Opinion
Civil Action 20-cv-00457-CMA-MDB
10-10-2023
SASHA CRONICK, Plaintiff, v. CHRISTOPHER PRYOR, in his individual capacity, ROBERT MCCAFFERTY, in his individual capacity, and MICHAEL INAZU, in his individual capacity,[1] Defendants.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Maritza Dominguez Braswell United States Magistrate Judge
Before the Court is Defendants' “Motion for Sanctions.” ([“Motion”], Doc. No. 95.) Plaintiff has responded and Defendants have replied. ([“Response”], Doc. No. 116; [“Reply”], Doc. No. 117.) Having carefully reviewed the briefing, exhibits, and relevant materials, and having considered all the issues, the Court RECOMMENDS GRANTING the Motion.
Although the Court would typically issue a decision on a motion for sanctions as an order rather than a recommendation, the Court's decision in this case may impact jury instructions, which are for the presiding judge to determine. Thus, and out of an abundance of caution, the Court issues this decision as a recommendation rather than an order.
BACKGROUND
The Lawsuit
This case was filed on February 20, 2020. (Doc. No. 1.) It concerns a December 12, 2018, incident during which Plaintiff-who was living in a motel at the time and leaving to take her husband to work-heard “a frantic neighbor shout[ing] out to them that her boyfriend was overdosing on drugs and not breathing.” (Doc. No. 47 at ¶¶ 8-11.) Plaintiff alleges she “sprang into action,” and found a “frightened young woman next to a man lying seemingly lifeless[.]” (Id. at ¶¶ 11-12.) Plaintiff called 911, coached the woman through CPR, and eventually the man began to breathe again. (Id. at ¶¶ 14-16.) The incident was recorded on Plaintiff's phone and the recording continued after paramedics and police arrived. (Id. at ¶¶ 13, 18.)
The Complaint was later amended. (Doc. No. 47.)
What happened next is what forms the basis of this lawsuit. “At approximately 9:20 a.m., Defendant Officer Robert McCafferty.. .was dispatched to the Sun Springs Motel to respond to the reported overdose.” (Doc. No. 94 at 2.) Defendants allege that emergency calls from this motel are dangerous and unpredictable (Doc. No. 71 at 1), in part because-as Plaintiff admits- “the motel was occupied by many illicit drug users who would come and go at all hours of the day and night.” (Doc. No. 47 at ¶ 10.) When Defendant McCafferty arrived on scene, “Plaintiff was standing within two or three feet of the patient's head, using her cell phone to take a video recording.” (Doc. No. 94 at 2.) Defendant McCafferty eventually began to investigate and at some point told Plaintiff “that there was no need for her to record because his body worn camera was recording everything.” (Id. (citing Doc. No. 71-6, McCafferty BWC at 05:53-06:00.).) Soon thereafter, Defendant Officer Christopher Pryor.. .arrived at the Sun Springs Motel with trainee officer Daniel Lambert[.]” (Id. (internal citations omitted).) Defendant Pryor “positioned himself in between the [Colorado Springs Fire Department] and Plaintiff, who was still recording, and began speaking with Plaintiff.” (Id. at 4.) At one point Defendant Pryor asked Plaintiff what room number she lived in, and Plaintiff responded, “I'm not answering questions like that.” (Id. (citing Doc. No. 71-12, Pryor BWC at 07:45-07:48).)
Defendant Officer Michael Inazu, supervisor to Defendants McCafferty and Pryor, eventually arrived on scene and after reviewing the body worn camera footage and interviewing people, determined that Plaintiff should be cited and released with a summons and complaint for failure to desist or disperse. (Id. at 7.) Eventually, Plaintiff was found not guilty of that charge. (Id.)
Plaintiff brought the following claims: (1) a Fourth Amendment excessive force claim against Defendants Pryor and McCafferty; (2) a Fourth Amendment Unlawful Seizure/Unlawful Search/False Arrest claim against all Defendants; and (3) a Fourth Amendment malicious prosecution claim against all Defendants. On June 20, 2023, The Honorable Christine Arguello issued her Order Granting in Part and Denying in Part Defendants' Motion for Summary Judgment. ([“Summary Judgment Order”], Doc. No. 94 at 1-8.) She granted Defendants summary judgment with respect to Plaintiff's Fourth Amendment Claim for Excessive Force and her Fourth Amendment Claim for Malicious Prosecution, finding Defendants are entitled to qualified immunity on those claims. (Id.) However, she allowed Plaintiff to proceed with her Fourth Amendment claim for unlawful seizure/false arrest and unreasonable search. (Id.)
Judge Arguello's order is currently being appealed by Defendants Pryor and McCafferty. See Cronick v. Prior, et al, No. 23-1238 (10th Cir. filed July 20, 2023).
In their appeal, Defendants contend Judge Arguello erred in declining to grant them qualified immunity on Plaintiff's Fourth Amendment unlawful arrest and unlawful search claims. See Cronick v. Prior, et al, No. 23-1238, Opening Brief at 1 (10th Cir. September 18, 2023).
Relevant to the remaining false arrest claim, and as noted by Judge Arguello in her Summary Judgment Order, “[t]he parties dispute several facts relating to the encounter between Plaintiff and Pryor[,]” including “whether Plaintiff was civil and helpful to the officers before speaking with Pryor or whether Plaintiff was obstructing the scene and impeding CSFD's work treating the patient,” and “whether Pryor ‘ordered' Plaintiff to leave the scene, or whether Pryor failed to order Plaintiff to do anything before the situation escalated.” (Id. at 4-5.)
The Instant Motion
This case is in the late stages of litigation. A Final Pretrial Conference was scheduled for February 23, 2023, but in mid-January, the parties contacted this Court with a dispute.
The Court held a conference on January 25, 2023, during which it became clear the parties had meaningful disputes related to Plaintiff's social media activity. In particular, Defendants sought the production of police auditing videos, comments, and other content, some of which directly concerns the December 2018 incident at issue. (See generally Doc. No. 78.) Defendants also sought documents demonstrating that Plaintiff profited from her police auditing social media activities. (Id.) During that conference, Plaintiff vigorously disputed the relevance of the social media content and related information. After hearing from both sides, the Court found the social media content and related information relevant. (Id.) The Court ordered its production, subject to certain limitations. (Id.) The Court also reset the Final Pretrial Conference for April 24, 2023, and ordered the parties to submit a Joint Status Report on or before April 10, 2023, with an update on progress. (Id.)
On April 10, 2023, counsel for Defendants contacted the Court, attaching a status report which indicated the parties continued to have unresolved discovery issues. The report was not filed as a Joint Status Report because Plaintiff's counsel did not provide input as ordered by the Court. In light of the ongoing disputes, the Court converted the April 24, 2023 Final Pretrial Conference to a Status Conference.
Defendants' unilateral email to Chambers noted that Plaintiff had not provided input. The email was copied to Mr. David Lane, Plaintiff's counsel. Mr. Lane's paralegal responded, indicating that Mr. Lane's computer was out of service, but he agreed to sign onto the status report submitted by Defense counsel. During the subsequent conference, the Court cautioned Plaintiff's counsel that technological issues with a single computer are not an excuse for failure to comply with Court deadlines.
During the April 24, 2023, conference, Defendants argued Plaintiff was in violation of this Court's January 25, 2023, order because Plaintiff would not produce “hundreds” of auditing videos and related comments, and information about online revenue related to Plaintiff's social media postings. (Doc. No. 85.) For her part, Plaintiff argued the social media account at issue belonged to her husband and she therefore could not access the requested information. The Court explored the access issue during that conference, and ultimately determined that Plaintiff had either direct or indirect control over the social media accounts, but control, nonetheless. (Id. at 2 (“The Court is not persuaded by Plaintiff's arguments that she is not in possession, custody or control of the subject discovery.”).) The Court expressed concern over the possible obstruction by Plaintiff, and without deciding whether sanctions were appropriate at that time, granted Defendants leave to file the instant Motion. (Id.)
Defendants indicated that in the interim, they would seek the subject discovery via third parties. (Id.) To keep the matter on track, the Court ordered an in-person conference for June 12, 2023. (Id.) However, the day before that conference, Plaintiff's counsel requested permission to appear remotely. (Doc. No. 90.) Given the personal hardship expressed in the motion to appear remotely, the Court granted Plaintiff's counsel's request. (Doc. No. 92.)
This Motion was filed on June 20, 2023.Plaintiff's Response was filed on August 25, 2023. Plaintiff's Reply was filed August 29, 2023. In the interim, Defendants have conducted their own research and subpoenaed third parties to obtain the information at issue in this Motion. Those efforts have turned up a handful of videos that Plaintiff had not previously produced, (Doc. Nos. 95-9, 10, 11,12), as well as income-related documents from third parties. (Doc. Nos. 95-6, 7, 8.) However, Defendants have not been able to secure any social media content (videos, posts, and comments) via third parties, because content cannot be released without the account holder's consent. See generally Google Letter (Doc. No. 95-4).
The Court ordered that it be filed on or before June 19, 2023. (Doc. No. 93.)
The Court ordered a response by July 6, 2023. (Id.) Plaintiff asked for extensions and a stay of briefing. The Court denied the stay but granted the extension requests.
Plaintiff has not provided access to the social media content, nor has there been consent to have the information released by third parties.
LEGAL STANDARD
I. Non-spoliation discovery sanctions
Federal courts have the power to sanction conduct that abuses the judicial process. Anderson v. Amer. Nat. Prop & Cas. Co., 2019 WL 8348917 at *1 (D. Colo. Aug. 19, 2019) (citing Towerridge, Inc. v. T.A.O., Inc. 111 F.3d 758, 765-766 (10th Cir. 1997)). “Rule 26(g) charges those responsible for the success or failure of pretrial discovery-the trial judge and lawyers for the adverse parties-with approaching the process properly: discovery must be initiated and responded to responsibly, in accordance with the letter and spirit of the discovery rules, to achieve a proper purpose (i.e., not to harass, unnecessarily delay, or impose needless expense), to be proportional to what is at issue in the litigation, and if it is not, the judge is expected to impose appropriate sanctions to punish and deter.” Western Convenience Stores, Inc. v. Suncor Energy (U.S.A.) Inc., 2014 WL 1257762 at *24-25 (D. Colo. March 27, 2014).
Moreover, pursuant to Fed.R.Civ.P. 37, a court may impose sanctions on a non-compliant litigant for failure to make certain disclosures, failure to obey court orders, or for evasive disclosures. Courts can impose a broad range of sanctions under Rule 37, including striking pleadings, dismissing the action, rendering a default judgment, treating the disobedience as contempt of court, and more. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii). As relevant here, when a party “fails to obey an order or provide or permit discovery,” Rule 37(b)(2)(A) specifically allows a court to: (1) direct “that the matters embraced in the order or other designated facts be taken as established for purposes of the action, as the prevailing party claims,” and/or (2) prohibit “the disobedient party from supporting or opposing designated claims or defenses, or from introducing designated matters in evidence.” Fed.R.Civ.P. 37(b)(2)(A)(i-ii).
However, while courts have broad discretion as it concerns the type of sanction, “the chosen sanction must be both ‘just' and ‘related to the particular “claim” which was at issue in the order to provide discovery.” Ehrenhaus v. Reynolds, 965 F.2d 916, 920-21 (10th Cir. 1992) (citing Ins. Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 695, 707 (1982)).
II. Spoliation
Rule 37(e) governs the imposition of sanctions 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 ....” Fed.R.Civ.P. 37(e). “A moving party has the burden of proving, by a preponderance of the evidence, that the opposing party failed to preserve evidence or destroyed it.” Zbylski v. Douglas Cnty. Sch. Dist., 154 F.Supp.3d 1146, 1160 (D. Colo. 2015).
If the Court finds that evidence was not preserved and that the moving party suffered prejudice from the loss of the evidence, a court “may order measures no greater than necessary to cure the prejudice.” Fed.R.Civ.P. 37(e)(1). Further, if a court finds “the party acted with the intent to deprive another party of the information's use in the litigation[,]” it 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)(2). The Tenth Circuit has stated that “[a]s a general rule, ‘[s]poliation sanctions are proper when (1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” EEOC v. JetStream Ground Servs., Inc., 878 F.3d 960, 964 (10th Cir. 2017) (quoting Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009)).
ANALYSIS
I. The Discovery at Issue
There are three categories of information at issue in this Motion. First, social media content (in particular, videos and comments) that reflects-or at least concerns-the incident, as well as other interactions Plaintiff had with police. The primary social media platform at issue appears to be a YouTube channel called, “Sasha in the Springs.” (See Doc. No. 116-1 Cronick Deposition II at 328:6-330:2 (Plaintiff testifying that “Sasha in the Springs” is dedicated to her); (Doc. No. 95-5, Henseler Deposition at 126:24-128:20 (Plaintiff's husband testifying that the YouTube channel called “Sasha in the Springs” is Plaintiff's account.).) This YouTube channel was created after the incident at issue, and there is no question that information about the incident was posted on this YouTube channel. (Doc. No. 116-1, Cronick Deposition II, at 251:7-255:11; 299:15-21.)
Second, Defendants seek documents and related information which may show that Plaintiff's social media accounts and police auditing videos generate income for her and/or her husband.
Third, Defendants contend that Plaintiff has deleted-during the pendency of this litigation-a social media message exchange between Plaintiff and a person purporting to be “Julie” (the woman who gave the overdosing man CPR and was an eyewitness to at least some of Plaintiff's interactions on the day in question). Plaintiff testified the message from “Julie” came in through a social media platform, but Plaintiff could not recall if it was through the YouTube account, Sasha in the Springs, or through Facebook. (Doc. No. 95-1, Cronick Deposition I, at 200:6-201:1.) Plaintiff admitted she deleted that message string during this litigation. (Id. at 200:6-201:8.)
II. The Court's Prior Rulings
The Court has already ruled the social media content and related income information at issue in this Motion is relevant. (Doc. Nos. 78, 85.) The Court has also already ordered the production of both. (Doc. No. 78.) Moreover, after the Court issued its first ruling, and the parties returned to the Court with the same dispute several months later, the Court again explained the relevance of the information, and warned Plaintiff that her failure to produce the information appeared obstructionist, in part because her seemingly new argument-that she was not in possession, custody, or control of the social media accounts-was unavailing. (See Doc. No. 85 at 2 (“The Court is not persuaded by Plaintiff's arguments that she is not in possession, custody or control of the subject discovery.”).) Nevertheless, the Court gave Plaintiff an opportunity to elaborate on her position. (Id. (“The Court expresses concerns over obstruction. The simplest and most straightforward approach to obtaining the subject discovery [which the Court has already deemed relevant] is for Plaintiff to ask her husband for the password, or if he does not recall the password, to ask him to reset it. The Court does not prematurely decide whether sanctions are appropriate but does grant the parties leave to brief the issue. Plaintiff will have the opportunity to respond to the Court's concerns when she responds to the motion for sanctions.”).)
However, even after full briefing on the issue, the Court remains unpersuaded by Plaintiff's arguments.
III. The Social Media Content and Related Income Information
In her Response to the Motion, Plaintiff does not reconcile her current position-that the account belongs to her husband-with her husband's contrary testimony, that the account belongs to Plaintiff. (Compare Doc. No. 116-1, Cronick Deposition II, at 328:6-330:2 (Plaintiff testifying that “Sasha in the Springs” is dedicated to her, but the YouTube account does not belong to her); with Doc. No. 95-5, Henseler Deposition, at 126:24-128:20 (Plaintiff's husband testifying that the YouTube channel at issue is Plaintiff's channel, not his.).) Additionally, and assuming Plaintiff's husband is indeed the only one with access, Plaintiff's Response does not explain why Plaintiff cannot ask for the passwords, or why the passwords cannot be reset. Moreover, and assuming that neither Plaintiff nor her husband can access the accounts, Plaintiff could still comply with this Court's order by providing her consent (or asking her husband to provide his consent) to the third-party custodians (Google/YouTube). Plaintiff has not cited any privacy or other interests in connection with the accounts, and in fact testified that the subject YouTube channel was created around the time of the incident and that she has an entirely separate YouTube channel for family matters. (Doc. No. 116-1, Cronick Deposition II, at 299:13-21.)
More importantly though, Plaintiff's own deposition testimony demonstrates that Plaintiff does indeed have direct access to, and control over, the YouTube account in question. For example, Plaintiff testified that she spoke about the incident through the YouTube account in question. (Id. at 251:23-25.) Whatever form her “speaking” may have taken (e.g., livestreaming or posting), it would require access to the account- and access requires control. Additionally, Plaintiff admitted deleting videos- another function that requires access and control. (Id. at 248:6-19 (Plaintiff testifying, “I can't tell you. How many I've deleted, I couldn't tell you that..,.[b]ecause I don't count them. I don't have a little clicker.”).) Additionally, Plaintiff testified that moving the YouTube page from public to private, “could change” depending “on [her] mood. It could change on [her] feeling.” (Id. at 278:4-25.) Plaintiff's testimony on that front demonstrates that Plaintiff has control over the public/private settings. (Id. (when asked whether she was the one that was toggling the account from public to private, Plaintiff answered, “Maybe. Someone could request the video to unpublic it and I might unpublic it-private it.”).) In short, Plaintiff has access to, and control over, the subject YouTube account.
And with respect to the income-related information, it is difficult to see how Plaintiff would not have access to records of her own income. Plaintiff suggests that the struggle with homelessness has posed a barrier to accessing hard copies of tax returns. (Doc. No. 116 at 6, 8, 11.) The Court is sympathetic, but it cannot overlook the fact that here, the access concerns not just hard copy tax returns, but also electronically stored information about electronic payments, and Plaintiff is knowledgeable about those. (See Doc. No. 116-1, Cronick Deposition II, at 310:17-311:19; 319:23-326:19.)
Beyond the unsupported assertion that she does not have access to the social media content and related information at issue, Plaintiff rests almost her entire argument on the notion that prejudice will not flow from her discovery violations because the sought-after discovery is simply not relevant. (See e.g., Doc. No. 116 at 2 (“[R]egardless of whether Plaintiff possessed the most malicious intent to spoliate, or simply cannot access the items sought, none of the requested items makes one whit of difference in this case and are irrelevant to the prosecution or defense of this matter.”). Plaintiff's relevance argument boldly ignores this Court's decision to the contrary. As noted above, the Court has already ruled the social media content and related information is relevant-twice. (See Doc. Nos. 78; 85.)
And having carefully reviewed deposition testimony that clearly indicates the YouTube account hosted videos and related comments of the very incident at issue, the Court is now even more certain the information is relevant.
Additionally, the information is particularly relevant now that Judge Arguello has expressly noted that Plaintiff's conduct on the day in question is in dispute. (See Doc. No. 94 at 4-5 (finding that the following is still in dispute: whether “Plaintiff was civil and helpful to the officers before speaking with Pryor,” and whether “Plaintiff was obstructing the scene and impeding CSFD's work treating the patient[.]”).) That is, in deciding the remaining false arrest claim, a jury will consider whether Plaintiff was being obstructive before she was arrested. Videos of the incident, videos of other interactions with the police, and comments and other information concerning Plaintiff's engagement with police (as well as whether Plaintiff profits from such encounters in any way), could inform a jury's decision on this point.
Plaintiff testified the YouTube channel at issue was created after this incident, that it contained videos of this incident, and that it potentially contained comments about this incident. (Doc. No. 116-1, Cronick Deposition II, at 276:12-277:8; 298:22-299:3.) The videos themselves are certainly relevant, and the comments/discussions about the incident could constitute admissions about Plaintiff's conduct on the day in question. Additionally, other police auditing videos could be informative to a jury, as well. For example, the videos could demonstrate that Plaintiff regularly interacts in calm and unobstructive ways with police. On the other hand, they may demonstrate a pattern of provocation and obstruction. And finally, income-related information could show that the greater the online attention-based on certain types of videos, comments, engagement-the greater the profit. The Court does not express a view on what is or is not likely to be established by this missing evidence, it simply sets out hypotheticals that may be helpful in determining how the sought-after evidence could inform a jury's decision about Plaintiff's conduct on the day in question.
Plaintiff's prejudice argument fails for other reasons. Certainly, Defendants cannot establish the specific prejudice associated with each missing video, comment, or message, because they have not received all of them. But the evidence Defendants do have in their possession suggests the missing evidence could be unfavorable to Plaintiff. (See, e.g., Doc. No. 116-1, Cronick Deposition II, at 309:22-310:10 (Plaintiff describing videos where she “flipped the cop off,” and testifying that she is not sure if all videos “have fingers in them,” but there are “a couple ‘Fuck the polices.'”); see also Doc. Nos. 95-9, 95-10, 95-11, 95-12 (videos Defendants recovered on their own).) Moreover, “[t]he withholding of evidence ‘substantially prejudices an opposing party by casting doubt on the veracity of all the culpable party's submissions throughout the litigation.” Freddie v. Marten Transport, Ltd., 428 Fed.Appx. 801, 804 (10th Cir. 2011) (quoting Garcia v. Berkshire Life Ins. Co. of Am., 569 F.3d 1174, 1180 (10th Cir. 2009)). And even assuming Defendants are not prejudiced by Plaintiff's failure to disclose, Plaintiff's argument would still fail because pursuant to Rule 37(b)(2)(A), a showing of prejudice is not required when a party disobeys court orders. See generally Fed.R.Civ.P. 37(b)(2)(A)(i)-(vii); see also Markham v. Nat'l States Ins. Co., 2004 WL 2019308, **11-12 (W.D. Okl. Jan. 8, 2004) (“Under Rule 37(b), a litigant which has clearly violated a discovery order is, on that basis alone, exposed to the imposition of sanctions....At least where the extreme sanctions of default or dismissal are not imposed, a showing of willfulness or bad faith need not be made.”).
IV. The Social Media Messages with “Julie”
As noted above, one of the discovery items at issue in this Motion is a string of social media messages between Plaintiff and someone purporting to be, “Julie,” the woman who performed CPR on the day in question. (Doc. No. 95 at 5; Doc. No. 116 at 7; Doc. No. 95-1, Cronick Deposition I, at 200:3-9.) Plaintiff testified that Julie's outreach to Plaintiff prompted back-and-forth messages about the incident, that those messages were exchanged while this litigation was pending, and that Plaintiff deleted the entire exchange. (Doc. No. 116-1, Cronick Deposition II, at 290:8-291:11; see also Doc. No. 95-1, Cronick Deposition I, at 200:25-201:8.)
Plaintiff explained that she deleted the messages with “Julie” because she had no interest in them after determining that the person she was speaking with, was not actually Julie. (Doc. No. 116-1, Cronick Deposition II, at 291:12-25.) But Plaintiff's determination that it was not the real “Julie,” does not change the fact that the 10, 20, or more messages concern the actual incident, and it is as least possible that during that exchange Plaintiff shared information about her own actions on the day in question. (Id. at 291:7-11 (Plaintiff testifying the exchange with “Julie” included 10, 20, or more messages); 296:1-3 (Plaintiff confirming the messages with “Julie” concerned the incident at issue in this litigation).)
The social media messages between Plaintiff and “Julie,” constitute “electronically stored information that should have been preserved in the anticipation or conduct of litigation,” and it has been lost because Plaintiff “failed to take reasonable steps to preserve it[.]” Fed.R.Civ.P. 37(e). Defendants have demonstrated by a preponderance of the evidence that Plaintiff deleted that information, and that the deletion is prejudicial to Defendants because it concerns a key defense to the remaining false arrest claim: Plaintiff's conduct before she was arrested. See generally Zbylski, 154 F.Supp.3d at 1160. Moreover, the “Julie” messages were exchanged via social media-and possibly through the same YouTube account at issue in this Motion. Thus, even though the message string was not expressly identified in the Court's prior orders, it is subsumed in those orders because it is social media content. If Plaintiff had complied, and provided access to her social media content, it may have led to the recovery of deleted or perhaps archived message strings, like this one.
V. Appropriate Sanctions
Plaintiff's conduct is sanctionable because the information at issue in this Motion is relevant, Plaintiff's reasons for withholding the information are unavailing, the withholding of evidence is prejudicial to Defendants, and Plaintiff's failure to produce the information is directly contrary to this Court's orders.
Though for the reasons set forth above, a showing of prejudice is not necessarily required under Rule 37(b)(2)(A).
The Court is now tasked with determining what sanctions are most appropriate under the circumstances. Defendants seek an order:
(1) dismissing Cronick's remaining claims for relief with prejudice (2) treating Cronick's failure to obey the orders of this Court as contemptuous, (3) finding that Cronick intentionally spoliated evidence, (4) prohibiting Cronick from supporting or opposing her motive for monetary gain for harassing the CSPD, Memorial Hospital, and any individual unlucky enough to encounter Cronick in public, (5) instructing the jury as to the adverse “spoliation inference” against Cronick; and that Cronick is precluded from offering or eliciting any evidence to rebut these facts, (6) awarding the Defendants their attorney's fees and costs for the preparation and prosecution of this motion for sanctions and the Defendants efforts to gain Cronick's compliance, (7) awarding the Defendants their attorney's fees and costs for the preparation and service of subpoenas in this case, and (8) awarding any further relief the Court deems just and necessary.(Doc. No. 95 at 8-9.) Although the Court views Plaintiff's conduct as sanctionable, the litany of sanctions Defendants request, is excessive. In particular, dismissal is a severe sanction reserved for the most extreme of circumstances. See Helget v. City of Hays, Kan., 844 F.3d 1216, 1225-26 (10th Cir. 2017). Moreover, while the Court is seriously troubled by Plaintiff's approach to disclosure and her approach to this Court's orders and directives, Plaintiff's social media content and related information is not the end-all-be-all of the case. The parties have access to other video evidence of the incident.
Still, the content at issue in this Motion includes video evidence of the incident itself, as well as comments and/or discussions about the incident. There is no doubt in the Court's mind that Defendants are being deprived of relevant evidence. Moreover, the Court takes seriously its obligation to protect the integrity of the discovery process. If parties are free to ignore court orders or avoid them by shifting from one argument to another, then rules and procedures mean nothing. Thus, the Court must fashion a sufficiently serious sanction to deter this and other litigants from disobeying Court orders, and to meaningfully reduce the prejudice to Defendants in this case.
Under the circumstances, the Court finds it would be most appropriate to issue an order under Fed.R.Civ.P. 37(b)(2)(A)(i)-(ii), which deems certain facts established for purposes of the action, and which prohibits Plaintiff from supporting or opposing these facts either by argument or contrary evidence. Additionally, the Court finds that Plaintiff and her counsel should be required to pay all fees and costs incurred by Defendants in connection with their efforts to secure the discovery at issue in this Motion.
RECOMMENDATION
The Court recommends that Defendants' Motion be GRANTED and that as a sanction for Plaintiff's conduct:
(1) Plaintiff and Plaintiff's counsel be required to pay all fees and costs associated with Defendants' efforts to secure the discovery at issue in this Motion and incurred between February 24, 2023 and the present, including all fees associated with this Motion; and that
(2) The following facts be deemed established for purposes of the action, and that Plaintiff be prohibited from supporting or opposing these facts either by argument or contrary evidence:
1. Plaintiff regularly records police officers, and those recordings demonstrate that Plaintiff engages in behavior that is disruptive to
police business.
2. Plaintiff profits from these recordings by posting them on social media and engaging with others about those posts.
3. Plaintiff has willfully deleted video evidence of the incident at issue in this litigation, with an intent to deprive Defendants of that evidence.
4. Plaintiff has willfully deleted comments and messages about the incident at issue in this litigation, with an intent to deprive Defendants of that evidence.
ADVISEMENT TO THE PARTIES
Within fourteen days after service of a copy of the Recommendation, any party may serve and file written objections to the Magistrate Judge's proposed findings and recommendations with the Clerk of the United States District Court for the District of Colorado. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); In re Griego, 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put the district court on notice of the basis for the objection will not preserve the objection for de novo review. “[A] party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review.” United States v. One Parcel of Real Prop. Known As 2121 East 30th Street, Tulsa, Okla., 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar de novo review by the district judge of the magistrate judge's proposed findings and recommendations and will result in a waiver of the right to appeal from a judgment of the district court based on the proposed findings and recommendations of the magistrate judge. See Vega v. Suthers, 195 F.3d 573, 579-80 (10th Cir. 1999) (a district court's decision to review a magistrate judge's recommendation de novo despite the lack of an objection does not preclude application of the “firm waiver rule”); One Parcel of Real Prop., 73 F.3d at 1059-60 (a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review); Int'l Surplus Lines Ins. Co. v. Wyo. Coal Ref. Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (by failing to object to certain portions of the magistrate judge's order, cross-claimant had waived its right to appeal those portions of the ruling); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (by their failure to file objections, plaintiffs waived their right to appeal the magistrate judge's ruling); but see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require review).