Jane Doe No. 1 v. Hirahara, et al.

There does not appear to be any dispute as to the timeline set forth in plaintiffs’ moving papers: A recording device was found on January 10, 2024 and Costco personnel used a laptop from the display floor to open the memory card in the device. An internal investigation ensued between January 11 and 12, 2024. On January 24, 2024 Costco was served with a search warrant from the Fresno Police Department seeking records from December 13, 2023 to January 11, 2024. On May 30, 2024, plaintiffs’ attorneys served a notice to preserve electronic and digital evidence on servers used by Costco and related entities, computers, smart phones, and other electronic devices used by current and former employees, owners, directors and management of Costco and relevant third parties.

The notice also requested mirror image copies be made of the hard drives of desktop and laptop computers of all relevant officers, directors, managing agents and employees to preserve the electronic information. This action was initiated on July 5, 2024 and the initial discovery requests were served July 29, 2024.

Plaintiffs argue this timeline supports finding Costco was aware that it was in possession and control of electronically stored information relevant to reasonably foreseeable future litigation. Costco asserts that the conduct giving rise to the incident was criminal and wholly outside of defendant Hirahara’s scope of employment and, thus unforeseeable as a basis of litigation against Costco. Defendant also asserts there is no relevant evidence within the surveillance footage or laptop to trigger a duty to preserve.

The court finds the circumstances support finding Costco was on notice of a duty to preserve the surveillance footage but not the laptop.

Costco has indicated that the surveillance footage at issue was provided in response to the Fresno Police Department search warrant and later over-written in accordance with its policies. The search warrant evinces foreseeable litigation regarding the incident and, in line with the standard set forth in Victor Valley Union High School Dist. v. Superior Court, Costco was under a duty to preserve relevant electronically stored information. The surveillance footage provided to the police is clearly relevant to the incident.

The necessity to preserve the laptop used to initially open the memory card from the device is less clear. The laptop was a floor display and subject to a procedure where the devices are regularly cleared and would have been cleared again before being sold to a Costco member. The device did not belong to any Costco employee nor was it used for regular business. Although there may have been relevant information in the laptop there is no evidence Costco was objectively aware that this laptop was relevant to foreseeable litigation and it does not fall into the categories of information or devices Costco was later given written notice to preserve.

Sanctions

The court is guided by several principles in determining what sanctions to impose for a discovery violation. First, the sanction should not result in a windfall to the party seeking the discovery. The choice of sanctions should not give that party more than would have been obtained if discovery had been provided. (See Rutledge v. Hewlett- Packard Co. (2015) 238 Cal.App.4th 1164, 1194.) 7

Second, before imposing a “terminating” sanction, courts should usually grant lesser sanctions: e.g., orders staying the action until plaintiff complies, or orders declaring matters as admitted or established if answers are not received by a specified date, often accompanied with costs and fees to the moving party. It is only when a party persists in disobeying the court's orders that the ultimate sanction of dismissing the action or entering default judgment, etc. are justified. (Deyo v. Kilbourne (1978) 84 Cal.App.3d 771, 796; Lopez v. Watchtower Bible & Tract Soc. of New York, Inc. (2016) 246 Cal.App.4th 566, 604 [discovery statutes evince an incremental approach, starting with monetary sanctions and ending with ultimate terminating sanction].)

Here, plaintiffs have not provided evidence to support finding that the deletion of the surveillance footage was intentional or willful to support the terminating sanction requested. There is no evidence that the surveillance footage was deleted after the May 30, 2024 notice was served. Moreover, a copy of the surveillance footage provided to the Fresno Police Department may remain in the department’s possession. The request for terminating sanctions is denied.

Plaintiffs alternatively request jury instructions and evidentiary sanctions regarding Costco’s knowledge of defendant Hirahara’s actions. The court finds the requested jury instructions and limits to defendant’s ability to present certain evidence would constitute a windfall under these circumstances. Plaintiffs have provided no evidence that the surveillance footage would have shown Hirahara bringing the recording device into the pharmacy or its bathroom or that he was an unfit employee. Additionally, the evidence may be available to plaintiffs from a nonparty source. As such, the alternative request for issue and evidentiary sanctions is denied, without prejudice to plaintiffs making such a request in limine before the trial judge.

Pursuant to California Rules of Court, rule 3.1312(a), and Code of Civil Procedure section 1019.5, subdivision (a), no further written order is necessary. The minute order adopting this tentative ruling will serve as the order of the court and service by the clerk will constitute notice of the order.

Tentative Ruling

Issued By: KCK on 05/19/26. (Judge’s initials) (Date)

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