The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
EUGENE DIVISION
EDGAR T. RODRIGUEZ, Case No. 6:18-cv-1640-MK
Plaintiff, OPINION & ORDER
v.
TIMOTHY HUNT, an individual, MARK
HUBBARD, an individual, FAITH
MCCREADY, an individual, and CITY OF
EUGENE, a municipal corporation,
Defendants.
KASUBHAI, United States Magistrate Judge:
Plaintiff Edgar T. Rodriguez filed this civil rights lawsuit under 42 U.S.C. § 1983 and
Oregon state law. Defendants include the City of Eugene as well as individuals Timothy Hunt,
Mark Hubbard, and Faith McCready. Before the Court is Defendant’s Motion for Sanctions for
Spoliation of Electronically Stored Information. ECF No. 131. For the reasons below,
Defendants’ motion is denied.
BACKGROUND
This case arises out of a police response to a disturbance at Plaintiff’s apartment on
September 10, 2016, during which Plaintiff was shot by Defendants Hubbard and Hunt with the
Eugene Police Department. Compl. ¶¶ 1, 35, ECF No. 1. Plaintiff survived and was taken to the
hospital. Id. Ten days after the injury, on September 20, 2024, Plaintiff’s attorney sent the city a
tort claim notice. Miller Decl. Ex. 2, ECF No. 132. The next day, Defendants responded with a
letter advising Plaintiff to preserve relevant material. Miller Decl. Ex. 3. The preservation letter
specifically instructed Plaintiff not to destroy, conceal, or otherwise alter any relevant electronic
data stored on all computers and cell phones in his possession. Id. at 1. The letter also advised
Mr. Rodriguez to back up his texts on a separate device so they did not accidentally get lost or
destroyed. Id. at 2.
Plaintiff brought this civil rights and state law action against Defendants on September 7,
2018. Plaintiff responded to Defendants’ First Request for Production (RFP) on February 5,
2019. Miller Decl. Ex. 4. That response noted that Plaintiff had “no responsive documents” to
Defendants’ request for “[a]ll non-privileged communications between plaintiff and others,
including, but not limited to, friends, family members, or members of the media, about the
subject matter of this lawsuit.” Id. Plaintiff responded similarly for other RFPs related to ESI.
Shortly after Plaintiff responded to this request for production, this case was stayed while
criminal proceedings took place against Plaintiff. The stay was lifted on August 9, 2022, and
discovery resumed. ECF No. 79. During Plaintiff’s deposition on April 14, 2023, Plaintiff
testified that the cell phone he had at the time of the incident was seized by police related to the
criminal investigation and that any subsequent cell phones he possessed during the relevant time
following the incident had been discarded without downloading or preserving any data. Miller
Decl. Ex. 17 at 28:9-32:14. On the phone Plaintiff was using at the time of his deposition, he
testified that he used Facebook for text messages and that “the system” deleted those messages
after a time. Id. at 49:5-21. He also had several email accounts that were set up to auto-delete
emails and he disposed of a laptop he possessed at the time of the incident without preserving
any ESI. Id. at 49:22-51:9, 187:2-189:4.
Plaintiff has testified that “[f]rom early on in this case, I have always suspected that the
lawyers defending the cops who shot me would try to twist anything that I wrote to serve their
interests. Therefore, I knew not to text or email anyone about the subject matter of this lawsuit.”
Larwick Decl. Ex. 1 ¶ 3, ECF No. 144. He also explained that neither of the email accounts at
issue nor the laptop he disposed of contained any communications about the subject matter of
this lawsuit. Id. ¶¶ 4-6. Plaintiff’s sister testified that she never communicated with her brother
via text about the lawsuit or how Plaintiff was doing physically or emotionally. Larwick Decl.
Ex. 2 at 13:14-14:4. Likewise, Defendants’ subpoenas to Plaintiff’s family and friends resulted in
no responsive documents. See ECF Nos. 132-7, 132-8, 132-9, 132-10, 132-11, 132-12, 132-13.
STANDARDS
A court’s authority to sanction a party that has failed to preserve evidence is derived from
two sources: “the inherent power of federal courts to levy sanctions in response to abusive
litigation practices, and the availability of sanctions under Rule 37 against a party who fails to
obey an order to provide or permit discovery.” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th
Cir. 2006) (citation and internal quotations omitted).
Sanctions are available under Rule 37(e) when “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 replaced through
additional discovery.” If the moving party proves those elements, then:
Two categories of sanctions exist. First, where the district court finds that the loss
of information has prejudiced the moving party, the district court may
order “measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P.
37(e)(1). Second, where the district court finds that the offending party “acted with
the intent to deprive another party of the information's use in the litigation,” the
district court may require an adverse evidentiary presumption, dismiss the case, or
enter default judgment. Fed. R. Civ. P. 37(e)(2).
Newberry v. Cnty. of San Bernardino, 750 F. App’x 534, 537 (9th Cir. 2018).
Sanctions are available under the Court’s inherent authority when “a party has engaged
deliberately in deceptive practices that undermine the integrity of judicial proceedings.” Leon,
464 F.3d at 958 (citation omitted). When applying that authority in the context of sanctions for
spoliation, “[a] party’s destruction of evidence qualifies as willful spoliation if the party has
some notice that the evidence was potentially relevant to the litigation before it was destroyed.”
Id. at 959.
DISCUSSION
Defendants seek sanctions for Plaintiff’s alleged failure to preserve evidence Defendants
argue was relevant. Plaintiff does not contest that he received a preservation of evidence letter,
nor does he deny that he failed to preserve all text messages and emails in the years following the
incident. However, Plaintiff contends that Defendants are not entitled to sanctions because they
have not proven (1) that relevant ESI that should have been preserved is lost; (2) that Plaintiff
did not take reasonable steps to preserve relevant ESI; (3) that the lost evidence cannot be
obtained through other means; and (4) that Defendant was prejudiced by the loss and/or Plaintiff
acted with an intent to deprive Defendants of relevant ESI. The Court agrees on Plaintiff’s first
point that Defendants have not shown that relevant ESI that should have been preserved has been
lost.
Defendants present two primary arguments that Plaintiff failed to preserve relevant ESI.
First, they argue that the volume of text messages Plaintiff exchanged in the month preceding the
incident—recovered the seized cell phone—must mean that relevant text messages existed in the
subsequently-destroyed phone or phones. Second, they note that Plaintiff has admitted to
communicating with family or friends about the incident.
Defendants’ purported evidence fails to establish that any of the destroyed ESI was
relevant to the litigation. With respect to Defendants’ argument about the volume of text
messages exchanged in the month before the incident: volume does not equate to relevance.
Even if the Court presumes that text volume before the incident permits an inference of similar
volume after the incident—which may not be true given Plaintiff’s testimony as to his use of
Facebook for texting during the relevant time—Defendants cite no authority for their argument
that the Court can infer relevance from volume. Turning to Defendants’ evidence that Plaintiff
“admitted” to communicating about relevant matters with friends, that “admission” did not
pertain to ESI. Instead, Plaintiff explained that he told family members who visited him in the
hospital and took care of him afterward that he was shot. Larwick Decl. Ex. 1 ¶ 2. There is no
indication in the record that Plaintiff admitted creating ESI relevant to the claims that he then
failed to preserve.
The Court recognizes that “[b]ecause ‘the relevance of ... [destroyed] documents cannot
be clearly ascertained because the documents no longer exist,’ a party “can hardly assert any
presumption of irrelevance as to the destroyed documents.” Leon v. IDX Sys. Corp., 464 F.3d
951, 959 (9th Cir. 2006) (quoting Alexander v. Nat’l Farmers Org., 687 F.2d 1173, 1205 (8th
Cir.1982)). But here, Plaintiff does not rely on a mere presumption of irrelevance. Rather, he
presents affirmative evidence that none of the ESI at issue was relevant. Plaintiff has testified
that he knew not to discuss the case via text or email. Larwick Decl. Ex. 1 ¶ 3. That testimony is
further supported by several other facts in the record. First, Plaintiff had retained counsel mere
days after the incident with the intent of pursuing claims and explained that he understood that
such communications may be used against him. Plaintiff was also under criminal investigation
and prosecution related to the incident, again providing a strong incentive not to discuss the case.
Second, Plaintiff’s sister corroborates his statement that he did not discuss the events of the case
or his physical/emotional wellbeing via text or email. And finally, the lack of responsive
documents from family and friends in response to Defendants’ subpoenas supports Plaintiff’s
assertion that he did not discuss relevant matters with them.
In sum, not only is there no evidence that any of the destroyed ESI was relevant, but there
is affirmative evidence to the contrary. Thus, Defendants have failed to carry their burden to
show that relevant ESI that should have been preserved was lost. Because they have failed to
establish this element, they are not entitled to sanctions and the Court therefore does not address
the remaining elements.1
CONCLUSION
For the reasons above, Defendants’ Motion for Sanctions for Spoliation of Electronically
Stored Information (ECF No. 131) is DENIED.
DATED this _2_2_n_d_ day of ___A_u_g_u_s_t_____, 2024.
__/s_/M__u_s_t_af_a_ T__. _K_a_s_u_b_h_a_i________________
Mustafa T. Kasubhai (he/him)
United States Magistrate Judge
1 However, the prejudice analysis would turn on the same failure of proof, as Defendants cannot
show prejudice if they cannot show that the ESI at issue was relevant.