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Adverse Inference Instruction, Motion Fees and Costs Ordered Against Police Department For ESI Spoliation

Posted on February 15th, 2017

taser dataMartinez v. Salazar et. al., Case No. 14-534 (D. N.M., Jan. 26, 2017) is an excessive force case filed by Plaintiff, the personal representative of Russell Martinez, against two police officers as well as the Espanola Police Department and the City of Espanosa. The Complaint alleged that one of the Defendant officers, Officer Salazar, responded to a domestic disturbance call involving Plaintiff Martinez and his wife in a restaurant parking lot. During the investigation, Defendant Salazar allegedly pulled Martinez from his car, beat him, and tased him repeatedly. Plaintiff Martinez is paraplegic. Three months after the incident, Plaintiff wrote to the City describing the incident and accused the responding officers of tasing Martinez. The letter also indicated an intent to sue and demanded preservation of all evidence, including ESI.

After the case was filed, during discovery in October 2015, Plaintiff sought production of the ESI from Officer Salazar’s taser data. However, Defendants could not identify the serial number from Salazar’s taser and thus the ESI from the taser was “effectively lost”. Defendants asserted that the employee responsible for maintaining taser documents during the relevant time period left the agency in 2011 under “acrimonious circumstances” and that he took all the records with him. The trial judge was not persuaded, as he found that Salazar was not hired until 2012, after the employee in question was no longer on the force. Defendants affirmed that Salazar’s taser was likely still in use, and the court ordered them to conduct a search of all tasers in their possession and all taser data accessible to them to find the taser used by Salazer on the night in question. Defendants produced ESI for 29 tasers, but several of them had been reset since the incident.  The correct serial number for the taser used was still unknown, so none of the produced data could be linked to the incident. Plaintiff deposed the police department’s records custodian, Francisco Galvan, who testified that the city received the litigation hold letter but never showed it to him. He also testified that the taser was used in drive-stun mode, which would mean a cartridge was not deployed (the cartridge would have been placed in an evidence locker).   Therefore, there was no cartridge to preserve. He then testified that no one would have made any effort to preserve the ESI associated with the taser. Plaintiff filed a Motion for Sanctions.

The court found that as of the date of the litigation hold letter, Defendants had a duty to preserve ESI and failed to do so. The court made the additional findings that Salazar had resigned from the force in September 2012 without ever completing a taser use form, and after the resignation Defendants made no effort to notate which taser Salazar had used during the incident. Based upon those findings the court concluded that the data was made unavailable, and thus spoliation had occurred.  The court also found that the loss of data was prejudicial to Plaintiff. However, the court determined that this breach of duty was grossly negligent rather than intentional and therefore did not rise to the level of bad faith conduct. The court ordered an adverse inference instruction be made to the jury and that Plaintiff be allowed to question Defendants at trial about the missing taser data. The court further ordered Defendants to pay Plaintiff’s fees and costs incurred in moving to compel the ESI associated with the taser and in bringing the Motion for Sanctions.

ILS – Plaintiff Electronic Discovery Experts

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