Why Urgency is Needed When Filing a Spoliation Sanctions Motion

Created on May 13, 2020

Vice President, E-Discovery

Nevis v. Rideout Memorial Hospital, et al (E.D. Cal. Feb. 6, 2020)
shows that parties seeking discovery should act with due diligence or they could lose the opportunity to obtain remedies for an opposing party’s non-compliance.


In January 2017, a preservation letter was sent from the plaintiff to the defendant asking for all data related to the accident to be preserved, which specifically included the plaintiff’s mobile phone. Subsequently one defendant requested the data from the plaintiff’s phone from the month of the accident. In September 2018, the defendant produced responses stating that he had the phone.

In October 2019, additional defendants sought production of data from the plaintiff’s cell phone. The defendant responded that he no longer had possession of the phone.

In December 2019, the defendants gave notice of that they were moving for terminating sanctions for the spoliation of the phone. Surprisingly, the plaintiff’s phone was found three weeks later, but the defendant would not produce the phone itself because it “was never properly requested.”

After an extended discovery deadline had passed, the defendants moved for spoliation sanctions (default judgment or adverse jury instruction) based on the “plaintiff intentionally misrepresent[ing] the status of his cell phone…”


• Motion Denied. While the court did note that the “plaintiff’s conduct regarding production of the cell phone is clearly questionable,” the defendants waited too long to serve their production request for the cell phone and “never made a motion to compel on this topic.”

• 5-Factor Test.
The court ruled that “none of the factors weigh clearly in favor” of a case dispositive sanction based on the 9th Circuit’s five-factor test to evaluate whether case dispositive sanctions are warranted.

• Discovery Deadline.
When evaluating these five factors, the court put a lot of emphasis on the tardiness of the defendants’ efforts to obtain the cellphone information, and the effects such a discovery delay would have on the court’s docket.

David Cohen, Esq.

Expert Opinion from David Cohen, Esq., Chair of E-Discovery Group, Reed Smith LLP

"Parties must carefully attend to discovery deadlines, both when initially requesting discovery and when following up with any efforts necessary to compel compliance. Some courts, such as the court here, consider discovery deadlines also to govern the time for raising, and obtaining resolution of, all discovery issues and motions."

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