Free Brief (Non Appeal) - District Court of Arizona - Arizona

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Kathleen L. Wieneke, Bar #011139 Jennifer L. Holsman, Bar #022787 JONES, SKELTON & HOCHULI, P.L.C. 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-1700 Fax: (602) 200-7858 [email protected] [email protected] Attorneys for Defendants Griffin, Dunn, Lynde and Monson UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Teresa August, et al, Plaintiff, v. The City of Phoenix, et al, Defendant. Defendants Monson, Lynde, Dunn and Griffin ("Defendants"), submit this Response to Plaintiff's Brief Regarding Spoliation of Evidence. Plaintiff's Motion must be denied because: (1) there is no evidence of spoliation of evidence; (2) Plaintiff has improperly attributed the "burden of proof" on Defendants; and (3) Plaintiff has improperly applied the law on alleged spoliation of evidence in this case. This Motion and Objection is supported by the following Memorandum of Points and Authorities and all the pleadings and exhibits on file with the Court. NO. CV03-1892-PHX-ROS DEFENDANTS' RESPONSE TO PLAINTIFF'S BRIEF REGARDING SPOLIATION OF EVIDENCE

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MEMORANDUM OF POINTS AND AUTHORITIES INTRODUCTION. Plaintiff's Brief alleges that "Defendants had "simple notice of potential relevance to the litigation regarding the tapes of the audio transmissions between dispatch and the officers on the scene, and therefore destruction of the tapes was improper." In the

alternative, Plaintiff asserts that "the burden of proof should shift to Defendants to prove that a `barricade' situation was in fact occurring, and therefore they needed to rush into

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1 See Plaintiff's Brief, pages 1-2. Plaintiff's argument regarding the "barricade situation" is unclear. The officers have each testified about their beliefs that exigent circumstances existed to enter the home. Certainly Plaintiff can question each officer about their beliefs and whether they were reasonable. Plaintiff's assertion that Defendants should not be allowed to claim that a "barricade" situation existed because there is no dispatch to officer radio transmission to support the claim simply fails. Officer to Officer communications are not tape recorded. See deposition testimony of Officer Toby Dunn, page 72, attached hereto as Exhibit 1.
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Mrs. August's house, arrest her and dislocate her elbow in the process."1 The City of Phoenix digitally records its radio channels, which includes communications between officers in the field and dispatchers. The City operates on a relay system, meaning that communications on certain channels go from the officer to the dispatcher and then back to the officer. There is also a separate "talk" radio channel for officers to communicate with each other, officer to officer, during an arrest or investigation.2 The talk channel is not recorded. Once a call comes in, it is assigned to a certain channel. A radio dispatcher is assigned to work certain channels and handle the radio calls on the channel. The

dispatcher inputs certain information into the police computer (Computer Aided Dispatch

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"CAD") and this information can be printed out in what's called a "CAD" report.3 The radio call in this call initially was broadcast over the "Chase" channel, as it came out as an emergency crime in progress. It was then transferred to Channel 7. All Officer communications regarding this call would have been recorded on Chase channel or Channel 7. The CAD printout of this call was preserved. See Exhibit 2. The CAD contains information regarding the initial 9-1-1 call, when it was received, when officers were

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dispatched to the home, and the time each officer arrived. The dispatcher entered into the CAD information received by the officers over the radio such as: · · · when Plaintiff went inside the home and locked the door when Officer Lynde went inside for an interview when the Fire Department was called for Plaintiff

In addition, the 9-1-1 tape was preserved as part of the criminal case. While ordinarily subject to the City's records destruction policy, the 9-1-1 tape was preserved because Plaintiff was arrested for domestic violence and the 9-1-1 tape was considered part of the criminal case. Pursuant to the City's records retention policy, radio communications are maintained for 60 days.4 After the 60 retention period expires, the digital recordings are destroyed by recording over the transmissions. The radio tapes from the case channel and

See CAD Report, attached hereto as Exhibit 2. See City of Phoenix Police Department Policy, attached hereto as Exhibit 3.

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Channel 7 were destroyed on or about August 10, 2002 as part of the city's regular records retention policy. II. FACTUAL BACKGROUND. The following is a timeline of significant events related to Plaintiff's claims of spoliation: June 10, 2002 July 29, 2002 Plaintiff Arrested. Plaintiff's Counsel Sends Correspondence to Phoenix Police Department Regarding 911 Tapes Only. Sergeant Tomory of Internal Affairs Calls Plaintiff seeking an interview. He is told to call her attorney. Sergeant Tomory Calls Plaintiff's Counsel. Plaintiff's Counsel Refuses to Allow Plaintiff to Be Interviewed. Requests Sergeant Tomory Call Back on August 22, 2002. 60 Day Retention Period for Tape Recordings Expires. Plaintiff's Counsel Sends Correspondence to Phoenix Police Department Requesting Affidavit of Custodian of Records for 911 Tape. Sergeant Tomory Leaves Message for Dan Treon and requests return phone call. Sergeant Tomory Leaves Message for Dan Treon and requests return phone call. Sergeant Tomory Leaves Message for Dan Treon and requests return phone call.

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July 31, 2002

July 31, 2002

August 10, 2002

August 21, 2002

August 22, 2002

August 26, 2002

August 27, 2002

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September 12, 2002

Plaintiff's Counsel Sends Correspondence to Phoenix Police Department Requesting For the First Time "all recorded radio broadcasts including but not limited to any tape cassette recordings of the radio traffic calls that occurred among all police officers including any of those at the station, relative to the police call and police action that occurred at 49 W. McClellan Blvd., Phoenix, Arizona 85013 on June 10, 2002...Please also preserve in recorded format all radio broadcast transmissions that occurred on the subject date relative to the 911 call." Memorandum by Julie Welch, Administrator with the City of Phoenix Records and Identification Bureau to Blake McClelland Regarding Destruction of Tape Recordings Pursuant to City of Phoenix Retention Policy. Plaintiff's Counsel Sends Correspondence to Sergeant Tomory Requesting Radio Transmissions. Plaintiff also states, "although I have received your telephone calls inquiring about interviews, I have not responded to them simply because Mrs. August and her family are still hurt and angered by what happened to Teresa. I appreciate that you have an investigation to conduct, however, it maybe better that a little more time passes before the August family is amenable to interview." Sergeant Tomory Leaves Voicemail for Plaintiff's Counsel stating, "Maybe I wasn't clear on this but what I'd certainly like to make clear is the fact that we have never received a complaint of any inappropriate behavior on the part of the officers from anybody in the Police Department that I've spoke to and the reason why I wanted to speak with Mrs. Theresa August was to get her statement and what her allegations of misconduct, if any, she was
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September 24, 2002

October 14, 2002

October 16, 2002

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alleging against the officers on that evening. So, again, I'm sorry if there was any miscommunication but there is no investigation because, at this time, there has been no formal allegations of any inappropriate behavior on the part of the officers on that evening." October 16, 2002 Sergeant Tomory receives correspondence from Plaintiff's Counsel dated October 14, 2002 (referenced above).5 Plaintiff files Notice of Claim to City of Phoenix, Phoenix Police Department, Officer Monson, Officer Lynde, Officer Dunn and Officer Griffin. Sergeant Tomory receives copy of Plaintiff's Notice of Claim. Plaintiff files Complaint in Maricopa County Superior Court. Criminal Charges Against Plaintiff Dismissed.

November 22, 2002

December 3, 2002

June 9, 2003

September 24, 2003

III.

ARGUMENT. A. Federal Law on Spoliation.

When records are destroyed in accordance with a document retention policy before litigation commences, there is generally not a finding of spoliation. See United States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002). In Kitsap, the Plaintiff argued that the Defendants improperly destroyed billing records that could have been relevant to the litigation. The defendants argued (and witness testimony supported the argument) that

See Sgt. Tomory Case Notes attached hereto as Exhibit 4.

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the documents were kept and destroyed in the normal course of business. The plaintiff, in turn, asserted that the defendants were put on notice about "potential litigation when they initiated [an]... internal investigation. But the result of this investigation was an opinion from outside legal counsel that there were no bases for fraud. From the defendants' perspective, they were not put on notice of potential litigation, much less a specific, future qui tam lawsuit." Similarly, in Akiona v. United States, the Court held that the destruction of records

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Arizona case law is similar to the federal law presented in this Motion. For example, when a party fails to preserve evidence during litigation (as opposed to before), the Court may, in its discretion, impose a variety of sanctions. Souza v. Fred Carries Contracts, Inc., 191 Ariz. 247, 250-51, 955 P.2d 3, 6-7 (App. 1997). Among the factors it must consider is whether the evidence was destroyed innocently or "willfully or volitionally." Id. at 250, 955 P.2d at 6. Souza is not exactly on point, since it involved a failure to preserve evidence during litigation whereas the conduct at issue here was pre-litigation. Nonetheless, it is instructive regarding the factors to consider in determining whether to sanction a party for failing to preserve evidence. In Souza, 191 Ariz. 247, 955 P.2d 3 (App. 1997), the court decided that the sanction of dismissal was not appropriate in a products liability action regarding a vehicle that was destroyed before the defendant had an opportunity to perform a mechanical inspection. Id. at 249, 955 P.2d at 5. The court first noted that "the sanction of dismissal, though within the sound discretion of the trial court, is `harsh and not to be invoked except under extreme
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pursuant to a records retention policy does not shift the burden of proof absent a showing that the party was on notice of the records' relevance to litigation. 938 F.2d 158, 161 (9th Cir. 1991), cert. denied, 503 U.S. 962 (1992). As the Court stated in Nation-Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 218 (1st Cir. 1982), "a party should only be penalized for destroying documents if it was wrong to do so, and that requires, at a minimum, some notice that the documents are potentially relevant." See also Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975) (adverse instruction proper only after a finding of bad faith).6

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B.

An Adverse Inference Instruction Is Only Appropriate Where There Is An Willful Destruction Of Evidence.

Plaintiff asserts that "willful" destruction of evidence is not the correct legal standard, then points to case law holding that "bad faith" and "intent" are elements the Court can consider in determining whether an adverse instruction is appropriate.7 As outlined, both federal and state case law from many jurisdictions holds that only

7 8 9 10 11 Stores, 3 P.3d 163, 165 (Okl. App. 2000); Bromley v. Garey, 979 P.2d 1165, 1170 (Idaho 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
circumstances.'" Id., citing Austin v. City of Scottsdale, 140 Ariz. 579, 581, 684 P.2d 151, 153 (1984). The court then noted that even though litigants generally "have a duty to preserve evidence that they know, or reasonably should know" is discoverable, "appropriate sanctions should be decided on a case-by-case basis, considering all relevant factors." 191 Ariz. at 250, 955 P.2d at 6. Glover v. Bic Corp. , 6 F.3d 1318, 1329-30 (9th Cir. 1993); Nation-Wide Check Corp. Inc. v. Forest Hills Distributors, Inc., 692 F.2d 214 (1st Cir. 1982).
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the willful destruction of evidence will give rise to an adverse inference instruction. See, also, DeGraffenreid v. R.L. Hannah Trucking Co., 80 S.W.3d 866, 873 (Mo. App. 2002); Phillips v. Covenant Clinic, 625 N.W.2d 714, 721 (Iowa 2001); Beverly v. Wal-Mart

1999); Aramburu v. The Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997); Beers v. Bayliner Marine Corp., 675 A.2d 829, 832 (Conn. 1996). While other cases permit an instruction based on mere negligence, the cases requiring willful conduct represent the better reasoned authority. Allowing an adverse inference instruction -- which can be very powerful -- only where evidence has been willfully destroyed is more consistent with the purpose of such instructions. Indeed, the very definition of "spoliation" includes an element of intentionality. See Black's Law Dictionary, at 1401 (6th ed. 1990) (defining spoliation as the "intentional destruction of

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evidence"). This is best explained in Phillips, a recent case from the Iowa Supreme Court. 625 N.W.2d at 718-21. Phillips was a medical malpractice action in which the patient's medical records were lost. Opposing summary judgment, the plaintiff argued that the jury could draw an adverse inference of negligence based on the medical clinic's loss of the records. The court disagreed and affirmed summary judgment. Finding no evidence that the clinic intentionally destroyed the file, the court found no basis for permitting an

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 of his attendance records. Affirming summary judgment for the defendant, the court rejected the suggestion that an adverse inference was warranted. The general rule, it
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adverse inference. 625 N.W.2d at 719-20. Allowing an adverse inference from the destruction of evidence, the court noted, serves both an evidentiary and a punitive purpose. "The evidentiary value of the inference is derived from the common sense observation that a party who destroys a document with knowledge that it is relevant to litigation likely would have been threatened by the document." 625 N.W.2d at 718. No such connection can be made when evidence is missing through inadvertence or neglect. The punitive value of the inference lies in deterring parties from destroying relevant evidence, a purpose that also is only served when the destruction was willful. Id. at 719-20; see also Akioni, 938 F.2d at 161; NationWide Check Corp, 692 F.2d at 218. The Tenth Circuit applied the same reasoning in Aramburu. In that employment discrimination case, the plaintiff sought an adverse inference based on the loss of portions

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noted, permits a jury to infer from a party's bad faith destruction of a document that it would have been unfavorable to that party. "Mere negligence in losing or destroying records," however, "is not enough because it does not support an inference of consciousness of a weak case." 112 F.3d at 1407. See also DeGraffenreid, 80 S.W.3d at 873 ("Simple negligence, however, is not sufficient to apply the adverse inference rule."). C. An Adverse Inference Instruction Is Not Warranted Here.

In this case, Plaintiff has failed to present any evidence that the City willfully, 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
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intentionally or knowingly destroyed the radio transmissions. In the normal course of business, the City followed its record retention policy in recording over the dispatch to officer radio transmissions. Plaintiff has not found a single speck of evidence that City employees destroyed the tape because they were "conscious[] of a weak case." Aramburu, 112 F.3d at 1407. The policy reasons behind the adverse inference just do not apply to this case. 1. In this case: · The dispatch to officer radio transmissions were taped over in the ordinary course of business over three months before Plaintiff first put the Defendants on notice of their intent to sue. · Plaintiff did not even request the "radio transmissions" until September 12, 2002, over three months after the incident, and 30 days after the transmissions had been taped over. · Sergeant Tomory initiated contact with Plaintiff's counsel on July 31, 2002, and was told to "hold off" on things until he returned from vacation in
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The Defendants Had No Reason to Know the Dispatch to Officer Radio Transmissions Would be Needed For Litigation.

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"three to four weeks." During that conversation, Sergeant Tomory was not advised that Plaintiff would be filing any type of civil litigation against the Defendants. Plaintiff's counsel similarly did not request that the dispatch to radio transmissions be preserved for purposes for future litigation. Thus, at the time the dispatch to officer radio transmissions were recorded over pursuant to the City's records retention policy, the City could not have known that the tape might be relevant to a claim brought by the Plaintiff. If Plaintiff's view here is correct, then any time police had contact with a suspect it would have to preserve the tapes because unfortunately, anyone can sue anyone for anything. 2. The Chase Channel and Channel 7 Radio Transmissions Are Not Relevant.

FED. R. EVID. 401 states that relevant evidence is evidence that tends to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. Plaintiff asserts that the dispatch to officer radio transmissions is relevant because the officers now claim that because "exigent circumstances existed: the officers allege that a "barricade" situation had developed with Teresa August in the house..." Plaintiff apparently presumes that the dispatch to officer radio transmission would "reveal the officers' actual perception of the situation, whether the officers were concerned about Dakotah or whether the `exigent circumstances' claim is just an after the fact excuse concocted to justify a warrantless entry."8

See page 4 of Plaintiff's Brief.

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As outlined above, the dispatch to officer radio transmissions are inserted into the CAD Report, which Plaintiff has been provided a copy of in Defendants' Initial Disclosure Statement. Had Plaintiff chosen to depose the dispatcher in this case, he could have been asked the very questions he now argues were "willfully" kept from him during discovery. The CAD Report provides the information Plaintiff seeks (basic information regarding arrival to the scene, taking Plaintiff into custody and clearing of the scene). Thus, the radio transmissions are irrelevant and would not provide Plaintiff with the

9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 opportunity to depose each of the officers at the scene about what they discussed during the investigation. As explained by the Souza court in denying sanctions:
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"smoking gun" he believes exists. Further, the Court has ruled that the circumstances of entry have never been pled by Plaintiff in her Complaint as a cause of action and were not the focus of the Motion for Summary Judgment. In the ruling of the Motion in Limine, the Court held that the circumstances of entry were simply inadmissible. 3. Plaintiff Is Not Prejudiced.

Nor can Plaintiff show prejudice under FED. R. EVID. 403. Here, both sides are equally impacted by the lack of information. Defense counsel never had the tape, the witnesses could not review it to refresh their recollection about what happened and the Plaintiff's attorney never had it as well. Further, the loss of the dispatch to officer radio transmissions has not affected Plaintiff's ability to bring her case. Plaintiff has a copy of the 911 tape and a copy of the Computer Aided Dispatch ("CAD") report generated in this case. Plaintiff also had the

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Fourth, no evidence establishes that destruction of the Mustang rendered FCCI completely incapable of mounting a defense or irreparably prejudiced its ability to defend. For example, nothing in the record indicates that FCCI's expert would be unable or unwilling to offer opinions on mechanical or causation issues in the case or to otherwise refute the opinions of plaintiff's expert. Id. Because Plaintiff has suffered no prejudice in their ability to bring their claims, a spoliation instruction is not unwarranted. D. If An Adverse Inference Instruction Is Warranted, the Defendants' Proposed Instruction Accurately States The Law.

Based on the foregoing, Defendants object to the giving of any jury instruction on spoliation or adverse inference. But should the Court rule that such an instruction is appropriate, Defendants have prepared a proposed instruction that accurately states the law based on the cases cited above.9 By preparing this instruction, the City does not waive its objection to the giving of any adverse inference instruction.

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Plaintiff's proposed jury instruction, listed as footnote number 1, page 7 of Plaintiff's Brief, misrepresents the law as articulated in this Response.
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The instruction states: Plaintiff claims Defendants failed to preserve evidence. If you find that Defendants willfully destroyed evidence, then you may but are not required to infer that the evidence destroyed was adverse to Defendants. You may not apply this adverse inference if Defendants were merely negligent in failing to preserve evidence. If you find that Defendants did not willfully destroy evidence, you may not guess about or infer

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what the missing evidence would have shown. Willful means that the Defendants intentionally destroyed evidence knowing that it is relevant to litigation. You may not use evidence regarding failure to preserve evidence for any purpose other than the adverse inference I have just mentioned. You may not award damages against Defendants for failing to preserve evidence. The first two paragraphs embody the rule set forth in Kitsap, Aramburu, NationWide, Vick and the other cases cited above. It permits the jury to draw an adverse inference only if it finds the Defendants willfully destroyed evidence (a factor the Court can consider pursuant to Glover) and prohibits the jury from drawing an adverse inference if it makes no such finding. Paragraph three defines "willful" in a manner consistent with the Phillips case. The last paragraph tells the jury what it may not do with evidence of spoliation and

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is therefore a limiting instruction pursuant to FED. R. EVID. 105. V. CONCLUSION. Based on the foregoing, Defendants object to any instruction that advises the jury it can draw an adverse inference against the Defendants due to missing or destroyed evidence. Accordingly, Defendants respectfully request that the Court deny Plaintiff's request for a spoliation jury instruction or in the alternative apply the instruction articulated in Defendants' Response.

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DATED this 4th day of January, 2007. JONES, SKELTON & HOCHULI, P.L.C.

By /s/Jennifer L. Holsman Kathleen L. Wieneke Jennifer L. Holsman 2901 North Central Avenue, Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants City of Phoenix, Griffin, Dunn, Lynde and Monson

Electronically filed and served this 4th day of January, 2007, to: ALL PARTIES ON ELECTRONIC SERVICE LIST COPY mailed this same date to: The Hon Rosalyn O. Silver United States District Court Sandra Day O'Connor U.S. Courthouse, Suite 624 401 West Washington Street, SPC 59 Phoenix, Arizona 85003

BY

s/Peggy Sue Trakes

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