Case 2:09—cv—00076-RFC-RWA Document 136 Filed 02/05/13 Page 1 of 12

Ryan K.JacksonJACKSON LAW, P.C.234 East MendenhallBozeman, MT59715Telephone: (406) 585-3300Facsimile: (406) 794-0799info@iacksonlawpc.com

Todd SheaSHEA LAW FIRM‚ P.L.L.C.225 East Mendenhall, Suite IBozeman, MT59715Telephone: (406) 587-3950Facsimile: (406) 587-9752toddsheaCcüsheaIawoffice.netAttorneys for Plaintiff

UNITED STATES DISTRICT COURTDISTRICT OF MONTANA BUTTE DIVISION

ROGERG. SEGAL, as TrusteePIaintiff,

vs.

CITY OF BOZEMAN, CITY OFBOZEMAN POLICEDEPARTMENT, CITY OFBOZEMAN POLICEDEPARTMENT SERGEANTGREG MEGARGEL, in hisindividual and official capacity,CITY OF BOZEMAN POLICEDEPARTMENT OFFICERMAREK ZIEGLER, in hisindividual and official capacity,FORMER CITY OF BOZEMANPOLICE DEPARTMENT CHIEF,MARK TYMRAK, in hisindividual and official capacity,CITY OF BOZEMAN POLICE

))) CAUSE NO. CV-O9-76-BU-RFC

E Ä Q Q E J O E Q I € S J O ä € Q Q Q J E E

PLAINTIFF’S OBJECTION TOORDER ONMOTION FOR

SANCTIONS PURSUANT TO28 U.S.C. 636

Verdi v.City of Bozeman, et al.Plaintiffs Objection t0 Order on Mot/‘on for SanctionsPage 1 of 12

Case 2:O9-cv—O0O76-RFC—RWA Document 136 Filed 02/05/13 Page 2 of 12

DEPARTMENT INTERIMCHIEF, MARTIN KENT andJOHN DOES 1-10,

Defendants.\J\}\J\)

COMES NOW the Plaintiff, Roger Segal, by and through counseI‚

pursuant to 28 USC ä 636 and hereby objects_ to Magistrate Anderson’sOrders dated January 23, 2013 and January 29, 2013 (DKT #130,132,

respectively) based on the following:

The Plaintiff filed a motion for sanctions based on the Defendants’

spoliation of evidence. In short, the PIaintifFs motion was predicated onthe fact that the Defendants’ audio file of the underlying incident producedto the Plaintiff in discovery was missing a segment (the audio file was

sequentially numbered by the Defendants but it was missing a segment,i.e.‚ segment 170). The PIaintifFs motion was further predicated upon the

PIaintiff’s audio engineer’s expert opinion that the Defendants’ audio file

was missing a segment. (DKT #104.)

Following the briefing on the PIaintifFs Motion for Spoliation, The

Honorable Magistrate Richard W. Anderson entered an Order inviting all

parties to attend a hearing on November 30, 2012 “to offer such evidence

as they deem appropriate to the issue [of the alleged spoliation of

evidence].” (DKT #116.)

Verdi v.City of Bozeman, et al.P/aintiff's Objection toOrder on Motion for SanctionsPage 2 of 12

Case 2:09-cv—00076-RFC-RWA Document 136 Filed 02/05/13 Page 3 of 12

At the hearing the Defendant, Marek Ziegler, (who appeared pursuantto a subpoena issued by Plaintiff) acknowledged for the first time that a

segment of the audiotape produced in discovery was deleted, i.e., 170. As

set forth in the briefing, the Bozeman Police Department’s Answer to thePlaintiff’s spoliation claim “denies that there is a missing segment” (DKT

#127, p. 1, and DKT # 84, par. 95) and the Defendants’ joint brief in

opposition to the Plaintiff’s spoliation motion stated that “[t]here is

absoluteiy no evidence to Support [the] c|aim” that segment 170was lost or

destroyed. (DKT #113, p.8) The Court’s finding that the Defendants

acknowledged that a segment is missing disregarded the Defendants’

contrary position on this fundamental issue Ieading up to the hearing.The Court then ordered that the parties file post-hearing submissions.

The Plaintiff’s December 10, 2012 post-hearing submission, similar to its

original motion, requested an Order finding that the Defendants used

excessive force in the underlying tasing incident consistent with the

applicable Iaw set forth in Peschelv.City of Missou/a, 664 F.Supp.2d 1137,1142 (D.Mont. 2009).

On January 23, 2013, the Court entered an Order granting Plaintiff’s

Motion for Sanctions. On January 29, 2013 the Court entered an Order

Verdi v.City of Bozeman, et a/.Plaintiff’s Objection toOrder on Motion for SanctionsPage 3 of 12

Case 2:O9—cv-OO076-RFC-RWA Document 136 Filed 02/05/13 Page 4 of 12

Nunc Pro Tunc clarifying the Court’s findings concerning the specific juryinstruction ordered.

Although the Court granted the Plaintiff’s motion, the Court did not

grant Plaintiff’s request for a finding of excessive force. The Court

articulated what the Court understood to be the applicable law as follows:

Entry of default judgment, as a form of sanction, is a draconianremedy that should not be imposed absent indisgutableevidence ofwillfulness, bad faith or its equivalent. The facts andcircumstances in this case present a close call. However, whilethe circumstances surrounding the deletion of segment 170 areextremely suspicious, the Court will not impose the sanction ofdefault based on its suspicions. (See P. 12; emphasis added.)lt is respectfully submitted that the above standard imposed a

heightened and clearly erroneous standard upon the Plaintiff contrary toIaw. Peschelmakes nomention of an “indisputable evidence” requirementnor does any of the jurisprudence that was relied upon in Peschel. As to

the Court’s reluctance to enter a finding of excessive force based on its

suspicions alone, it is respectfully submitted that so long as the Defendantsherein (parties with more than adequate resources and specializing in

investigations) profess not to know how or why the segment became

missing‚ the Court will necessarily only be Ieft with its extreme suspicion.

Notwithstanding this, the extreme suspicion coupled with the Court’s

Verdi v.City of Bozeman, et al.Plaintiff’s Objection toOrderonMotion for SanctionsPage 4 of 12

Case 2:09—cv—00O76-RFC-RWA Document 136 Filed 02/05/13 Page 5 of 12

findings is more than enough under Pesche/ to enter the requested

sancfion.

Also, significantly, the Court’s articulation of the above quoted

standard omitted “fault” as a basis for entering Iiability against a spoliating

party. Fina||y‚ it bears noting that even though the Court utilized a

heightened and incorrect standard contrary to Iaw, the Court found that thiscase presents “a close caI|” as to whether there was “indisputabIe

evidence” ofwillfulness or bad faith.

The Court’s Order noted that Pesche/ v. City of Missoula, 664

F.Supp.2d 1137, 1142 (D.Mont. 2009) “thoroughly discusses the controllingMontana and federal Iaw on spoliation of evidence.” (See p. 10.)Pesche/ held that the “[t]he imposition of the more drastic sanctions of

dismissal or default judgment require a finding of ‘willfulness,wg, g; badfaith.” (Emphasis added.) The below holding bfPesche/ explains this:

"Afinding of any of these circumstances can justify the sanctionof dismissal [or entry of defauIt]." Halaco Engineering Co.‚ 843F.2d at 380 (citing Munoz-Santana v. /NS‚742 F.2d 561, 564(9th Cir.1984)); but cf. Hilao v.Estate of Marcos‚103 F.3d 762,765 (9th Cir.1996). "Fault" is a broad and amorphous conceptnot specifically defined in Ninth Circuit decisional Iaw. SeeMunoz-Santana, 742 F.2d at 564; Cine Forty-Second StreetTheatre Corp. v. Al/ied Artists Pictures Corp.,602 F.2d 1062,1067 (2nd Cir.1979). But "fault" is recoqnized as distinct from"wiIIfuIness" and "bad faith" and can serve as the basis for adismissal or default iudqment. UnitedArtists Corp. v. La CageAux Fol/es, /nc.‚771 F.2d 1265, 1270 (9th Cir.1985)‚ abrogated

Verdi v.City ofBozeman‚ et al.PlaintiffsObjection toOrder onMotion for SanctionsPage 5 of 12

Case 2:O9—cv—O0O76-RFC—RWA Document 136 Filed 02/05/13 Page 6 of 12

on other grounds‚ In re Slimick v. Si/va‚928 F.2d 304, 310 (9thCir.1990). (Emphasis added.)

Further, Peschel explained that "bad faith" is not required to justifythe imposition of sanctions for the spoliation of evidence. Id. ("Surely a

finding of bad faith will suffice, but so will simple notice of ‘potentialrelevance to the litigation."'); See also Leon‚ 464 F.3d at 959 (citation

omitted). In this respect‚ Pesche/ specifically noted neither “wilIfulness”

nor “bad faith” were found on the part of the defendant Police Departmentor involved defendant police officers in that case, but nonetheless that

Court entered a finding of excessive force against the defendants based

upon their “reckIess” Ioss of a videotape of the underlying incident. The

Peschel Court acknowledged that its ruling was tantamount to a default

judgment against the defendants. Peschelat 1141.

The following facts found by this Court establish a finding of

potentially bad faith, at the least, willfulness, and certainly “fault.”

o “lsleqment 170 was intentionallv erased, so too was the bestevidence of what transpired during the 3 to 4 minutes in question.After all, segment 170was an integral and contemporaneous part ofthe very events giving rise to this action. lt came from the heart ofthe events, and it contained conversations by Defendant officersthemseIves.” (P. 11.)

“The deletion had to have occurred while the audio was under theexclusive control of the Bozeman Police Department or Meqarqel orZiegler. Segment 170 is the best evidence regarding what transpired

Verdi v.City of Bozeman, et al.P/aintiffs Objection to OrderonMotion for SanctionsPage 6 of 12

Case 2:09—cv—00076-RFC—RWA Document 136 Filed 02/05/13 Page 7 of 12

during the 3 to 4 minutes in question and is, therefore, relevant andmateriaI.” (P. 12; emphasis added.)

o “Zieqler confirmed that he did not delete the file bv accident becausedeletion requires a distinct three-step process, and there is nodisputethat file 170 was first recorded prior to its erasure.” (P. 6; emphasisadded)

o “[O]nce Ziegler made the decision to record the events as theyoccurred and having saved the major portions of the audio, Zieglershould have saved aII of the audio Segments the evidence showsZieqler saved five audio seqments and intentionallv deleted one.” (P.10; emphasis added.)

o “Whether [the segment] was erased before or after September 20,2007, is not clear, nor is it important to claims of spoliation, which areweH founded either way.” ( P. 12.)

o “[T]he Defendants have not made any meaningful effort to ascertainwhy the file is missing.” (P. 9.)

o “ZiegIer can’t recall when, but thinks in perhaps 2012, he spent 10 to15 seconds trying to Iocate missing audio file 170 to no avaiI.” (P.9.) (The Plaintiff notified the Defendants of their missing audio file inNovember of 2010 and requested that the Defendants search for thesame, but the Defendants did not respond. P. 9.)

o “[T]he circumstances surrounding the deletion of segment 170 areextremely suspicious .. “ (P. 12.)

o As to Defendant Ziegler’s speculation that he deleted segment 170immediately after having recorded it, “[t]he Court [was] notpersuaded” by this speculation. P. 10.)

Given the above findings of the Court, the “extremeIy suspicious”

deletion of 170was “wiIIful” and at a minimum, with “fault” on the part of the

Defendants. The Court specifically cited three separate times in itsVerdi v.City of Bozeman, et al.P/aint/‘ffs Objection to Order onMotion for SanctionsPage 7 of 12

Case 2:09-cv-0OO76-RFC—RWA Document 136 Filed 02/05/13 Page 8 of 12

findings that Defendant Ziegler intentionally deleted segment 170. Black'sLaw Dictionary defines “wiI|fuI” as, “[v]oluntary and intentionaI.” Black’s

Law Dictionary defines “fault” in the civil context as, “[t]he intentional or

negligent failure to maintain some standard of conduct when that failure

results in harm to another person.” Clearly the findings of the Court faII

squarely within these definitions. Moreover, when considering that the

Defendants denied in pleadings prior to the hearing that there was a

missing segment, “bad faith” can clearly be inferred, although as noted

above, this is not required.

With the incorrect and heightened standard of “indisputable evidence”

removed from the analysis, and the proper application of “fault” included in

the analysis, there are more than sufficient factual findings when applyingPeschel and 9th Circuit case Iaw to enter the requested sanction, i.e., that

the Defendant officers used excessive force. Moreover‚ based on the

Court’s findings it is clear that the spoliation of segment 170 “threatens to

interfere with the rightful decision of the case” as noted in Peschel. Anylesser sanction would not deter the Bozeman Police Department or future

Iitigants from misrepresenting basic facts about their own deleted evidence,

deleting files at their alleged discretion, would put the risk of an erroneous

judgment on the Plaintiff, not restore the prejudice to the Plaintiff, and have

Verdi v.City of Bozeman, et al.P/aintiffs Objection toOrder onMotion for SanctionsPage 8 of 12

Case 2:09-cv-OO076—RFC—RWA Document 136 Filed 02/05/13 Page 9 of 12

a trial focused on the spoliation itself. See Peschel at p. 1145, and notingthat the “importance of video recordings to the fair, accurate, and

expeditious resolution of disputes emanating from encounters between law

enforcement and the public cannot be overstated.”

CLARIFICATION AS T0 COURT’S BACKGROUND DISCUSSION

In its “Background” section the Court provides a reference to the

conversation that occurred between Officer Ziegler and Sergeant Megargelthat was recorded on Officer ZiegIer’s digital recorder. The Order providesthat SergeantMegargel stated, “Nowwhat the fuck.”

lt is the Plaintiff’s position that Sergeant Megargel stated, “Now we’re

fucked.” On the other hand, it is the Defendants’ position that Sergeant

Megargel actually stated, “Now what the fuck.” The Plaintiff’s initial brief onthe Motion for Sanctions noted this factual discrepancy and attached a

copy of the Plaintiff’s sound engineering expert report which concluded that

Sergeant Megargel stated, “Now we’re fucked.”

Out of an abundance of caution, the Plaintiff is requesting clarification

on the Court’s transcription of the above-referenced Statement.

Specifically, the Plaintiff is requesting clarification and assurance that theCourt’s transcription of Sergeant MegargeI’s Statement is not a finding offact. The Plaintiff makes this request because the issue of what exactly

Verdi v.City of Bozeman, et al.Plaintiff’s Objection toOrder onMotion for SanctionsPage 9 of 12

Case 2:09-cv—OO076-RFC-RWA Document 136 Filed 02/05/13 Page 10 of 12

was stated was not before the Court at the Hearing on Sanctions of

November 30, 2012 and was further not addressed in the parties’ briefingas an issue to be addressed at the hearing. Also, the parties’ post-hearingbriefs did not address or request that the Court make a determination as to

what Sergeant Megargel actually stated on the audio recording.The Plaintiff has requested from the Defendants that they stipulate

that the Court’s interpretation of the Statements made on the audio

recording are n_o_t findings of fact. The Defendants have refused to stipulateto the same despite the fact that they did not offer any evidence in their

briefing or at the hearing to oppose the PIaintifFs interpretation, and the

PIaintifFs audio engineer expert’s opinion, ofwhat was stated.

CONCLUSION

The Court is empowered with discretion when formulating a remedywhen spoliation of evidence is found. However, discretion cannot be

properly applied when a cIearIy erroneous standard is relied upon in

applying discretion, i.e., utilizing an “indisputabIe evidence” requirement

and not including “fault” as a basis for the requested relief. As the Court

stated in its discussion of entering a finding of excessive force as a remedy,

“[T]he facts and circumstances in this case present a close caII” under the

heightened and incorrect standard of whether there was indisputable

Verdi v.City ofBozeman‚ et al.P/aintiff’s Objection toOrder on Motion for SanctionsPage 10 of 12

Case 2:09-cv-OOO76-RFC—RWA Document 136 Filed 02/05/13 Page 11 of 12

evidence that the Defendants deleted the audio segment either willfully or

in bad faith. The Plaintiff respectfully submits that when the proper legal

standard is applied that close call shifts to a certainty that a finding of

excessive force is just and well-founded.

For all of the foregoing reasons, Plaintiff respectfully requests that the

Court apply the proper legal standard and modify the Order entered by

Magistrate Anderson and conclude that the Defendant officers used

excessive force and further that the Plaintiff be awarded his attorneys’ fees

and costs in this matter.

The Plaintiff further requests an Order clarifying that the Court’s

transcription of the conversation between Officer Ziegler and Sergeant

Megargel in the Background section of its opinion is not a finding of fact.

Respectfully submitted this 5"‘ day of February, 2013.

/s/ Rvan K.JacksonRyan K.JacksonAttorney for Plaintiff

/s/Todd SheaTodd SheaAttorney for Plaintiff

Verdi v.City of Bozeman, et al.P/aintiffs Objection toOrder onMotion for SanctionsPage 11 of 12

Case 2:09—cv—00076—RFC-RWA Document 136 Filed 02/05/13 Page l2 of 12

CERTIFICATE OF SERVICE

I hereby certify that on the 5"’ day of February 2013, a copy of theforegoing document was served upon the following by mail, hand-deIivery‚express mail or fax:

Michael J. LiIIy [ 1 u_s_ ManBerg Lilly &Tollefson [ 1 FaxgwestMaaftgegäß [ ] Express MailW e m “ [xxxx] CM/ECFfiIing

[ ] Federal ExpressBrendon RohanPoore Roth&Robinson [ 1U-S- M3"PO Box 2000 [ 1 FaxButte,MT 59702 [ ] Express Mail

[xxxx] CM/ECF filing[ ] Federal ExpressMichele L.Braukmann

Moulton Bellingham, P.C.Suite 1900, Crowne Plaza [ ] u„s_ MailP.O. Box 2559 [ ] FaxBillings,MT59103 [ ] Express Man

[xxxx] CM/ECF filing[ ] Federal Express

/s/ Todd SheaTodd Shea

CERTIFICATE OF COMPLIANCEI hereby certify that the forgoing Brief is double-spaced, is in 14 point

type, and contains 2,167 words, excluding caption, signature, certificate ofService, and compliance.

Dated this 5"‘ day of February, 2013. /s/ Todd SheaTodd Shea

Verdi v.City of Bozeman, et al.P/aintiff’s Objection toOrder on Motion for SanctionsPage 12of 12