTANA 21

loss of the footage resulted from “gross negligence on the

part of the State and its employees” and found that “Gregory

cannot sustain her burden to establish gross negligence or

willfulness on the part of the State” (emphasis added). That

finding, which is not clearly erroneous, necessarily

precludes any finding that the State or Williams acted with

the specific intent that we described in Jones and that is

required by Rule 37(e)(2). The district court found only that

the State’s actions amounted to “recklessness,” but that is not

enough to authorize the severe sanctions covered by Rule

37(e)(2) and imposed by the district court here.

Accordingly, we conclude that Rule 37(e)(2) precluded

the district court from imposing the sanctions that it did.

C

Because the district court erroneously imposed a

sanction that severely limited Williams’s ability to present a

defense to the § 1983 claim, the district court’s error was

obviously prejudicial to Williams. The resulting verdict and

judgment on that claim must therefore be set aside, and the

matter must be remanded for a new trial on that claim. See

Liberty Ins. Corp. v. Brodeur, 41 F.4th 1185, 1191–93 (9th

Cir. 2022) (reversing Rule 37(c)(1) sanctions and remanding

for a new bench trial where the erroneous sanctions order

determined the outcome of the original bench trial).

Accordingly, we reverse the district court’s sanctions orders

and the verdict and judgment on the § 1983 excessive-force

claim, we vacate the district court’s award of attorneys’ fees

to Gregory, and we remand for a new trial on the excessive-

force claim.

REVERSED AND REMANDED.