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

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Daniel B. Treon ­ 014911 Stephen E. Silverman ­ 016757 TREON & SHOOK, P.L.L.C. 2700 North Central Avenue, Suite 1000 Phoenix, Arizona 85004 Telephone: (602) 265-7100 Facsimile: (602) 265-7400 Attorney for Plaintiffs UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA TERESA AUGUST, a single woman, MARK AUGUST and JANE DOE AUGUST, husband and wife, for themselves and as parents and guardians for their minor child, MARCUS DAKOTAH AUGUST Plaintiffs, vs. CITY OF PHOENIX, a body politic of the State of Arizona; OFFICER LYLE MONSON and JANE DOE MONSON, husband and wife; OFFICER NICHOLAS LYNDE and JANE DOE LYNDE, husband and wife; OFFICER TOBY DUNN and JANE DOE DUNN, husband and wife; OFFICER T. HEDGECOKE and JANE DOE HEDGECOKE, husband and wife; and R. GRIFFIN and JANE DOE GRIFFIN, husband and wife Defendants. __________________________________ ) ) Case No. CV03-1892 PHX ROS ) ) ) PLAINTIFFS' BRIEF REGARDING ) SPOLIATION OF EVIDENCE ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

Pursuant to the Court's order dated December 15, 2006, Plaintiff Teresa August hereby submits her brief regarding spoliation of evidence by Defendants. Defendants had "simple notice of potential relevance to the litigation" regarding the tapes of the radio transmissions between dispatch and the officers on the scene, and therefore, the destruction

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of the tapes was improper. As a result, Plaintiff is entitled to a spoliation of evidence jury instruction; alternatively, 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 Mrs. August's house, arrest her and dislocate her elbow in the process. Plaintiffs support this Brief with the attached memorandum. RESPECTFULLY SUBMITTED this 29th day of December, 2006. TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Kelly Kp Attorney for Plaintiffs

MEMORANDUM I. DEFENDANTS HAD THE REQUIRED "NOTICE" It was clear to Defendants that Teresa August was complaining about the officers who had dislocated her elbow and that she intended to file suit. Teresa August complained to the police department days after her arrest and injury. (EXHIBIT 1, copy of transcript of July 31, 2002 phone call with Teresa August surreptitiously recorded by internal affairs Sgt. Joseph Tomory which references her telephone complaint made within days of the incident). Undersigned counsel also engaged in telephonic and written communication with the internal affairs investigator Sgt. Tomory and the City of Phoenix Police Department headquarters. (EXHIBIT 1, copy of transcript of July 31, 2002 phone call with Dan Treon, surreptitiously recorded by Sgt. Tomory; EXHIBIT 2, copy of July 29, 2002 letter from Dan Treon to

Phoenix Police Department re 911 tapes; EXHIBIT 3, copy of August 21, 2002 letter from Dan Treon to Phoenix Police Department headquarters re affidavit for 911 call; EXHIBIT 4, copy of September 12, 2002 letter from Dan Treon to Phoenix Police Department headquarters re radio transmissions and City's response; EXHIBIT 5, copy of October 14, 2002 letter from Dan Treon to Sgt. Joe Tomory re radio transmissions; EXHIBIT 6, copy of transcript of Sgt. Tomory's voice mail left at Dan Treon's office on October 17, 2002) Case 2:03-cv-01892-ROS

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Despite the severity of the injury to Mrs. August and the clearly established potential for litigation, Defendants argued in their Motion for Pre-Trial Evidentiary Hearing Regarding Spoliation of Evidence that their first notice of the claim was on November 22, 2002, when Plaintiff filed notice of claim. Defendants' position is belied first by the fact of Teresa

August's complaint; second by the existence of all of Sgt. Tomory's and undersigned counsel's communications; and third, by their own memo, dated September 24, 2002, in which Judie Welch, Administrator with the City of Phoenix Records and Identification Bureau told Blake A. McClelland that the Radio dispatch recording had already been destroyed (EXHIBIT 7, copy of September 24, 2002 memo from Judie Welch to Blake A. McClelland). From these communications, it is clear that all evidence related to the events surrounding Plaintiffs' arrest and injury are directly relevant; in particular, contemporaneous communications that may relate facts, eyewitness observations and the mental impressions of the officers on the scene as the events occurred in real time, without the opportunity to spin or manipulate the descriptions and narrative. II. RELEVANCE The recordings are relevant for two reasons. First, officers now claim they went into Ms. August's house because exigent circumstances existed: the officers allege that a "barricade" situation had developed with Teresa August in the house with her nine year old

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grandson Dakotah August, and that she was a danger to Dakotah because she may have
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thrown a remote control at her 17-year-old grandson. Plaintiffs contend, however, that the officers stormed Mrs. August's house in a fit of irrational passion because they overreacted to Officer Lynde's rookie mistake of going into the house alone, and then errantly concluded that Mrs. August meant him some ill will by locking her door behind him and her. The radio transmissions likely would reveal the officers' actual perception of the situation, whether the

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officers were concerned about Dakotah or whether the `exigent circumstances' claim is just
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an after the fact excuse concocted to justify a warrantless entry. Plaintiffs anticipate that evidence at trial will show that as part of any investigation, an internal affairs investigator would routinely secure all radio transmissions as part of any investigation into officer misconduct. Clearly, the parties dispute whether an investigation was underway, and Plaintiff is entitled to have the jury consider why Sgt. Tomory failed to secure copies of the radio transmissions and whether he knew that such would be destroyed after 90 days. III. LEGAL ANALYSIS A. A Spoliation Instruction is Appropriate

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Defendants' first motion on this issue wrongly claimed that the legal standard for spoliation of evidence required "willful" destruction of evidence. It is not. In fact, "A federal trial court has the inherent discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant evidence.... Bad faith is only one avenue to the presumption, but not the only one." In the Ninth Circuit, "bad faith" or "intent" are not required before an injured party is entitled to a spoliation jury instruction. Glover v. Bic Corp., 6 F.3d 1318, 1329-30 (9th Cir. 1993). The Ninth Circuit expressly addressed the issue of a spoliation instruction in

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Glover:
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Short of excluding the disputed evidence, a trial court also has the broad discretionary power to permit a jury to draw an adverse inference from the destruction or spoliation against the party or witness responsible for that behavior. Akiona v. United States, 938 F.2d 158 (9th Cir. 1991). As Unigard correctly notes, however, a finding of "bad faith" is not a prerequisite to this corrective procedure. 982 F.2d at 368-70 & n.2. Surely a finding of bad faith will suffice, but so will simple notice of "potential relevance to the litigation." Akiona, 938 F.2d 161.

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Glover at 1329. The facts of Glover are instructive. The expert for the plaintiff dissembled
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the butane lighter plaintiff alleged caused the fatal fire, and employees of plaintiff's counsel place the parts in an allegedly "oily" box. Glover at 1322. Defendant's expert examined the lighter after the alleged spoliation, testified regarding the condition of the lighter and concluded that the lighter had not caused the fire. Id. at 1329. The Court then noted that it had previously admonished plaintiff's counsel and expert for being "careless" with the evidence, the Court refused to exclude the testimony of plaintiff's expert but permitted a spoliation jury instruction. Id. at 1329-30. See also Welsh v. United States, 844 F.2d 1239 (6th Cir. 1988) (negligent destruction of skull flap shifted burden to medical malpractice defendant to prove disease process did not cause death).

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Moreover, Plaintiff could seek to have any claim of a "barricade" situation excluded pursuant to Unigard Security Ins. Co. v. Lakewood Engineering & Manufacturing Corp., 982 F.2d 363 (9th Cir. 1992). Unigard Security involved a boat fire and a heater that may have caused the fire. Id. at 365. The adjuster initially believed that there was no subrogation claim, so she permitted the disposal of the heater. Id. Later, when the insurer brought the subrogation claim, the court excluded the testimony of the insurer's expert and granted summary judgment to the heater manufacturer, due to the spoliation of the evidence, which was affirmed by the court of appeals. Id. at 365-66. Although the insurer requested a

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rebuttable presumption regarding the space heater, Unigard Security reasoned that the
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district court could have found that the rebuttable presumption was not enough to cure the prejudice caused by the destruction of the only evidence that could prove or disprove the claim against the manufacturer, and therefore, exclusion was proper. Id. at 369.

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Here, Defendants should not ever be allowed to claim that a "barricade" situation
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existed when they destroyed the very tapes of the radio transmissions which would confirm or contradict their defense. B. The Adverse Inference Serves Both Purposes in This Case

The court described the purpose for adverse inferences in Nation-Wide Check Corp., Inc. v. Forest Hills Distributors, Inc., 692 F.2d 214 (1st Cir. 1982): The adverse inference is based on two rationales, one evidentiary and one not. The evidentiary rationale is nothing more than the common sense observation that a party who has notice that a document is relevant to litigation and who proceeds to destroy the document is more likely to have been threatened by the document than is a party in the same position who does not destroy the document. The fact of destruction satisfies the minimum requirement of relevance: it has some tendency, however small, to make the existence of a fact at issue more probable than it would otherwise be. See Fed.R.Evid. 401. *** The other rationale for the inference has to do with its prophylactic and punitive effects. Allowing the trier of fact to draw the inference presumably deters parties from destroying relevant evidence before it can be introduced at trial. The inference also serves as a penalty, placing the risk of an erroneous judgment on the party that wrongfully created the risk. In McCormick's words, "the real underpinning of the rule of admissibility [may be] a desire to impose swift punishment, with a certain poetic justice, rather than concern over niceties of proof." McCormick on Evidence § 273, at 661 (1972). Nation-Wide Check at 218 ("although the court found that [agent] might not have been `completely aware' of the significance of the records, he proceeded to destroy them without

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further inquiry even though they theoretically could have disproven as well as proven Nation21 22 23 24 25 26

Wide's tracing claim," affirming trial court's discretion and judgment). Sgt. Tomory knew of the tapes and of the City's retention policies, and either knew of their significance or failed to inquire into their significance after he was alerted regarding the harm inflicted on Mrs. August. He also knew of the City's retention policies. Sgt. Tomory further admitted during his deposition that it was possible that evidence was on the radio transmission tapes relevant

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to Mrs. August's arrest (EXHIBIT 8, copy of Sgt. Tomory's January 18, 2005 deposition
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62:18-63:19). Given the admitted relevancy to Mrs. August's arrest, and all the other facts related to Mrs. August's complaint and communications with her legal counsel, Sgt. Tomory was on notice of the importance of the tape of the radio transmissions and his failure to secure them, in the face of their impending destruction by operation of the City's nonretention policy. The officers' memories of a "barricade" situation are both self-serving and improbable under the circumstances. C. Plaintiff's Spoliation Jury Instruction Correctly States the Law

Sgt. Tomory had a clear duty to preserve the transmission tapes; the spoliation jury
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instruction serves both common sense and as deterrence against Defendants' future
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destruction of evidence1. Defendants' suggested jury instructions require the jury to find that the destruction of evidence was "willful," but this misstates the law in the Ninth Circuit. As indicated in Glover, even "careless" spoliation of evidence can warrant a spoliation instruction. Furthermore, a limiting instruction pursuant to Rule 105, Federal Rules of Evidence, is unnecessary and improper. Rule 105 pertains to evidence that is admitted for a limited purpose. Spoliation is an inference regarding the destruction of evidence, not the evidence itself. Plaintiff is not seeking damages based on spoliation, and therefore, any limiting

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instruction is improper and can only serve to confuse the jury.
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IV.

CONCLUSION

Plaintiff's proposed jury instruction: If you find that a party could have produced certain evidence, and that the evidence was within that party's control, and that this evidence would have been relevant in deciding facts in dispute in this case, you are permitted, but not required, to infer that the evidence, if produced, would have been unfavorable to that party. In deciding whether to draw this inference, you should consider whether the evidence that was not produced would merely have duplicated other evidence already introduced. You may also consider that parties have a duty to preserve relevant evidence.

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Defendants' efforts to hide destruction of these tapes from the jury is little more than an attempt to avoid relevant evidence they do not like. In the usual course of pre-trial and trial proceedings, the relevancy of this evidence would be determined through motions in limine and then conclusions about instructions would be arrived at after the evidence came out in trial. Plaintiff submits that there is no reason to diverge from customary trial practice and procedure in this case just because Defendants are concerned that the evidence in question will not be good for them. Plaintiff urges the Court to allow Plaintiffs to develop the issue of what happened to the tapes at trial, and then to give the warranted jury instruction. RESPECTFULLY SUBMITTED this 29th day of December, 2006. TREON & SHOOK, P.L.L.C. By: s/ Daniel B. Treon Daniel B. Treon Stephen E. Silverman Attorneys for Plaintiffs

CERTIFICATE OF SERVICE I hereby certify that on December 29, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic to the following CM/ECF registrants: Daniel B. Treon: Kathleen Wieneke: [email protected]; [email protected] [email protected]; [email protected]; [email protected] [email protected]; [email protected] [email protected]; [email protected]

Jennifer L. Holsman: Randall H. Warner:

By:

s/ Aly Shomar-Esparza

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