At this point the Lunada Bay Boys discovery-related complaints, cross-complaints, bitching, cross-bitching, moaning, cross-moaning, and so on and on and on have gotten so tortuously complexicated that there’s essentially no way to summarize them any longer. However, I will remind you all that there was a hearing on December 6 before Magistrate Judge Rozella Oliver on spoliation of evidence by the City Defendants1 and most rapiest Bay Boy defendant Sr. Brant Blakeman.
At issue were some text messages that Blakeman failed to preserve. The texts were on a phone issued to him by the City of PVE, which is why they were involved. The plaintiffs asked Oliver to find that Blakeman and the City not only had a duty to preserve the texts but that they had been so adversely affected by their destruction that the court ought to make Blakeman and the City pay fines, pay fees, pay costs, their motions for summary judgment ought to be denied out of hand, and an instruction to the jury stating that they should draw an adverse implication from the destruction of the texts. Blakeman and the City argued that they didn’t do anything wrong at all because they had no duty to preserve anything. Just yesterday Magistrate Judge Oliver issued her report and recommendations on the issues raised during the hearing.
With respect to the City, Oliver found that while they did have a legal obligation to preserve evidence starting earlier than they claimed, no evidence was lost specifically due to the City’s inaction, so she declined to recommend any sanctions against the City. Blakeman, on the other hand, did a few bad things, according to the Magistrate Judge.
First of all, he did have a duty to preserve the text messages. Also he failed to take reasonable steps to preserve them. Finally, the text messages were lost because of his inaction, and this prejudices the plaintiffs’ case. However, Oliver declines to find that Blakeman did it on purpose,2 and so she declines to recommend the most harsh sanctions possible.
Basically, she’s recommending that Blakeman have to pay the plaintiffs’ attorneys for their costs and fees in bringing the motion for sanctions against him, and that he submit to an additional deposition that he pay for on the subject of what happened to the text messages. Additionally she recommends that the plaintiffs be allowed to present evidence to the jury about his failure to preserve and that if Judge Otero thinks it’s justified at trial, he consider allowing an instruction to the jury on what kind of inferences they can draw from Blakeman’s actions. Finally, she declined to recommend that Blakeman’s motion for summary judgment be dismissed a priori. Turn the page for transcribed selections.
Transcription of selections from Rozella Oliver’s report and recommendations on Blakeman’s and the City defendants’ spoliation:
Plaintiffs argue that Defendant Blakeman failed to take any steps to preserve the data on his phone after his duty to preserve attached. To the extent Defendant Blakeman deleted the text messages before his duty to preserve arose, Plaintiffs contend that the text messages would have been recoverable as long as they were not overwritten, and the sooner one acts to recover deleted data, the more likely it is such an effort will be successful. Plaintiffs assert that Defendant Blakeman does not argue or submit evidence showing that he routinely deleted text messages upon receipt, supporting their position that the text messages existed at the time he became aware of this litigation.
Defendant Blakeman contends that because the four text messages at issue all occurred prior to when his duty to preserve attached, the analysis ends there.3 Additionally, Defendant Blakeman argues that it is completely unreasonable to expect him to immediately retain a forensic expert to conduct a comprehensive and expensive extraction of his phone upon being served with a lawsuit, or to perform evidence preservation measures that were never requested by Plaintiffs. At the December 6 hearing, counsel for Defendant Blakeman stated that Defendant Blakeman kept the DDP Phone in working order and did nothing to attempt to dispose of the DDP Phone. Defendant Blakeman also cites to the Committee Notes’ advisement that courts should be sensitive to a party’s sophistication with regard to litigation in evaluating preservation efforts.
The Court is not persuaded by Defendant Blakeman’s argument that he had “no duty to preserve text messages sent prior to being served with this lawsuit.” Plaintiffs allege that Defendants communicated with each other to coordinate efforts to exclude outsiders, including on various dates prior to the filing of the lawsuit. Beginning on April 14, 2016, Defendant Blakeman had a duty to preserve any such communications that were stored on the DDP Phone, regardless of when they may have been created.
Although the Court cannot conclude that Defendant Blakeman took affirmative steps to destroy the text messages at issue, Plaintiffs have established that Defendant Blakeman did not take any steps to preserve the contents of the text messages other than keeping the DDP Phone in working order. The text messages at issue were exchanged less than a month before the duty to preserve attached, and two were exchanged only two days before Defendant Blakeman was served with the Complaint. Defendant Blakeman then did nothing to preserve text messages with codefendants or other potentially relevant data on his phone until the DDP Phone was recovered by the City in January 2017. Given this sequence of events, the Court concludes that the contents of the text messages at issue were lost because Defendant Blakeman failed to take reasonable steps to preserve them.
With respect to Defendant Blakeman’s argument that he should not be reasonably expected to perform an expensive extraction of his phone upon service of the Complaint, there are other less expensive measures to preserve relevant evidence that Defendant Blakeman could have taken to fulfill his duty to preserve. For example, he could have taken a photograph of the text messages. He could have locked the text messages so that they would not be deleted or overwritten. Or, he could have written down what he recalled about the text messages. Here, Defendant Blakeman did not take any steps to preserve the text messages. The only preservation of data on the DDP Phone occurred after he turned the phone over to the City. The failure to take any steps to preserve the text messages was not reasonable.
The Court thus finds that Plaintiffs have established the threshold requirement of Rule 37(e) that electronically stored information that should have been preserved in the anticipation or conduct of litigation has been lost because Defendant Blakeman failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery.
Image of Rozella Oliver is ©2017 MichaelKohlhaas.Org and was based in puny-tive part on this little fellow right here.
- That is, the City of Palos Verdes Estates and their Chief of Police, not Mark Velez if you ask the City of PVE but yes Mark Velez if you ask anyone sane.
- Although his habitual smirk strongly suggests otherwise, I suppose the Judge isn’t allowed to take such things into account, which is probably for the best overall.
- At the December 6 hearing, counsel for Defendant Blakeman stated that there was no evidence Defendant Blakeman even saw these text messages. However, two of these messages were sent by Defendant Blakeman to Defendant Lee, one each on March 25, 2016 and April 12, 2016. See Wolff Decl. at Ex. 15; see also Dkt. No. 470-1 at 14. On both dates, Defendant Lee sent Defendant Blakeman the first text message, and within minutes, Defendant Blakeman sent Defendant Lee a text message. See Dkt. No. 470-1 at 14. The Court thus does not find persuasive counsel’s argument that Defendant Blakeman may never have seen two text messages that he himself sent to Defendant Lee or two text messages received from Defendant Lee minutes before Defendant Blakeman sent his text messages to Defendant Lee.