Free Declaration in Support - District Court of California - California


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Date: September 15, 2008
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State: California
Category: District Court of California
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Q se 3 07 cv 03114 SI Document 54-6 Filed 09/15/2008 Eg M Hm \ l
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I FRIEDMAN, JEREMY SEYFARTH SHAW
Attn: Debbie Kinney - _ Attn: Brian T. Ashe
2801 Sylhowe Road 400 Capital Mall
Oakland, CA 94602-0000 Suite 2350
Savramento, CA 95814-5858
2 Superior Court of California, County of Alameda
Rene C. Davidson Alameda County Courthouse
SMITH . . No. C-824838 '
Plaintiff(s) ·
Order
vs.
l Motion for Sanctions
roxisiaa PERMANENTE , Gmmd
Defendant(s)
n (Abbreviated Title)
The Motion for Sanctions tiled for CHRISTINE SMITH was set for hearing on 08/01/2002 at 09:00
AM in Department 31 before the Honorable Judith Ford. The Tentative Ruling was published and was
contested. .
_ The matter was argued and submitted, and good cause appearing therefore,
IT IS HEREBY ORDERED TI·IAT;
Plaintiffs Motion for Sanctions re Destruction of Documents is GRANTED IN PART as follows:
l) As a preliminary matter, the Court rejects Defendant's argument that no claim for spoliation lies
in this instance because the destruction at issue took place prior to the commencement of the instant
action. The Court finds no authority that supports the position that sanctions for spoliation are
improper where the evidence at issue is destroyed prior to a foreseeable litigation. Indeed, recent
California cases suggest that sanctions based on spoliation may be appropriate even where the
destruction takes place prior to the commencement of litigation. See, eg., Lueter v. State of Califomia
(2002) 94 Cal.App.4th 1285; Temple Community Hospital v. Superior Court (1999) 20 Cal.4th 464.
The Court also notes that Defendant, in its discussion at page 8 of its Opposition to the instant Motion,
appears to concede that sanctions for spoliation are appropriate in situations where litigation is
"contemplated" but not yet commenced. r
2) The Court also rejects Defendant's contention that sanctions are inappropriate because the
mstant action was not reasonably foreseeable by Stewart. The Court's position is that a reasonable
supervisor in Stewart's position would have known or should have known at the time of destruction that
there was a likelihood of future litigation in which the destroyed documents would be requested during
discovery.
3) I The Court iinds that the destruction of the overtime logs in question had a signiiicant impact on
Plaintiffs ability to prove her case, Defendant's contention to the contrary notwithstanding. The
purported basis for Plaintiffs termination was that Plaintiff allegedly improperly claimed overtime to
which Defendant contends Plaintiff was not entitled. Plaintiffs only tangible evidence of her entitlement
to the overtime in question was the destroyed overtime log. Without said log, Plaintiff must now
attempt to prove her entitlement to the overtime in question without resort to written evidence. This the ·
Court finds to be highly prejudicial to Plaintiff.
4) In light of the foregoing, the Court concludes that sanctions are warranted against Defendant
Order — ·

Case 3:07-cv-03114-SI

Document 54-6

Filed 09/15/2008

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