Victor Valley Union Sch. Dist. v. Superior Court, No. E078673 (D4d2 Mar. 24, 2023)
The underlying case is a lawsuit alleging that a School District was negligent in failing to prevent an on-campus sexual assault of the Plaintiff, a teenager with developmental disabilities, while he was in a high school bathroom. It came out in discovery that after the events, but before the onset of the litigation, a video of the outside of the door to the bathroom had been erased. Plaintiff moved for terminating sanctions. The trial court, finding that the deletion was only negligent, declined to award terminating sanctions. It did find, however, that the District should have anticipated that the video would be relevant to anticipated litigation and thus that the District had a duty to preserve it. It accordingly issued evidentiary, issue, and monetary sanctions that effectively precluded it from contesting liability.
District took a writ.
Technically, the petition concerns the Discovery Act’s safe harbor precluding sanctions for the routine, good faith deletion of electronically stored information. See Code Civ. Proc. § 2023.030(f)(1). But that subsection goes on to say that it does not alter any obligation to preserve discoverable information. § 2023.030(f)(2). The Court of Appeal considers the interplay between (f)(1)’s safe harbor and the (f)(2)’s stated intent not to change the law. It also looks at the legislative history of the 2009 amendments to the Discovery Act to make clearer rules regarding ESI and a 2012 bill that closed some loopholes in the 2009 amendments, including the addition of (f)(1) and (f)(2) to § 2023.030. The Court concludes that the safe harbor for routine deletion of ESI can apply only when the alleged spoliator is under no duty to preserve.
Which begs the question, of course: When is a party under a duty to preserve evidence? Despite the statute’s being on the books for a decade, and the prevalent role of ESI in modern litigation, there is actually no published state law authority on that question. So—as is the general practice of state courts on discovery issues—the Court of Appeal looks to federal law, which has been more-or-less settled since around the time I was in law school.
The duty to preserve evidence arises at the point where litigation is reasonably foreseeable. It’s an objective, but fact-specific standard. As some of the cited federal cases explain, the “mere existence of a potential claim or the distant possibility of litigation” is not enough. But litigation doesn’t need to be on-file or “imminent” either. As the Court explains—reviewing the relevant federal decisions—litigation is reasonably foreseeable when it is “probable” or “likely” or arise from a dispute or incident.
Plaintiff also argued that the District’s statutory obligation under Government Code § 53160 to preserve video for 100 days gave rise to a presumption or provided an independent per se standard for a duty to preserve. But the Court of Appeal rejects. As the Court explains, (1) it’s unclear that the statute applies to the district; (2) the federal case law around regulatory violations and spoliation is (a) largely in the context of adverse inference instructions—not at issue here—(b) generally requires intentional deletion; and (c) permits an inference only when the party seeking the inference is within the class of persons the regulatory duty is intended to protect. None of those is present here.
The Court of Appeal goes on to hold that the trial court correctly applied the reasonable foreseeability test here. Litigation is not necessarily “probable” or “likely” to arise from every incident or dispute. But a school district’s “heightened duty” to care for the welfare of its students” “weighs heavily in favor of finding litigation is reasonably foreseeable following the report of an alleged sexual assault of a student by another student.” That is bolstered by the fact that public school employees are generally “mandated reporters”—potentially subject to criminal prosecution for failing to report an alleged child sexual assault to the authorities. These circumstances “make it obvious that evidence about whether a sexual assault occurred and who was responsible should be preserved for litigation, such that a reasonable administrator would not need to parse out the precise likelihood of a particular claim in determining whether to preserve the video.”
There was also, in addition, specific evidence of the District’s awareness of the likelihood of litigation. First, an administrator who reviewed and made a report on the video prior to its destruction observed that it depicted clear violations of the school’s restroom policy, which required the bathroom to stay locked and students admitted only one at a time. Second, the school’s risk manager stated in a declaration that the District’s attorneys had instructed him to “obtain confidential statements and reports immediately after an incident and forward them to my department.” Those materials were then to be provided to the District’s insurance carrier to evaluate potential liabilities and defenses. And third, the video was, after all, preserved long enough for the administrator to review and report on it. (The Court notes, however, in a long footnote, that the fact that in the litigation, the District claimed attorney-client privilege and attorney work product protection over the administrator’s report was not really evidence that the District anticipated litigation at the time the report was made.)
The record thus supported the trial court’s issuance of sanctions.
But the Court of Appeal finds the particular sanctions issued were likely too onerous. Discovery sanctions are supposed to be remedial, not punitive. And, as noted, although the trial court declined to put the District in default, it effectively did so by preventing the District from contesting the essential elements of liability. It was in effect if not name, a terminating sanction. And given that the trial court found that the District was only negligent, the trial court should have at least considered lesser sanctions that would have restored Plaintiff to the position he would have been in had the video not been deleted.
Writ granted.
This decision is detailed and lengthy. Perhaps a little too lengthy for my personal taste. Its analysis is rather obviously correct.
But it’s been 20 years since the decisions in the Zubulake case in the S.D.N.Y. explored the framework for when a duty to preserve evidence arises. And more than a decade since the Legislature amended the Discovery Act to address ESI issues. Why, in 2023, is this a case of first impression in California?
It seems, to me, that there are three possibilities.
First, given that discovery issues are most often addressed by the Court of Appeal by writ, it’s possible that superior court judges, in the large, have been getting it right. So maybe the appropriate case never came up.
Second, as the Court recognizes in footnote 12, some federal district court opinions are, at least, “unofficially reported,” in reporters like the Federal Supplement and the Federal Rules Decisions. That creates a body of persuasive case law that helps the development and stability of the law on novel issues that tend to evade appeal, such as discovery disputes. California doesn’t have that sort of thing. Trial court rulings are not even unofficially reported. Indeed, they are generally really hard to find. Indeed, there’s case law that says they are un-citable in any event, even if there’s no rule that actually says so. San Diego Cnty. Emps. Ret. Assn. v. Cnty. of San Diego, 151 Cal. App. 4th 1163, 1184 (2007) (“A trial court judgment cannot properly be cited in support of a legal argument, absent exceptions not applicable here.”); see also Aixtron, Inc. v. Veeco Instruments Inc., 52 Cal. App. 5th 360, 399 (2020); Bolanos v. Superior Court, 169 Cal. App. 4th 744, 761 (2008); Santa Ana Hosp. Med. Ctr. v. Belshe, 56 Cal. App. 4th 819, 831 (1997); cf. R. Ct. 8.1115(a) (non-citation rule applicable only to unpublished Court of Appeal and appellate division orders).
And third, it’s possible that writs were taken on this issue (or even that it was raised in an appeal of a judgment) but either the Court of Appeal summarily denied the petitions, or the decisions went unpublished. (A footnote explains that the District cited to some unpublished cases where the issue was addressed, but the Court declines to consider them under Rule of Court 8.1115.) But if this is a first impression issue, why were the prior decisions unpublished? Cf. Cal. R. Ct. 8.1115(c)(1), (2).
With no insult the superior court judges of our great state, I don’t really buy that the first possibility explains things. Someone has to have gotten it wrong somewhere. And if so, this shouldn’t happen in a legal system as large as California’s, which, on a body count basis is significantly larger than the entire system of federal courts. Twenty, or even ten, years of legal uncertainty about a basic procedural issue that comes up in hundreds, perhaps even thousands of cases every year imposes an enormous cost on litigants and the superior courts.
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