Borrello v. Respironics California, LLC (P)

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 MIKE BORRELLO, Case No.: 3:23-cv-00580-GPC-VET 12 Plaintiff, ORDER DENYING PLAINTIFF’S 13 v. MOTION TO COMPEL PRESERVATION OF EVIDENCE 14 RESPIRONICS CALIFORNIA, LLC (P); RESPIRONICS NOVAMETRIX, LLC; [15] PHILIPS NORTH AMERICA LLC; 16 PHILIPS RS NORTH AMERICA LLC; PHILIPS DS NORTH AMERICA LLC; [17] PHILIPS HOLDING USA INC.; 18 VICTOR ROCHA, 19 Defendants. [20] 21 Before the Court is Plaintiff’s Motion to Compel Preservation of Evidence 22 (“Motion”). Doc. No. 45. Therein, Plaintiff requests that the Court compel Defendant 23 Philips RS North America LLC (“Defendant”) to identify and preserve certain records 24 related to his employment termination, implement a litigation hold, and grant Plaintiff 25 access to review and copy the preserved evidence. Id. at 2–3. Plaintiff cites the California 26 Labor Code in support of his requests and suggests Defendant is destroying evidence. Id. 27 at 1–2. Plaintiff also attaches a letter, directed to Defendant, wherein he requested certain 28 information. Defendant did not file a response to the Motion. 1 As to Plaintiff’s request for the preservation of evidence, the Court notes that 2 Defendant is already obligated to preserve evidence relevant to Plaintiff’s employment 3 termination. See Kindred v. Price, No. 18-cv-00554, 2019 U.S. Dist. LEXIS 112916 , at 4 *1–2 (E.D. Cal. July 3, 2019) (“[F]ederal law imposes a duty to preserve evidence before 5 litigation begins and even before a discovery request.”). 6 Plaintiff filed his complaint on February 27, 2023, identifying causes of action that 7 include wrongful termination. Doc. No 1-2 at 58–60. And following service of the 8 complaint on March 1, 2023, Defendant had notice of Plaintiff’s wrongful termination 9 claim. See Doc. No. 1 at 3. Therefore, Defendant’s duty to preserve evidence existed since 10 at least March 1, 2023, if not earlier. See In re Napster, Inc. Copyright Litig., 462 F. Supp. 11 2d 1060, 1067 (N.D. Cal. 2006) (“As soon as a potential claim is identified, a litigant is 12 under a duty to preserve evidence which it knows or reasonably should know is relevant to 13 the action.”); In re Toyota Motor Corp. Unintended Acceleration Mktg., 284 F.R.D. 485 , 14 497 (C.D. Cal. 2012) (“Unquestionably, there is a duty to preserve evidence that arises 15 before litigation is filed.”). Further, once the duty to preserve attaches, Defendant must 16 “suspend any existing policies related to deleting or destroying files and preserve all 17 relevant documents related to the litigation,” including communicating to employees the 18 need to retain relevant materials. In re Napster, 462 F. Supp at 1070 . 19 Moreover, while Plaintiff expresses concerns regarding the destruction of evidence, 20 he offers nothing more than his belief that Defendant “may destroy or lose relevant 21 evidence” given its purportedly “strong interest and motivation to spoliate all records.” 22 Doc. No. 45 at 2. Speculation and conjecture do not support a claim of spoliation of 23 evidence. Nida v. Allcom, No. 17-cv-02162, 2020 U.S. Dist. LEXIS 87401 , at *21 (C.D. 24 Cal. Mar. 11, 2020) (“Mere speculation is insufficient to support a claim of spoliation of 25 evidence.”). Accordingly, the Court finds that ordering the preservation of evidence or a 26 litigation hold is neither necessary nor appropriate. 27 Lastly, to the extent Plaintiff seeks access to certain documents, currently there is no 28 basis to compel Defendant to produce documents to Plaintiff. Doc. No. 45 at 4. Although 1 || Plaintiff attaches a letter showing he sought certain documents from Defendant, the letter 2 ||is not the equivalent of a formal discovery request. On the contrary, this case is still in its 3 || initial stages and discovery is not yet available to the parties. See Fed. R. Civ. Proc. 26(d) 4 ||(party may not seek discovery from any source prior to conferring under Federal Rule of 5 || Civil Procedure 26(f)). Nor did Plaintiff seek permission to conduct early discovery. In 6 || short, at this juncture, discovery is not yet open, and Plaintiff's efforts to obtain and compel 7 || discovery are premature. Duran vy. City of Porterville, No. 12-cv-1239, 2013 U.S. Dist. 8 || LEXIS 7297, at *2 (E.D. Cal. Jan. 15, 2013) (“Rule 26(d)’s proscription sweeps broadly: 9 ||not only may a party not ‘serve’ discovery, it may not even ‘seek’ discovery from any 10 ||source until after the Rule 26(f) conference.”’). 11 Based on the foregoing, Plaintiff's Motion is DENIED. The Court directs Plaintiff 12 consult this Court’s Civil Local Rules and the undersigned’s Civil Chambers Rules to 13 ensure future compliance with applicable rules concerning discovery disputes.! 14 IT IS SO ORDERED. 15 Dated: June 26, 2024 recs [16] 7 Honorable Valerie E. Torres United States Magistrate Judge [23] Plaintiff is advised that before he seeks discovery relief from the Court in the future, he must comply with this Court’s Civil Local Rules and the undersigned’s Civil Chambers 25 Rules, including meet and confer requirements. See King v. Atiyeh, 814 F.2d 565 , 567 26 (9th Cir. 1987) (pro se litigants are held to “the same rules of procedure that govern other litigants”). U.S. Magistrate Judge Valerie E. Torres’ Civil Chambers Rules are 27 available at: https://www.casd.uscourts.gov/Judges/Judge-Info.aspx. Discovery motions pursuant to Fed. R. Civ. P. 26—37 and 45 may not be filed without prior leave 28 of the Court. See J. Torres Civ. Chambers R. VIII.D.