Carrie Gregory v. State of Montana

                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

CARRIE GREGORY,                           No. 22-35674

             Plaintiff-Appellee,           D.C. No.
                                        4:20-cv-00051-
 v.                                         BMM

STATE OF MONTANA and
TOMEKA WILLIAMS, Probation                 OPINION
Officer,

             Defendants-Appellants.

      Appeal from the United States District Court
              for the District of Montana
       Brian M. Morris, District Judge, Presiding

      Argued and Submitted September 12, 2023
                Seattle, Washington

               Filed September 27, 2024

  Before: Michael Daly Hawkins, Ryan D. Nelson, and
           Daniel P. Collins, Circuit Judges.

               Opinion by Judge Collins
2                 GREGORY V. STATE OF MONTANA


                          SUMMARY*


                 

 / Sanctions

    The panel reversed the district court’s sanctions orders,
reversed the verdict and judgment against Montana
Probation Officer Tomeka Williams on Carrie Gergory’s 

 claim that Williams used excessive force
during an encounter in a parking lot, vacated the award of
attorneys’ fees to Gregory, and remanded for a new trial on
Gregory’s excessive-force claim.
    The relevant surveillance footage of the parking lot was
auto-deleted. The district court found that the State acted
recklessly in failing to take appropriate steps to preserve the
surveillance footage before it was deleted, and—invoking its
inherent authority—sanctioned the State by instructing the
jury that it was established as a matter of law that Williams
used excessive force against Gregory. The jury awarded
Gregory $75,000 on the excessive-force claim.
    The panel held that the district court committed legal
error by relying on its inherent authority in imposing the
sanctions because Fed. R. Civ. P. 37(e) governs both the loss
of electronically stored information and the sanctions
imposed in this case, and by its plain terms displaces the
district court’s power to invoke its inherent authority in
imposing sanctions. Under Rule 37(e)(2), the conclusive
adverse-determination sanction at issue here may be
imposed only upon a finding that the party acted with the
intent to deprive another party of the information’s use in the

*
 This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                GREGORY V. STATE OF MONTANA                3


litigation. Because the district court’s findings confirmed
that no such intent was operative here, the sanctions were
unlawful. Because the district court’s error was prejudicial
to Williams, the panel reversed the adverse judgment against
Williams on the excessive-force claim, remanded for a new
trial on that claim, and vacated the award of attorneys’ fees
to Gregory.


                        COUNSEL

Paul Gallardo III (argued) and Daniel Flaherty (argued),
Flaherty Gallardo Lawyers, Great Falls, Montana, for
Plaintiff-Appellee.
Patricia H. Klanke (argued), Drake Law Firm PC, Helena,
Montana; Paul R. Haffeman, Davis Hatley Haffeman &
Tighe PC, Great Falls, Montana; for Defendants-Appellants.



                        OPINION

COLLINS, Circuit Judge:

    In this action under 

, Plaintiff Carrie
Gregory alleged that Defendant Tomeka Williams, a
Montana Probation Officer, used excessive force on Gregory
during a May 15, 2020 encounter that occurred in a parking
lot adjacent to the Montana Department of Corrections
Probation and Parole Office (“Probation Office”) in the City
of Great Falls. Despite Gregory’s repeated efforts to ensure
that the relevant surveillance footage of the parking lot
would be preserved by the Montana authorities, the original
4                  GREGORY V. STATE OF MONTANA


footage was auto-deleted from the recording system due to
what the district court characterized as “recklessness on the
part of the State in failing to take appropriate steps to
preserve the recordings before they were deleted.”1 The
district court specifically found, however, that the State and
its employees had not acted with either “gross negligence or
willfulness.” Invoking its inherent authority, the district
court sanctioned the State for its recklessness by instructing
the jury, in the § 1983 claim against Williams, that “it has
been established as a matter of law that Defendant Williams
used excessive force against [Gregory] in violation of the
Fourth Amendment of the United States Constitution during
their encounter on May 15, 2020.” As to that § 1983 claim,
the district court only submitted to the jury the questions of
causation and damages. The jury awarded $75,000 to
Gregory on the § 1983 claim against Williams, but the jury
ruled against Gregory on a related common-law claim
against the State. The court also subsequently awarded
attorneys’ fees to Gregory under 

.
    Williams and the State (“Appellants”) appeal from the
judgment against Williams, and from the sanctions orders
against the State on which that judgment was based. We
conclude that the district court lacked the authority to impose
the sanctions that it did. By its plain terms, Federal Rule of
Civil Procedure 37(e)(2) displaces the district court’s power
to invoke inherent authority in fashioning sanctions for the
sort of failure to preserve “electronically stored information”
that occurred in this case. And under that rule, the

1
  As a result of the State’s failure to preserve the original footage, the
only copy that survived was a cellphone video of the relevant footage
that, at Gregory’s counsel’s suggestion, a State officer recorded from a
playback of the surveillance video on the State’s system before it was
auto-deleted.
                  GREGORY V. STATE OF MONTANA                        5


conclusive adverse-determination sanction at issue here may
be imposed “only upon finding that the party acted with the
intent to deprive another party of the information’s use in the
litigation.” FED. R. CIV. P. 37(e)(2). Because the district
court’s findings confirm that no such intent was operative
here, its sanctions were unlawful. Accordingly, we reverse
the sanctions orders, reverse the judgment against Williams
on the § 1983 claim, and vacate the attorneys’ fees award.
                                  I
                                  A
    Gregory’s encounter with Williams in the Probation
Office parking lot on May 15, 2020 arose from that office’s
supervision of her son, Daniel Gregory (“Daniel”). At the
time, Daniel was being supervised by the Probation Office
in connection with his deferred sentence for a conviction of
assault with a weapon. Daniel was ordered to report to the
Probation Office on May 15 after that office developed
grounds to believe that he had possessed a firearm in
violation of the terms of his supervision.
    Specifically, on May 13, 2020,2 Charlie Martin, a
Montana Probation Officer who also worked a part-time job
as a loss prevention investigator at a local sporting-goods
store, observed a woman purchase ammunition at that store,
exit the store and enter a pickup truck, and hand the
ammunition to the male driver of the truck. The male driver
then appeared to grab something from under his seat, and
Martin concluded that he was loading the ammunition into a
firearm. Martin thought that “the male driver looked
familiar to me as being on supervision.” He took down the

2
  The relevant transcript in the record actually says “October 13,” but
that is obviously an error.
6              GREGORY V. STATE OF MONTANA


truck’s license-plate number, and the next day, at the
Probation Office, he ran the number and discovered that the
truck was registered to Daniel. Daniel was being supervised
by Probation Officer Heather Moore, who, coincidentally,
was married to Martin. Martin alerted Moore to what he had
observed, and Moore attempted unsuccessfully to locate
Daniel. The next morning, on May 15, 2020, Daniel called
Moore and asked why she had been looking for him. Moore
told him that she was investigating a suspected violation of
his supervision terms and that he needed to report to the
Probation Office immediately. Daniel said he would be
there within 15 minutes.
    About an hour later, Daniel parked his truck in the lot
adjoining the Probation Office.            Another vehicle
immediately followed him into the lot, and Daniel exited his
truck and got into the passenger side of the second vehicle.
Moore watched the exchange from the Probation Office and
then walked into the parking lot accompanied by several
other probation officers, including Williams, as well as
officers from the Great Falls Police Department, including
Scott Fisher. The officers approached the vehicle, and
Moore directed Daniel to get out of the car and raise his
hands. As Moore did so, the driver of the second vehicle,
who was Gregory, stepped out of that vehicle.
    The parties dispute what happened next. According to
Williams, Gregory disobeyed several instructions to stay
back from the officers as they arrested and handcuffed
Daniel.     Williams asserts that, sensing a “threat
approaching,” she placed herself between Gregory and the
other officers, but that Gregory “continued to take small
steps forward.” Williams states that, to prevent Gregory
from coming any closer, Williams used two hands to push
Gregory in her chest, away from the officers. According to
                GREGORY V. STATE OF MONTANA                 7


Williams, Gregory then began “flailing at,” “hitting,” and
“scratching” Williams. Williams allegedly sustained bruises
and other injuries as a result. According to Gregory,
however, she did not hear any commands from Williams and
was observing Daniel’s arrest at a distance when Williams
approached her and, without any prompting, violently lifted
and twisted her left arm. Gregory alleged that the force
bruised and fractured her left elbow and severely injured her
left wrist. It is undisputed that, after the encounter between
Williams and Gregrory, Fisher handcuffed Gregory and
placed her into a police car.
    The entire encounter was captured by an external
surveillance camera that monitored the parking lot and that
was operated by the Probation Office.
                              B
    As a result of the incident, the City charged Gregory with
misdemeanor obstruction of a peace officer in violation of
Montana Code Annotated § 45-7-302(1). Four days after the
incident, Gregory’s retained defense counsel, Dan Flaherty,
called Wayne Bye, Deputy Chief for Region 3 of the
Montana Department of Corrections, to request the relevant
May 15, 2020 surveillance footage of the parking lot. Bye
responded that he “would do [his] best to get [it],” but
warned that the surveillance system was “old.” Flaherty
suggested that Bye record a copy of the footage with his
cellphone, which Bye agreed to do. Later that day, Flaherty
followed up with an email addressed to Bye and Neil
Anthon, the chief prosecutor for the City, memorializing his
request for the footage.
    While Bye had some experience with reviewing footage
from the internal surveillance system that monitored the
inside of the Probation Office, he had no experience with
8               GREGORY V. STATE OF MONTANA


preserving footage from the external surveillance system
that monitored the parking lot. Bye knew that the internal
surveillance system preserved footage for up to “two to three
months.” He did not check the retention policy for the
external surveillance system, however, and simply assumed
that the May 15, 2020 footage was subject to a standard 30-
day retention period. As it turned out, the footage was
actually subject to only a 17-day retention period.
    On May 21, 2020, two days after his phone call and
email requesting the footage, Flaherty followed up with
another email asking Bye to preserve the now almost week-
old footage, expressing concern about how long the external
surveillance system would retain it. The next day, Bye asked
another probation officer, Tim Hides, to assist him with
preserving the footage. Bye and Hides first planned to burn
the footage from the external surveillance system onto a CD,
but they were unable to do so, due to the fact that the power
cord for the CD burner had been misplaced. As an
alternative, Bye and Hides recorded two copies of the
footage using Bye’s state cellphone. The pair then dropped
off “disk copies” of the cellphone recording at Flaherty’s and
the City Attorney’s offices.
    On May 26, 2020, Flaherty reviewed the cellphone
recording and concluded that the quality was too poor to
clearly make out what was depicted. Flaherty reached out to
Bye, asking if Flaherty could transfer the original footage
onto his flash drive or laptop. Bye explained that applicable
state policy prohibited any such connection of a private
external device to a state computer. Instead, Bye purchased
a new power cord for the CD burner, and he and Hides then
attempted to burn the footage onto a CD. However, when
they made that attempt, either on May 27 or 28, they
discovered that “the files were too large to put on the CDs.”
                GREGORY V. STATE OF MONTANA                  9


On either June 2 or June 3, Bye and Hides tried instead to
transfer the footage onto state flash drives. Because that was
now more than 17 days after the footage was recorded, the
surveillance system had already automatically deleted the
footage. Bye promptly informed County Attorney Josh
Racki of the loss of the footage.
    On June 10, 2020, Racki informed Flaherty that the
footage had been lost. Soon thereafter, the City dropped the
misdemeanor charge against Gregory.
                              C
    On June 19, 2020, Gregory sued Bye, Williams, Fisher,
the State, and the City. Gregory’s operative complaint
asserted a variety of causes of action against multiple
defendants, but by the start of trial only three claims
remained: (1) a § 1983 claim against Williams for excessive
force during the May 15, 2020 incident; (2) a state-law claim
against Williams for assault and battery; and (3) a state-law
claim against the State for negligent infliction of emotional
distress.
    Gregory filed a motion for sanctions against the State
based on its loss of the May 15, 2020 surveillance footage.
In her motion, Gregory asked the district court to grant her a
default judgment and to do so pursuant to the court’s
inherent authority, rather than under Rule 37. After
receiving additional briefing on the propriety of applying
sanctions with respect to a § 1983 claim asserted only
against Williams, the district court ultimately granted the
motion for sanctions in part. The court rejected Gregory’s
request to enter a default judgment. Instead, invoking its
inherent authority, the court stated that it would instruct the
jury that it was established that “Officer Tomeka Williams
used unreasonable force in the seizure of Carrie Gregory,”
10              GREGORY V. STATE OF MONTANA


and the court further held that it would bar any testimony
about the lost footage’s content, as well as Bye’s cellphone
recording of the footage. The court would, however, submit
to the jury the issues of causation and damages, as well as
the question whether Williams acted with malice warranting
punitive damages. The court acknowledged that its decision
“effectively grant[ed] summary judgment to Gregory on the
issue of unreasonable force,” but the court concluded that
this sanction was nonetheless warranted. In making its
assessment as to the propriety of the sanction, the court
expressly found that “Gregory cannot sustain her burden to
establish gross negligence or willfulness on the part of the
State” and that the State’s conduct amounted only to
“recklessness.”     The court also rejected Williams’s
arguments that it would be unfair to effectively impose a
sanction on her when it was the State that had lost the
footage.
    On March 21, 2022, the case proceeded to trial. About
an hour before opening arguments, Gregory objected to the
defense’s stated intention to present the testimony of six
parole officers who had been present at the May 15, 2020
incident. The defense responded that the remaining issues
for the jury—including the assault and battery claim and the
issues of causation and damages on the § 1983 excessive-
force claim—required testimony about those events. In view
of the State’s intention to indemnify Williams on the claims
against her, and in order to simplify the proof, Gregory then
voluntarily dismissed the assault and battery claim. In ruling
on this dispute about the officers’ testimony, the district
court acknowledged that, in the earlier written sanctions
order, the court had “not specifically sa[id] that [it] would
not allow testimony of officers about the incident.” But to
enforce the sanctions awarded, and in light of the dismissal
                 GREGORY V. STATE OF MONTANA                   11


of the assault and battery claim against Williams, the court
held that the officers would not be allowed to testify about
what they saw during the actual “engagement” between
Williams and Gregory. They could, however, testify about
“what Ms. Gregory was doing after the encounter,” and the
defense could also address causation by relying upon
Gregory’s medical records.
    However, the witnesses at trial did not succeed in staying
within the lines that the court had drawn. As a result, at the
conclusion of the testimony, Gregory asked the court to play
Bye’s cellphone recording for the jury. Over the defense’s
objection, the court agreed to do so. The court first
instructed the jury that, because the State had failed to
preserve the video, the jury was permitted, but not required,
to infer “that the lost surveillance [footage] would have been
favorable to [Gregory].” The cellphone recording was then
played to the jury, and that concluded the parties’
presentation of the evidence.
    The court’s subsequent jury instructions told the jury that
“it has been established as a matter of law that Defendant
Williams used excessive force against [Gregory] in violation
of the Fourth Amendment of the United States Constitution
during their encounter on May 15, 2020.” During its
deliberations, a juror sent a note to the court asking it to state
“[w]hat during the altercation determined that Tomeka used
excessive force.” The court responded that the jury “need
not evaluate the evidence bearing on this issue” and that it
had “been determined, as a matter of law, [that] Tomeka
Williams used excessive force against [Gregory] on May
15th of 2020.”
    In its ensuing verdict, the jury awarded Gregory $75,000
in damages for her excessive-force claim against Williams,
12                  GREGORY V. STATE OF MONTANA


but it determined that Williams had not acted with malice.
The jury rendered a defense verdict on Gregory’s sole
remaining claim against the State, which was for negligent
infliction of emotional distress. Gregory thereafter moved
for attorneys’ fees and costs under 

. While
that motion was still pending, judgment was entered on the
jury’s verdict on May 6, 2022. On May 20, 2022, Williams
moved to amend the judgment to reduce the monetary award
in light of Gregory’s settlement with Fisher and the City,
which Williams claimed should result in an offset.
    In an August 3, 2022 ruling, the district court denied
Williams’s motion to reduce the judgment and granted
Gregory’s motion for attorneys’ fees. Appellants timely
appealed from the judgment on August 19, 2022.3 We have
jurisdiction under 

                                    II
    We review a district court’s imposition of sanctions for
abuse of discretion. Leon v. IDX Sys. Corp., 

,
957–58 (9th Cir. 2006). Whether the district court applied
the correct legal standards in imposing sanctions raises a

3
  Appellants contend that their appeal was timely because, on June 6,
2022, the district court granted their motion to extend the time to appeal
until “30 days from entry of the order disposing” of the pending motions
to reduce the judgment and to award attorneys’ fees. This order,
however, was unnecessary and irrelevant. Because Williams had filed a
timely motion to amend the judgment to take account of an alleged
offset, the time to appeal did not begin to run until that motion was
denied on August 3, 2022. See FED. R. APP. P. 4(a)(4)(A)(iv).
4
  Although the jury ruled for the State on the sole remaining claim against
it, the State has standing to appeal the resulting judgment against
Williams in light of the fact that the adverse written sanctions orders that
resulted in that judgment were issued against the State. Gregory has not
challenged the State’s standing to appeal in this court.
                 GREGORY V. STATE OF MONTANA                   13


question of law that we review de novo. Fjelstad v.
American Honda Motor Co., 

 (9th Cir.
1985). An “[a]pplication of the wrong legal standard” by the
district court automatically “constitutes an abuse of
discretion.” United States v. Ruiz, 

 (9th
Cir. 2001) (en banc). We review any underlying factual
findings, including any findings concerning “bad faith and
prejudice,” only for clear error. Leon, 

.
    Applying these standards, we conclude that the district
court committed legal error by relying on its inherent
authority in imposing the sanctions that it did rather than
applying the provisions of Rule 37(e). We further conclude
that, in light of the district court’s factual findings, which are
not clearly erroneous, the requirements for imposing such
sanctions under Rule 37 were not met. And because the
sanctions imposed were obviously prejudicial to Williams,
we reverse the adverse judgment against her on the § 1983
excessive-force claim and remand for a new trial on that
claim.
                                A
    Well before the promulgation of the Federal Rules of
Civil Procedure in 1937, the Supreme Court had recognized
that federal courts have inherent authority to “impose . . .
submission to their lawful mandates.” Chambers v. NASCO,
Inc., 

 (1991) (quoting Anderson v. Dunn, 

 (1821)). Such “inherent powers” include the
“discretion . . . to fashion an appropriate sanction for
conduct which abuses the judicial process.” 

 at 44–45.
This inherent authority often remains available as an
alternative source of sanctioning power even when there are
statutes or rules that also provide for sanctions. See 

 at
42–43. Thus, for example, in Chambers, the Court held that
14              GREGORY V. STATE OF MONTANA


the express authority to impose attorneys’ fees as a sanction
under 

 and the Federal Rules of Civil
Procedure did not preclude a district court from relying on
its inherent authority in imposing such fees as a sanction for
bad-faith litigation conduct. Chambers, 501 U.S. at 46–51.
    However, the Court has also held that “the exercise of
the inherent power of lower federal courts can be limited by
statute and rule, for these courts were created by act of
Congress.” 

 (emphasis added) (simplified).
Accordingly, a court may not invoke inherent authority in
order to contravene the “clear mandate” of an applicable
statute or rule. 

 at 51 (citing Bank of Nova Scotia v. United
States, 

, 254–55 (1988)); see also Atchison,
Topeka & Santa Fe Ry. Co. v. Hercules Inc., 

 (9th Cir. 1998). “Nevertheless, ‘[the courts] do not
lightly assume that Congress has intended to depart from
established principles’ such as the scope of a court’s inherent
power.” Chambers, 

 (citation omitted).
    Appellants contend that Rule 37(e) exclusively governs
the availability of the sort of sanctions that were imposed for
the loss of evidence that occurred here and that, as a result,
the district court erred by relying on its inherent authority.
In evaluating this contention, we begin with the language of
the rule.
     As amended in 2015, Rule 37(e) provides:

            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
                GREGORY V. STATE OF MONTANA                 15


       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.

FED. R. CIV. P. 37(e). By its terms, the rule states that, if a
specified loss of “electronically stored information” occurs,
then the court “may” impose certain sanctions upon making
the findings required, respectively, under paragraph (1) or
paragraph (2). To determine whether this rule might be
applicable here in a way that precludes reliance on inherent
authority, we first consider whether this case involves the
sort of information loss that is covered by the rule.
    Gregory’s own expert acknowledged that the
surveillance system used by the State to record the Probation
Office parking lot was a digital system that was operated
using a computer and software. The video footage at issue
in this case thus readily qualifies as “electronically stored
16              GREGORY V. STATE OF MONTANA


information” within the meaning of the Federal Rules of
Civil Procedure. See Leonard v. St. Charles Cnty. Police
Dep’t, 

, 364 (8th Cir. 2023); Wall v. Rasnick, 

, 221–23 (4th Cir. 2022). We also have little
difficulty concluding that the footage at issue here “should
have been preserved in the anticipation or conduct of
litigation.” FED. R. CIV. P. 37(e). The State had actual
knowledge of its obligation to preserve the footage in
connection with Williams’s misdemeanor criminal case, and
it was certainly foreseeable that civil litigation could arise
from the disputed incident as well. We further reject, as
wholly unpersuasive, the State’s contention that it took
“reasonable steps to preserve” the footage from being “lost.”
In particular, failing to promptly determine how long the
surveillance system preserved its information was
unreasonable, as was failing to proceed with appropriate
dispatch in taking the actual steps necessary to download the
video from the system before it was deleted. And the State’s
actions in making a poor-quality, second-level copy did not
satisfy its obligation to take reasonable steps to preserve the
information. Furthermore, it is undisputed that the footage
here could not “be restored or replaced through additional
discovery.” 

 Thus, all of the conditions that are required
to trigger Rule 37(e) were satisfied here: “electronically
stored information that should have been preserved in the
anticipation or conduct of litigation [wa]s lost because a
party failed to take reasonable steps to preserve it, and it
cannot be restored or replaced through additional
discovery.” 

   The text of Rule 37(e) then specifies that, when such a
covered loss of information occurs, the court must make the
specified findings required by paragraphs (1) or (2) before it
may impose a sanction, and those paragraphs require
                GREGORY V. STATE OF MONTANA                 17


different findings depending upon the nature and severity of
the sanction. Paragraph (1) sets forth a general authority,
“upon [a] finding of prejudice to another party from loss of
the information,” to impose remedial sanctions that are “no
greater than necessary to cure the prejudice” resulting from
the loss. FED. R. CIV. P. 37(e)(1). Paragraph (2), however,
establishes a more demanding standard before the court may
impose certain types of severe sanctions. Such sanctions, the
rule states, may be imposed “only upon finding that the party
[who caused the loss] acted with the intent to deprive another
party of the information’s use in the litigation.” FED. R. CIV.
P. 37(e)(2) (emphasis added).
    The severe sanctions that are subject to paragraph (2)’s
more demanding standard are: (1) “presum[ing] that the lost
information was unfavorable to the party” that caused the
loss; (2) “instruct[ing] the jury that it may or must presume
the information was unfavorable to th[at] party”; or
(3) “dismiss[ing] the action or enter[ing] a default
judgment.” FED. R. CIV. P. 37(e)(2)(A)–(C). The advisory
committee notes that accompanied the adoption of the
amended Rule 37(e) in 2015 explicitly confirm an important
point that its text already suggests, namely, that any more
severe sanction that rests on one of the sanctions listed in
paragraph (2), and that has the same effect as such a sanction,
is subject to paragraph (2). See FED. R. CIV. P. 37(e)(1)
advisory committee’s note to 2015 amendment (“Care must
be taken . . . to ensure that curative measures under
subdivision (e)(1) do not have the effect of measures that are
permitted under subdivision (e)(2) only on a finding of intent
to deprive another party of the lost information’s use in the
18                 GREGORY V. STATE OF MONTANA


litigation.”).5 Thus, for example, a sanction “precluding a
party from offering any evidence in support of[] the central
or only claim or defense in the case” effectively rests on a
conclusive presumption that the lost information was
unfavorable to that party and simply implements that
implicit presumption in an even more severe form. 

    Here, the sanctions selected by the district court fall
within the scope of paragraph (2) of Rule 37(e). The district
court’s order instructing the jury to take as established that
Williams had used excessive force in violation of the Fourth
Amendment was simply a more severe form of the sort of
presumptions covered by Rule 37(e)(2). Indeed, the
instruction was effectively a conclusive presumption that the
lost video was so unfavorable to the State on the issue of
excessive force that that ultimate fact at issue should be
taken as resolved in Gregory’s favor. See FED. R. CIV. P.
37(e)(2)(A), (B).6 Moreover, the district court’s subsequent
further instruction to the jury—when the cellphone copy of
the footage was introduced—that the jury could infer “that
the lost surveillance [footage] would have been favorable to
[Gregory]” falls squarely within the language of
Rule 37(e)(2)(B). Accordingly, under the plain language of
Rule 37(e)(2), these sanctions were “only” available if the
court first made the finding of intent required by the rule.
FED. R. CIV. P. 37(e)(2).

5
  As the Supreme Court has stated, “the Advisory Committee Notes
provide a reliable source of insight into the meaning of a rule, especially
when, as here, the rule was enacted precisely as the Advisory Committee
proposed.” United States v. Vonn, 

, 64 n.6 (2002).
6
  Strictly speaking, the relevant subparagraph on this point would be
subparagraph (2)(A), because it was the court that conclusively
presumed that the lost video was unfavorable when it decided to instruct
the jury that Williams’s use of excessive force had been established.
                GREGORY V. STATE OF MONTANA                 19


    Given Rule 37(e)’s careful specification of the findings
that must be made before any sanction may be imposed for a
covered loss of information, it is clear that the rule, by its
terms, precludes a court from resorting to inherent authority
to evade its strictures. Indeed, the advisory committee notes
confirm that this effect of the rule’s language was
intentional. The committee stated that, because the rule
“authorizes and specifies measures a court may employ if
information that should have been preserved is lost, and
specifies the findings necessary to justify these measures,”
the rule “forecloses reliance on inherent authority or state
law to determine when certain measures should be used.”
FED. R. CIV. P. 37(e) advisory committee’s note to 2015
amendment (emphasis added). That is especially true here,
given that the rule specifically states that the particular
sanctions that the district court selected may “only” be
imposed if the court first makes the specific finding of intent
required by that rule. FED. R. CIV. P. 37(e)(2).
    Because Rule 37(e) governs both the loss of information
and the sanctions imposed in this case, and because the rule’s
specific requirements preclude invocation of a court’s
inherent authority, the district court erred as a matter of law
by relying upon its inherent authority rather than applying
Rule 37(e). See Chambers, 

 (stating that
courts may not rely on inherent authority to “circumvent[]
the clear mandate of a procedural rule”); cf. Jones v. Riot
Hosp. Grp. LLC, 

, 735 (9th Cir. 2024) (holding
that, when Rule 37(e)(2) applies, its standards govern rather
than the standards applicable under the court’s inherent
authority (citing Anheuser-Busch, Inc. v. Natural Beverage
Distribs., 

 (9th Cir. 1995) (describing
standards applicable to sanctions “pursuant to the court’s
inherent power”))).
20              GREGORY V. STATE OF MONTANA


                               B
     Although the district court thus invoked the wrong
source of legal authority in imposing the sanctions that it did,
its error on that score would be harmless if the record reflects
that the district court did in fact make the findings that are
required by Rule 37(e)(2). Here, the record confirms that the
opposite is true.
    As we have explained, Rule 37(e)(2) states that, before
the court may impose one of the listed sanctions, it must first
find that “the party”—meaning the “party” who “failed to
take reasonable steps to preserve” the information—“acted
with the intent to deprive another party of the information’s
use in the litigation.” FED. R. CIV. P. 37(e)(2). On its face,
that is a demanding specific-intent standard, and purposely
so. The advisory committee notes confirm that the amended
rule was specifically intended to abrogate “cases such as
Residential Funding Corp. v. DeGeorge Financial Corp.,

 (2d Cir. 2002), that authorize the giving of
adverse-inference instructions on a finding of negligence or
gross negligence.” FED. R. CIV. P. 37(e)(2) advisory
committee’s note to 2015 amendment.
     We have held that the intent required by Rule 37(e)(2)
“is most naturally understood as involving the willful
destruction of evidence with the purpose of avoiding its
discovery by an adverse party.” Jones, 95 F.4th at 735
(citing Skanska USA Civ. SE Inc. v. Bagelheads, Inc., 

, 1312 (11th Cir. 2023) (stating that Rule 37(e)(2)
requires finding “purpose of hiding adverse evidence”
(citation omitted))). The district court did not find any such
intent, either on the part of the State or any of its agents,
including Williams. On the contrary, the district court
specifically rejected even Gregory’s lesser argument that the
                GREGORY V. STATE OF MONTANA                 21


loss of the footage resulted from “gross negligence on the
part of the State and its employees” and found that “Gregory
cannot sustain her burden to establish gross negligence or
willfulness on the part of the State” (emphasis added). That
finding, which is not clearly erroneous, necessarily
precludes any finding that the State or Williams acted with
the specific intent that we described in Jones and that is
required by Rule 37(e)(2). The district court found only that
the State’s actions amounted to “recklessness,” but that is not
enough to authorize the severe sanctions covered by Rule
37(e)(2) and imposed by the district court here.
    Accordingly, we conclude that Rule 37(e)(2) precluded
the district court from imposing the sanctions that it did.
                              C
    Because the district court erroneously imposed a
sanction that severely limited Williams’s ability to present a
defense to the § 1983 claim, the district court’s error was
obviously prejudicial to Williams. The resulting verdict and
judgment on that claim must therefore be set aside, and the
matter must be remanded for a new trial on that claim. See
Liberty Ins. Corp. v. Brodeur, 

, 1191–93 (9th
Cir. 2022) (reversing Rule 37(c)(1) sanctions and remanding
for a new bench trial where the erroneous sanctions order
determined the outcome of the original bench trial).
Accordingly, we reverse the district court’s sanctions orders
and the verdict and judgment on the § 1983 excessive-force
claim, we vacate the district court’s award of attorneys’ fees
to Gregory, and we remand for a new trial on the excessive-
force claim.
   REVERSED AND REMANDED.