UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) VICTORIA MANNINA, ) ) Plaintiff, ) ) v. ) No. 1:15-cv-931 (KBJ/RMM) ) DISTRICT OF COLUMBIA, ) ) Defendant. ) )

MEMORANDUM OPINION

INTRODUCTION

This case arises from the suicide of Paul Mannina (“Mr. Mannina”); Plaintiff Victoria

Mannina (“Ms. Mannina”) brings this action as widow and representative of Mr. Mannina’s

estate. 2d Am. Compl., ECF No. 33 at ¶ 1. Ms. Mannina raises civil rights claims under

and the Due Process Clause of the Fifth Amendment, and also raises tort claims

including negligence and wrongful death. See

at ¶¶ 36–54. This matter was referred to the

undersigned for management of discovery. 10/27/2017 Min. Order.

Ms. Mannina filed a motion asking the Court to determine that Defendant the District of

Columbia (“the District”) failed to meet its obligation to preserve documents potentially relevant

to this litigation. See Pl.’s Mot. Regarding Def.’s Failure to Preserve and Discover Evid., and

Spoliation of Evid. (“Pl.’s Mot.” or “the Motion”), ECF No. 96. Specifically, Ms. Mannina

requested that the Court (1) declare that the District failed to preserve evidence; (2) find that the

District is responsible for actual spoliation of evidence; and (3) direct the parties to brief the

issue of appropriate sanctions.

. The District opposed the Motion. Def.’s Mem. Opp’n

Pl.’s “Mot. Regarding Def.’s Failure to Preserve and Discover Evid., and Spoliation of Evid.” (“Def.’s Mem.”), ECF No. 101. After considering the parties’ briefing 1 and arguments made at

the motion hearing, the Court GRANTED Ms. Mannina’s Motion in a Memorandum Order

issued September 30, 2019. Mem. Order, ECF No. 129. This Memorandum Opinion provides

further explanation for the analysis underlying that ruling.

BACKGROUND

I. Factual Background 2

On June 18, 2013, Mr. Mannina committed suicide while a prisoner in the District’s

custody. 2d Am. Compl., ECF No. 33 at ¶ 35. On August 1, 2013, Ms. Mannina sent a notice of

claim, pursuant to

, advising the District of her intent to pursue a claim for

Mr. Mannina’s death. Pl.’s Mem. Supp. Mot. Regarding Def.’s Failure to Preserve and Discover

Evid., and Spoliation of Evid. (“Pl.’s Mem.”) at 6, ECF No. 96-1. On August 6, 2013, the

District’s Office of the Attorney General (“OAG”) sent a litigation hold email to the District of

Columbia Department of Corrections (“DOC”), directing DOC to preserve any evidence about

four individuals who committed suicide at the D.C. Jail between November 2012 and August

2013, including Mr. Mannina. Id.; Not. Regarding Preservation Efforts, Ex. 1 (Summary Chart)

at 1, ECF No. 91–2.

On June 17, 2015, Ms. Mannina filed a complaint against Muriel Bowser (Mayor of the

District of Columbia), Karl Racine (Attorney General of the District of Columbia), and Thomas

Faust (Director of DOC). Compl., ECF No. 1. On August 11, 2015, OAG sent a formal

litigation hold letter to DOC, directing DOC to preserve all documents and information relating

to Mr. Mannina’s suicide and the allegations in the complaint. Def.’s Mem. at 6; Not. Regarding

1 Pl.’s Mot.; Def.’s Mem.; Pl.’s Reply Supp. Mot. Regarding Def.’s Failure to Preserve and Discover Evid., and Spoliation of Evid. (“Pl.’s Reply”), ECF No. 107. 2 Given the posture of the case, the Court relies on the facts alleged in the Complaint.

2 Preservation Efforts, Ex. 1 (Summary Chart) at 1, ECF No. 91–2. On December 1, 2016, OAG

requested the Metropolitan Police Department’s (“MPD’s”) arrest paperwork for Mr. Mannina

and the report of MPD’s investigation of his suicide. Not. Regarding Preservation Efforts, Ex. 1

(Summary Chart) at 1, ECF No. 91–2. On March 8, 2018, OAG sent a litigation hold letter to

MPD, directing MPD to preserve any documents and records related to Ms. Mannina’s

Complaint.

.

II. Procedural Background

Ms. Mannina initially moved for sanctions on February 28, 2018. Mot. Sanctions, ECF

No. 66. On September, 24, 2018, the Court denied that motion without prejudice because Ms.

Mannina failed to include a Local Civil Rule 7(m) statement, and because it appeared that the

parties had not conferred before Ms. Mannina filed her motion. Order, ECF No. 89. On October

16, 2018, at a discovery status conference, the Court invited Ms. Mannina to rebrief her

spoliation-related motion. 10/16/2018 Hr’g Tr. at 31:24–33:9, ECF No. 109. The Court did not

provide specific instructions on how to structure that motion, leaving it to Ms. Mannina to

request relief as she saw fit.

at 33:3–9. Ms. Mannina subsequently filed the instant motion,

requesting that the Court (1) declare that the District failed to preserve evidence; (2) find that the

District is responsible for actual spoliation of evidence; and (3) direct the parties to brief the

issue of appropriate sanctions. Pl.’s Mot. at 3. The District opposed, and Ms. Mannina filed a

reply. See Def.’s Mem.; Pl.’s Reply. After the motion was fully briefed, the Court heard the

parties’ oral arguments on the motion. See 1/30/2019 Hr’g Tr., ECF No. 112.

LEGAL STANDARD

This Court has inherent power to sanction abuses of the judicial process, including

discovery abuses. Shepherd v. Am. Broad. Cos., Inc.,

, 1474–75 (D.C. Cir. 1995).

3 A court must find three elements before awarding spoliation sanctions:

(1) The party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) [t]he destruction or loss was accompanied by a ‘culpable state of mind;’ [and] (3) the evidence that was destroyed or altered was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defense of the party that sought it.

Chen v. District of Columbia,

(D.D.C. 2011) (citing Mazloum v. D.C.

Metro. Police Dep’t.,

(D.D.C. 2008)). 3 The third element is not

relevant to Ms. Mannina’s motion, as it pertains only to the appropriate sanction. The standard

of proof for the award of issue-related sanctions, such as the preclusion of evidence or adverse

inference instructions, is a preponderance of the evidence. Shepherd,

. The

standard of proof for the award of penal sanctions, such as fines, fees, and dismissal, is clear and

convincing evidence.

3 Some district courts within this Circuit have found that this three-factor standard is specific to adverse inference sanctions, and that another standard may be appropriate for punitive sanctions like dismissal. See, e.g., Landmark Legal Found. v. EPA,

, 219–20 (D.D.C. 2015); Clarke v. WMATA,

(D.D.C. 2012) (citing Webb v. District of Columbia,

(D.C. Cir. 1998)). Other courts, however, have applied the same three-factor standard to punitive sanctions. See, e.g., Borum v. Brentwood Village, LLC,

, 44 (D.D.C. 2019). Other circuits have also applied the same three-factor test to both types of spoliation sanctions. See, e.g., Zubulake v. UBS Warburg, LLC (“Zubulake IV”),

(S.D.N.Y. 2003) (applying three-factor standard to “[a] party seeking an adverse inference instruction (or other sanctions)”) (emphasis added); Victor Stanley, Inc. v. Creative Pipe, Inc.,

, 520–21 & n. 31 (D. Md. 2010) (collecting cases). Regardless, before awarding any spoliation sanctions, the Court must first find that spoliation occurred—the sole focus of Ms. Mannina’s Motion. Thus, the Court saves for another day the issue of whether the same standard applies to both adverse inference sanctions and punitive sanctions.

4 DISCUSSION

I. The Court May Consider the Instant Motion

A. Local Civil Rule 7(m) Permits, But Does Not Require, Dismissal

The District asserts in passing that the Motion should be denied because Ms. Mannina

failed to meet and confer as required by Local Civil Rule 7(m). See Def.’s Mem. at 4 n.1. Ms.

Mannina asserts that “the [Local Civil] Rule 7(m) meet and confer requirements do not apply to

this Motion” because Ms. Mannina raised the same issues in prior motions, the parties argued the

same issues at the October 16, 2018 status conference, and the Court “ordered” Ms. Mannina to

file this Motion. See Pl.’s Mot. at 3.

Even if Ms. Mannina failed to meet and confer, the Court will consider the merits of her

Motion. See Equal Rights Ctr. v. Post Prop., Inc.,

(D.D.C. 2007) (granting-in-

part a motion to compel despite failure to meet and confer, and admonishing the parties “to be

mindful of their meet and confer obligations as the litigation progresses and make a good faith

effort to resolve disputes before requesting the assistance of the Court”); see also Walker v.

District of Columbia,

(D.D.C. 2016) (adjudicating motion to compel but

limiting recovery of fees). In this case, Ms. Mannina’s failure to meet and confer did not

prejudice the District’s ability to brief its opposition, as Ms. Mannina has repeatedly informed

the District of her objections to the District’s preservation efforts. Indeed, the District has

acknowledged being “aware of Plaintiff’s generalized complaints” and the “specific concerns

about the pieces of evidence she discusses in her motion.” See Def.’s Mem. at 4 n.1. Although

the District claims it did not have notice of the relief sought, Ms. Mannina’s Motion does not

seek any remedies, but rather asks that the parties brief that issue later. See Pl.’s Mot. at 3. 4

4 The Court further reminds the parties that the meet and confer requirement under Local

5 B. The Court May Rule on the District’s Alleged Failure to Preserve Relevant Records While Deferring a Ruling on the Appropriate Remedy

The District argues that Ms. Mannina has improperly asked the Court to bifurcate the

spoliation issues and resolve the question of the District’s alleged failure to preserve records

separately before evaluating prejudice or the appropriate remedy. See Def.’s Mem. at 13–14.

The District argues that, because the issue of prejudice may be dispositive, Ms. Mannina’s

Motion conflicts with the prohibition against advisory opinions.

at 13 (citing Campbell-

Ewald Co. v. Gomez,

(2016) (Roberts, C.J., dissenting)). Ms. Mannina

replies that her Motion is consistent with the Court’s instructions, and that determining liability

before determining remedies is efficient and logical. Pl.’s Reply at 7.

Ms. Mannina correctly cites to the Court’s instructions. At the October 16, 2018 hearing,

Ms. Mannina’s counsel specifically asked whether Ms. Mannina may “file a motion with respect

to the hold harm—to the litigation hold letters and then, depending on the conclusion there . . .

file a motion on spoliation,” or whether Ms. Mannina should file “the whole spoliation memo.”

10/16/18 Hr’g Tr. 32:18–24, ECF No. 109 (emphasis added). The Court responded that Ms.

Mannina’s motion “may be a motion for sanctions” or may better be described as a “motion

regarding the alleged deficiencies in the . . . litigation holds.”

at 33:3–9. Thus, the Court left

open the door for Ms. Mannina to present her motion as she saw fit, including by bifurcating

liability and remedies.

Civil Rule 7(m) is not only a notice requirement. The Rule encourages parties to narrow the areas of dispute and reduce the Court’s workload. See, e.g., Ellipso, Inc. v. Mann,

(D.D.C. 2006) (“The purpose of the Local Rule is to promote the resolution of as many litigation disputes as possible without court intervention, or at least to force the parties to narrow the issues that must be brought to the court.”). Especially where, as here, the Court does not “order” briefing on specific issues, but rather permits briefing as a party sees fit, the meet and confer requirement encourages parties to focus their arguments on the most relevant, disputed issues.

6 Nor does the lack of prejudice alleged by the District force this Court to issue an

“advisory opinion.” First, the Court cannot determine at this time whether there is a lack of

prejudice, as Ms. Mannina has not briefed the issue of prejudice. See, e.g., Robles v. Kerry,

(D.D.C. 2014) (declining to decide sovereign immunity issues based on

complexity and insufficient briefing). The next logical step would be for the Court to order

supplemental briefing on the issue of prejudice—effectively achieving the same result as Ms.

Mannina’s plan. See, e.g., Huber v. United States, 14-cv-1380 (TSC),

, at *1

(D.D.C. April 16, 2019) (“[B]ecause the parties submitted insufficient evidence and briefings on

the issue of damages, the court orders the parties to submit supplemental briefing on this issue.”).

Second, the District’s reliance on Campbell-Ewald is misplaced. In that case, the Court

held that “an unaccepted settlement offer or offer of judgment does not moot a plaintiff’s case.”

Campbell-Ewald,

. Thus, even if the District agreed to spoliation sanctions

(which it does not), Ms. Mannina’s Motion would not be mooted unless and until Ms. Mannina

accepted the District’s offer. In sum, Ms. Mannina’s Motion asks the Court to adjudicate a live

controversy regarding the legal rights and obligations of adverse parties.

II. The District Has Failed to Preserve Evidence in This Action

Ms. Mannina points to three specific instances of destroyed evidence: (1) a videotaped

interview with Hassan Pye (“Pye Video”), Mr. Mannina’s cellmate at the time of his death and

the only witness to his death; (2) an MPD file that accompanied Mr. Mannina when he was

transferred from Montgomery County to the District; and (3) records from the Department of

Behavioral Health (“DBH Records”), including a referral to DBH made by Pretrial Services

Agency caseworker Sheena Baynes Bagley. Pl.’s Mem. at 15–17. Although Ms. Mannina

asserts that other evidence may have been destroyed, she does not identify that other evidence

7 with any specificity. Thus, the Court focuses its analysis only on whether the Pye Video, MPD

Fugitive File, and DBH Records were destroyed.

A. The DBH Records Were Not Destroyed Because They Have Not Been Shown to Exist

To show that evidence was destroyed, Ms. Mannina must first show that the evidence

existed. See, e.g., Mahaffey v. Marriott Intern., Inc.,

(D.D.C. 2012)

(“Accordingly, if no such evidence was created, it could not have been destroyed.”). The

District disputes whether DBH Records were destroyed insofar as the District asserts there is no

evidence that such records ever existed. Def.’s Mem. at 7. Ms. Mannina asks the Court to infer

the existence of DBH Records from Ms. Bagley’s deposition testimony. Specifically, Ms.

Bagley testified that a department policy required her to refer Mr. Mannina to DBH for

treatment, that she believed she likely would have done so, and that the applicable procedures

would have required that she prepare a Specialized Supervision Screening Form in connection

with the referral. Pl.’s Mem., Ex. 6 (Bagley Dep.) at 52:11–53:16, 54:20–55:12, ECF No. 96-7.

Ms. Bagley’s testimony that a record should exist is not, in itself, sufficient for this Court

to conclude such a record did exist. The scant evidence here is analogous to Mahaffey.

. In that case, the court declined to award sanctions for the alleged spoliation of

investigation records. The plaintiff argued that the defendant’s “procedures and testimony

[indicated] that . . . an investigation should have been commenced.” Mahaffey, 898 F. Supp. 2d

at 60–61 (emphasis in original). Neither the plaintiff nor the defendant, however, could locate

the investigation records or witnesses who recalled creating such documents.

. The

court held that, without evidence that the investigation records were created, there was no

evidence that the investigation records were destroyed.

at 61 (citing Rude v. Dancing Crab at

Washington Harbour,

(D.D.C. 2007)). Other courts have similarly declined to

8 award sanctions based solely on allegations that records should have been made. See Rude,

(no sanctions for spoliation of security tapes where plaintiff failed to show security

cameras were operational or in use); Figueroa v. Tillerson,

(D.D.C.

2018) (“The simple fact that the Department’s policy was for selection board members to discard

their notes says nothing about whether such notes were kept to begin with.”), aff’d in part, rev’d

in part, vacated in part sub nom. Figueroa v. Pompeo,

(D.C. Cir. 2019) (declining

to address spoliation on appeal).

Similarly, Ms. Mannina fails to identify any documents or witness testimony showing

that Ms. Bagley actually referred Mr. Mannina to DBH and created records regarding that

referral. Ms. Bagley does not recall referring Mr. Mannina for treatment. Def.’s Mem., Ex. 10

(Bagley Dep.) at 15:21–16:2, ECF No. 101-11. Ms. Bagley cannot say whether there would be a

record of the referral. Pl.’s Mem., Ex. 6 (Bagley Dep.) at 54:11–18, ECF No. 96-7. And Ms.

Bagley is unaware of anyone else creating a record of a referral. Def.’s Mem., Ex. 10 (Bagley

Dep.) at 18:5–9, ECF No. 101-11. Furthermore, the District, its contractor Pathways to Housing,

and Saint Elizabeth’s Hospital have searched their records and found no indication that a referral

was ever made. Def.’s Mem. 7–8; Def.’s Mem., Ex. 2 (Kwevie Decl.) at ¶ 6, ECF No. 101-3;

1/30/2019 Hr’g Tr. 22:15–21, ECF No. 112. Nor has Ms. Mannina located references to the

supposed referral in other records. See Zubulake v. UBS Warburg LLC (“Zubulake V”),

(S.D.N.Y. 2004) (inferring existence of email based on “oblique references to it

in other correspondence”). Because Ms. Mannina cannot show that DBH Records were created,

the Court cannot conclude that DBH Records were destroyed.

9 B. The Pye Video and MPD Fugitive File Were Destroyed

In contrast, the District does not dispute that it no longer possesses the Pye Video. Def.’s

Mem. at 4. Nor does it dispute that it no longer possesses at least some MPD files, specifically a

“MPD Fugitive Unit file.” 5

Based on the District’s admissions, the Court finds that the

District has failed to preserve the Pye Video and the MPD Fugitive Unit file.

III. The District is Responsible for the Spoliation of Evidence

“It goes without saying that a party can only be sanctioned for destroying evidence if it

had a duty to preserve it.” Zubulake IV,

. Thus, to find that the District “is

responsible for the spoliation of evidence,” the Court must first find that the District had a duty

to preserve such evidence when it was destroyed, and the destruction was accompanied by a

culpable state of mind. See, e.g., Chen,

. The Court limits its spoliation

analysis to the Pye Video and the MPD Fugitive Unit file. Because the Court cannot infer the

existence or destruction of other records, including the DBH Records, the Court does not address

whether the District’s duty to preserve extended to those hypothetical records.

A. The District’s Duty to Preserve Began in August 2013

Ms. Mannina asserts that the District had a duty to preserve evidence as early as August

1, 2013, when Ms. Mannina sent her Notice of Claim, or at the very least by June 17, 2015, when

Ms. Mannina filed her Complaint. Pl.’s Mem. at 6–8; Pl.’s Reply at 4. The District responds

5 In the District’s view, there are two sets of documents that accompanied Mr. Mannina when he was transferred—one in Mr. Mannina’s personal possession and one in the District’s possession. See Def.’s Mem. at 9. Ms. Mannina’s focus seems to be on the file in the District’s possession, which was also at issue in MPD Sergeant Ernest Cole’s deposition testimony. See Pl.’s Mem. 16. The District does not dispute that it destroyed this “Fugitive Unit file.” The District asserts that it produced the personal file to Ms. Mannina. Def.’s Mem. at 9. Thus, while the Court finds that the District has failed to preserve Mr. Mannina’s “Fugitive Unit file,” the Court withholds judgment on whether the District also failed to preserve Mr. Mannina’s personal file.

10 that “Plaintiff’s first two complaints in this action contained nothing to put the District on notice

that Plaintiff believed that MPD’s actions were either negligent or constitutionally deficient.”

Def.’s Mem. at 7; see also Not. Regarding Preservation Efforts at 2, ECF No. 91 (“Plaintiff’s

initial Complaint and her First Amended Complaint did not put the District on notice that she

alleged that MPD was at fault in failing to prevent Mr. Mannina’s suicide.”).

The duty to preserve begins “when a party should have known that the evidence may be

relevant to future litigation.” Gerlich v. U.S. Dep’t of Justice,

, 170–71 (D.C. Cir.

2013) (quoting Kronisch v. United States,

(2d Cir. 1998)) (emphasis in

original). The District’s duty to preserve evidence relevant to Ms. Mannina’s claims began in

August 2013, when Ms. Mannina’s Notice of Claim made litigation “reasonably foreseeable.”

See

Indeed, the D.C. Code requires a plaintiff to file a timely Notice of Claim so that the

District has “reasonable notice of an accident so that the facts may be ascertained and, if

possible, the claim adjusted.” Shehyn v. District of Columbia,

(D.C. 1978)

(emphasis added); see also Cornish v. District of Columbia,

(D.D.C.

2014) (“[T]he policy rationale underlying [D.C. Code] § 12-309 is to protect the District against

unreasonable claims and to give reasonable notice to the District so that the facts underlying the

claims may be ascertained and, if possible, deserving claims may be settled without litigation.”).

Further, Ms. Mannina’s Notice of Claim is sufficiently clear to explain the nature of her

claims. See Compl., Ex. 2 (Notice of Claim), ECF No. 1. Specifically, Ms. Mannina alleged that

“the City, and its agents, servants and employees, was negligent in assessing, monitoring,

segregating and supervising Paul Mannina while he was incarcerated.” Id. at 2. The Notice of

Claim also identified claims that “the District of Columbia has engaged in a pattern and practice

11 of failing [to] appropriately assess, monitor, segregate and supervise inmates and detainees,

including pretrial detainees, who present medical and mental health risks.” Id.

The District cannot credibly argue that Ms. Mannina’s well-plead Notice of Claim did not

give it notice that “future litigation was reasonably foreseeable.” Gerlich,

.

Thus, the Court finds that the District’s duty to preserve began upon its receipt of Ms. Mannina’s

Notice of Claim, which was sent on August 1, 2013. 6

The MPD Fugitive Unit file and the Pye Video were both destroyed after August 1, 2013.

Both pieces of evidence were destroyed following a three-year retention period. See Def.’s

Mem. at 17. The MPD Fugitive Unit file accompanied Mr. Mannina’s transfer, which occurred

on June 12, 2013. Id. at 8. The Pye Video was recorded on June 18, 2013. See Def.’s Mem.,

Ex. 9 (Synopsis of Interview with Hassen Pye) at 3, ECF No. 101-10. Thus, the evidence was

likely destroyed after June 2016, well after the duty to preserve began.

B. The District’s Duty to Preserve Extends to Evidence Possessed by MPD

The District contends that its duty to preserve did not extend to MPD 7 because

“Plaintiff’s first two complaints in this action contained nothing to put the District on notice that

6 One could plausibly argue that the District’s duty to preserve began even earlier, such as at the time of Mr. Mannina’s death, or when the District initiated an internal investigation into Mr. Mannina and other inmates’ suicides. See Estate of Gaither v. District of Columbia,

, 03-cv-1458 (CKK), at *3 (D.D.C. Jan. 9, 2013) (duty to preserve began when decedent was stabbed as “litigation would likely arise as a result of the incident”); Gerlich,

(duty to preserve may also begin with a reasonably foreseeable internal department investigation). Yet, while the underlying incident or the District’s internal investigation may have provided notice of an injury, the Notice of Claim specified the alleged negligence. By clarifying Ms. Mannina’s cause of action, the Notice of Claim also clarified the scope of relevant evidence, and is therefore the more appropriate trigger. 7 The parties also dispute whether the District’s duty to preserve extends to the Mayor’s Office, the D.C. Council, DBH, Pathways to Housing, and Saint Elizabeth’s Hospital. See 1/30/19 Hr’g Tr. at 24:25–24:15, ECF No. 112 (the District asserting no duty to preserve as to the Mayor’s Office or the D.C. Council); 1/30/19 Hr’g Tr. at 21:20–21, 23:20–23, ECF No. 112 (the District asserting no duty to preserve as to DBH, Pathways to Housing, and Saint

12 Plaintiff believed that MPD’s actions were either negligent or constitutionally deficient.” Def.’s

Mem. at 7. That position construes the duty to preserve too narrowly. The District has a duty to

preserve “what it knows, or reasonably should know, is relevant in the action, is reasonably

calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested

during discover, and/or is the subject of a pending discovery request.” Mahaffey,

(citing Arista Records, Inc., v. Sakfield Holding Co.,

, 33 n.3 (D.D.C.

2004)). Evidence is “relevant” when it bears on the “claims or defenses of any party.” Zubulake

IV,

(emphasis in original). Thus, the issue is not whether the District had

evidence of MPD’s negligence, but whether the District through MPD had evidence of any

party’s negligence or due care, including DOC or Mr. Mannina himself. Given that Mr.

Mannina passed through MPD custody in the time between his arrest and his death, the District

should have anticipated that MPD might possess records relevant to this litigation.

Relevance does not turn on whether evidence is “favorable” to Ms. Mannina’s claims.

Such an inquiry is only necessary when determining the appropriate sanction—not when

determining whether a duty was breached. See, e.g., Mahaffey,

(adverse

inference instruction may be awarded where spoliated evidence was “relevant to the moving

party’s claims or defenses”) (citing Chen,

); Zubulake IV,

(“In order to receive an adverse inference instruction, Zubulake must demonstrate not only UBS

destroyed relevant evidence as that term is ordinarily understood, but also that the destroyed

evidence would have been favorable to her.”). The spoliated evidence must be favorable in order

to award sanctions, because the court must determine the injury and fashion a sanction that

Elizabeth’s Hospital). Because the Court does not find that those other entities destroyed relevant evidence, the Court does not address whether those other entities are subject to the District’s duty to preserve.

13 remedies the prejudice. Shepherd,

(“We agree with the First Circuit that the

district court must properly ‘calibrate the scales’ to ensure that the gravity of an inherent power

sanction corresponds to the misconduct.”). The spoliated evidence need not be favorable in

order to find a breach, because the duty to preserve is owed to the Court, and not to an adverse

party. Victor Stanley, 269 F.R.D. at 525–26 (“The court’s inherent authority to impose sanctions

for spoliation of evidence is a means of preserving ‘the integrity of the judicial process’ so that

litigants do not lose ‘confidence that the process works to uncover the truth.’”) (citing Silvestri

v. Gen. Motors. Corp.,

(4th Cir. 2001)).

Both the MPD Fugitive Unit file and Pye Video are potentially relevant to Ms. Mannina’s

claims. The MPD Fugitive Unit file is created as part of the District’s practice or procedure

when transferring a prisoner from another jurisdiction, and its contents are potentially relevant to

Ms. Mannina’s claim that District employees negligently failed to document, assess, or respond

to Mr. Mannina’s risk for suicide. See Def.’s Mem. at 9 (describing the Fugitive Unit file). The

Fugitive Unit file also includes the contact information for the detectives that issued Mr.

Mannina’s arrest warrant.

The Pye Video is also clearly relevant, as it is the only eyewitness

account relating to Mr. Mannina’s suicide and describes Mr. Mannina’s behavior leading up to

the incident. Id. at 16. Therefore, those records should have been preserved.

C. The District’s Spoliation was Negligent

A party may have a ‘culpable state of mind’ that would support a finding of potentially

sanctionable spoliation even if the party did not act in bad faith or purposefully destroy records.

Mahaffey, 289 F. Supp. 2d at 61; see also Vasser v. Shulkin, 14-cv-185 (RC),

,

at *6 (D.D.C. Nov. 22, 2017). Mere negligence may suffice to impose sanctions such as an

adverse evidentiary inference. See Mahaffey, 289 F. Supp. 2d at 61. Ms. Mannina asserts that

14 the District failed to meet its legal and ethical duty to preserve records, and alternates between

characterizing that failure as negligent, grossly negligent, or willful misconduct. See Pl.’s Mem.

at 1 (describing both negligent and willful misconduct); id. at 12 (describing the District’s

preservation as “grossly negligent”); Pl.’s Reply at 6 (applying negligence standard); Pl.’s Reply

at 13 (describing the District’s spoliation as “willful”).

Ms. Mannina particularly faults the District for its failure to issue litigation hold letters

until well into litigation. Pl.’s Reply at 5–7. The District responds that “[Ms. Mannina] has not

shown that the District intentionally destroyed this evidence in bad faith or due to gross

negligence.” Def.’s Mem. at 14 (citing Chen,

). The District also asserts

that it requested and preserved relevant documents at the outset of litigation, obviating the need

for a litigation hold.

.

The District’s failure to issue a formal litigation hold does not necessarily render its

failure to preserve records sanctionable. Parties may determine how best to meet their

preservation duties, based on the scope of the lawsuit and the sources of relevant evidence. See

Zubulake V,

(counsel may need to be “creative” “given the size of a company

or the scope of a lawsuit”); Haynes v. Dart, No. 08 C 4834,

, at *4 (N.D. Ill.

Jan. 11, 2010) (“The failure to institute a document retention policy, in the form of a litigation

hold, is relevant to the court’s consideration, but it is not per se evidence of sanctionable

conduct.”) (citation omitted). The Court looks to the entirety of the District’s preservation

efforts, without treating any single step as dispositive.

Here, the District seems to have determined that, rather than issuing litigation holds to its

agencies, it was preferable to issue a document request to MPD, and then retain copies of MPD’s

records. Such an approach may have been reasonable, as there is no duty to preserve identical

15 copies of evidence. See Shepherd,

(no authority that a party “had a duty to keep

searching for additional copies or the original” as long as one copy is preserved); Zubulake IV,

(duty to preserve does not extend to “multiple identical copies”). A hold letter

would only be necessary if MPD was likely to create new, relevant evidence after the document

request was issued. Ms. Mannina, however, does not point to any evidence created after the

document request letter. Nor does Ms. Mannina show that MPD was likely to create new,

relevant evidence after August 1, 2013. Thus, the District’s decision to have OAG retain copies

of MPD’s files, rather than have OAG issue and monitor a litigation hold at MPD, may have

been reasonable.

The problem is that the District issued its document request more than three years late.

This failure can only be explained by negligence. Chen,

(only negligence

could explain spoliation “in the absence of any other explanation”). Further, because there is not

even a plausible excuse for the District’s three-year delay, Ms. Mannina has established

negligence by clear and convincing evidence.

(evidence of negligence is clear and

convincing where spoliator “presented no defense of its actions except its claim that the loss of

evidence was not deliberate”).

The District does not argue that the destruction was unavoidable. See Mahaffey,

(no negligence where “there is no indication that [destruction] was anything other

than an unfortunate accident”); Zubulake IV,

(destruction caused by an office

fire might not give rise to spoliation). Nor does the District argue that issuing a document

request in 2013 would have been unduly burdensome. See Zubulake V,

(“Above all, the requirement [to ensure continued preservation] must be reasonable.”); Victor

Stanley, Inc.,

(“Breach of the preservation duty, also, is premised on

16 reasonableness.”). The District’s only argument—that it can reconstruct much of the missing

evidence after the fact—goes to harm and not whether the District exercised due care.

The record does not indicate, however, that the District’s spoliation was willful or in bad

faith, even by a preponderance of the evidence. Ms. Mannina has proved that the District failed

to preserve evidence, but has not proved why the District failed to preserve evidence. For

example, there is no evidence that the District intended to hide or alter evidence in this case. See

Victor Stanley, Inc.,

(bad faith spoliation where “Defendants deleted

thousands of files and ran programs to ensure their permanent loss immediately following

preservation requests and orders, and immediately before scheduled discovery efforts”). Rather,

the available facts indicate that the MPD evidence was destroyed pursuant to routine policies.

See Def.’s Mem. at 10. Thus, the Court finds that the District’s spoliation was negligent, by

clear and convincing evidence.

IV. The Court Requires Further Briefing to Determine the Sanctions, If Any, That Are Appropriate

The District failed to take reasonable steps to preserve the Pye Video and MPD Fugitive

Unit file, and thus may be sanctioned for the spoliation of that evidence. Mahaffey,

(“A party that fails to preserve evidence runs the risk of being justly accused of

spoliation.”) (citing Chen,

). It remains to be seen what remedies, if any,

are appropriate. The Court requires further briefing on this point.

In briefing the remedies issue, the parties shall identify any destroyed evidence (including

the MPD Fugitive Unit file and Pye Video already discussed), the prejudice caused to Ms.

17 Mannina by the destruction of that evidence, and whether sanctions shall be awarded under the

Court’s inherent power, Rule 37, or some combination thereof. 8

The Court declines to order the District to issue litigation holds at this late stage of the

case. As described above, a litigation hold is unnecessary if the District already possesses and

will retain a copy of the relevant evidence. The District is free to decide the most efficient way

to meet its preservation duties. Further, Ms. Mannina has not shown that any agency or

contractor possesses evidence that the District has not already copied. Nor has Ms. Mannina

shown that any agency or contractor is likely to create new, relevant information that should be

protected by a litigation hold.

The Court also declines to order further discovery on the scope of spoliation at this time.

Without some showing that other relevant evidence was destroyed—such as references to a

missing document, or witness testimony regarding a missing document—further discovery into

the scope of any alleged spoliation would be a mere fishing expedition. See, e.g., Hubbard v.

Potter,

(D.D.C. 2008) (“Instead of chasing the theoretical possibility that

additional documents exist, courts have insisted that the document that have been produced

permit a reasonable deduction that other documents may exist or did exist and have been

destroyed.”) (citing Zubulake v. UBS Warburg LLC (“Zubulake III”),

(S.D.N.Y. 2003).

8 The Court raises this point because the source of authority may determine what sanctions are available. Specifically, because the Court has found that Ms. Mannina has shown spoliation by clear and convincing evidence, penal sanctions may be available pursuant to the Court’s inherent authority. Shepherd,

. At the same time, because the Court has not found intentional or willful spoliation, penal sanctions may be barred pursuant to Rule 37. Fed. R. Civ. P. 37(e).

18 CONCLUSION

For the foregoing reasons, the Court finds that the District has failed to preserve evidence

in this action and is responsible for actual spoliation of evidence. The parties shall meet and

confer and submit a proposed schedule for briefing on the issue of prejudice, consistent with the

instructions in this Opinion, within fourteen days of the issuance of this opinion.

2020.02.04 February 4, 2020 15:45:13 -05'00' Dated: ROBIN M. MERIWEATHER UNITED STATES MAGISTRATE JUDGE

19