Prescott v. Valdez et al

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Charlotte N. Sweeney
Civil Action No. 1:21-cv-03252-CNS-SBP
JASON AARON PRESCOTT, individually and next friend of J.R.P. and J.E.P., minors,
Plaintiffs,
v.
RICHARD VALDEZ, individually and in his official capacity as Sheriff of Archuleta
County, Colorado;
JAMES MARTINEZ, individually and in his official capacity as Deputy Sheriff of Archuleta
County, Colorado;
DEREK WOODMAN, individually and in his official capacity as Undersheriff of Archuleta
County, Colorado;
WARREN BROWN, individually and in his official capacity as Operations Commander in
the Archuleta Sheriff’s Office;
MICHAEL SINDELAR, individually and in his official capacity as a Deputy Sheriff in the
Archuleta County Sheriff’s Office;
JOHN DOES 1-5, whose actual names are unknown as yet to the Plaintiff; and
JANE DOES 1-5, whose actual names are unknown as yet to Plaintiff,
Defendants.
ORDER
This matter comes before the Court on Plaintiffs’ Objections to Report and
Recommendation of Magistrate Judge Susan B. Prose [ECF #288], ECF No. 297, and
Defendants’ Objection to Magistrate Judge’s Recommendation at ECF No. 288, ECF No.
295. The parties’ objections were lodged in response to Magistrate Judge Susan B.
Prose’s Report and Recommendation of the United States Magistrate Judge. ECF No.
288 (Recommendation), which ruled on Plaintiffs’ Motion for Sanctions for Spoliation of
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 1 of 16

2
Evidence, ECF No. 201. Additionally, Plaintiffs separately filed Plaintiffs’ Objections to
Order of Magistrate Judge Susan B. Prose [ECF No. 289], ECF No. 296, which objects
to the magistrate judge’s text order, ECF No. 289, denying as moot Plaintiffs’ Motion for
Leave to File Response to Defendants’ Status Update Regarding Date of Phone
Purchase, ECF No. 268, and Plaintiffs’ Motion for Leave to File Reply to Defendants’
Response to Motion for Leave to File Response to Defendants’ Status Update Regarding
Date of Phone Purchase (ECF 276), ECF No. 278.
The 	Court 	has 	reviewed 	the 	Recommendation, 	the 	text 	order, 	the 	parties’
objections, and other relevant filings. For the reasons set forth below, the Court
OVERRULES the parties’ objections and AFFIRMS and ADOPTS the Magistrate Judge’s
Recommendation, 	ECF 	No. 	288. 	Additionally, 	the 	Court 	OVERRULES 	Plaintiffs’
objections to the magistrate judge’s order denying their motions for leave as moot, ECF
No. 289.
I. 	LEGAL STANDARD
Federal Rule of Civil Procedure 72(a) provides parties with the opportunity to
object to a magistrate judge’s order on a non-dispositive pretrial matter, and “[t]he district
judge in the case must consider timely objections and modify or set aside any part of the
order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a); Allen v. Sybase,
Inc., 468 F.3d 642, 658 (10th Cir. 2006) (district courts “defer to the magistrate judge’s
ruling” on non-dispositive matters “unless it is clearly erroneous or contrary to law”
(citations omitted)). “[M]ere disagreement with [a] Magistrate Judge[’s] recommendation
does not make the recommendation incorrect or outside the bounds of his authority.” Witt
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 2 of 16

3
v. Colorado, No. 22-cv-02242-CNS-NRN, 2023 WL 345960, at *1 (D. Colo. Jan. 20, 2023)
(quotation marks and citation omitted). The Court applies this standard in assessing the
magistrate judge’s text order denying as moot Plaintiffs’ motions for leave, ECF No. 289.
However, with respect to the Recommendation, the Court acknowledges that the
magistrate judge’s decision was issued as a report and recommendation, and not an
order, “out of an abundance of caution and in light of the seriousness of the adverse-
inference instruction recommended,” and specifically “so that the district judge may
conduct a de novo review under Rule 72(b).” ECF No. 288 at 2 n.1. Accordingly, the Court
conducts a de novo review of the Recommendation and the parties’ objections thereto.
See, e.g., Northington v. Marin, 102 F.3d 1564, 1570 (10th Cir. 1996) (de novo review
requires the Court to “consider the actual testimony or other evidence in the record and
not merely [to] review the magistrate’s report and recommendations”). In connection with
a de novo review, a Court may “accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1).
II. 	ANALYSIS
A. Magistrate Judge Prose’s Recommendation on Plaintiffs’ Spoliation
Motion [ECF No. 288]
The 	Court 	assumes 	the 	parties’ 	familiarity 	with 	the 	procedural 	and 	factual
background 	in 	this 	case, 	all 	of 	which 	is 	laid 	out 	in 	meticulous 	detail 	in 	the
Recommendation. See ECF No. 288 at 2–18. For that reason, the Court need not repeat
all of those facts here. However, in sum, the Recommendation rules on Plaintiffs’
spoliation motion, which arises from the destruction of text messages exchanged between
Defendant Deputy James Martinez and Plaintiff Jason Prescott’s then wife, Erika
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 3 of 16

4
Prescott, after November 29, 2020. ECF No. 201 at 2. Plaintiffs contend that the
messages exchanged between the two are relevant to this proceeding because they
“gave rise to and were part of the tortious conduct of Defendants in this case.” ECF No.
201 at 2. Plaintiffs argue that even though the Defendant law enforcement officers knew
that the text messages were relevant as early as December 2, 2020, they failed to
preserve them. Id. at 34. Beyond a simple failure to preserve, however, Plaintiffs contend
that, in fact, the relevant text messages were “willfully destroyed.” Id. In response,
Defendants argue that the text messages were not lost due to any willful act or a desire
to hide evidence, but because Defendant Martinez purchased a new phone after
exchanging the text messages at issue and the text messages were lost in connection
with that process. ECF No. 234 at 8. Defendants further contend that Defendant Martinez
purchased his new phone before 	“the currently 	litigated issues 	could have 	been
reasonably foreseen.” Id.
In the months after Plaintiffs filed their spoliation motion, Magistrate Judge Prose
and the parties engaged in extensive fact-finding efforts to nail down exactly what
happened with the missing messages. See ECF No. 288 at 17–18. Those efforts included
ordering Defendants to (a) retain a forensic examiner to assess whether the lost
messages could be retrieved and (b) locate Defendant Martinez’s receipt for his
replacement phone to confirm the date of purchase, ECF No. 261, as well as holding an
evidentiary hearing to consider testimony and other evidence regarding the same. See
id.; ECF Nos. 261, 267.
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 4 of 16

5
Despite this, and after considering the testimony, status reports, and evidence—
including Defendant Martinez’s “inconsistent and self-serving” explanations offered over
the years to explain when he lost access to the messages at issue via his purchase of a
new phone and activation of a new phone number, ECF No. 288 at 34—Magistrate Judge
Prose concluded that she was unable to determine with certainty when the destruction
occurred. Specifically, the Recommendation states that “[t]here is no data in the court
record—phone carrier records, device logs, or any other form of contemporaneous
documentation—corroborating when Mr. Martinez changed his phone or phone number.”
Id. at 36. The uncertainty of when these messages were lost is particularly important in
light of the Recommendation’s determination that even though Defendants knew that
Defendant Martinez’s text messages “should have been preserved . . . by December 3,
2020,” they failed to take reasonable steps to do so. Id. at 26. With these findings, the
magistrate judge concluded that a spoliation sanction in the form of an adverse inference
was appropriate. Id. at 38.
Both parties raise objections to the Recommendation. ECF Nos. 295, 297. The
Court individually addresses each below as part of its de novo review, and as explained
below, overrules each parties’ objections.
i. 	Defendants’ Objections to the Recommendation [ECF No. 295]
The Court first turns to the three objections offered by Defendants in response to
the Recommendation, see generally ECF No. 295, none of which are persuasive.
First, Defendants object to the Recommendation’s conclusion that Defendant
Martinez was in possession of his old cell phone and the missing messages on December
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 5 of 16

6
2, 2020 as “contrary to the evidence.” Id. at 2–4.1 The Court disagrees. Magistrate Judge
Prose’s determination was made based on the limited evidence Defendants presented
regarding the timeline of when Defendant Martinez purchased a new phone and changed
his phone number. Indeed, contrary to Defendants’ assertion that “finding that the phone
and phone number must have been replaced between December 2-December 10 ignores
multiple witnesses’ testimony [and] assumes facts not in evidence,” ECF No. 295 at 4,
the inferences drawn by the magistrate judge are completely in-line with the evidence
(and lack thereof) that was presented. See ECF No. 288 at 36.
Magistrate Judge Prose provided Defendants ample opportunities to confirm the
actual date on which Defendant Martinez purchased his new phone and lost access to
the messages at issue. See, e.g., ECF No. 261. Despite this, Defendants have been
unable to do so.2 And the purportedly contrary evidence cited in Defendants’ objection
does nothing to support their argument. See ECF No. 295 at 4 (citing ECF No. 267 at
139).3 Thus, absent additional 	evidence, 	the magistrate 	judge was 	left only 	with
1 Defendants also ask the Court to take note of an “[a]dditional framework for determining sanctions for
spoliation of electronically stored information” (ESI), in addition to the framework applied in the
Recommendation. ECF No. 295 at 1–2. This is noted, but it does not change the Court’s conclusion.
2 The Court notes in particular two representations in Defendants’ status report, including that (1) Defendant
Martinez’s Verizon account neither “show[s] when [a] phone was activated” nor contains “receipts . . . within
the account documents to show the date that he purchased the phone or began installment payments,”
ECF No. 266 ¶ 4, and (2) “[t]here is no way known at this time . . . to determine, from the records available,
what exact date the phone was purchased,” id. ¶ 6. Upon review, and as a cellular device user herself, the
Court finds that these statements strain common sense. Moreover, the Court is not convinced that defense
counsel’s review of Defendant Martinez’s bank records was sufficient to conclude that his cell phone
purchase or activation history is now definitively lost to time. Indeed, it strikes the Court as possible that
such information may be available by viewing Defendant Martinez’s full Verizon account history, which can
presumably be requested from the provider. As discussed in further detail below, Plaintiffs may in fact
uncover such information via the subpoenas that they recently issued to Verizon.
3 Notably, far from confirming when Defendant Martinez changed his phone number, the cited testimony
from Defendant Michael Sindelar shows only that he does not know when the purchase occurred. See ECF
No. 267 at 193:9–16 (testifying “I don’t know when exactly [Defendant Martinez] changed his number.”).
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 6 of 16

7
Defendant Martinez’s “shifting story marked by inconsistencies” regarding when his
phone was replaced to reach a conclusion. ECF No. 288 at 36. And, when faced with
contradictory evidence, she reasonably concluded that Defendant Martinez was still in
possession of his old phone (and the at issue messages) on December 2, 2020. As
Defendants present no evidence that actually demonstrates that this conclusion is
erroneous, the Court sees no reason to disturb the Recommendation’s conclusion on this
point, even upon its own review of the evidence.
Second, Defendants object that the Recommendation’s finding of bad faith was
erroneous and does not support an adverse inference sanction. See ECF No. 295 at 4–
7. Specifically, Defendants contend that “[e]ven if the messages had been lost between
December 3, 2020, and December 10, 2020, [a] failure to communicate the need to
preserve them to [Defendant Martinez,] a deputy on sick leave[,] does not indicate
‘consciousness of a weak case,’” and, at most, demonstrates that “Defendants were
negligent in their failure to communicate.” Id. at 5. This objection fares no better than the
first.
Defendants urge the Court to consider how the “[Tenth] Circuit has addressed ESI
that was lost when someone obtained a new phone.” Id. at 6 (citing Philmar Dairy, LLC v.
Armstrong Farms, No. 18-cv-0530 SMV/KRS, 2019 WL 3037875 (D.N.M. July 11, 2019)).
But as the citation to Philmar makes clear, that case was decided by a magistrate judge
in the District of New Mexico, and not the Tenth Circuit Court of Appeals. Nevertheless,
Philmar is distinguishable. As Defendants acknowledge, in that case, the court declined
to make a bad faith determination after concluding that it could not “determine whether [a
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 7 of 16

8
witness] ‘lost’ the photos because he foresaw litigation . . . or he negligently lost them
when acquiring a new phone.” Id. (citing Philmar, 2019 WL 3037875, at *6). However,
that conclusion was reached after hearing the witness’s testimony regarding when he
acquired a new phone, which “represent[ed] the only evidence cited by any party on how
the photos became lost.” Philmar, 2019 WL 3037875, at *6. And, in that case, “Plaintiffs
present[ed] no evidence of when Defendants lost” the relevant information. Id. (emphasis
in original).
Here, however, unlike in Philmar, the magistrate judge could and did consider
additional evidence beyond just Defendant Martinez’s testimony at the evidentiary
hearing, including the statements Defendant Martinez himself made to other Defendants
leading up to and during the course of litigation. See ECF No. 288 at 13–15 (observing
that Defendant Martinez’s “account shifted” in the explanations he offered regarding when
he replaced his old phone). To the extent Magistrate Judge Prose determined that
Defendant Martinez’s testimony at the November 2025 evidentiary hearing “added further
inconsistency to the timeline concerning his phone,” id. at 15,4 that conclusion was
logically reached only after hearing the parties’ testimony and reviewing the evidence
presented. Considering the above, the magistrate judge concluded that there was “ample
grounds for the court to infer that Mr. Martinez and Ms. Prescott were texting on
4 Although the Recommendation does not explicitly state as much, to the extent the magistrate judge found
Defendant Martinez’s explanation to lack credibility, that is her prerogative as the factfinder weighing the
evidence presented. See, e.g., Shell v. Henderson, No. 09-cv-00309-MSK-KMT, 2013 WL 2394935, at *20
(D. Colo. May 31, 2013) (“Decisions involving discovery disputes often require the court to weigh competing
versions of the facts, exercise considerable discretion in ascertaining relevance, and assess a party's good
or bad faith, among other things.”).
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 8 of 16

9
December 2, 2020, given that they spoke by phone” that same day as confirmed by
Defendant Martinez’s phone records. Id. at 38 (citing ECF No. 263-1 at 13).
In light of the above, and Defendants’ objection notwithstanding, even upon its de
novo review, the Court sees no reason to disturb the magistrate judge’s conclusion that
“Defendants possessed the requisite intent” to support an adverse inference sanction, id.
at 	33, 	particularly 	in 	light 	of 	Defendant 	Martinez’s 	repeatedly 	“inconsistent 	[and]
incomplete explanations about when he got rid of [his old phone],” id. at 16. See also
Deitz v. Univ. of Denver, No. 95-cv-02756-WDM-OES, 2011 WL 723118, at *7 (D. Colo.
Feb. 22, 2011) (“[W]here as here, the magistrate judge has seen and heard the witnesses,
[the district court] may rely on [the magistrate judge’s] findings of fact and credibility
determinations” when conducting a de novo review pursuant to Rule 72(b)) (citing
Widermuth v. Furlong, 147 F.3d 1234, 1236 (10th Cir. 1998)); see also United States v.
Raddatz, 447 U.S. 667, 680–81 (1980) (substituting a judge’s own credibility appraisal for
the magistrate’s without seeing or hearing the witnesses would raise serious questions).
Third, and finally, Defendants object that the Recommendation failed to consider
the timeliness of Plaintiffs’ spoliation motion, which Defendants argue “shows that any
prejudice suffered by Plaintiff[s] is merely theoretical” because the motion was not filed
until June 2025. ECF No. 295 at 10. However, Defendants also admit that they “did not
expressly argue the timeliness of the Motion’s filing” in their response brief. Id. at 8.
“Generally, courts do not consider new arguments . . . raised in objection to a magistrate
judge’s report and recommendation that were not raised, and thus were not considered,
by the magistrate judge.” Smith v. Crockett, No. 20-cv-0841-WJM-MEH, 2023 WL
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 9 of 16

10
4945838, at *4 (D. Colo. Aug. 3, 2023) (citing McCleland v. Raemisch, 2021 WL 350808,
at *2 (D. Colo. Aug. 10, 2021)).
Nevertheless, even considering Defendants’ argument and the authorities on
which it relies, the Court finds that they do not support the conclusion that the relief
recommended by the magistrate judge is improper because Plaintiffs unreasonably
delayed in filing their spoliation motions. In TFG-N. Carolina, L.P. v. Performance Fibers,
Inc., the court struck defendants’ motion for sanctions for being “unreasonably delayed”
where the motion was filed “after discovery closed, after dispositive motions were due to
be filed and after decisions on the summary judgment motions were issued.” No. 2:08-
cv-00942 TC, 2011 WL 13238434, at *3 (D. Utah Jan. 10, 2011). Likewise, in Allstate
Vehicle & Prop. Ins. Co. v. Wogrin, the court denied a sanctions motion based on the loss
of evidence where defendants “did not seek relief until after discovery had closed” despite
having already “filed both a dispositive motion and no less than four Rule 702 motions.”
No. 23-cv-00803-REB-TPO, 2024 WL 4993362, at *6 (D. Colo. Dec. 5, 2024). No such
gamesmanship can be gleaned from the timing of Plaintiffs’ spoliation motion here.
Accordingly, consistent with the foregoing, Defendants’ objections, ECF No. 295,
are overruled.
ii. 	Plaintiffs’ Objections to the Recommendation [ECF No. 297]
The Court turns next to Plaintiffs’ objections to the Recommendation. The crux of
Plaintiffs’ objection is that the magistrate judge erred in finding that an adverse inference,
rather than a default judgment, was the appropriate sanction considering the court’s
determination that Defendants acted with intent, and thus bad faith, to deprive Plaintiffs
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 10 of 16

11
of the at-issue text messages. See ECF No. 297 at 6–10 (citing ECF No. 288 at 31–37).
Plaintiffs contend that the Recommendation failed to analyze how an adverse inference,
as opposed to a default judgment, “meet[s] Rule 37’s goals of curing the prejudice to
Plaintiffs and punishing and deterring [Defendants’] wrongful conduct.” Id. at 8.
Our legal system “strongly prefers” adjudication on the merits. Lee v. Max Intern.,
LLC, 638 F.3d 1318, 1321 (10th Cir. 2011). Because default judgment deprives a litigant
of her day in court, it is appropriate “only where a lesser sanction would not serve the
interest of justice.” In re Rains, 946 F.2d 731, 733 (10th Cir. 1991). As a result, in cases
where a default judgment is warranted, courts generally find more than what is presented
here. For example, in Garcia v. Berkshire Life Ins. Co. Of Am., the Tenth Circuit upheld a
district court’s imposition of a default judgment sanction where it found that the plaintiff
witness had “interfered egregiously with the court’s administration of justice,” including by
presenting fabricated evidence in support of her claim. See, e.g., 569 F.3d 1174, 1179
(10th Cir. 2009). There, the Tenth Circuit accepted the district court’s determination that
because the violative behavior created an “overwhelming” prejudice that “forced [the
defendant] to defend a lawsuit pervaded by false evidence,” the entry of a default
judgment sanction was warranted. Id. at 1182. Likewise, in Archibeque v. Atchison,
Topeka & Santa Fe Ry. Co., the Tenth Circuit upheld a lower court’s dismissal of a
plaintiff’s claims where the plaintiff included numerous false statements in her discovery
responses and withheld relevant information regarding her prior medical conditions. See
70 F.3d 1172, 1174 (10th Cir. 1995). In upholding that sanction the Tenth Circuit accepted
the lower court’s determination that plaintiff’s “failure to disclose her numerous complaints
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 11 of 16

12
and treatments involving her lower back and tailbone . . . [could not] reasonably be
classified as ‘mere oversight,’” but were instead actions that “seriously interfered with the
judicial process” and “irreparably prejudiced [defendants] in the preparation of its
defense.” Id. 1174–75 (cleaned up). The Tenth Circuit also observed that plaintiff had “at
no time, even in her arguments to this court on appeal, explained her conduct” and instead
continued to represent that she had “fully cooperated in the discovery process.” Id. at
1174.
Defendants’ behavior here, though highly improper, does not rise to the levels
discussed in Garcia and Archibeque. Accordingly, even upon its de novo review, the
Court agrees with Magistrate Judge Prose’s thoughtful conclusion that “the prejudice to
Mr. Prescott may effectively be mitigated by less-severe means than the imposition of . . .
a default judgment.” ECF No. 288 at 38; see also Sours v. Glanz, 24 F. App'x 912, 915
(10th Cir. 2001) (unpublished) (“A drastic remedy like a default judgment or a dismissal
‘is usually appropriate only where a lesser sanction would not serve the interest of
justice.’”).
Nevertheless, to the extent Plaintiffs are concerned that the jury instruction
proposed in the Recommendation, see ECF No. 288 at 40, “doesn’t cure the prejudice to
Plaintiffs and certainly is not a severe enough sanction to punish [Defendants’] intentional
spoliation,” ECF No. 297 at 9, Plaintiffs should note that this Court’s Standing Order
Regarding Pretrial and Trial Procedures for civil cases contemplates that the parties will
submit proposed jury instructions to Court in the first instance. See CNS Civ. Standing
Order III.F.1 (stating that “[t]he Court requires preparation and submission of [jury]
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 12 of 16

13
instructions 21 days before the Trial Preparation Conference”).5 Additionally, the Court’s
standing order also provides that “jury instructions will be revisited at the close of evidence
and the Court will hold a charging conference to ensure that counsel has the opportunity
to offer additional or alternative instructions based on the evidence.” Id. § III.F. The Court
sees no reason to deviate from its ordinary practice in this case and will review and modify
all jury instructions as appropriate.
Accordingly, the parties may submit proposed jury instructions in accordance with
the standing order, including a proposed adverse inference instruction with supporting
authorities, ahead of the Trial Preparation Conference. Because adherence to the Court’s
ordinary jury instruction procedure resolves Plaintiffs’ remaining concerns, the objections
are overruled.
B. Plaintiffs’ 	Objection 	to 	Magistrate 	Judge 	Prose’s 	Order 	Denying
Plaintiffs’ Motions for Leave to Amend [ECF No. 296]
Finally, the Court turns to Plaintiffs’ objection, ECF No. 296, to Magistrate Judge
Prose’s order, ECF No. 289, denying as moot Plaintiffs’ Motion for Leave to File Response
to Defendants’ Status Update Regarding Date of Phone Purchase, ECF No. 268, and
Plaintiffs’ Motion for Leave to File Reply to Defendants’ Response to Motion for Leave to
File Response to Defendants’ Status Update Regarding Date of Phone Purchase (ECF
276), ECF No. 278 at 2.
In their objections, Plaintiffs contend that the Magistrate Judge’s denial of Plaintiffs’
motions for leave was clearly erroneous and “contrary to law” because it denied Plaintiffs’
5 	The 	Court’s 	Standing 	Order 	Regarding 	Pretrial 	and 	Trial 	Procedures 	is 	available 	here:
http://www.cod.uscourts.gov/Portals/0/Documents/Judges/CNS/CNS_Civil_Standing_Order.pdf?ver=_6V
xYooBzNEXYNmnpbIJhg%3d%3d.
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 13 of 16

14
due process rights. ECF No. 296 at 2–3. As a remedy, Plaintiffs request that the Court
grant Plaintiffs’ motions for leave to file a response and reply to Defendants’ various status
reports. Id.
One representation in Defendants’ status report with which Plaintiffs take issue
and to which Plaintiffs want to respond is the statement by Defendants’ counsel that
“[t]here is no way known at this time to determine what amount of the charge on
December 7, 2020, was for phone installments versus phone lines and services, nor any
way to determine, from the records available, what exact date the phone was purchased”
by Defendant Martinez. Id. at 7 (citing ECF 266 ¶ 6). Plaintiffs contend that this statement
“is absolutely not true” based on Plaintiffs’ counsel’s attempts to obtain similar information
in his own Verizon wireless account. Id.
The Court appreciates the resourcefulness of Plaintiffs’ counsel and their attempts
to ferret out the validity of Defendants’ representations. However, this key alleged
misrepresentation identified in Plaintiffs’ objection appears to have had no bearing on the
decision reached in the Recommendation or resulting text order. Indeed, Defendants’
status update at ECF No. 266 is referenced in substance in the Recommendation only
once. Thus, although the Court agrees with and understands that the issues raised in
Plaintiffs’ objections, it finds that there was no clear error in the magistrate judge’s
decision not to grant Plaintiffs’ motions for leave. Indeed, determinations about the
relevancy of discovery and what evidence should be considered is within the Court’s
sound discretion, see Marsee v. U.S. Tobacco Co., 866 F.2d 319, 325 (10th Cir. 1989),
and the magistrate judge properly exercised that discretion here.
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 14 of 16

15
Nevertheless, the Court also notes that since the Recommendation was issued,
Plaintiffs have filed a Notice of Subpoenas issued to Verizon Communications, Inc. and
Verizon Value, Inc., see ECF Nos. 291, 291-1, 291-2, presumably in an attempt to secure
Defendant Martinez’s phone records and definitively establish when his new phone was
purchased and his phone number changed. To the extent the subpoenas responses
uncover 	additional 	information 	corroborating 	the 	statements 	in Plaintiffs’ proposed
response and reply, that information may be relevant to the Court in considering whether
additional, or modified, spoliation sanctions are warranted. Moreover, to the extent
Plaintiffs wish for the jury to understand the issues raised in Plaintiffs’ motions for leave
or uncovered in response to their subpoenas, they are permitted to raise such issue and
introduce such documents at trial.
Accordingly, Plaintiffs’ objections, ECF No. 296, are overruled.
III. 	CONCLUSION
Consistent with the above analysis, the Court OVERRULES Plaintiffs’ Objections,
ECF No. 297, and Defendants’ objections, ECF No. 295, and AFFIRMS AND ADOPTS
the Report and Recommendation of the United States Magistrate Judge, ECF No. 288,
as an Order of this Court. Accordingly, Plaintiffs’ Motion for Sanctions for Spoliation of
Evidence, ECF No. 201, is GRANTED in part and DENIED in part. Consistent with the
Court’s adoption of the Recommendation, the Court hereby ORDERS that:
(1) Plaintiffs may present evidence to the jury regarding Defendants’ failure to
preserve the text messages between Defendant Martinez and Erika Prescott,
including the circumstances around the loss of those text messages;
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 15 of 16

16
(2) The Court will give an adverse-inference instruction at trial, which will be
finalized 	following 	the 	parties’ 	submission 	of 	proposed 	jury 	instructions,
consistent with the Court’s pre-trial Standing Order; and
(3) For purposes of any motions filed, the Court will presume that the missing text
messages contained information that is unfavorable for Defendants.
Additionally, the Court OVERRULES Plaintiffs’ objections, ECF No. 296, and
AFFIRMS the Order of the United States Magistrate Judge, ECF No. 289.
DATED this day 30th of March 2026.
BY THE COURT:
________________________________
Charlotte N. Sweeney
United States District Judge
Case No. 1:21-cv-03252-CNS-SBP Document 299 filed 03/30/26 USDC Colorado
pg 16 of 16