I.

FACTS AND PROCEDURAL BACKGROUND

In their complaint, real parties in interest alleged Doe was a minor and a student

enrolled in classes at one of the district’s high schools. Doe required constant adult

supervision in or outside the classroom. School personnel had reassured Doe’s father that

3 Doe would not be allowed to move freely around the campus unsupervised “because of

his susceptibility to suggestion and [because he] might wander anywhere with anyone.”

Real parties in interest alleged that, on or about March 8, 2019, two male students

took Doe, who was not supervised by an adult at the time, to a bathroom where they

sexually assaulted him. Real parties in interest alleged the same two students had

sexually assaulted Doe on five or six prior occasions, and they threatened Doe that if he

told anyone what had happened or if he resisted inappropriate sexual advances

“something bad would happen to him.” They also alleged, “the incident of the boys

entering into the bathroom to abuse [Doe] was video-recorded.” Real parties in interest

alleged the sexual assault was the result of the district’s breach of its duty to protect and

supervise Doe while on school grounds. The complaint stated causes of action for

negligence and sexual harassment by Doe and a cause of action for negligent infliction of

emotional distress by Doe’s mother and father.2

When the high school’s assistant principal was informed of the alleged incident,

he and a security officer reviewed video footage for March 5, 6, and 7, 2018, from

cameras positioned in the lunchroom. According to the assistant principal, the video

footage for March 7 showed Doe seated next to another student in the lunchroom. The

other student made a gesture with his hand, Doe nodded, and the two got up from the

lunch table and walked toward the locked bathroom. When a third student walked out of

2 The trial court subsequently granted judgment on the pleadings for the district and dismissed the cause of action for sexual harassment without leave to amend, and the court granted a request from real parties in interest to dismiss their cause of action for negligent infliction of emotional distress.

4 the bathroom, Doe and the other student entered the bathroom. They were inside the

bathroom for about four minutes. A classroom aid, who did not know the boys were

inside the bathroom, escorted another student to the bathroom. Doe and the other student

then exited the bathroom and lined up with the rest of the class for physical education.

On March 21, 2018, the assistant principal wrote a half-page narrative report about

the incident and forwarded it to the district’s risk manager. The assistant principal did

not save the March 7 video footage from the lunchroom because he assumed the school

security officer had done so or would do so. The video was automatically erased 14 days

after the alleged assault.

On September 5, 2018, real parties in interest submitted a government claim for

damages to the district.

In their sanctions motion, real parties in interest argued that, because witnesses no

longer remembered details of the incident or precisely what the video depicted, real

parties in interest were “left with only a limited account” of what had taken place and

they were “severely prejudiced” in their ability to develop their case. They argued the

trial court should impose a terminating sanction under section 2023.030 by striking the

district’s answer and entering a default judgment because: (1) the district knew the

importance of preserving the video; (2) the district’s failure to preserve the video proved

they had intentionally destroyed evidence; and (3) real parties in interest were prejudiced

by the loss of crucial evidence. In the alternative, real parties in interest requested the

trial court impose issue and evidence sanctions that essentially precluded the district from

5 proving it did not act negligently and/or that Doe was contributorily negligent. In

addition, they requested monetary sanctions in the amount of $7,060.

In its opposition, the district argued the trial court should deny the motion in its

entirety. According to the district, it was shielded from any sanctions for the routine and

good faith erasure of the video, under the safe-harbor provision of section 2023.030(f),

because it was not under a duty to preserve evidence at the time of the erasure. Relying

primarily on federal caselaw on the spoliation of evidence, the district argued a duty to

preserve evidence that might be relevant in future litigation does not arise until litigation

is reasonably foreseeable, meaning it is probable and not merely a possibility. The

district argued that, when the video was erased, a lawsuit from Doe was a mere

possibility.

In reply, real parties in interest argued the district did reasonably anticipate

that litigation would arise from the incident, that the safe-harbor provision of

section 2023.303(f) did not apply, and that the district’s intentional destruction of

crucial evidence warranted imposition of discovery sanctions.

At the hearing on the motion, counsel for the district argued the motion should be

denied because Doe’s lawsuit was not probable when the video was erased. Counsel

argued there was no evidence the district had “any notice there was going to be litigation,”

and the record did not show the district “had actual knowledge that it was probable

litigation would be pending.” Counsel for real parties in interest argued that, based on its

practice of saving video footage for law enforcement investigations, the district was on

6 notice of potential litigation. In addition, they argued the district was under a statutory

duty to preserve the video.

In its written order dated February 23, 2022, the trial court ruled that the assistant

principal (and, therefore, the district) knew the video would be important evidence “if

any further investigation, or eventual investigation, arose from the incident.” Based

solely on the district’s special relationship with Doe and its attendant duty of care toward

him, the court ruled the district “had a duty to preserve the video footage.” The court

found that, as early as March 9, 2018, the day Doe’s father was informed of the alleged

sexual assault, “it was reasonably foreseeable the incident might result in litigation

because of School’s special duty to Doe.” Therefore, the court implicitly rejected the

district’s assertion that it was shielded from sanctions by the safe-harbor provision of

section 2023.030(f).

However, the court ruled the erasure of the video was “a negligent act due to a

lack of due diligence” and not an “intentional act,” so the court denied real parties in

interest’s request for terminating sanctions. Instead, the trial court imposed on the district

issue and evidence sanctions (set forth in toto in the margin) that essentially precluded the

7 district from defending against the remaining cause of action for negligence.3 Finally,

the court imposed monetary sanctions in the amount of $4,260.

On March 14, 2022, the district filed, in this court, a petition for writ of mandate

and/or prohibition and requested an immediate stay of the proceedings in the trial court.

On March 25, we issued a stay of the proceedings and invited real parties in interest to

file a response. Real parties in interest filed their response on April 21, and on May 2 we

issued an order to show cause why the petition should not be granted. The district filed

its traverse on May 12, 2022.

II.

DISCUSSION

A. Standard of Review.

Orders imposing discovery sanctions are reviewed for abuse of discretion.

(Cornerstone Realty Advisors, LLC v. Summit Healthcare REIT, Inc. (2020)

3 The issue sanctions were as follows: “1. District’s employees were negligent in supervising . . . students in the School’s cafeteria during lunch. [¶] 2. District and its employees did not comply with the policies and procedures for the supervision of . . . students during lunch in the cafeteria. [¶] 3. Doe was not responsible for, and did not contribute to, his alleged harm. [¶] 4. District negligently allowed the destruction of video surveillance footage of the moments immediately before and after the March 8, 2018 incident, despite having knowledge that the video evidence was relevant and needed to be preserved as evidence in potential litigation that was reasonably foreseeable.” The evidence sanctions were as follows: “1. District is precluded from offering any evidence or argument that it did not have knowledge that School’s restrooms were being used for sexual assaults by . . . students. [¶] 2. District is precluded from offering any evidence, argument, or cross-examination that Doe was comparatively at fault for the subject incident. [¶] 3. District is precluded from offering any evidence, argument, or cross-examination that it complied with its policies and procedures relating to the supervision of students.”

8 56 Cal.App.5th 771, 789.) “‘We view the entire record in the light most favorable to the

court’s ruling, and draw all reasonable inferences in support of it. [Citation.] . . . . The

trial court’s decision will be reversed only “for manifest abuse exceeding the bounds of

reason.”’” (Sabetian v. Exxon Mobile Corp. (2020) 57 Cal.App.5th 1054, 1084.) A

sanctions order exceeds the bounds of reason when the trial court acted in an “arbitrary,

capricious, or whimsical” fashion. (Van v. LanguageLine Solutions (2017) 8 Cal.App.5th

73, 80.)

The trial court’s findings of fact that underlie a discovery sanction are reviewed

for substantial evidence. (Los Defensores, Inc. v. Gomez (2014) 223 Cal.App.4th 377,

390-391.) “In this regard, ‘the power of an appellate court begins and ends with the

determination as to whether, on the entire record, there is substantial evidence,

contradicted or uncontradicted, which will support the determination [of the trier of

fact].’” (Ibid.)

And, “[t]o the extent that reviewing the sanction order requires us to construe the

applicable discovery statutes, we do so de novo, without regard to the trial court’s ruling

or reasoning.” (Sinaiko Healthcare Consulting, Inc. v. Pacific Healthcare Consultants

(2007) 148 Cal.App.4th 390, 401.)

9 B. A Trial Court May Impose Sanctions for the Spoliation of Electronically

Stored Information If It Was Lost or Destroyed After the Party To Be Sanctioned Was

Under a Duty To Preserve the Evidence Because It Was Relevant To Reasonably

Foreseeable Future Litigation, Meaning Litigation That Was Probable or Likely To

Arise.

Determining whether the trial court abused its discretion when it imposed the

discovery sanctions in this case requires us to interpret the safe-harbor provision of

section 2023.030(f). “‘“The fundamental purpose of statutory construction is to ascertain

the intent of the lawmakers so as to effectuate the purpose of the law. [Citation.] ‘We

begin by examining the statutory language, giving the words their usual and ordinary

meaning. [Citation.] If there is no ambiguity, then we presume the lawmakers meant

what they said, and the plain meaning of the language governs. [Citation.] If, however,

the statutory terms are ambiguous, then we may resort to extrinsic sources, including the

ostensible objects to be achieved and the legislative history. [Citation.] In such

circumstances, we “‘select the construction that comports most closely with the apparent

intent of the Legislature, with a view to promoting rather than defeating the general

purpose of the statute, and avoid an interpretation that would lead to absurd

consequences.’”’”’” (Carrasco v. State Personnel Board (2021) 70 Cal.App.5th 117,

139.)

For the following reasons, we hold the safe-harbor provision of section 2023.030(f)

insulates a party from discovery sanctions for the material alteration or destruction of

electronically stored information if the evidence was lost before the party had a duty to

10 preserve it. The duty to preserve evidence arises when the party in possession and/or

control of the electronically stored information was objectively aware the evidence was

relevant to reasonably foreseeable future litigation, meaning the future litigation was

probable or likely to arise from an event, and not merely when litigation was a remote

possibility.

1. The plain language of section 2023.030(f) tethers the

application of the safe-harbor provision to the loss of evidence before the party to be

sanctioned had a duty to preserve it.

Section 2023.030 provides that a trial court may impose monetary and/or

nonmonetary sanctions on a party or the party’s attorney for “misuse of the discovery

process.”4 “Among other forms of sanctions, the court may ‘impose an issue sanction by

an order prohibiting any party engaging in the misuse of the discovery process from

supporting or opposing designated claims or defenses.’ ([§ 2023.030], subd. (b).) The

court may also prohibit the party from introducing designated matters in evidence. (Id.,

subd. (c).)” (Aghaian v. Minassian (2021) 64 Cal.App.5th 603, 618; see New

Albertson’s, Inc. v. Superior Court (2008) 168 Cal.App.4th 1403, 1422.) And, in

extreme cases, the trial court may issue terminating or contempt sanctions. (§ 2023.030,

subds. (d), (e).)

4Section 2023.010 provides a “nonexhaustive list” of conduct that constitutes a “‘misuse of the discovery process.’” (Kwan Software Engineering, Inc. v. Hennings (2020) 58 Cal.App.5th 57, 74.)

11 One serious form of discovery abuse is the spoliation of evidence, which is

defined as the destruction or alteration of relevant evidence or the failure to preserve

evidence for another party’s use in pending or future litigation. (Strong v. State of

California (2011) 201 Cal.App.4th 1439, 1458; Reeves v. MV Transportation, Inc. (2010)

186 Cal.App.4th 666, 681; Williams v. Russ (2008) 167 Cal.App.4th 1215, 1223.) “No

one doubts that the intentional destruction of evidence should be condemned. Destroying

evidence can destroy fairness and justice, for it increases the risk of an erroneous decision

on the merits of the underlying cause of action. Destroying evidence can also increase

the costs of litigation as parties attempt to reconstruct the destroyed evidence or to

develop other evidence, which may be less accessible, less persuasive, or both.”

(Cedars-Sinai Medical Center v. Superior Court (1998) 18 Cal.4th 1, 8 [holding Cal.

does not recognize a common law cause of action for the spoliation of evidence].)

“Chief among” the nontort remedies for the spoliation of evidence “is the

evidentiary inference that evidence which one party has destroyed or rendered

unavailable was unfavorable to that party.” (Cedars-Sinai Medical Center v. Superior

Court, supra, 18 Cal.4th at p. 11.) In addition, “[d]estroying evidence in response to a

discovery request after litigation has commenced would surely be a misuse of discovery

within the meaning of [former] section 2023, as would such destruction in anticipation of

a discovery request,” and the available sanctions to remedy that abuse include such

“potent” measures as “monetary sanctions, contempt sanctions, issue sanctions ordering

that designated facts be taken as established or precluding the offending party from

supporting or opposing designated claims or defenses, evidence sanctions prohibiting the

12 offending party from introducing designated matters into evidence, and terminating

sanctions that include striking part or all of the pleadings, dismissing part or all of the

action, or granting a default judgment against the offending party.” (Cedars-Sinai, at

p. 12.)

The safe-harbor provision of section 2023.030(f) specifically addresses when a

trial court is authorized to impose sanctions for the spoliation of “electronically stored

information”5 (ESI). “Notwithstanding subdivision (a), or any other section of this title,

absent exceptional circumstances, the court shall not impose sanctions on a party or any

attorney of a party for failure to provide electronically stored information that has been

lost, damaged, altered, or overwritten as the result of the routine, good faith operation of

an electronic information system.” (§ 2023.030(f)(1).) Finally, section 2023.030(f)(2)

provides: “This subdivision shall not be construed to alter any obligation to preserve

discoverable information.”

What constitutes alteration or destruction of ESI during the “routine, good faith”

operation of an electronic storage system is clearly tethered to whether the party in

possession of and/or control of the information was under an “obligation to preserve

discoverable information” at the time the information was altered or destroyed.

(§ 2023.030(f)(1), (2).) However, the statute does not define when a party is under such

“‘Electronically stored information’ means information that is stored in an 5 electronic medium.” (§ 2016.020, subd. (e).) “‘Electronic’ means relating to technology having electrical, digital, magnetic, wireless optical, electromagnetic, or similar capabilities.” (Id., subd. (d).)

13 an obligation to preserve information and, instead, expresses an intent not to “alter” such

an obligation that may independently exist. (Ibid.)

2. The relevant legislative history demonstrates the safe-harbor

provision of section 2023.030(f) was not intended to relieve a party of its duty to preserve

evidence when future litigation is reasonably anticipated.

Although section 2023.030(f) is silent about when a duty to preserve ESI arises, its

legislative history provides some guidance.6 Section 2023.030 was enacted in 2004 as

part of the Civil Discovery Act. (§ 2016.010 et seq., as added by Stats. 2004, ch. 182,

§ 23.) The Civil Discovery Act did not, however, “expressly address issues relating to

the discovery of electronically stored information.” (Jud. Council of Cal., Rep. on

Electronic Discovery: Proposed Legislation (Apr. 16, 2008) p. 1.)7 In a report submitted

to the Legislature, the Judicial Council of California proposed legislation to “modernize

the Code of Civil Procedure to reflect the growing importance of discovery of

electronically stored information.” (Id. at p. 3.)

Relevant here, the Judicial Council’s report addressed the “important issue . . . of

whether sanctions should be imposed on a party that fails to produce electronically stored

information that has been lost, damaged, altered, or overwritten because of the routine,

6 Although the parties to this proceeding have discussed some of the legislative history materials recounted in this opinion, neither party has moved that we take judicial notice of those materials. (See Cal. Rules of Court, rules 8.252(a), 8.485(a).) We do so now on our own motion. (Evid. Code, §§ 452, 459; PGA West Residential Assn., Inc. v. Hulven Internat., Inc. (2017) 14 Cal.App.5th 156, 174, fn. 11.)

7 Available at (as of Dec. 22, 2022).

14 good faith operation of an electronic information system.” (Jud. Council of Cal., Rep. on

Electronic Discovery: Proposed Legislation, supra, at p. 8.) It recommended the

Legislature “add new ‘safe harbor’ provisions to several sanctions statutes, stating:

‘absent exceptional circumstances, the court shall not impose sanctions on a party or its

attorneys for failure to provide electronically stored information lost, damaged, altered, or

overwritten as a result of the routine, good-faith operation of an electronic information

system.’” (Ibid.) In addition, the report recommended that, “after each of the new ‘safe

harbor” provisions described above, the following sentence would be added: ‘This

subdivision shall not be construed to alter any obligation to preserve discoverable

information.’” (Ibid.)

In 2009, the Legislature enacted the Electronic Discovery Act, which “largely

implement[ed]” the Judicial Council’s recommendations. (Sen. Com. on Judiciary,

Analysis of Assem. Bill No. 5 (2009-2010 Reg. Sess.) June 9, 2009, p. 1.)8 The act was

designed to “‘eliminate uncertainty and confusion regarding the discovery of

electronically stored information, and thereby minimize unnecessary and costly litigation

that adversely impacts access to the courts.’ (Stats 2009, ch. 5, § 23.) The act added

several provisions to the Code of Civil Procedure to integrate . . . (ESI) into the discovery

law . . . .” (Park v. Law Offices of Tracey Buck-Walsh (2021) 73 Cal.App.5th 179, 188.)

Like the Judicial Council, the Legislature was concerned with a “distinctive feature of

electronic information systems,” to wit, “the routine modification, overwriting, and

8Available at (as of Dec. 22, 2022).

15 deletion of information which accompanies normal use.” (Sen. Com. on Judiciary,

Analysis of Assem. Bill No. 5, supra, June 9, 2009, p. 10.) To address that specific

concern, the Electronic Discovery Act enacted the recommended safe-harbor provision.

(Ibid.)

The legislative history of the Electronic Discovery Act demonstrates the safe-

harbor provisions were not intended to “relieve parties of their obligations to preserve

discoverable information. When a party is under a duty to preserve information because

of pending or reasonably anticipated litigation, a party would still be required to modify

or suspend features of the routine operation of a computer system to prevent loss of

information.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 5, supra, June 9,

2009, p. 10, italics added.)

The Electronic Discovery Act did not amend section 2023.030, but the Legislature

addressed that and other apparent oversights in 2012 when it enacted Senate Bill No. 1574

(2011-2012 Reg. Sess.). (See Vasquez v. California School of Culinary Arts, Inc. (2014)

230 Cal.App.4th 35, 41 [the Electronic Discovery Act “was amended in 2012 to expand

the provisions regarding electronic discovery”].) Inter alia, Senate Bill No. 1574 amended

section 2023.030 to add the safe-harbor provision for ESI and the accompanying language

that the section “shall not be construed to alter any obligation to preserve discoverable

information.” (§ 2023.030(f)(2), as amend. by Stats 2012, ch. 72, § 19.) As with the

Electronic Discovery Act, the legislative history of Senate Bill No. 1574 demonstrates the

Legislature expressly intended that the safe-harbor provision of section 2023.030(f)

“would not otherwise relieve parties of their obligations to preserve discoverable

16 information,” and that, “[w]hen a party is under a duty to preserve information because of

pending or reasonably anticipated litigation, a party would still be required to modify or

suspend features of the routine operation of a computer system to prevent loss of

information.” (Sen. Com. on Judiciary, Analysis of Sen. Bill. No. 1574 (2011-2012 Reg.

Sess.) as amend. Apr. 19, 2012, p. 10, italics added.)9

In short, the legislative history demonstrates the safe-harbor provision of section

2023.030(f) is intended to shield a party or a party’s attorney from sanctions for the

alteration or destruction of ESI only if the evidence was lost before the party was under a

duty to preserve that evidence “because of pending or reasonably anticipated litigation.”

(Sen. Com. on Judiciary, Analysis of Sen. Bill. No. 1574, supra, as amend. Apr. 19,

2012, p. 10, italics added.) However, the legislative history does not answer the question:

what constitutes reasonably anticipated litigation? Nor does the extant California

caselaw provide an answer.10 (See Weil & Brown, Cal. Practice Guide: Civil Procedure

Before Trial (The Rutter Group 2022) ¶ 8:19.16, pp. 8A-12 to 8A-13 [noting “there is no

known California authority in point” regarding a party’s duty to preserve ESI].)

9Available at (as of Dec. 22, 2022).

10 In its petition, the district cites two nonpublished Court of Appeal decisions that did address when the duty to preserve evidence for future litigation arises. Except for in limited circumstances, nonpublished decisions of the Court of Appeal may not be cited or relied upon by a party or a court. (Cal. Rules of Court, rule 8.1115(a).) Because we find no applicable exception to that rule (id., rule 8.1115(b)), we will ignore the cited decisions.

17 3. Under persuasive federal caselaw about the spoliation of evidence, a

duty to preserve evidence arises when the party to be sanctioned was objectively aware

that future litigation was reasonably foreseeable, meaning the litigation was probable or

likely to arise from an incident.

“There is little California case law regarding discovery of electronically stored

information . . . . We look, therefore, to federal case law on the discovery of

electronically stored information under the Federal Rules of Civil Procedure for guidance

on the subject.” (Vasquez v. California School of Culinary Arts, Inc., supra,

230 Cal.App.4th at pp. 42-43; see Reeves v. MV Transportation, Inc., supra,

186 Cal.App.4th at pp. 681-682 [discussing federal case law on the spoliation of

evidence].) “‘Because of the similarity of California and federal discovery law, federal

decisions have historically been considered persuasive absent contrary California

decisions.’” (Ellis v. Toshiba America Information Systems, Inc. (2013) 218 Cal.App.4th

853, 861, fn. 6, quoting Liberty Mutual Ins. Co. v. Superior Court (1992) 10 Cal.App.4th

1282, 1288; accord, Nagle v. Superior Court (1994) 28 Cal.App.4th 1465, 1468.)

The federal courts have held that “‘a party can only be sanctioned for destroying

evidence if it had a duty to preserve it.’” (Micron Technology, Inc. v. Rambus Inc. (Fed.

Cir. 2011) 645 F.3d 1311, 1320 (Micron).) “Spoliation refers to the destruction or

material alteration of evidence or to the failure to preserve property for another’s use as

evidence in pending or reasonably foreseeable litigation.” (Silvestri v. General Motors

18 Corp. (4th Cir. 2001) 271 F.3d 583, 590, citing West v. Goodyear Tire & Rubber Co.

(2d Cir. 1999) 167 F.3d 776, 779, italics added.) “The duty to preserve material evidence

arises not only during litigation but also extends to that period before the litigation when

a party reasonably should know that the evidence may be relevant to anticipated

litigation.” (Silvestri, at p. 591; see Gerlich v. U.S. Department of Justice (D.C. Cir.

2013) 711 F.3d 161, 170-171 [“Other circuit courts of appeals have held that a duty of

preservation exists where litigation is reasonably foreseeable. . . . We now do

likewise.”].)

Whether litigation is “‘reasonably foreseeable’” “is an objective standard, asking

not whether the party in fact reasonably foresaw litigation, but whether a reasonable party

in the same factual circumstances would have reasonably foreseen litigation. [¶] When

litigation is ‘reasonably foreseeable’ is a flexible fact-specific standard that allows a

district court to exercise the discretion necessary to confront the myriad factual situations

inherent in the spoliation inquiry. [Citation.] This standard does not trigger the duty to

preserve documents from the mere existence of a potential claim or the distant possibility

of litigation. [Citation.] However, it is not so inflexible as to require that litigation be

‘imminent, or probable without significant contingencies . . . .’” (Micron, supra,

645 F.3d at p. 1320.)

19 The parties agree that the reasonably foreseeable standard is the correct test for

determining when a party is under a duty to preserve evidence for purposes of the safe-

harbor provision of section 2023.030(f), but they disagree about the meaning of the

standard. The district argues future litigation is reasonably foreseeable if it is probable or

likely to arise from an incident, but litigation is not foreseeable if it is a mere possibility.

Real parties in interest reject the suggestion that future litigation must be probable or

likely for it to be reasonably foreseeable. We agree with the district.

Many federal district courts have ruled that the duty to preserve evidence arises

when future litigation is “probable” or “likely.” (E.g., Freidig v. Target Corp. (W.D.

Wisc. 2018) 329 F.R.D. 199, 207 [“When a party is aware of an accident that it knows is

likely to cause litigation, it triggers the party’s duty to preserve evidence.”]; In re Napster

Inc. Copyright Litigation (N.D. Cal. 2006) 462 F.Supp.2d 1060, 1068 [“The future

litigation must be ‘probable,’ which has been held to mean ‘more than a possibility.’”];

Realnetworks, Inc. v. DVD Copy Control Ass’n (N.D. Cal. 2009) 264 F.R.D. 517, 524

20 [same].)11 Relying on Hynix Semiconductor Inc. v. Rambus Inc. (Fed. Cir. 2011)

645 F.3d 1336 (Hynix II), real parties in interest argue those decisions are not good law.

We are not persuaded.

11 Accord, Pettit v. Smith (D. Ariz. 2014) 45 F.Supp.3d 1099, 1106 [ruling nonparty “had a duty to preserve evidence relevant to this case once it knew that litigation was reasonably likely.”]; Bruno v. Bozzuto’s, Inc. (M.D. Penn. 2012) 850 F.Supp.2d 462, 470 [“Plaintiffs had a duty to preserve evidence once litigation became likely.”]; Philips Electronics North America Corp. v. BC Technical (D. Utah 2010) 773 F.Supp.2d 1149, 1195 [“In most cases, the duty to preserve is triggered by the filing of a lawsuit, but that duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.”]; John B. v. Goetz (M.D. Tenn. 2010) 879 F.Supp.2d 787, 867 [“A duty to preserve may also arise before the filing of the complaint, if a party has notice that litigation of a matter is likely to be filed.”]; Macneil Automotive Products, Ltd. v. Cannon Automotive, Ltd. (N.D. Ill. 2010) 715 F.Supp.2d 786, 801 [party has a duty to preserve evidence “even prior to the filing of a complaint as long as it is known that litigation is likely to commence”; ruling plaintiff would not “have known that litigation between itself and [the defendant] was probable” when it disposed of evidence at issue in later litigation]; Kounelis v. Sherrer (D. N.J. 2008) 529 F.Supp.2d 503, 518 [“An independent duty to preserve relevant evidence arises when the party in possession of the evidence knows that litigation by the party seeking the evidence is pending or probable . . . .”]; Cache La Poudre Feeds, LLC v. Land O’Lakes Farmland Feed, Inc. (D. Colo. 2007) 244 F.R.D. 614, 621 [“[T]he obligation to preserve evidence may arise even earlier [than the filing of a complaint] if a party has notice that future litigation is likely.”]; Creative Resources Group of New Jersey, Inc. v. Creative Resources Group, Inc. (E.D. N.Y. 2002) 212 F.R.D. 94, 106 [“[T]he duty to preserve may arise even prior to the filing of a complaint where a party is on notice that litigation is likely to be commenced.”]; Larison v. City of Trenton (D. N.J. 1998) 180 F.R.D. 261, 267 [ruling plaintiff could not prove cause of action for the spoliation of evidence because videotape of his arrest was destroyed before litigation was “pending or probable”]; Baliotis v. McNeil (M.D. Penn. 1994) 870 F.Supp. 1285, 1290 [duty to preserve evidence arises when party becomes reasonably aware of “‘pending or probable litigation,’” italics omitted].) “Unlike in the federal courts of appeals (see, e.g., U.S. Cir. Ct. Rules (9th Cir.), rules 36-1 to 36-5), in the federal district courts there is no formal provision to certify decisions for publication. District court orders that are included in reports such as the Federal Supplement are only ‘unofficially reported.’” (Barriga v. 99 Cents Only Stores LLC (2020) 51 Cal.App.5th 299, 316, fn. 8 (Barriga).) However, the prohibition on citing nonpublished California decisions (cited ante, fn. 10), does not apply to decisions of the lower federal courts. (Ibid.) (Hynix I), vacated in part by Hynix II, supra, 645 F.3d 1336, the district court addressed a

motion to dismiss the defendant’s patent counterclaims based on unclean hands because it

“adopted a document retention plan in order to destroy documents in advance of a planned

litigation campaign . . . .” (Hynix I, at pp. 1041-1042.) The court noted that “the primary

question” was whether the defendant adopted its document retention policy “in advance of

reasonably foreseeable litigation.” (Id. at p. 1060.) “[T]he obligation to preserve

evidence arises when ‘the party has notice that the evidence is relevant to litigation—

most commonly when suit has already been filed, providing the party responsible for the

destruction with express notice, but also on occasion in other circumstances, as for

example when a party should have known that the evidence may be relevant to future

litigation.’” (Hynix I, supra, 591 F.Supp.2d at p. 1061, quoting Kronisch v. U.S.

(2d Cir. 1998) 150 F.3d 112, 126.) “‘When a lawyer who has been retained to handle a

matter learns that litigation is probable or has been commenced, the lawyer should inform

the client of its duty to preserve potentially relevant documents . . . .’” (Hynix I, at

p. 1061, quoting American Bar Association Section of Litigation, Civil Discovery

Standards (Aug. 1999) Standard 10.) “‘[P]robable’ . . . means that litigation must be more

than a possibility [citations]. Litigation ‘is an ever-present possibility in American life.’”

(Hynix I, at p. 1061.)

22 The court in Hynix I agreed with the plaintiff that whether litigation is “‘probable’

must be viewed from the perspective of a plaintiff, who is in control of when the

litigation is to be commenced,” and “that litigation is probable when litigation is

contemplated.” (Hynix I, supra, 591 F.Supp.2d at p. 1061.) The court ruled, however,

that the litigation in that case was not “‘probable’” when the defendant adopted its

document retention policy because “the path to litigation was neither clear nor

immediate” and “several contingencies had to occur before [the defendant] would engage

in litigation . . . .” (Id. at p. 1062.) Therefore, the court ruled the defendant had not

engaged in the spoliation of evidence. (Id. at p. 1065.)

On appeal, the U.S. Court of Appeals for the Federal Circuit vacated that portion

of the decision in Hynix I. (Hynix II, supra, 645 F.3d at p. 1341.) “‘[S]poliation refers to

the destruction or material alteration of evidence or to the failure to preserve property for

another’s use as evidence in pending or reasonably foreseeable litigation.’ [Citation.]

Most relevant in this case is the point when the duty to preserve evidence begins. This

determination is informed by a number of policy considerations, including ‘the need to

preserve the integrity of the judicial process in order to retain confidence that the process

works to uncover the truth,’ [citation], and must balance the reality that ‘litigation is an

ever-present possibility in American life,’ [citation], with the legitimate business interest

of eliminating unnecessary documents and data.” (Hynix II, at pp. 1344-1345.)

23 As in our case, the parties to Hynix II agreed that the “reasonably foreseeable” test

was the correct standard but disagreed on what it meant. (Id. at pp. 1345-1347.) The

plaintiff argued “that reasonable foreseeability incorporates no requirement of imminence

of litigation, while [the defendant] argue[d] that ‘to be reasonably foreseeable, litigation

must be “imminent,” at least in the sense that it is probable and free of significant

contingencies.’” (Hynix II, supra, 645 F.3d at p. 1345.) The federal circuit disagreed

with the district court (and with the defendant) that the “reasonably foreseeable” standard

is only met when the litigation is “‘“imminent.”’” (Ibid.) “In Micron, supra, 645 F.3d

1311], this court held that that standard does not carry a gloss requiring that litigation be

‘imminent, or probable without significant contingencies.’” [Citation]. The district court

here applied just such a standard.” (Hynix II, at p. 1345.)

“The narrow standard applied by the district court in this case vitiates the

reasonable foreseeability test, and gives free reign to destroy documents to the party with

the most control over, and potentially the most to gain from, their destruction. This fails

to protect opposing parties’ and the courts’ interests in uncovering potentially damaging

documents, and undermines the level evidentiary playing field created by discovery that

lies at the heart of our adversarial system. [Citation.] [¶] Applying the correct standard

of reasonable foreseeability, without the immediacy gloss, these considerations compel a

finding that litigation was reasonably foreseeable prior to [the defendant’s] Second Shred

Day.” (Hynix II, supra, 645 F.3d at pp. 1346-1347.) Therefore, the federal circuit held

“the district court erred in applying too narrow a standard of reasonable foreseeability as

requiring that litigation be immediate or certain, which was legal error,” vacated the

24 ruling on the plaintiff’s motion to dismiss, and remanded for the district court to apply the

correct standard of reasonable foreseeability set forth in Micron, supra, 645 F.3d 1311.

(Hynix II, at p. 1347.)

Real parties in interest read Hynix II as expressly disapproving of Hynix I (and,

implicitly, the other decisions cited, ante) to the extent it read the reasonably foreseeable

standard as requiring that litigation be probable before a party has a duty to preserve

evidence. But, this reflects too broad a reading of Hynix II. The federal circuit patently

did not hold that the district court had erred by concluding litigation must be probable for

it to be reasonably foreseeable. The same appellate court had already ruled in an earlier

appeal involving the same defendant that the “‘reasonably foreseeable’” test “does not

trigger the duty to preserve documents from the mere existence of a potential claim or the

distant possibility of litigation” (Micron, supra, 645 F.3d at p. 1320, italics added), which

is consistent with saying the litigation must be “probable.” Instead, Hynix II held the

district court had erred when it ruled the future litigation must be “‘imminent, or probable

without significant contingencies.’” (Hynix II, supra, 645 F.3d at p. 1345, italics added;

see PacifiCorp v. Northwest Pipeline GP (D. Or. 2012) 879 F.Supp.2d 1171, 1190

[noting Hynix II rejected a “hyper-technical reliance on terms like ‘probable,’” italics

added].) It was the “immediacy” and “certain[ty]” glosses on the reasonable

25 foreseeability standard that the federal circuit disapproved.12 (Hynix II, at p. 1347.)

Moreover, the requirement that future litigation be probable or likely for it to have

been reasonably foreseeable is consistent with the federal analog to Code of Civil

Procedure section 2023.030(f). Rule 37(e) of the Federal Rules of Civil Procedure

(28 U.S.C.) provides for sanctions “[i]f electronically stored information that should have

been preserved in the anticipation or conduct of litigation is lost because a party failed to

take reasonable steps to preserve it, and it cannot be restored or replaced through

additional discovery . . . .”13 “The . . . rule applies only if the lost information should

have been preserved in the anticipation or conduct of litigation and the party failed to

take reasonable steps to preserve it. Many court decisions hold that potential litigants

have a duty to preserve relevant information when litigation is reasonably foreseeable.

12 Other circuit U.S. Courts of Appeals require that future litigation be “imminent” before a party is held to a duty to preserve relevant evidence. (See, e.g., Norman-Nunnery v. Madison Area Technical College (7th Cir. 2010) 625 F.3d 422, 428- 429; Turner v. Public Service Co. of Colorado (10th Cir. 2009) 563 F.3d 1136, 1149.) We will follow the federal circuit and decline to impose such an imminence requirement on the “‘reasonably foreseeable’” standard. (Micron, supra, 645 F.3d at p. 1320; see Hynix II, supra, 645 F.3d at pp. 1345, 1347.)

13 Rule 37(e) of the Federal Rules of Civil Procedure states in full: “Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: [¶] (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or [¶] (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: [¶] (A) presume that the lost information was unfavorable to the party; [¶] (B) instruct the jury that it may or must presume the information was unfavorable to the party; or [¶] (C) dismiss the action or enter a default judgment.”

26 Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to

preserve. The rule does not apply when information is lost before a duty to preserve

arises.” (Fed. Rules Civ.Proc., rule 37(e), Advisory Com. notes on 2015 amendments.)

“In applying the rule, a court may need to decide whether and when a duty to preserve

arose. Courts should consider the extent to which a party was on notice that litigation

was likely and that the information would be relevant.” (Ibid., italics added.)

Finally, we note that a probable or likely gloss on the reasonably foreseeable

standard is consistent with other tests for foreseeability. For example, in the context of a

claim of negligence, one of the major considerations in determining whether the

defendant owed the plaintiff a duty of care is “the foreseeability of harm to the plaintiff.”

(Roland v. Christian (1968) 69 Cal.2d 108, 113.) “‘“[F]oreseeability is not to be

measured by what is more probable than not, but includes whatever is likely enough in

the setting of modern life that a reasonably thoughtful [person] would take account of it

in guiding practical conduct.”’” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1145,

quoting Bigbee v. Pac. Tel. & Tel. Co. (1983) 34 Cal.3d 49, 57.) “Foreseeability lies on a

‘continuum from a mere possibility to a reasonable probability.’” (Tan v. Arnel

Management Co. (2009) 170 Cal.App.4th 1087, 1101, quoting Castaneda v. Olsher

(2007) 41 Cal.4th 1205, 1214.)

We find federal law on the spoliation of evidence to be persuasive and conclude

the safe-harbor provision of section 2023.030(f) applies when ESI was altered or

destroyed before the party in possession and/or control of the information was objectively

aware that the ESI would be relevant to anticipated future litigation, meaning the

27 litigation was “reasonably foreseeable.” (Silvestri v. General Motors Corp., supra,

271 F.3d at p. 590.) Litigation is reasonably foreseeable when it is “probable” or “likely”

to arise from a dispute or incident (e.g., Macneil Automotive Products, Ltd. v. Cannon

Automotive, Ltd., supra, 715 F.Supp.2d at p. 801), but not when there is no more than the

“mere existence of a potential claim or the distant possibility of litigation.” (Micron,

supra, 645 F.3d at p. 1320.) However, the “reasonable foreseeability” standard does not

require that the future litigation be “‘imminent [or] probable without significant

contingencies,’” or even “certain.” (Hynix II, supra, 645 F.3d at pp. 1345, 1347, italics

added.)

4. A breach of the district’s statutory duty to preserve evidence,

assuming such a breach occurred, does not support the trial court’s sanctions order.

Notwithstanding the foregoing, real parties in interest argue Government Code

section 53160 required the district to preserve the video and that its failure to comply

with that statutory duty gives rise to an inference of the spoliation of evidence. They

argue, at least implicitly, that even if this litigation was not “‘reasonably foreseeable’”

when the video was erased, because it was not “‘probable’” or “‘likely,’” the sanctions

order was still correct because the district breached that statutory duty.14

14 The trial court did not address a statutory duty to preserve evidence.

28 In principle, we agree that a party may be under a statutory or regulatory duty to

preserve evidence, and that, in an appropriate case, breach of that duty may result in some

form of sanction. (Cf. Temple Community Hospital v. Superior Court (1999) 20 Cal.4th

464, 477 [“[T]o the extent a duty to preserve evidence is imposed by statute or regulation

upon the third party, the Legislature or the regulatory body that has imposed this duty

generally will possess the authority to devise an effective sanction for violations of that

duty.”]; see Nelson v. Superior Court (2001) 89 Cal.App.4th 565, 572-576 [holding

government claim placed a county and its sheriff’s department on notice to preserve

audio recordings pursuant to Gov. Code, § 26202.6—the city and county analog to

§ 53160—and remanding for the trial court to decide whether destruction of the

recordings was in bad faith and what, if any, sanctions were appropriate].) However, we

are not persuaded that a breach of the district’s statutory duty to preserve evidence,

assuming there was such a breach, is controlling here or independently supports the trial

court’s sanctions order.

Government Code section 53160, subdivision (a), provides: “The head of a

special district, after one year, may destroy recordings of routine video monitoring, and

after 100 days may destroy recordings of telephone and radio communications

maintained by the special district. This destruction shall be approved by the legislative

body and the written consent of the agency attorney shall be obtained. In the event that

29 the recordings are evidence in any claim filed or any pending litigation, they shall be

preserved until pending litigation is resolved.”15

As real parties in interest contend, “several [federal] courts have held that

destruction of evidence in violation of a regulation that requires its retention can give rise

to an inference of spoliation.” (Byrnie v. Town of Cromwell Bd. of Educ. (2d Cir. 2001)

243 F.3d 93, 108-109, superseded in part by Fed. Rules Civ.Proc., rule 37(e), as stated in

Mazzei v. Money Store (2d Cir. 2016) 656 Fed.Appx. 558, 560.) But those courts have

only approved the application of an adverse evidentiary presumption about the content of

the destroyed evidence, and they do not support the imposition of more drastic sanctions.

For example, the U.S. Court of Appeals for the District of Columbia has held that entry

of a default judgment as a sanction for the destruction of evidence that should have been

maintained under a regulatory duty “is a ‘drastic’ sanction [that] is merited only when

‘less onerous methods . . . will be ineffective or obviously futile,’” and an “evidentiary

presumption that the destroyed documents contained favorable evidence for the party

prejudiced by their destruction [is] a lesser, more common sanction.” (Talavera v. Shah

(D.C. Cir. 2011) 638 F.3d 303, 311.)

15 “[R]outine video monitoring’ means video recording by a video or electronic imaging system designed to record the regular and ongoing operations of the special district, including mobile in-car video systems, jail observation and monitoring systems, and building security recording systems.” (Gov. Code, § 53160, subd. (c).) “‘[S]pecial district’” has the same meaning as “‘public agency’” in section 53050 (§ 53160, subd. (d)), to wit, “a district, public authority, public agency, and any other political subdivision or public corporation in the state, but does not include the state or a county, city and county, or city.” (§ 53050.) For the limited purpose of this proceeding, we will assume a public school district is a “special district” as contemplated in section 53160.

30 In addition, the main decision cited by real parties in interest held that a breach of

a regulatory duty to preserve evidence will support an adverse evidentiary presumption

only when “the party seeking the inference [is] a member of the general class of persons”

that the duty was designed to protect. (Byrnie v. Town of Cromwell Bd. of Educ., supra,

243 F.3d at p. 109.) And the committee notes to the 2015 amendments to rule 37(e) of

the Federal Rules of Civil Procedure caution against knee-jerk reliance on a statutory or

regulatory duty to preserve evidence when determining whether sanctions for the

spoliation of evidence are warranted. “Although the rule focuses on the common-law

obligation to preserve in the anticipation or conduct of litigation, courts may sometimes

consider whether there was an independent requirement that the lost information be

preserved. Such requirements arise from many sources—statutes, administrative

regulations, an order in another case, or a party’s own information-retention protocols.

The court should be sensitive, however, to the fact that such independent preservation

requirements may be addressed to a wide variety of concerns unrelated to the current

litigation. The fact that a party had an independent obligation to preserve information

does not necessarily mean that it had such a duty with respect to the litigation, and the

fact that the party failed to observe some other preservation obligation does not itself

prove that its efforts to preserve were not reasonable with respect to a particular case.”

(Fed. Rules Civ.Proc., rule 37(e), Advisory Com. notes on 2015 amendments, italics

added.)

31 Finally, under both federal and California law an adverse evidentiary presumption,

as a sanction for failure to comply with a statutory or regulatory duty to preserve

evidence, is only appropriate if the trier of fact concludes the evidence was intentionally

destroyed. (Fed. Rules of Civ.Proc., rule 37(e)(2)(A), (B) [inference permissible if court

finds “the party acted with the intent to deprive another party of the information’s use in

the litigation.”]; Evid. Code, § 413 [trier of fact may draw adverse evidentiary

presumption from a party’s “willful suppression of evidence”]; CACI No. 204 [“You

may consider whether one party intentionally concealed or destroyed evidence. If you

decide that a party did so, you may decide that the evidence would have been unfavorable

to that party.”]; see New Albertson’s, Inc. v. Superior Court, supra, 168 Cal.App.4th at p.

1434.)

Real parties in interest cite no authority for the proposition that they are members

of the general class of persons the Legislature intended to protect when it enacted

Government Code section 53160, and we have found none. And, even assuming they are

members of that general class, they would not be entitled to an adverse evidentiary

presumption because the trial court expressly ruled the erasure of the video was negligent

and not intentional.

Therefore, we decline to find that a breach of the district’s statutory duty to

preserve evidence, assuming there was such a breach, gives rise to a presumption of the

spoilation of evidence and independently supports the sanctions order.

32 C. The Trial Court Appears To Have Applied the Correct Legal Standard of

Reasonable Foreseeability, but the Record Does Not Support its Ruling That the District

Was Under a Duty To Preserve Evidence When the Video Was Erased.

The district argues the trial court applied the wrong legal standard when it ruled

the district had a duty to preserve evidence before the video was erased. Although we

conclude the trial court appears to have applied the correct legal standard, we conclude

the record does not support its ruling.

“Normally, we must presume the trial court was aware of and understood the

scope of its authority and discretion under the applicable law. [Citations.] ‘This rule

derives in part from the presumption of Evidence Code section 664 “that official duty has

been regularly performed.”’ [Citation.] The rebuttable presumption under section 664

‘“‘affect[s] the burden of proof’ (Evid. Code, § 660), meaning that the party against

whom it operates . . . has ‘the burden of proof’ as to the nonexistence of the presumed

fact. (Evid. Code, § 606 . . . .)”’” (Barriga, supra, 51 Cal.App.5th at pp. 333-334.)

“If the record demonstrates the trial court was unaware of its discretion or that it

misunderstood the scope of its discretion under the applicable law, the presumption has

been rebutted, and the order must be reversed. [Citation.] ‘“[A]ll exercises of legal

discretion must be grounded in reasoned judgment and guided by legal principles and

policies appropriate to the particular matter at issue.” [Citations.] Therefore, a

discretionary decision may be reversed if improper criteria were applied or incorrect legal

assumptions were made. [Citation.] Alternatively stated, if a trial court’s decision is

influenced by an erroneous understanding of applicable law or reflects an unawareness of

33 the full scope of its discretion, it cannot be said the court has properly exercised its

discretion under the law. [Citations.] Therefore, a discretionary order based on the

application of improper criteria or incorrect legal assumptions is not an exercise of

informed discretion and is subject to reversal even though there may be substantial

evidence to support that order. [Citations.] If the record affirmatively shows the trial

court misunderstood the proper scope of its discretion, remand to the trial court is

required to permit that court to exercise informed discretion with awareness of the full

scope of its discretion and applicable law.’” (Barriga, supra, 51 Cal.App.5th at p. 334.)

The district contends the trial court did not apply the correct “reasonably

foreseeable” standard as we have articulated, post. According to the district, the court

applied too speculative a standard when it ruled the district already had a duty to preserve

evidence when the video was erased because “‘it was reasonably foreseeable the incident

might result in litigation.’” We decline to place too much weight on the trial court’s use

of the word “might.” As the trial court noted, the district itself had argued in its written

opposition to the sanctions motion that it “had no reason to even suspect, let alone

reasonably expect, that any litigation might arise from the alleged incident.” (Italics

added.) Moreover, the trial court appears to have adopted the reasonably foreseeable

standard articulated by the district in its written opposition to the motion, and the court

cited federal decisions applying that standard, including Hynix II, supra, 645 F.3d 1336.

In any event, we conclude the trial court’s ruling is not supported by the extant

record. The trial court noted the district had a special relationship to Doe and other

students. Because of that special duty of care, the trial court ruled the district would have

34 been on notice that litigation would arise from an injury to Doe that was allegedly caused

by the district’s breach of its heightened duty of care, and such notice triggered the

district’s duty to preserve the video. But the mere fact that the district owed a duty of

care toward Doe, and Doe was allegedly injured, does not ineluctably lead to the

conclusion that, at the time the video was erased, the district was on notice that litigation

was probable or likely. At most, the trial court ruled the assistant principal “knew the

significance of the video and that it would be important if any further investigation, or

eventual litigation, arose from the incident.” (Italics added.)

“‘The mere existence of a dispute does not necessarily mean that parties should

reasonably anticipate litigation.’ [Citations.] Instead, the duty seems to begin

‘somewhere between knowledge of the dispute and direct, specific threats of litigation.’”

(Steves and Sons, Inc. v. Jeld-Wen, Inc. (E.D. Va. 2018) 327 F.R.D. 96, 106.) “There is

no single bright line that definitively marks when litigation reasonably should be

anticipated. Instead, courts consider a variety of factors, including the type and

seriousness of the injury; how often similar kinds of incidents lead to litigation; the

‘course of conduct between the parties, including past litigation or threatened litigation’;

and what steps both parties took after the incident and before the loss of the evidence,

including whether the defendant initiated an investigation into the incident.” (Bistrian v.

Levi (E.D. Penn. 2020) 448 F.Supp.3d 454, 468.) “[A] party’s duty to preserve arises

when it has notice that the documents might be relevant to a reasonably-defined future

litigation. Ultimately, the court’s decision as to when a party was on notice must be

guided by the particular facts of each case.” (Zbylski v. Douglas County School District

35 (D. Colo. 2015) 154 F.Supp.3d 1146, 1164 (Zbylski); see id. at p. 1163 [factors include

“notification received from a potential adversary.”].)

Real parties in interest point to nothing in the record that would necessarily have

put the district on notice that the specific incident involving Doe would probably or likely

have resulted in litigation. Doe’s father learned of the alleged incident a day later. But,

the record before us reflects that, until Doe’s parents filed their government claim some

six months later, they did not communicate with the district or with school officials in

such a manner that would have reasonably caused the district to foresee litigation.16

(See, e.g., Hollis v. CEVA Logistics U.S., Inc. (N.D. Ill., May 19, 2022, No. 19

CV 50135) ___ F.Supp.3d ___ [2022 U.S.Dist. Lexis 90234, *12] [plaintiff’s “letter that

he referred to as a ‘formal letter of complaint against CEVA Logistics for workplace race

discrimination,’ alerted CEVA both to the nature of his allegations and the relevance of

16 Real parties in interest’s reliance on J.K. v. Bellevue School Dist. No. 5 (2021) 20 Wash.App.2d 291 is misplaced. In that case, the defendant school district failed to preserve video footage that likely captured sexual assaults of a student “despite having received requests to do so—before the evidence was destroyed—from both the plaintiff and the defendant’s own counsel.” (Carroll v. Akebono Brake Corp. (2022) 22 Wn.App.2d 845, 878 [distinguishing J.K.].) No such requests to preserve the video were made in this case. Likewise, Zbylski, supra, 154 F.Supp.3d 1146 is distinguishable. In that case, the district court ruled a school district had a duty to preserve evidence about the alleged sexual assault of a student by a teacher even before the student’s parents threatened litigation. (Id. at p. 1165.) We assume without deciding that an alleged sexual assault of a student by a teacher or adult school staff member is more likely to result in litigation than an alleged assault by a fellow student. Moreover, in Zyblski, the school district was aware of rumors of inappropriate relationships between the teacher and two other female students well before the incident alleged in the lawsuit, the school expressly promised parents that it would investigate the rumors but never conducted such an investigation, and the school placed the teacher on administrative leave. (Id. at pp. 1164-1167.)

36 any video recording of the incident” and “triggered a duty to preserve video of the

incident.”]; Federal Trade Commission v. F&G International Group Holdings, LLC

(S.D. Ga. 2021) 339 F.R.D. 325, 330 [defendant’s duty to preserve evidence arose when

it was “put on notice” of an investigation by the Federal Trade Commission and when it

was instructed to suspend normal document destruction practices].)

Nor would the mere fact of the alleged sexual assault have necessarily caused the

district to immediately foresee litigation. (See Archer v. York City School District

(M.D. Penn. 2016) 227 F.Supp.3d 361, 380 [rejecting argument that school district’s

decision not to renew charter school, which resulted in “‘the disruption of 700-800

children” and the loss of “tens of millions of dollars,” would undoubtedly have put the

district on notice of probable litigation and triggered its duty to preserve an e-mail

outlining the reasons to not renew the charter school].) Certain types of incidents, such as

slip and fall accidents or prison assaults, predictably result in litigation. “That is not to say

that the mere fact of a slip-and-fall or a prison assault is always enough to put defendants

on notice of potential litigation and trigger a duty to preserve. But such an event

combined with other circumstances may often be enough that defendants should

reasonably anticipate litigation beginning soon after the incident itself.” (Bistrian v. Levi,

supra, 448 F.Supp.3d at p. 469, italics added.) For example, a store is placed on notice

that litigation is reasonably foreseeable when a customer submits a “guest incident report”

stating he or she slipped and fell on a puddle. (Freidig v. Target Corp., supra, 329 F.R.D.

at p. 207.) In addition, a party will be on notice that litigation arising from an injury is

reasonably foreseeable when, among other things, it learns the injured persons have

37 retained counsel. (See In re New Canyonlands by Night, LLC (D. Utah 2019)

415 F.Supp.3d 1020, 1024-1025.) Nothing similar occurred in this case.

Moreover, the mere fact that a party has conducted an internal investigation of an

incident and produced a report about it does not necessarily mean the party was on notice

of potential litigation. The assistant principal’s half-page narrative report merely set forth

what he observed on the video, the statements he had received from school personnel,

and some of the changes that had been made to “restroom protocols to enhance bathroom

supervision.” Although the assistant principal prepared his report at the request of the

district’s human resources department, nothing in the record indicates the district

anticipated the report would be used to defend against reasonably foreseeable litigation.

At most, the record demonstrates that preparation of such a report is a routine practice of

the district’s risk management department for use to defend against a claim, if one is

made. Without more, the report did not place the district “on ample notice of future

litigation.” (Black v. Costco Wholesale Corporation (M.D. Tenn. 2021) 542 F.Supp.3d

750, 753, italics added [noting that some courts have ruled a party has a duty to preserve

evidence when an internal report puts the party on notice of litigation].)

Finally, we disagree with real parties in interest’s belated assertion that the

district’s invocation of the attorney-client privilege and attorney work product

protection—when it opposed real parties in interest’s request for production of an

unredacted copy of the assistant principal’s report—necessarily demonstrates the district

was objectively aware that litigation was reasonably foreseeable before the video was

38 erased.17 For instance, the assistant principal’s narrative report and his e-mail

transmitting the report to the district did not state the contents of the report were

protected by the attorney-client privilege. (See, e.g., Zubulake v. UBS Warburg LLC

(S.D. N.Y. 2003) 220 F.R.D. 212, 216-217 [ruling defendant reasonably anticipated

litigation because internal company e-mails about the plaintiff were labeled attorney-

client privilege and most people in the company who were associated with the plaintiff

recognized the possibility she might sue].)

When a party asserts the attorney-client privilege and/or attorney work product

protection over a document that had been previously entered in a privilege log, courts

may consider the act of entry as evidence the party had already identified a potential

claim and had reasonably anticipated it would result in litigation. (See Oracle America,

Inc. v. Hewlett Packard Enterprise Company (N.D. Cal. 2018) 328 F.R.D. 543, 550-551.)

In contrast, the district’s claim of attorney-client privilege made during this lawsuit,

without more, “can hardly be read as an admission” that it had reasonably anticipated

litigation would commence before the evidence was destroyed. (Edifecs, Inc. v. Welltok,

Inc. (W.D. Wash., Nov. 8, 2019, No. C18-1086JLR) [2019 U.S.Dist. Lexis 194858, *12];

see Moore v. Lowe’s Home Centers, LLC (W.D. Wash., June 24, 2016, No. 2:14-cv-

01459-RJB) [2016 U.S.Dist. Lexis 82652, *9-*10] [rejecting the plaintiff’s claim that

defendant reasonably anticipated litigation and had the duty to preserve e-mails because,

17 Real parties in interest did not make this argument in support of their sanctions motion and the trial court did not rely on the district’s invocation of the attorney-client privilege and attorney work product protection when it ruled the district was under a duty to preserve the video before it was erased.

39 among other things, the defendant asserted the attorney-client privilege and attorney work

product protection during the litigation].)

In short, we conclude the extant record does not support the trial court’s ruling that

the district had a duty to preserve the video because litigation was reasonably foreseeable

at the time the video was erased. Therefore, we grant the petition and direct the trial

court to vacate its sanctions order and reconsider its ruling. The court may, in its

discretion, permit the parties to introduce additional evidence that is relevant to

determining whether the district was under a duty to preserve evidence at the time the

video was erased.

D. If the Trial Court Once More Concludes the District Should Be Sanctioned

for the Spoliation of Evidence, the Court Must Consider Whether Lesser Sanctions Are

Appropriate.

Because we now direct the trial court to vacate its sanctions order and reconsider

its ruling, we need not decide whether the issue and evidentiary sanctions it imposed

were excessive.18 However, if on remand the trial court once more concludes the district

was under a duty to preserve the video before its erasure, the court must consider whether

some lesser form of sanction is warranted.

18 Nor need we decide whether the district forfeited any challenge to the severity of the sanctions by not fully articulating such a claim in its petition. (See Magana v. Superior Court (2018) 22 Cal.App.5th 840, 854, fn. 2 [finding argument petitioner had made in the trial court but did repeat in his petition was forfeited “despite his belated attempt to resurrect it in his reply brief.”]; County of Los Angeles v. Superior Court (2013) 222 Cal.App.4th 434, 452, fn. 14 [disregarding petitioner’s argument “made for the first time in its reply to opposition to petition for writ of mandate”].)

40 “‘The trial court has broad discretion in selecting discovery sanctions, subject to

reversal only for abuse. [Citations.] The trial court should consider both the conduct

being sanctioned and its effect on the party seeking discovery and, in choosing a sanction,

should “‘attempt[] to tailor the sanction to the harm caused by the withheld discovery.’”

[Citation.] The trial court cannot impose sanctions for misuse of the discovery process as

a punishment. [Citation.] [¶] The discovery statutes evince an incremental approach to

discovery sanctions, starting with monetary sanctions and ending with the ultimate

sanction of termination. “Discovery sanctions ‘should be appropriate to the dereliction,

and should not exceed that which is required to protect the interests of the party entitled

to but denied discovery.’” [Citation.] If a lesser sanction fails to curb misuse, a greater

sanction is warranted: continuing misuses of the discovery process warrant incrementally

harsher sanctions until the sanction is reached that will curb the abuse.’” (Padron v.

Watchtower Bible & Tract Society of New York, Inc. (2017) 16 Cal.App.5th 1246, 1259-

1260, quoting Doppes v. Bentley Motors, Inc. (2009) 174 Cal.App.4th 967, 992.)

“A discovery order, though not in the form of a default or dismissal, is justifiably

treated as such where the effect of the order is to preclude proof of essential elements of

each cause of action.” (Puritan Ins. Co. v. Superior Court (1985) 171 Cal.App.3d 877,

884, citing Karz v Karl (1982) 137 Cal.App.3d 637, 648.) “The sanction of dismissal or

the rendition of a default judgment against the disobedient party is ordinarily a drastic

measure which should be employed with caution. [Citation.] The sanction of dismissal,

where properly employed, is justified on the theory the party’s refusal to reveal material

evidence tacitly admits his claim or defense is without merit.” (Puritan Ins. Co., at

41 p. 885.) Except for in cases of extreme misconduct and when other viable options are

unavailable, a trial court abuses its discretion when a sanctions order deprives a party “of

any right to defend the action upon its merits” and was “designed not to accomplish the

purposes of discovery but designed to punish” the party for not fully complying with its

discovery obligations. (Caryl Richards, Inc. v. Superior Court (1961) 188 Cal.App.2d

300, 305; accord, Newland v. Superior Court (1995) 40 Cal.App.4th 608, 613-616

[party’s failure to timely pay monetary sanctions did not warrant terminating sanctions].)

Although the trial court ruled the erasure of the video was not intentional and

denied real parties in interest’s request for terminating sanctions, the sanctions it imposed

were tantamount to terminating sanctions. The district was precluded from introducing

evidence—on the sole remaining cause of action for negligence—to prove that it did not

breach a duty of care to Doe or that Doe was contributorily negligent. If, on

reconsideration, the court once more concludes the district should be sanctioned for the

spoliation of evidence, the court must consider whether some lesser form of sanction will

remedy the discovery violation before it imposes the same or similar issue and evidence

sanctions that it did before. We express no opinion here about what sanctions would be

appropriate.

III.

DISPOSITION

The petition for writ of mandate is granted. Let a writ of mandate issue, directing

the superior court to vacate its February 23, 2022 sanction order and to reconsider its

ruling. The stay of proceedings issued by this court on March 25, 2022, is hereby lifted.

42 Petitioner shall recover its costs. (Cal. Rules of Court, rule 8.493(a)(1)(A).)

Petitioner is directed to prepare and have a writ of mandate issued, copies served,

and the original filed with the clerk of this court, together with proofs of service on all

parties.

CERTIFIED FOR PUBLICATION

McKINSTER J. I concur:

RAMIREZ

P. J.

43 [Victor Valley High School v. Superior Court, E078673]

RAPHAEL, J., Dissenting.

A 14-year-old special-needs student alleges in this lawsuit that he was sexually

assaulted by other students in a school bathroom. Investigating before the lawsuit, school

officials viewed a monitoring camera video, taken from outside the bathroom that day,

that showed employees had violated a school policy of permitting only one student at a

time in the bathroom by letting two boys in with the plaintiff. The district allowed the

video to be overwritten a couple of weeks after the incident, so it no longer exists.

Unlike the majority, I conclude that the trial court correctly found that school officials

had a duty to preserve the video because litigation about the sexual assault crime was

reasonably foreseeable when the district neglected to preserve it. I therefore respectfully

dissent from today’s holding.

I

On March 8, 2018, a special education teacher reported to an assistant principal

employed by Victor Valley Union High School District (the defendant and petitioner)

that students were discussing John Doe (the plaintiff and real party in interest) and

another student engaging in a sex act in the cafeteria restroom the previous day. At that

time, the school had a policy where a student needing to use the locked lunch restroom

would “notify the instructional assistant” who would “open the door for the student and

let them in one at a time.”

By the next school day, the assistant principal, Rafael Navarro, reviewed videos

from school monitoring cameras with a security official and wrote a report about one

1 from March 7. That video showed that Doe and another boy entered the restroom

together as another boy exited, and then an instructional aide let a third boy into the

bathroom. Navarro reviewed the video again when he discussed it with the principal.

Navarro testified that he assumed that the security official had saved the video, as

they typically recorded such incidents. Navarro discovered, however, that the video was

overwritten by new footage after about two weeks.

Doe filed a motion for terminating, issue, and evidentiary sanctions due to the loss

of the video, claiming various ways his case was harmed, including identifying the

students involved; “the location of individuals charged with supervising the special

education students”; “which student or students instigated the activity”; and whether

“coercion or force” was used to lure Doe into the bathroom.

The trial court found that the District knew “as early as March 9, 2018—the day

Doe’s parents were notified of the incident—that it was reasonably foreseeable the

incident might result in litigation because of the School’s special duty to Doe.” At that

time, the district “should have known the video would be relevant to that potential future

litigation.” Because of the statute of limitations, the district “would have known within

six months” if Doe or his parents would sue, and preserving the video “would not have

been burdensome.” To address the district’s “negligent failure to preserve important

evidence,” the court applied significant issue and evidentiary sanctions against it.

2 II

Our Code of Civil Procedure has no section addressing a duty to preserve evidence

where a lawsuit has not yet been filed, and our Supreme Court has never articulated a

standard for judicial consideration of such a duty as the basis for civil sanctions.

Under federal law, however, the duty to preserve evidence applies “when a party

reasonably should know that the evidence may be relevant to anticipated litigation.”

(Silvestri v. General Motors Corp. (4th Cir. 2001) 271 F.3d 583, 591.) The majority

adopts the federal test as California law and holds that the trial court applied “the correct

legal standard of reasonable foreseeability.” (Maj. opn., ante, at p. 33.)

The majority also identifies case law that usefully explains what it means for

litigation to be reasonably foreseeable. In particular, the majority cites a test for

foreseeability our Supreme Court applied in another context: “‘foreseeability is not to be

measured by what is more probable than not, but includes whatever is likely enough in

the setting of modern life that a reasonably thoughtful person would take account of it in

guiding practical conduct.’” (Maj. opn., ante, at p. 27 [cleaned up] [quoting Kesner v.

Superior Ct. (2016) 1 Cal.5th 1132, 1145 (Kesner)].)

The majority also applies a case stating that “no single bright line . . . definitively

marks when litigation reasonably should be anticipated” and courts consider “a variety of

factors” to determine the matter. (Maj. opn., ante, at p. 35 [quoting Bistrian v. Levi (E.D.

Pa. 2020) 448 F. Supp. 3d 454, 468].) The question is when the evidence “might be

relevant to a reasonably-defined future litigation” and a court “‘must be guided by the

3 particular facts of each case.’” (Maj. opn., ante, at p. 35 [quoting Zbylski v. Douglas

County School District (D. Colo. 2015) 154 F. Supp. 3d 1146, 1164].)1

I agree with the majority on this much and join its conclusion that the trial court

applied the correct legal standard when it determined that the school district had a duty to

preserve the video containing evidence bearing on the alleged bathroom assault.

III

As the trial court applied the correct standard, the majority recognizes that its duty

“‘begins and ends with the determination as to whether, on the entire record, there is

substantial evidence, contradicted or uncontradicted, which will support the

determination’” of the trial court. (Maj. opn., ante, at p. 9 [quoting Los Defensores, Inc.

v. Gomez (2014) 223 Cal.App.4th 377, 390-391].) Despite that highly deferential test,

the majority holds that no substantial evidence supports the trial court’s finding that

litigation was reasonably foreseeable. (Maj. opn., ante, at pp. 33-40.)

Contrary to the majority, I would conclude that ample evidence supports the trial

court. In general, a “reasonably thoughtful” school official “‘“in the setting of modern

life”’” would consider the possibility of litigation when aware of evidence bearing on

whether and how a child’s sexual assault in a school bathroom occurred. (Kesner, supra,

1 Though employing these expressive descriptions of the “reasonably foreseeable” test, the majority insists upon the unenlightening “gloss” that reasonably foreseeable means “probable or likely.” (Maj. opn., ante, at p. 27.) Probable, in this context, simply “has been held to mean ‘more than a possibility.’” (In re Napster, Inc. Copyright Litig. (N.D. Cal. 2006) 462 F.Supp.2d 1060, 1068; RealNetworks, Inc. v. DVD Copy Control Assn, Inc. (N.D. Cal. 2009) 264 F.R.D. 517, 524 [“The future litigation must be ‘probable,’ which has been held to mean ‘more than a possibility’”].) The tests quoted in the text above are more informative.

4 1 Cal.5th at pp. 1144-1145.) School officials cannot not be expected to know detailed

legal requirements. But they are professionals trained for their positions, receive

communications within their industry, and are accountable to a school board for

protecting public interests. Upon learning of a child’s sexual assault at school,

reasonable administrators would consider that the matter might end up in court.

Our Supreme Court recognized in 1970 that school districts can be liable for

student-on-student assaults through a tort action for negligently supervising the children.

(Dailey v. Los Angeles School District (1970) 2 Cal.3d 741, 749-751.) The court later

recognized that “a school district and its employees have a special relationship with the

district’s pupils” imposing duties “beyond what each person generally owes others.”

(C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 869-870 .) That

“duty of care owed by school personnel” includes an obligation to take “reasonable

measures to protect students from foreseeable injury at the hands of third parties acting

negligently or intentionally.” (Id. at p. 870.) The failure to take such measures thus leads

to “cases of employees’ alleged negligence resulting in injury to a student by another

student.” (Ibid.) School districts thus can face lawsuits that allege student sexual assaults

resulted from school personnel’s failure to adequately supervise student perpetrators.

(See J.H. v. Los Angeles Unified School Dist. (2010) 183 Cal.App.4th 123 [liability for

negligent supervision in student-on-student sexual assault and battery]; Jennifer C. v. Los

Angeles Unified School District (2008) 168 Cal.App.4th 1320 [liability for negligent

supervision in sexual assault on special needs student in an alcove].) Some federal courts

5 in other states have found litigation reasonably foreseeable to school officials simply

because a student has been sexually assaulted.2

In California, this matter has been spotlighted for school leaders, as teachers and

administrators are “mandated reporters” of child sexual assault (among other types of

abuse), subject to misdemeanor prosecution if they do not within 36 hours report the

assault to the police, sheriff, or county welfare department. (Pen. Code §§ 11165.1,

11165.7, 11165.9, 11166.) The Department of Justice has developed a form (Form SS

8572) for the mandated reports, and local law enforcement is required to investigate a

mandated report. (Pen. Code §§ 11165.14, 11166, subd. (d)(3)(C), 11169.)3 School

2 See Doe v. Fairfax County School Board (E.D. Va. June 28, 2019, No. 1:18-cv- 00614-LO-MSN) [2019 U.S. Dist.LEXIS 231371, *14] [“duty to preserve started on [the date] when Oakton administrators were informed of a potential sexual assault” by a student telling persons who communicated to school officials]; Zbylski v. Douglas County School District (D. Colo. 2015) 154 F.Supp.3d 1146, 1164 (Zbylski) [“duty to preserve was triggered no later than [the date] when the School District placed [a teacher] on administrative leave” due to concerns about inappropriate conduct with children]. The majority distinguishes Zbylski partly by “assum[ing] without deciding” that teacher sexual assaults result in litigation more often than student-on-student ones. (Maj. opn., ante, at p. 36, fn.16.) That method purportedly distinguishes the case whether or not the assumed fact is incorrect. Litigation in the two situations, however, is similar in that each requires negligence by school employees apart from the perpetrator’s actions. A teacher’s abuse of a student falls “outside the scope of her employment,” so a plaintiff cannot base a claim against a district directly on the acts but instead must base it on the negligence of personnel who knew, or should have known, of the employee’s propensities but “nevertheless hired, retained, and inadequately supervised her.” (C.A. v. William S. Hart Union High School Dist., supra, 53 Cal.4th 861 at p. 865.) Contrary to the majority, I would assume that with equivalent evidence of school officials’ negligence in supervising a person, a lawsuit is equally likely whether a sexual assault perpetrator is a teacher or student.

3 The district here had previously provided video of incidents to law enforcement, but the police did not request the video in this case until after it had been overwritten.

6 districts must provide annual training to mandated reporters, through an online training

module developed by the state Department of Social Services or a substitute for it. (Ed.

Code § 44691.)4 District officials would thus know that sexual battery means mandatory

expulsion for a student perpetrator, giving the accused student a right to an administrative

hearing and a court challenge to it. (See M.N. v. Morgan Hill Unified School Dist. (2018)

20 Cal.App.5th 607, 611, 621, fn. 9; Ed. Code §§ 48900, 48918.)

From these laws and this training, school officials would know that the video

could be relevant to civil litigation; to a criminal or juvenile court proceeding; or to

expulsion litigation against the alleged perpetrator. This cumulation makes it obvious

that evidence about whether a sexual assault occurred and who is 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.

The majority recognizes that some types of incidents “predictably result in litigation,”

such as “slip and fall accidents.” (Maj. opn., ante, at p. 37.) A sexual assault of a student

at school is such an incident. Reasonably thoughtful people whose profession is to

govern schools, charged with a special duty of care, would consider the possibility of

litigation when they possess evidence about a sexual assault of a student in their keeping.

Beyond the general and obvious need to preserve evidence of student sexual

assaults, however, evidence in our record about this sexual assault provides two

4 At present, the mandated reporting website associated with the State Department of Social Services contains a four-hour general training that is a required precursor for a three-hour training for school personnel. (See [accessed Dec. 19, 2022].)

7 compelling justifications for the trial court’s determination that litigation was reasonably

foreseeable once the school district reviewed the video.

First, school officials would have realized that the video may contain evidence of

the district’s own negligence. The vice principal, Navarro, reviewed the video at least

twice and observed evidence that supervisors failed to enforce the rule that they were to

unlock the bathroom for only one student at a time, as two boys ended up inside with

Doe. The school district was thereby aware that the incident may have resulted in part

from a violation of a student-safety procedure by its employees. (See, e.g., Jimenez v.

Roseville City School Dist. (2016) 247 Cal.App.4th 594, 602 [reversing grant of summary

judgment in a negligent supervision case, in part because the “[d]istrict did not take

adequate steps to disseminate and enforce” a policy increased the risk to students].) Such

a rule violation would be glaring to a reasonable school administrator, even without legal

training, and it distinguishes this case from some other event that the district would have

no reason to think might serve as the basis for a negligent supervision lawsuit.

Second, the district recognized that it should act to obtain and preserve

information about this sexual assault for future litigation, and it did so. According to a

declaration from the district’s risk manager, who received Navarro’s report of the video

shortly after it was drafted, and who works with school administrators and attorneys, the

district “instructed me and other employees of the District to obtain confidential

statements and reports immediately after an incident” such as the sexual assault “and

forward them to my department.” This was done so that, when a claim is later filed

against the district, “I then forward those statements and reports to any adjuster

8 administering a potential claim and/or to attorneys assigned to assist the District in

defending litigation.” Indeed, at the district’s urging, the trial court found that Navarro’s

unredacted report of the incident was subject to attorney-client privilege because “the

dominant purpose of the report is to communicate to attorneys the nature of the incident,”

where the district asserted that the “report was, in fact, prepared in order to communicate

with defense counsel effectively.” The trial court’s determination that litigation about the

sexual assault was reasonably foreseeable when Navarro reviewed the video is supported

by the district’s having acted at that time to prepare and preserve for litigation Navarro’s

report about the video.5 That is, the conclusion that litigation was foreseeable to the

district is supported because the district actually prepared for it.6

Today’s opinion finds no duty to preserve evidence for litigation where all

indications are that the district acted in accordance with a belief that there was a

5 The district claims that its invocation of attorney-client privilege over Navarro’s report “at best, indicates the mere distant possibility of litigation” when drafted, which it views as insufficient to trigger a duty to preserve evidence. District employees surely would provide evidence to the risk manager in situations where a skilled lawyer would deem the possibility of litigation “distant,” as well as those where a lawsuit would be more certain. But adopting the district’s view here means that litigation can be foreseeable enough that a party can choose to preserve as privileged some evidence in case of litigation (Navarro’s report of the video), but not foreseeable enough to create a duty to preserve similar evidence about the same matter (the video itself). At the least, under our deferential review standard, the privilege invocation provides substantial evidence in support of the trial court’s determination that litigation was reasonably foreseeable.

6 It should be of no moment that the district did not receive notification of a lawsuit until well after the video was lost. One thing that is not foreseeable is that Doe’s parents—presumably concerned with dealing with a child who had been sexually assaulted, finding out the facts, and perhaps proceeding to consult a lawyer—would threaten a lawsuit within the fourteen days before the video was overwritten.

9 reasonable probability of litigation. The district had an established policy of preserving

documentary evidence for litigation through its risk manager, and it preserved that

evidence here when Navarro created and shared a written report about the video.

Reflecting that intention to maintain evidence, Navarro assumed that video had been

preserved by the security official who reviewed it with him, but it was not saved due to a

“misunderstanding.” This simple mistake should simply burden the district with

sanctions meant to compensate the plaintiff at trial for the loss of the video. Instead, it

saddles the state with today’s unfortunate holding that a school district has no duty to

preserve evidence that may bear on whether a sexual assault of a student was committed,

how, and by whom — even when the evidence appeared to indicate the district bore some

responsibility for the assault, and even when the district actually preserved some

evidence about it for possible future litigation.

IV

The “safe harbor” provision found in Code of Civil Procedure section 2031.060

would sometimes prohibit sanctions for the failure to produce electronically stored

information (ESI). But it has no bearing on the issue before us.

The provision prohibits sanctions for ESI “that has been lost, damaged, altered, or

overwritten as the result of the routine, good faith operation of an electronic information

system.” (§ 2031.060, subd. (i)(1).) The safe harbor provision, however, “shall not be

construed to alter any obligation to preserve discoverable information.” (§ 2031.060,

subd. (i)(2).) Here, before the video was overwritten, the school identified it, reviewed it,

and determined that it contained content relevant to the district’s civil liability for

10 negligently supervising students. At that time, there was a duty to preserve it for

reasonably foreseeable litigation, just as there might be to preserve (for example) a piece

of physical evidence that might indicate an assault occurred, such as an item of clothing.

Nothing about the nature of ESI made preserving the video onerous. A person just had to

“save” the video. The video was lost because of that failure to save it, not as the result of

the district’s electronic system. Had the video been downloaded into an electronic file, it

would have been preserved even if routine video overwriting continued regularly at the

school.

Cases have held even more broadly that a party must suspend the routine

destruction of electronic evidence when litigation is foreseeable. “Once a party

reasonably anticipates litigation, it must suspend its routine document

retention/destruction policy and . . . ensure the preservation of relevant documents.”

(Zubulake v. UBS Warburg LLC (S.D.N.Y. 2003) 220 F.R.D. 212, 218; see Apple Inc. v.

Samsung Elecs. Co., Ltd. (N.D. Cal. 2012) 881 F.Supp.2d 1132, 1146-1147 [adverse

inference jury instruction was appropriate when the defendant kept an auto-delete email

policy in place even though litigation was reasonably foreseeable]; Zubulake v. UBS

Warburg LLC, supra, 220 F.R.D. at p. 218 [“Once a party reasonably anticipates

litigation, it must suspend its routine document retention/destruction policy and put in

place a ‘litigation hold’ to ensure the preservation of relevant documents”]). As the

legislative history of the safe harbor provision recognized, “this provision would not

otherwise relieve parties of their obligations to preserve discoverable information. When

a party is under a duty to preserve information because of pending or reasonably

11 anticipated litigation, a party would still be required to modify or suspend features of the

routine operation of a computer system to prevent loss of information.” (Sen. Judiciary

Comm., Bill Analysis dated 4/30/12, SB 1574 (2011-2012) Leg. Session.) This case

presents an even stronger case for preserving evidence. The district’s routine overwriting

of video did not have to be suspended; the district simply had to save a particular video it

had identified.

The safe harbor provision might protect the school district where, acting in good

faith, it did not identify ESI before it was overwritten. The situation we have, though, is

a piece of identified evidence in the hands of school officials that should have been

copied or downloaded, as the vice principal in fact intended.

V

The vexing question here, in my view, is identified in the last section of the

majority opinion. (Maj. opn., ante, at pp. 40-42.) What sanctions are appropriate where

a school has negligently failed to preserve, rather than intentionally destroyed, evidence

like the video here?

As discussed above, I would hold that the trial court properly found that sanctions

applied. Having decided that issue differently than the majority, I would grant the

petition to order the trial court to reconsider the heavy-handed sanctions to craft them as

primarily curative rather than punitive. (See Fed. R. Evid., rule 37(e)(1) [failure to take

reasonable steps to preserve information requires “measures no greater than necessary to

cure the prejudice”]; Fed. R. Evid., rule 37 advisory committee’s note [“curative

measures” should not be so severe as would be ordered for intentional destruction];

12 Silvestri v. General Motors Corp., supra, 271 F.3d at p. 590 [sanctions for lost evidence

should be molded to reflect prophylactic, punitive, and remedial purposes].)

That the school district here received harsh sanctions where it meant to preserve

the video (but accidentally did not) obscures the potentially pernicious effect of today’s

holding. Had the Victor Valley Union High School District—realizing that it might bear

some culpability for a child’s sexual assault in the bathroom—decided to erase the video

and shred memos about it, the majority’s holding means that no sanctions could be

imposed for that destruction. Today’s opinion appears less ignominious because the

school district, responsibly, intended to preserve the video. Where we hold there is no

duty to preserve evidence about a school sexual assault, though, that means that there is

nothing wrong with a less-responsible entity destroying it.

RAPHAEL

J.

13