United States District Court, D. Nevada
MOTION FOR SANCTION -#66
GEORGE FOLEY, Jr., Magistrate Judge.
This matter is before the Court on Plaintiff's Motion for Sanctions (#66), filed on April 3, 2014. Defendant filed its Response to the Motion for Sanctions (#68) on April 21, 2014. Plaintiff filed her Reply (#71) on May 1, 2014. The Court conducted a hearing in this matter on May 8, 2014. Defendant filed a post-hearing Production of Documents (#73) on May 15, 2014.
Plaintiff's motion seeks the imposition of severe sanctions against Defendant on two grounds. First, Plaintiff alleges that Defendant improperly failed to preserve video evidence of the subject accident. Second, Plaintiff alleges that Defendant's counsel engaged in improper ex parte written communications with Plaintiff's treating physician, Dr. Moris Senegor.
1. Facts Relating to Accident and Possible Video Recording.
Plaintiff Stephanie Roberts was injured in an accident at Defendant's supermarket on October 21, 2009. Smith's employee Claudia Bonner prepared a Customer Incident Report on the date of the accident. According to the report:
Ms. Roberts was knocked down by an employee who came around the corner Ran into her - She fell, the olive oil bottle broke, cut her right hand. When I came to where Ms. Roberts had fallen she was on the floor sitting with a paper towel on her hand. She was bleeding, she explained that a young man one of our employees had knocked her down because he was running. She cut her right palm below the thumb with glass from the olive oil bottle she wanted to purchase. She also said she fell on her right hip and it was hurting.
Motion for Sanctions (#66), Exhibit 3.
The Customer Incident Report form contains a section entitled "Supplemental Questions" which includes the question: "Is there Video Evidence?" Ms. Bonner circled "Y" indicating that there was video evidence. In March, 2010, Plaintiff's counsel sent a letter to Defendant directing it to preserve any video recordings of the accident. Defendant's Response (#68), Exhibit H.
After this lawsuit was filed, Plaintiff served requests for production and interrogatories on Defendant. Request No. 5 requested photographs, video recordings, audio recordings and other documentary evidence. Motion for Sanctions (#66), Exhibit 5. Defendant responded to this request in August 2012 by referring to its response to Request No. 3, which requested any written or recorded statements. Id. Defendant did not otherwise indicate in its response whether any video recording of the accident existed or did not exist. Interrogatory No. 20 asked Defendant to identify any pictures, photographs, video or visual depictions of the subject incident. Defendant responded to this interrogatory by stating: "None." Motion for Sanctions (#66), Exhibit 6.
Santiago Ibarra, Jr., the Smith's employee who collided with Plaintiff, was deposed on September 6, 2012. He testified as follows:
A. I was running full speed down aisle 10. It was the dog and cat food aisle. Toward the end of the aisle I couldn't see any oncoming people, so I came to a halt.
My momentum caused me to still bump into her coming out of the corner, and I even reached to try to catch her from falling, but it was too late. And she fell and I felt horrible. The jar had broken. I felt even more horrible than I had from just bumping into her, because I seen that she was bleeding.
Q. And when you say you were running full speed -
A. I was pretty much sprinting. I wasn't jogging. I wasn't fast walking. I was running.
Q. And what part of your body ...