Finding ‘gross negligence, not intentional malfeasance,’ court denies adverse inference

Blurred photo of a hospital hallway with doctors and nurses walking

Porter v. City & Cnty. of San Francisco

No. 16-cv-03771-CW(DMR) (N.D. Cal. Sept. 5, 2018)

In this wrongful death case, the court imposed sanctions against the defendant for its spoliation of evidence.

It also found that the defendant waived privilege and compelled it to produce all responsive documents. This case began when a psychiatric patient, Haneefah Nuriddin, was left unattended by hospital staff. At some point, Nuriddin exited the hospital.

The staff member who had been with her evidently saw her “standing near a bus stop.” However, he “did not…call for help” immediately. At some point, he “reported Nuriddin’s disappearance” to his supervisor, who called the on-site sheriff’s desk. Almost an hour after that call, the police were called. Nuriddin was found dead the next day.

Her successor-in-interest, Ben Porter, filed this wrongful death case against the City and County of San Francisco (“CCSF”), among others. During discovery, Porter requested the audio recording of the initial call reporting Nuriddin’s “AWOL/escape.” While CCSF provided some discovery, it did not produce the call recording.

Eventually, it responded that the call recording had been erased under the hospital’s retention policy. The parties met and conferred about both the missing call recording and “CCSF’s failure to provide a privilege log” for its responses. Thereafter, Porter moved for spoliation sanctions under Federal Rule of Civil Procedure 37(e). He also moved to compel the production of withheld documents, arguing that CCSF had waived its privilege.

The parties agreed that CCSF “had a duty to preserve” the call recording and failed in that duty. In fact, it “took no steps” to preserve the call recording beyond forwarding Porter’s preservation request to the hospital. The court also “easily” concluded that the lost call recording “cannot be restored or replaced” through additional discovery.

The court also found that this spoliation prejudiced Porter. As “CCSF’s first response to Nuriddin’s disappearance,” the call was “the only contemporaneous record of what information” CCSF reported to law enforcement. However, the court did not find that CCSF intentionally spoliated that evidence. Its “behavior amount[ed] to gross negligence, not intentional malfeasance.”

The court concluded that it could not impose an adverse inference jury instruction under those circumstances. Yet further sanctions were, in the court’s view, appropriate to fully cure the prejudice. Therefore, it ordered “that the jury may hear a short factual statement…regarding the spoliation” of the recording. The court also ordered CCSF to pay Porter’s attorneys’ fees and costs associated with the spoliation motion. Regarding the privilege logs, CCSF admitted that it never produced a privilege log. It excused this absence by claiming that the effort would be “unduly burdensome.”

The court admitted that “waiver [of privilege] is a harsh sanction” for a party that failed to produce a privilege log. Still, other “courts have not hesitated to find waiver where a party repeatedly engages in inexcusable or unjustifiable conduct.” Here, the court had already “admonished” CCSF’s counsel for its earlier failure to timely provide a privilege log. This “second failure to provide any privilege log” was therefore “simply indefensible.” The court found that CCSF “waived its right to assert privilege by failing to produce a privilege log.” It ordered CCSF to produce all responsive documents.

Takeaways on Ensuring the Preservation of Critical Evidence

No doubt the defendant’s failings here were dire — as the court said, it “should have done more, and should have acted earlier to preserve” this necessary evidence. However, the plaintiff also delayed asking for this evidence until around two years after the incident. Avoid making the same mistake: prepare thoroughly before your initial Rule 26(f) conference and be sure to discuss preservation of all important evidence at the meet-and-confer.

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