Prescott v. Valdez et al

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 1:21-cv-03252-CNS-SBP
JASON AARON PRESCOTT, individually and as 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, in his official capacity as Operations Commander in the Archuleta County
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 the Plaintiff,
Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Susan Prose, United States Magistrate Judge
Plaintiff Jason Aaron Prescott, individually and as next friend of his minor children,
brings this action pursuant to 42 U.S.C. § 1983 stemming from his December 4, 2020 arrest on
allegations of domestic violence. This matter is before the Court on Plaintiffs’ Motion for
Sanctions for Spoliation of Evidence (ECF No. 201) (the “Motion”). The Motion was referred to
this Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1). See ECF Nos. 99, 100. The court held a
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full-day evidentiary hearing on November 5, 2025, receiving testimony from George Daniels,
James Martinez, Richard Valdez, Derek Woodman, Michael Sindelar, Roxanne Lattin, and Jason
Prescott. See ECF No. 262 (minute entry); ECF No. 267 (transcript of evidentiary hearing).
The court has carefully reviewed the Motion, Defendants’ Response (ECF No. 234),
Plaintiffs’ Reply (ECF No. 239), the hearing transcript (ECF No. 267), documents that are part
of the court record and other exhibits admitted in the course of the hearing, Defendants’ status
reports and the forensic examiner’s conclusions regarding recovery efforts for the text messages
that are the subject of this Motion (ECF Nos. 266, 280, 281), the parties’ Joint Status Report
(ECF No. 286), and the applicable law. The undersigned now respectfully RECOMMENDS1
that the Motion be GRANTED in part, to the extent the court finds that an adverse-inference
spoliation sanction is warranted here, and DENIED in part, insofar as Mr. Prescott seeks a
spoliation sanction in the form of a default judgment on liability against Defendants.
BACKGROUND
The impetus for this civil action is the middle-of-the-night arrest of Mr. Prescott on
December 4, 2020, in a house where he was staying with his young children, following domestic
1 This ruling is issued as a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) and
Rule 72(b). Whether a magistrate judge’s decision on sanctions is treated as dispositive or
nondispositive turns on “the penalty to be imposed, rather than the penalty sought by the
movant[.]” Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519-20 (10th Cir. 1995) (citation
omitted). Even where a movant requests dispositive sanctions such as dismissal or default, a
magistrate judge’s refusal to impose a truly dispositive penalty is ordinarily reviewed under Rule
72(a)’s “clearly erroneous or contrary to law” standard. Id. Here, out of an abundance of caution
and in light of the seriousness of the adverse-inference instruction recommended below, the court
proceeds by recommendation so that the district judge may conduct a de novo review under Rule
72(b).
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violence allegations made by his then wife, Erika Prescott, to personnel in the Archuleta County
Sheriff’s Office (“ACSO”). ECF No. 201 ¶ 4; Second Amended Complaint and Jury Demand,
ECF No. 130 ¶¶ 15-22. The instant spoliation Motion seeks sanctions for the loss of text
messages exchanged between Erika Prescott and Defendant James Martinez, a deputy who
works for the ACSO. A recounting of the tortuous factual and procedural history of this action is
necessary to place Mr. Prescott’s request for sanctions in context.
The following facts are derived from the record in this matter, including documents and
testimony provided at the hearing on the Motion and the post-hearing status reports filed in
December 2025 and January 20262:
A. 	May 2019: A Florida Court Grants Custody of the Prescott Children to Mr.
Prescott
The Prescotts had long had a strained relationship, resulting in Mr. Prescott initiating a
divorce proceeding in a state court in Florida, where the Prescotts resided at the time. See Jason
Prescott v. Erika Medellin Prescott, No. 19-010776 (11th Judicial Circuit for Miami-Dade
County, Florida).3 On May 15, 2019, the Florida state court granted Mr. Prescott’s motion to
allow the couple’s children “to temporarily reside with the father, Jason Prescott,” with Erika
Prescott having “supervised timesharing twice per week on Wednesdays for 3 hours and
Saturdays for 6 hours.” ECF No. 201-5 (May 15, 2019 Order) (hereafter, “Custody Order”). It is
2 Unless otherwise noted, the parties do not dispute this information.
3 It is undisputed that the documents from the Prescotts’ divorce proceeding attached to the
Motion are true and accurate copies of materials from that state court record. This court takes
judicial notice of these state court records. See, e.g., St. Louis Baptist Temple v. FDIC, 605 F.2d
1169, 1172 (10th Cir. 1979) (“[I]t has been held that federal courts . . . may take notice of
proceedings in other courts, both within and without the federal judicial system, if those
proceedings have a direct relation to matters at issue.”).
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undisputed that the Custody Order remained in place at all times pertinent to the instant case,
including at the time of Mr. Prescott’s arrest on December 4, 2020.
The Prescotts moved to Archuleta County sometime in September 2020, seemingly in
connection with an attempt at reconciliation. ECF No. 201 ¶ 11. Things did not go as planned.
B. 	October to December 2020: Erika Prescott and Mr. Martinez Exchange
Texts
On November 29, 2020, Mr. Prescott saw text messages on his wife’s cell phone from a
contact labeled “James.” Id. Mr. Prescott made a video recording of at least a portion of those
text messages, which this court has reviewed. ECF No. 203 (docket entry reflecting submission
of flash drive); see also ECF Nos. 201-12, 201-13 (screenshots of the texts discovered by Mr.
Prescott). There is no dispute that Erika Prescott’s correspondent “James” is Deputy James
Martinez, one of the defendants in this matter.
At the evidentiary hearing, Mr. Martinez testified that he first encountered Erika Prescott
in a park, sometime in October 2020, where they struck up a conversation related to their mutual
interest in dogs. ECF No. 267 at 33:5-13. At some point after that, Mr. Martinez and Ms.
Prescott commenced texting, initially about their dogs, ECF No. 201-124 at 1-14, and then
moving to other topics: what they did on their time off, id. at 15-17; the fact that Ms. Prescott
was ticketed for a driving infraction by an ACSO officer, id. at 18-20; Mr. Martinez’s interest in
hunting and other hobbies, id. at 20-28; the fact that Mr. Martinez was assigned as the school
resource officer for the ACSO, where Ms. Prescott saw him when she dropped off her children at
4 In describing the content of the text messages, the court will refer to the screenshots of the
messages docketed at ECF Nos. 201-12 and 201-13, some of which are illegible. Non-
substantive punctuation alterations have been made here as appropriate for ease of reading.
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school, id. at 29-30; and other matters related to their personal interests and happenings in the
community. Id. at 31-60; ECF No. 201-13 at 1-7.
The tenor of the texts changed around November 26, 2020, Thanksgiving Day. On that
date, Mr. Martinez asked Ms. Prescott if she had “dress[ed] up for the day?” ECF No. 201-13 at
12. She responded by sending him a photograph of herself in a strapless dress, followed by the
comment: “Sorry it’s a lot of boob.” Id. at 13-14. Mr. Martinez replied: “Don’t be, stunning to
say the least.” Id. at 13-15. Ms. Prescott then asked Mr. Martinez to call her. Id.. at 16. Although
Mr. Martinez testified that he does not recall if he and Ms. Prescott spoke by phone on
Thanksgiving Day, ECF No. 267 at 51:1-7, his Verizon phone records indicate that he received a
call on that day from Ms. Prescott’s number (786-575-2003) at 3:36 p.m. that lasted twenty-two
minutes. See ECF No. 263-1 at 12.
A series of text messages were exchanged the day after Thanksgiving, beginning with
this one from Ms. Prescott:
Can you call me—I am sorry I have a question.
Another hard day.
He5 said he has “submitted something to the police”
I don’t know if he’s trying to scare me, but he did a lot of that today.
ECF No. 201-13 at 16-17. Mr. Martinez responded: “I have not heard anything. I promise, it’s
intimidation method. I’m sorry, I wanted to check on you.” Id. at 17. More texts followed,
informing Mr. Martinez that Mr. Prescott had “recked [sic] the house and now wants me to clean
it”; accused her of being “a bad mom”; and “literally poured water all over our bed before bed
the other night.” Id. at 19. Ms. Prescott told Mr. Martinez: “I need to get out of this. I have to.”
5 It is undisputed that “he” refers to Mr. Prescott.
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Id. Mr. Martinez responded that the situation was “terrible. You don’t need to deal with that. The
babies don’t need to see it.” Id. at 20.
In the texts that followed,6 Ms. Prescott replied that she was “not a resident here yet so I
have to figure out how I can proceed,” id., prompting more texts between the two concerning
Ms. Prescott’s residency status in Colorado. Id. at 22-28. Ms. Prescott told Mr. Martinez that she
was glad she had met him, to which Mr. Martinez responded: “Me too. You’re a great woman.”
Id. at 27-28. Mr. Martinez asked Ms. Prescott if she had a plan, to which she responded: “Don’t
have a plan. Just realizing I might need one. I didn’t see any of this coming. He’s like this in
waves – hot cold . . .” Id. at 29. In subsequent texts, which appear to have been sent the same
day, Ms. Prescott proceeded to detail other conduct allegedly undertaken by her husband,
including his removal of a door knob from her personal closet because “he said I am not allowed
to have personal privacy,” id. at 34-35, and that he had “convinced himself that [Ms. Prescott]
met someone to try and accuse him of something.” Id. at 36.
To these texts, Mr. Martinez responded:
Separate yourself from him. Create distance and promote silence. It will provoke
him and make sure to record.
Id. at 40. Mr. Martinez testified that this advice was not intended to encourage provocation but to
deescalate the situation by creating separation, similar to his standard guidance for domestic
violence situations or other conflicts, and that he recommended recording as a way to document
evidence if the situation escalated. ECF No. 267 at 52:13-53:5.
6 The screenshots do not always indicate the precise date and time on which each of the texts was
exchanged, but they obviously predate the video made by Mr. Prescott on November 29, 2020,
the Sunday after Thanksgiving.
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Also included among the texts was a statement that Mr. Martinez was finishing
remodeling work on his home and that it would be completed “I’m hoping the beginning of the
year,” id. at 32, eliciting this response from Ms. Prescott. “Today [Mr. Prescott] said he is going
to foreclose this house to make it look like he is broke. Sooooo if he does I will def[initely] have
to move. Beginning of the year might be great timing.” Id. at 32. Mr. Martinez testified that this
exchange could imply Ms. Prescott was discussing moving into his home, but that he had no
such intentions and does not recall it that way. ECF No. 267 at 48:17-49:19.
Ms. Prescott proceeded to tell Mr. Martinez that she had locked herself in her bedroom,
that Mr. Prescott “keeps provoking me. It’s been 3 days straight.” ECF No. 201-13 at 42. Ms.
Prescott “wonder[ed] if he is under psychosis,” and told Mr. Martinez that “he hates me because
I’ve called the cops on him before.” Id. at 43. Further, per Ms. Prescott’s statements to Mr.
Martinez, Mr. Prescott “keeps whispering ‘snitches get stitches.’” Id. at 44. Mr. Martinez advised
Ms. Prescott to “write these things out in a journal day by day. It will play a factor in court.” Id.
at 45.
More accusations of threatening conduct by Mr. Prescott followed, id. at 45-51,
prompting Ms. Prescott to text: “OMG. God wake me up from this nightmare.” Id. at 52. Mr.
Martinez told Ms. Prescott to “video him if he destroys anything, id. at 52, and urged her to
“walk away totally. It’s best.” Id. at 54. The last available texts from Ms. Prescott to Mr.
Martinez, which are undated, said that “I’m doing laundry – and my son just came running in
here. I don’t know what the hell to do. I’m keeping them on the opposite side of the house. If I
leave he will try to stop me.” Id. at 59.
This was the last text Mr. Prescott was able to record on November 29, 2020, and that is
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contained in the record currently before the court, but Defendants do not dispute that there may
have been—and it appears there likely were—additional texts exchanged between Mr. Martinez
and Ms. Prescott after that date. At some unidentified point, per Mr. Martinez’s testimony, he
stated that he stopped texting with Ms. Prescott because he perceived her to be a victim of
domestic violence and felt it was inappropriate to continue communicating with her. ECF No.
267 at 84:9-22. Mr. Martinez denies any romantic intent in the texts, describing them as casual
and friendly. Id. at 35:1-4, 40:5-13.
C. 	December 2, 2020, at 1:30 p.m.: Ms. Prescott Makes a Report to ACSO
Personnel and Accuses Mr. Prescott of Domestic Violence
At approximately 1:30 p.m. on December 2, 2020, Ms. Prescott made a report to Patrick
Smith, who worked for the ACSO, alleging that she and her children were the victims of
domestic violence perpetrated by Mr. Prescott. See December 2, 2020 Incident/Offense Report,
No. S20000899, ECF No. 201-2 (time of report labeled “1329”). Based on Ms. Prescott’s report,
Mr. Smith presented an affidavit and arrest warrant for Mr. Prescott to a state judicial officer. Id.
at 3. Sometime on December 2, 2020, the judge issued a warrant for the arrest of Mr. Prescott on
charges of domestic violence, false imprisonment, harassment, and obstruction of telephone or
telegraph services. ECF No. 201-3.
In his deposition in this action, Mr. Smith testified that Ms. Prescott mentioned “James”
several times during the interview. Deposition of Patrick Smith, ECF No. 201-21 at 49:12-16.
Mr. Smith believed that “James” was Mr. Martinez. Id. at 149:11-17. Mr. Smith observed that
Ms. Prescott was texting with a “friend” during the course of the interview, but he “didn’t look at
[Ms. Prescott’s] phone,” nor did he speak with Mr. Martinez in the course of investigating Ms.
Prescott’s domestic violence report. Id. at 149:12-50:7. At the evidentiary hearing in this case,
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Mr. Martinez testified that he did “not remember any text or calls of that nature”—that is,
concerning Ms. Prescott going to the Sheriff’s department to make a report against Mr. Prescott
on December 2, 2020, see ECF No. 267 at 63:6-22—but the information in the record indicates
that the two were in communication at that time.
Although Mr. Martinez was away from work “from the end of November until December
15th” because he contracted COVID-19, see ECF No. 234-4 at 109:24-110:1, his Verizon phone
records show a ten-minute incoming call from Ms. Prescott’s number (786-575-2003)
commencing at 1:42 p.m. on December 2, 2020—immediately before Ms. Prescott was
interviewed by Mr. Smith. Mr. Martinez claims not to recollect this call, but he acknowledges
the records indicate it did in fact occur. See ECF No. 263-1 at 13; see also ECF No. 267 at 66:9-
67:23; ECF No. 201-1 at 1 (Dispatched Call Summary showing Smith called Prescott at 1:33
p.m. and was en route to meet her at 1:42 p.m.). Mr. Martinez denied coaching Ms. Prescott as to
what to say to Mr. Smith. ECF No. 267 at 67:6-9.
D. 	December 2, 2020, at 4:52 p.m.: Sheriff Valdez Is Advised of the Custody
Order and the Existence of Texts Between Ms. Prescott and “James”
Mr. Prescott’s counsel contacted Sheriff Valdez the afternoon of December 2, 2020, the
day Ms. Prescott made the report of domestic violence. In a letter from attorney Lisa Ward to
Sheriff Valdez, appended to an email sent to the Sheriff at 4:52 p.m., Ms. Ward stated that she
was reaching out “because some extremely concerning issues have been brought to light
involving one of your deputies, a Deputy with the first name James, vehicle no. 177, cell no.
970-398-1754, which issues must be expeditiously addressed by the Department.” ECF No.
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201-9 at 2.7 Ms. Ward went on to say that Mr. Prescott had “discovered text messages between
Ms. Prescott and Deputy ‘James,’ which text messages demonstrate that Ms. Prescott is clearly
attempting to seduce the Deputy, laying the groundwork for further false allegations against Mr.
Prescott.” Id. Sheriff Valdez testified that he had no doubt that the “James” referenced in Ms.
Ward’s letter was Defendant James Martinez. ECF No. 267 at 121:10-23.
Ms. Ward appended the Custody Order to her letter to Sheriff Valdez, ECF No. 201-9 at
11-12, along with an “Order for Social Investigation and Psychological Evaluations” issued by
the court in the Prescotts’ Florida divorce proceeding. Id. at 4-9; see also id. at 5 (statement by
the judge that the court “is very concerned” about circumstances surrounding a May 2019
domestic violence accusation by Erika Prescott against Jason Prescott, which involved Ms.
Prescott disabling home security cameras approximately one hour prior to her reporting “the
alleged domestic violence incident”). Sheriff Valdez responded to Ms. Ward by email at 9:27
a.m. on December 3, 2020, advising her that “[t]he information will be turned over to my
Operations Commander”—i.e., Ms. Lattin—“for a full review.” ECF No. 201-22; see also id.
(copying James Woodman,8 Warren Brown, and others).
E. 	December 3, 2020, at 10:27 a.m.: Sheriff Valdez Is Again Advised of the
Custody Order
On December 3, 2020, at 10:27 a.m., Ms. Ward sent another email to Sheriff Valdez,
along with other ACSO personnel, regarding the “Prescott Children.” ECF No. 201-23 (copying
7 It appears that when Ms. Ward sent this correspondence to Sheriff Valdez she was unaware of
Ms. Prescott’s report to Mr. Smith earlier that afternoon.
8 Defendant Derek Woodman’s full name is James Derek Woodman. See ECF No. 201-17 at 1.
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James Woodman and others). Ms. Ward attached another copy of the Custody Order to her
email, id. at 3-4, and proceeded to address Ms. Prescott’s domestic violence report to Mr. Smith:
I understand that Mrs. Prescott is attempting to file “kidnapping” charges against
Mr. Prescott for the parties’ two minor children. Although I have sent this Court
Order to you previously, I wanted to re-send it and reiterate that Mrs. Prescott has
supervised parenting time only, per the Court Order attached which is the only
Court Order in place related to the Prescott children. Mr. Prescott has sole primary
parenting of the children so under no circumstances has he “kidnapped” the
children.
. . .
I am asking that you please ensure that your officers understand the situation and
the current Orders of the Court so that my client is not wrongfully accused and/or
pursued for kidnapping . . .
See id. at 1.
F. 	December 3, 2020, at 12:00 p.m.: The Colorado Bureau of Investigation
Denies Mr. Smith’s Request for an AMBER Alert for Mr. Prescott
On December 3, 2020, at approximately noon, a Colorado Bureau of Investigation
official informed Mr. Smith “that given the time line and the circumstances of the case that it
was not likely an AMBER Alert could be issued in this case” that Ms. Prescott had initiated.
ECF No. 201-24 at 2. The CBI official noted in her report that she had “advised [another agent]
of the request,” and that “[o]ne item we talked about at length was the fact that dad was in fact
the biological and one of the custodial parents to these children.” Id.
G. 	December 4, 2020, at 1:37 a.m.: Mr. Prescott Is Arrested in Colorado Springs
On December 4, 2020, at 1:37 a.m., Mr. Prescott was arrested at the home of friends in
Colorado Springs9 by the Colorado Springs Police, after ACSO officials advised the Department
9 Mr. Prescott’s children were in the home at the time of his arrest.
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that Mr. Prescott was believed to be at that location. See Case Report # 2020-00042007, ECF No.
201-1. Mr. Prescott was taken into custody. The criminal charges against Mr. Prescott were
ultimately dismissed on January 6, 2021. See ECF No. 201 ¶ 37.
H. 	December 4, 2020: Sheriff Valdez Receives a Preservation Request for the
Texts
On December 4, 2020, at 3:03 p.m., Ms. Ward sent an email to Sheriff Valdez, with a
copy to James Woodman, requesting the preservation of electronic evidence and specifically
referencing the texts between Mr. Martinez and Ms. Prescott:
Sheriff, please consider this my request for you to preserve all electronic and other
evidence related to any communications between any Deputy in the Department,
including the Deputy by the names of “James” with cell phone number 970-398-
1754 and Erika Prescott, including any and all texts, electronic communications,
emails, call logs and call records and any other documentation of any and all
communications between anyone in the department, including but not limited to
“James,” and Erika Prescott. Such evidence will be the subject of a forthcoming
subpoena and is relevant to Jason Prescott’s defense in the criminal charges
which have been filed against him.
ECF No. 201-25 at 1 (italics in original) (bolded emphasis added).
I. 	December 8, 2020: The District Attorney Receives a Preservation Request for
the Text Messages From Mr. Prescott’s Counsel
On December 8, 2020, at 2:01 p.m., Mr. Prescott’s criminal defense counsel sent an email
to Alex Lowe, an assistant district attorney handling the criminal case against Mr. Prescott. Mr.
Prescott’s attorney wrote:
I am formally requesting additional discovery in case #20CR119. We are aware
that Ms. Prescott was in communication with a Deputy with the Archuleta County
Sheriff’s Office by the name of 	“James” with a cell phone number of 970-398-
1754. We believe that there may be exculpatory information contained in the
communications between “James” and Ms. Prescott. Specifically, we believe there
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may be evidence of inappropriate communications between those individuals
contained therein.
Please provide any and all communications between Erika Prescott and any
member of the Archuleta County Sheriff’s Office. These include all texts, electronic
communications, recordings, emails, records of call history, call logs, and call
records that may exist and that may be in the possession of the Office or a[n]
individual deputy or other person associated with the Office.
To be clear, we are requesting that you actively investigate and take affirmative
steps to secure this evidence.
ECF No. 201-26 (emphasis added). Within two minutes, Mr. Lowe forwarded that email to
Warren Brown, Roxanne Lattin, Michael Sindelar, and others. See id.
J. 	Unknown Date in Early December 2020: Mr. Martinez Disposes of the Cell
Phone that Contained the Texts, Then Provides Inconsistent Information
About the Date of Disposal
By December 8, 2020, both the ACSO and the District Attorney had been expressly told
that the text messages between Erika Prescott and Deputy “James” were potentially exculpatory
and needed to be affirmatively secured. ECF No. 201-25 (December 4, 2020 preservation email
to Valdez); ECF No. 201-26 (December 8, 2020 preservation request to DA Lowe). George
Daniels, an investigator, was then assigned by the District Attorney’s Office to contact Mr.
Martinez about his communications with Ms. Prescott.
On December 10, 2020, Mr. Daniels interviewed Mr. Martinez by phone. Mr. Martinez
admitted that he had exchanged text messages with Ms. Prescott and that those messages
concerned “criminal law and stuff like that, issues that she was having with her husband,” but
characterized the communications as “pretty minimal.” ECF No. 201-10 at 1-2; ECF No. 267 at
14:18-16:7 (Daniels’s testimony). Mr. Daniels memorialized in his written report that Mr.
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Martinez told him he “would go through his phone and see if he still had” the text messages and
would send screenshots of the texts if he did. ECF No. 201-10 at 2.10 At no point in the
December 10 call did Mr. Martinez tell Mr. Daniels that he had recently changed phones, that he
had changed his number, or that the device that contained the texts was gone. Mr. Daniels
understood from the conversation—and from Mr. Martinez’s request that Mr. Daniels keep his
cellphone number “private”—that Mr. Martinez was still using the same personal number
(970-398-1754) on December 10, 2020, that he had used in texting with Ms. Prescott. ECF No.
201-10 at 2; ECF No. 267 at 18:12-19:4, 30:24-31:6.
Five days later, on December 15, 2020, Ms. Lattin, the ACSO Operations Commander,
interviewed Mr. Martinez at the direction of Undersheriff Woodman. In her contemporaneous
memorandum, Ms. Lattin recorded that Mr. Martinez told her he had given Ms. Prescott his
“personal cell number 970-398-1754,” but that he “no longer had that phone number and had
changed his personal phone number because of personal reasons involving altercations with his
family members.” ECF No. 201-29 at 2. Ms. Lattin also wrote: “Deputy Martinez had previously
changed his personal cellphone number and no longer had any records of the texts.” Id. Thus, as
of December 15, 2020—eleven days after Mr. Prescott’s arrest and after two written preservation
demands—Mr. Martinez was claiming that his phone number and any record of his texts with
Ms. Prescott were gone, even though he had said nothing about a new device or a new phone
number when he spoke with Mr. Daniels on December 10, 2020.
10 It is unclear why Mr. Daniels would have been satisfied with “screen shots” of the texts in
light of defense counsel’s assertion that they may have contained exculpatory information in a
pending criminal case. However, the recording of the call reflects that Mr. Daniels took a very
non-confrontational approach with Mr. Martinez and did not press him for information.
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Mr. Martinez’s account shifted again during the course of the instant litigation, when
District Attorney Sean Murray asked Mr. Daniels to re-interview Mr. Martinez in October 2024
after learning that Mr. Martinez might have destroyed evidence. ECF No. 267 at 19:7-22:24. In
that second recorded interview, Mr. Martinez told Mr. Daniels that he “often” changed phones
through Straight Talk/Verizon, taking advantage of Black Friday or Cyber Monday promotions,
and that by the time of the December 10, 2020 interview he had “a new phone” but had kept the
same number. ECF No. 267 at 20:10-21:6. That explanation is difficult to reconcile with Mr.
Martinez’s December 15, 2020 statement to Ms. Lattin that he no longer had the texts with Ms.
Prescott because he had changed his personal number due to “altercations with his family
members.”
Mr. Martinez’s testimony at the November 2025 evidentiary hearing added further
inconsistency to the timeline concerning his phone. He testified that he believed he had obtained
a new phone—“by at the latest”—December 1, 2020, via a Verizon promotion, but he could not
say from which store or whether there were credit-card or bank records reflecting the purchase,
even though he agreed such records “logically” should exist. ECF No. 267 at 141:16-143:11. He
professed not to remember what he did with the old device that contained the Prescott texts,
stating only that he “could have just got rid of it, sold it, sent it back,” and that he now has “no
idea where the phone was.” Id. at 143:12–144:3. He also testified that when Mr. Daniels called
him on December 10, 2020, he was already using the new phone, that the new phone started as a
“clean device” with no historical texts on it, and that when he looked at the phone after hanging
up with Mr. Daniels “there was nothing there.” Id. at 144:20-145:5, 159:3-160:6.
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At the same time, Mr. Martinez acknowledged that (1) he did not tell Mr. Daniels during
their call on December 10, 2020, that he was on a different physical phone than the one on which
he had communicated with Ms. Prescott; (2) he did not disclose that fact until years later; and
(3) he had changed his number “three times” since late 2020, including once within about five
days after speaking with Mr. Daniels, ostensibly because of a dispute with his brother. Id. at
152:19-153:14, 173:15-174:6. He further testified that he does not keep old phones, that there is
“just no need to,” and that he cannot say whether any of the data from the phone on which he
communicated with Ms. Prescott was ever backed up or remained in iCloud. Id. at 143:17-144:3,
147:18-149:6, 161:1-162:9.
Taken together, this sequence of events supports the conclusion that, within days of
ACSO personnel being put on explicit notice—by both Mr. Prescott’s criminal defense counsel
and the District Attorney’s Office—that Mr. Martinez’s texts with Ms. Prescott were relevant
and needed to be preserved, Mr. Martinez disposed of that phone and then, when asked about the
phone and the texts, gave inconsistent, incomplete explanations about when he got rid of it,
whether he changed his number, and whether any of the data was transferred or preserved.
K. 	January 7, 2021: Mr. Prescott’s Counsel Submits Another Preservation
Request to Sheriff Valdez
In this preservation letter, entitled “Demand for Evidence Preservation,” counsel for Mr.
Prescott notified Sheriff Valdez and Pagosa Springs Chief of Police Bill Rockensock of their
demand to immediately “preserve all documents and tangible things . . . related to any of the
above-named individuals”: Jason Prescott, Erika Prescott, and James Martinez. ECF No. 201-27
at 3. The letter defined “documents and tangible things” to include texts. Id.
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L. 	This Court’s Efforts to Clarify the Timeline of Mr. Martinez’s Disposal of
His Phone and to Determine if the Missing Texts Could Be Retrieved
In its November 7, 2025 order, this court found the existing record as to when Mr.
Martinez discarded his phone, acquired a new device, and changed his number “convoluted,
vague, and—in some respects—contradictory,” ECF No. 261 at 3—a characterization to which
the undersigned continues to adhere. In an attempt to eliminate this confusion, the court ordered
Mr. Martinez to produce either a receipt for the “Black Friday/Cyber Monday” phone purchase
or, failing that, complete credit card and other payment records for November 2020 through
January 2021, and directed defense counsel to review those records and file a status report
“confirming the date on which the new device was purchased”—or explaining why that could
not be done. Id. at 3-4.
Defendants’ December 8, 2025 Status Update Regarding Date of Phone Purchase
reported that Mr. Martinez’s bank records showed a $248.91 payment to Verizon on December
7, 2020, which “upon information and belief, includes an installment charge for the phone,” but
asserted that counsel could not determine the exact purchase date from the available billing and
account records. ECF No. 266 at 2-3. Defendants acknowledged there were no receipts or order
confirmations in Mr. Martinez’s email and that his practice of financing phones in installments
made it “difficult to distinguish between service charges versus an installment plan on a new
phone” from billing alone. Id. at 3-4.
The court also observed in its November 7, 2025 order that “not all avenues have been
exhausted” to recover the lost texts, and accordingly directed Defendants to retain a qualified
forensic examiner to determine whether any text/iMessages between Mr. Martinez and Ms.
Prescott could be retrieved from the cloud or other sources, with any recoverable texts to be
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produced to Plaintiffs and the examiner’s conclusions reported within sixty days. Id. at 2-3.
Defendants retained an entity called Contact Discovery Services and digital forensics analyst
Sean Sears, who first performed an advanced logical extraction of Mr. Martinez’s iPhone 14 Pro
Max and then, after resolving Apple security lockouts, collected two iCloud backups and synced
iMessages from Mr. Martinez’s iCloud account. ECF No. 280-1 at 2-3; ECF No. 281-1 at 2.
After analyzing the device image, the two backups, and the iCloud-synced iMessages with
industry-standard forensic tools, Mr. Sears reported that he “could not identify any iMessages on
the device” or in the iCloud data to or from Ms. Prescott’s phone number or email, and that the
earliest recovered messages post-dated the relevant September to December 2020 period. ECF
No. 280-1 at 3.
LEGAL STANDARDS
Rule 37(e) governs the imposition of sanctions when “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[.]” Fed. R. Civ. P. 37(e). “A moving party has the burden of proving, by a
preponderance of the evidence, that the opposing party failed to preserve evidence or destroyed
it.” Zbylski v. Douglas Cnty. Sch. Dist., 154 F. Supp. 3d 1146, 1160 (D. Colo. 2015) (citing
Ernest v. Lockheed Martin Corp, No. 07-cv-02038-WYD-KLM, 2008 WL 2945608, *1 (D.
Colo. July 28, 2008)). “To carry this burden, [the moving party] must show that ‘the existence of
a fact is more probable than its nonexistence.’” United States v. Crockett, 779 F. App’x 536, 540
(10th Cir. 2019) (quoting Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Tr.
for S. Cal., 508 U.S. 602, 622 (1993)).
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If the court concludes that evidence was not preserved and that the moving party suffered
prejudice from the loss of the evidence, the court “may order measures no greater than necessary
to cure the prejudice[.]” Fed. R. Civ. P. 37(e)(1). But if the court finds “that the party acted with
the intent to deprive another party of the information’s use in the litigation[,]” the court 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)(2).
“As a general rule, ‘[s]poliation sanctions are proper when (1) a party has a duty to
preserve evidence because it knew, or should have known, that litigation was imminent, and
(2) the adverse party was prejudiced by the destruction of the evidence.” EEOC v. JetStream
Ground Servs., Inc., 878 F.3d 960, 964 (10th Cir. 2017) (quoting Turner v. Pub. Serv. Co. of
Colo., 563 F.3d 1136, 1149 (10th Cir. 2009)); see also, e.g., Zbylski, 154 F. Supp. 3d at 1170-71
(“Spoliation sanctions are proper when the court determines that a party had a duty to preserve
relevant evidence, and the adverse party was prejudiced by the destruction of the evidence.”)
(citing Burlington N. & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007)).
Additionally, to impose an adverse inference to remedy the spoliation, the court must find bad
faith. Zbylski, 154 F. Supp. 3d at 1171-72 (stating that “[w]here the party claiming prejudice
seeks an adverse inference to remedy the spoliation, it must also prove bad faith”). As the Tenth
Circuit Court of Appeals has noted, “[t]he advisory committee note to [Rule 37(e)(2)] provides a
commonsense explanation for the bad-faith requirement”:
Adverse-inference instructions were developed on the premise that a party’s
intentional loss or destruction of evidence to prevent its use in litigation gives rise
to a reasonable inference that the evidence was unfavorable to the party responsible
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for loss or destruction of the evidence. Negligent or even grossly negligent behavior
does not logically support that inference.
Jetstream Ground Servs., 878 F.3d at 966 (quoting advisory committee note to 2015
amendment). Thus, without a showing of bad faith, a district court may only impose lesser
sanctions. Turner, 563 F.3d at 1149.
ANALYSIS
Mr. Prescott requests that the court enter default judgment against Defendants for failing
to preserve evidence in violation of Rule 37(e)(2). He presses the conclusion that default
judgment is the only remedy that sufficiently redresses the loss of the texts between Mr.
Martinez and Ms. Prescott, particularly in view of Defendants’ status as law enforcement
officers. See ECF No. 201 ¶¶ 13, 53-5. He disputes that even an adverse-inference instruction is
adequate to address the prejudice he has sustained, distinguishing cases in which an adverse-
inference instruction has been found to be an appropriate sanction as “not involv[ing] law
enforcement officers who are required to preserve evidence anyway, and who intentionally
deleted the evidence they were told four times they needed to preserve and produce.” See id. ¶ 62
(emphasis in original).
The theme underlying Defendants’ counterarguments is that it isn’t Mr. Martinez’s fault
his text messages with Ms. Prescott post-dating November 29, 2020, were lost. The reason Mr.
Martinez can’t be held to account for their loss is that (1) he had “absolutely no involvement or
input” in the criminal investigation of Mr. Prescott that was initiated with Ms. Prescott’s report
on December 2, 2020, and he “had no idea that Plaintiff had even been arrested until the DA
investigator contacted him on December 10, 2020,” ECF No. 234 at 3, 8; (2) the instant litigation
was not “reasonably anticipated” when he replaced Mr. Martinez replaced his cell phone and cell
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phone number on an unknown date and time in the early days of December 2020 (but, clearly,
after December 2, 2020, when he talked with Ms. Prescott immediately preceding her interview
with Mr. Smith), id. at 7-8; (3) “Deputy Martinez” was never put on notice to secure the texts
“because he was in quarantine on sick leave” during the first two weeks of December 2020, id. at
9-10 (emphasis in original); and (4) by the time Mr. Martinez returned to work on December 16,
2020, and he was interviewed by Operations Commander Lattin, the text messages “had been
lost” because Mr. Martinez had not theretofore “learn[ed] of any open case involving Mr.
Prescott.” Id. at 11.
The court is, respectfully, wholly unpersuaded by Defendants’ arguments, which
conspicuously fail to engage with the totality of the record evidence and are, in multiple respects,
directly contradicted by it. In particular, Defendants fail to address the evidence indicating that—
irrespective of Mr. Martinez’s actions with regard to his cell phone (concerning which, the court
notes, he has testified inconsistently)—no ACSO official with knowledge of the communications
from Mr. Prescott’s counsel, including Sheriff Valdez, ever contacted Mr. Martinez to tell him
that he needed to preserve text messages with the reporting party in a domestic violence case in
which the ACSO was pursuing charges at that very point in time.
Upon a careful examination of the record evidence pursuant to the applicable standards
for evaluating spoliation, the court concludes the missing texts are spoliated evidence and that
prejudice to Mr. Prescott may be repaired by means of an adverse-inference instruction.
A. 	Discussion
1. 	Defendants Had a Duty to Preserve the Texts
To commence with the key point, “[l]itigants must preserve evidence when they have
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notice or should know that evidence may be relevant to future litigation.” Eze v. City of Las
Cruces, No. 1:23-CV-00976-KWR-KRS, 2025 WL 2962609, at *2 (D.N.M. Oct. 20, 2025)
(citing Browder v. City of Albuquerque, 209 F. Supp. 3d 1236, 1243 (D.N.M. 2016)).
Here, Defendants received notice that the texts were relevant to a criminal case that had
already commenced. In Ms. Ward’s letter to Sheriff Valdez, which she sent at 4:52 p.m. on
December 2, 2020, she conveyed that “some extremely concerning issues have been brought to
light” concerning a “James,” evinced in his text messages with Ms. Prescott that reflected her
attempts “to seduce the Deputy, laying the groundwork for further false allegations against Mr.
Prescott.” ECF No. 201-9 at 2 (emphasis added).11 Indeed, just three hours earlier, Ms. Prescott
had in fact made a report of domestic violence against Mr. Prescott, eliciting from ACSO
officials efforts to procure his arrest at the exact time the letter was sent. By the time Sheriff
Valdez saw the letter on the morning of December 3, he was aware that the ACSO had already
procured a warrant for Mr. Prescott’s arrest. ECF No. 267 at 92:20-25.
Sheriff Valdez testified that he forwarded the December 2 letter to his “command staff,”
i.e., Undersheriff Woodman and Ms. Lattin. ECF No. 267 at 91:7-23. But he took no other action
in response to the information contained in the letter at that time, id. at 91:24-25, including doing
nothing to ensure that Mr. Martinez’s text messages were preserved:
Q. 	Who did you direct to get the text messages that day [December 3, 2020]?
A. 	The text messages, I didn’t direct anybody specifically for the text messages
. . . . What I did direct them is to conduct an Internal Affairs investigation
or to start looking into the matter.
11 There was no doubt in Sheriff Valdez’s mind that the “James” referred to in the December 2,
2020 letter was James Martinez. ECF No. 267 at 121:5-8.
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Id. at 96: 14-18. Sheriff Valdez understood that the text messages were “potential evidence” that
“needs to be secured.” Id. at 98:11-19. Sheriff Valdez went on to testify:
Q. 	And the letter also says that Ms. Prescott is premeditating further false
allegations and has enlisted the assistance of Sheriff’s Deputy who has now
knowingly or unknowingly become involved in Ms. Prescott’s schemes to
falsify yet another arrest of Mr. Prescott. You see that language, don’t you?
A. 	Yes.
Q. 	And so those text messages were exculpatory or at least they very well could
be, correct?
A. 	Yup.
Id. at 98:20-99:3; see also id. at 183:24-184:2 (testimony from Undersheriff Woodman
acknowledging that the texts had “evidentiary value”).
Lest Sheriff Valdez harbored any doubt as to the need to preserve Mr. Martinez’s texts—
and his testimony confirms that he had no doubt as of the morning of December 3 that the texts
constituted potentially exculpatory evidence in a pending criminal matter—that belief could not
have been rationally sustained as of December 4, 2020, when Mr. Prescott’s counsel sent a
preservation request for the texts. In that communication, counsel expressly demanded
preservation of “all electronic communications” between any ACSO deputy (including “the
Deputy by the name of James with cellphone No. 970-398-1754)” and Ms. Prescott, and stating
that “[s]uch evidence will be the subject of a forthcoming subpoena and is relevant to Jason
Prescott’s defense in the criminal charges which have been filed against him.” ECF No. 201-25
at 1 (italics in original); ECF No. 267 at 106:6-8 (testimony by Sheriff Valdez acknowledging
that the December 4 letter requested preservation of the texts).
On this record, the court is compelled to find that ACSO officials were on notice that
steps should have been taken to preserve these potentially exculpatory texts by no later than
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December 3, 2020. At that point, the officials were in possession of information indicating that
an ACSO deputy could be connected to a pending criminal investigation and possible “false
accusations” against the target of that investigation, thus creating a duty to preserve the texts. By
any commonsense standard, Sheriff Valdez immediately should have known that the texts must
be preserved. See, e.g., Sims v. Bd. of Cnty. Commissioners for Oklahoma Cnty., No. CIV-23-
780-R, 2026 WL 288199, at *2 (W.D. Okla. Feb. 3, 2026) (recognizing, in evaluating whether
preservation of electronically-stored information should have been preserved in anticipation of
litigation, that Rule 37(e) encompasses “potential future litigation or criminal action”) (emphasis
added); Crema v. Las Vegas Metro. Police Dep’t, No. 2:17-cv-01535-RFB-VCF, 2023 WL
6262556, at *4 (D. Nev. Sept. 25, 2023) (holding that “the body camera footage was foreseeably
material and relevant evidence in both [the plaintiff’s] pending criminal proceedings and future
litigation, including this civil case”) (citing Ungar v. City of New York, 329 F.R.D. 8, 14 n.2
(E.D.N.Y. 2018), aff’d, No. 21-1384-cv, 2022 WL 10219749 (2d Cir. Oct. 18, 2022) (“Where it
is foreseeable that evidence may be relevant to a criminal proceeding, the State’s failure to
preserve it can support an adverse inference instruction in a civil proceeding arising out of the
same events.”) (other citation omitted)); see also Zbylski, 154 F. Supp. 3d at 1163 (stating that
“evidence gathered during the course of a prior criminal investigation was subject to a duty to
preserve based on the reasonable foreseeability of a criminal prosecution”).
The court is respectfully unpersuaded by Defendants’ arguments seeking to extricate
themselves from this preservation obligation. Defendants assert that, “[w]hen the texts were lost,
there was no active litigation, and no anticipation of litigation.” ECF No. 234 at 7-8. Not so. The
criminal charges against Mr. Prescott were pending when Mr. Martinez got rid of his phone
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(under circumstances that remain hazy, despite this court’s efforts to obtain specific information
as to the date when that occurred). Furthermore, given the unequivocal contemporaneous
representations from Mr. Prescott’s counsel—that Mr. Prescott, not his wife, was the children’s
legal custodian and that his wife had a history of falsely accusing him of domestic violence—it
also could reasonably have been anticipated that Mr. Prescott would bring a civil action alleging
that Defendants’ pursuit of his arrest and prosecution violated his constitutional rights. The plain
language of the communications from Mr. Prescott’s counsel signaled his belief that Defendants’
actions were even then running afoul of the Constitution.
Likewise must the court respectfully disagree with Defendants’ contention that, when Mr.
Martinez got a different cell phone, “there had not even been a report made to investigate [Mr.
Prescott] at that point in time.” Id. at 8. Indeed, the evidence indicates that Mr. Martinez had a
ten-minute conversation on his old cell phone with Ms. Prescott just as she was preparing to tell
her story to Mr. Smith on December 2, 2020, at 1:42 p.m. ECF No. 263-1 at 13. The proposition
that Mr. Martinez had no knowledge of the report Ms. Prescott would imminently make, or the
outcome of her conversation with Mr. Smith (including the plan to issue a warrant for Mr.
Prescott’s arrest), is simply not credible, and the court declines to countenance it. But even if it
were the case that “Deputy Martinez was not put on notice on December 2, 2020, because he was
in quarantine on sick leave,” ECF No. 234 at 9 (emphasis in original), that reflects an overly
simplistic and unduly narrow construction of the preservation obligation. Per Sheriff Valdez’s
testimony, he and his command staff knew on December 3, 2020 that Mr. Martinez might have
been in possession of exculpatory evidence; the court finds that sufficient to create a preservation
obligation, even if Mr. Martinez claims to have been personally ignorant of the repeated notices
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from Mr. Prescott’s counsel that texts between “Deputy James” and Ms. Prescott were relevant
evidence from the perspective of the person against whom criminal charges were then pending.
Accordingly, the court finds that the texts between Mr. Martinez and Ms. Prescott should
have been preserved, and that information conveying that preservation obligation was known to
ACSO officials by December 3, 2020.
2. 	Defendants Failed to Take Reasonable Steps to Preserve the Texts
Once a duty to preserve evidence attaches, as the court finds it attached here on
December 3, 2020, a party must take reasonable steps to preserve evidence. Fed. R. Civ. P. 37(e).
Here, rather than taking reasonable steps to preserve the texts, Sheriff Valdez—
notwithstanding his immediate understanding of the potentially exculpatory nature of the texts—
set in motion a chain of events that virtually ensured their being lost. On December 3, 2020,
Sheriff Valdez sent the December 2 letter, referencing Mr. Martinez’s texts with Ms. Prescott,
“over to [his] investigating detective12 who should have taken it into consideration during the
course of their internal investigation.” Id. at 100: 16-24. Sheriff Valdez assumed that “giving that
information to [his] commanding officers, that they would be in contact with [Mr. Martinez] and
talking about those [texts].” Id. at 107:8-10.
The trouble is, no evidence in the record indicates that these “commanding officers”
timely followed up with Mr. Martinez to “talk about” the texts (which were understood to
constitute potentially exculpatory evidence), and neither is there evidence in the record
12 It is not precisely clear to whom Sheriff Valdez refers in using the term “investigating
detective,” but the so-called internal affairs investigation was being conducted by Commander
Lattin, Undersheriff Woodman, and “outgoing Commander Brown,” ECF No. 267 at 102: 6-9—
presumably, Defendant Warren Brown.
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demonstrating that Sheriff Valdez took any other steps to confirm that the texts had been
secured. Undersheriff Woodman testified that after Sheriff Valdez gave him the December 2,
2020 letter, he “did contact Commander Lattin and had her initiate a cursory review of Deputy
Martinez’s personal cellphone.” Id. at 180:17-23 (emphasis added). As Undersheriff Woodman
explained at the hearing:
A. 	I directed Commander Lattin to attempt to obtain the texts.
Q. 	Do you recall when you directed her to do that?
A. 	Specifically, I do not recall the exact date. I did remember that she – by the
time that it all took place, that she had learned that Mr. Daniels through the
DA’s office had already attempted to secure those texts either the day, a
couple days before, something like that, so I’m guessing if the interview is
on the 10th, I’m assuming that it is somewhere around December 10th.
Q. 	Did you want Commander Lattin to get those texts on December 3rd of
2020 when you first received this letter?
A. 	I believe that I expected expedience on her efforts to obtain them . . .
Id. at 185:10-22. Expedience, Undersheriff Woodman did not get.
The evidence shows that even the “cursory review” of the texts Undersheriff Woodman
anticipated never occurred. In her testimony at the evidentiary hearing, Commander Lattin
denied that Undersheriff Woodman directed her to secure the text messages, but rather told her
just to “look into . . . the inappropriate relationship matter between” between Mr. Martinez and
Ms. Prescott. Id. at 208:25-209:9. Commander Lattin did not understand herself to be conducting
“an Internal Affairs investigation,” but rather addressing “just a complaint, inquiry.” Id. at
211:10-12; id. at 211:23-24 (stating that it was “a supervisor inquiry into a complaint. There was
not any IA investigation.”). Importantly, Commander Lattin did not “demand from Deputy
Martinez the production of th[e] text messages,” and did not “demand from Deputy Martinez that
the text messages be preserved.” Id. at 212:13-18. Nor, as the record shows, did anyone else.
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In the end, despite the multiple communications from Mr. Prescott’s counsel to Sheriff
Valdez and other ACSO officials emphasizing the importance their client ascribed to the
Martinez/Erika Prescott texts—and the evidence showing that ACSO officials similarly
understood the texts to be of a potentially exculpatory nature—no one ever directed Mr. Martinez
to preserve the texts or to turn over his cellphone for a forensic analysis. Pursuant to ACSO
policy, the officials were authorized to make that demand, as Mr. Martinez himself
acknowledged. See Archuleta County Sheriff’s Office Policy Manual, Personal Communication
Devices § 701.5(d), ECF No. 201-38 at 5 (“Employees should understand that the use of
personally owned PCD in the workplace for official business may subject them to civil or
criminal discovery or disclosures under applicable public records laws.”); see also ECF No. 267
at 81:10-19 (Martinez testimony regarding the requirements imposed by the policy).13
This record reflects a failure by Defendants to take reasonable steps to preserve relevant
evidence. Defendants’ arguments to the contrary do not undermine this conclusion.
Defendants contend that the ACSO “never had [the texts] to preserve” because Mr.
Martinez’s personal phone was “not a cellular device owned by the Sherriff’s Office” that Mr.
Martinez “utilized for work[.]” ECF No. 234 at 11. Perhaps true, but a characterization that
13 Per Mr. Martinez’s testimony at the evidentiary hearing:
Q. So you agree with me that these texts as they related to a victim who has made a claim
against an actual defendant with a pending criminal case sitting in jail in Colorado
Springs, that those texts should have been transferred over to the Archuleta County
Sheriff’s Office. Do you agree with me on that?
A. That’s a long question.
THE COURT: Should you have given your texts over to your employer, sir?
THE WITNESS: If you say it that clear, yes.
ECF No. 267 at 81:10-19.
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elevates form over substance. The ACSO was expressly notified that the contents of Mr.
Martinez’s phone, albeit his “personal” one, might contain exculpatory evidence related to an
open criminal investigation. Likewise does the court decline to credit Defendants’ self-serving
assertion that “[t]he request for copies of the text messages the day Deputy Martinez returned
from sick leave after having COVID-19 was a reasonable attempt to preserve the messages,”
ECF No. 234 at 11—particularly in light of the Sheriff’s expressed understanding, as of
December 3, 2020, that the texts were of a potentially exculpatory nature.
Finally, with all due respect, Defendants’ assertion that they had “no idea that [the texts]
could be relevant to a future case,” see id., cannot be taken seriously in light of the evidence in
the record here. As Sheriff Valdez and Undersheriff Woodman testified, they appreciated the
potential relevance of the texts to a then-pending criminal investigation that in fact resulted in
criminal charges being brought against Mr. Prescott. In those circumstances, Defendants knew,
or should have known, by no later than December 3, 2020, that texts between Mr. Martinez and
Ms. Prescott “were potentially relevant to a reasonably-defined future criminal or civil
proceeding.” See Zbylski, 154 F. Supp. 3d at 1166. Their assertion now, that it was sufficient for
them to talk with Mr. Martinez when he returned to work on December 16 from his bout with
COVID-1914 does not absolve them of their obligation to have taken reasonable steps to preserve
the evidence two weeks earlier, when they were placed on notice of the existence of the texts.
14 Defendants’ professed reticence to speak with Mr. Martinez because he was down with the
coronavirus does not excuse their failure to secure obviously relevant ESI. There is no evidence
in the record indicating that Mr. Martinez was so lacking in functional capacity that he would
have been unable to communicate with his colleagues about this extremely serious issue. And the
court is obliged to observe that, during the two-week period when Mr. Martinez was away from
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In sum, Defendants’ delay in taking steps to preserve the texts was not a reasonable
response to the December 3, 2020 notification that those texts may constitute exculpatory
evidence in connection with an ongoing criminal investigation, that quickly resulted in the filing
of criminal charges, and that under any reasonable construction also portended civil litigation.
Accordingly, Mr. Prescott has met his burden to show that Defendants did not take reasonable
steps to preserve the ESI.
3. 	The Texts Cannot Be Restored or Replaced Through Additional
Discovery
The record also demonstrates that the texts “cannot be restored or replaced through
additional discovery.” Fed. R. Civ. P. 37(e).
The record admits of no doubt that the missing texts no longer exist on any device in the
possession of Mr. Martinez, are not available from any ACSO system, and cannot now be
recovered from any other source. With the intention of exhausting all possible avenues to obtain
the texts, this court ordered Defendants to retain a qualified forensic examiner to determine
whether retrieval of the lost texts could be accomplished. See ECF No. 261 at 3. The retained
forensic examiner stated, in two sworn declarations, that the messages could not be retrieved. See
ECF Nos. 280-1, 281-1.
The court notes Defendants’ argument that they “believe” Mr. Prescott is “in possession
of all of the text messages at issue here,” see ECF No. 234 at 11-12, but finds there is not the
slightest bit of evidence to support that belief, which seems to hinge on a subpoena issued to
work, he apparently was well enough to speak with Ms. Prescott (on December 2, 2020) and,
after that, to accomplish the switching out of his phone (on a date that cannot be definitively
identified).
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Verizon in the Florida divorce proceeding sometime in December 2020. See id. at 12. As Mr.
Prescott has correctly observed, a phone provider cannot “produce the content of text messages
even if they are not deleted.” ECF No. 239 ¶ 49. In any event, the court rejects Defendants’
unsupported contention that Mr. Prescott actually has the text messages which he has fought with
such tenacity to obtain since December 2, 2020. At bottom, the texts are gone, by virtue of
Defendants’ failure to preserve them, and the suggestion that Mr. Prescott actually has the texts
strains credulity to the breaking point.
Therefore, the court finds that the texts that Defendants failed to preserve will of
necessity remain unavailable to Mr. Prescott and can never be replaced by additional discovery.
4. 	Defendants Acted with Intent to Deprive Mr. Prescott of the Use of
the Texts in the Litigation
Because Mr. Prescott seeks entry of default judgment as a sanction for Defendants’
failure to preserve evidence, which this court has found they had a duty to preserve and that
cannot now be retrieved, the court next considers whether the texts are missing because
Defendants intended to deprive Mr. Prescott of that relevant evidence in this litigation. See Fed.
R. Civ. P. 37(e)(2) (the sanction of default may be imposed for spoliation of electronically-stored
information “only upon finding that the party acted with the intent to deprive another party of the
information’s use in the litigation”).15
15 To the extent Defendants argue that the court must also make a separate and express finding of
prejudice, see ECF No. 234 at 4, that is inaccurate. See Peddada v. Catholic Health Initiatives
Colorado, No. 23-cv-01921-NYW-MDB, 2026 WL 35172, at *4 n.5 (D. Colo. Jan. 6, 2026)
(observing that “Rule 37(e)(2) does not require a separate finding of prejudice because it is—to
some extent—implied.”) (citing Cox v. Swift Transportation Co. of Arizona, LLC, No. 18-cv-
117-CVE-JFJ, 2019 WL 3573668, at *1 (N.D. Okla. Aug. 6, 2019) (“Unlike Rule 37(e)(1), Rule
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The Tenth Circuit has directed that “intent” under Rule 37(e)(2) requires a finding of
“bad faith.” Jetstream Ground Servs., 878 F.3d at 966 (“The adverse inference must be
predicated on the bad faith of the party destroying the records. Mere negligence in losing or
destroying records is not enough because it does not support an inference of consciousness of a
weak case.”) (quoting Aramburu v. Boeing Co., 112 F.3d 1398, 1407 (10th Cir. 1997)); see also,
e.g., Skanska USA Civil Southeast Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1312 (11th Cir. 2023)
(holding that “intent to deprive another party of the information’s use in the litigation,” as
relevant to sanctions under Rule 37(e)(2), “is the equivalent of bad faith in other spoliation
contexts”) (citing JetStream Ground Servs., 878 F.3d at 965-66); Stovall v. Brykan Legends,
LLC, No. 17-2412-JWL, 2019 WL 480559, at *3 (D. Kan. Feb. 7, 2019) (“If an aggrieved party
seeks an adverse inference jury instruction—as plaintiff does here—that party must also prove
bad faith on the part of the producing party.”) (quotation omitted).
Because there is rarely direct evidence of intent, an intent to deprive may be found
through circumstantial evidence. N. Am. Science Assocs., LLC v. Conforti, No. 24-cv-287
(JWB/ECW), 2024 WL 4903753, at *16 (D. Minn. 2024). And in light of the rarity of direct
evidence of intent, “a court imposing spoliation sanctions has substantial leeway to determine
37(e)(2) does not require an express or separate finding of prejudice because ‘the finding of
intent required by [Rule 37(e)(2)] can support not only an inference that the lost information was
unfavorable to the party that intentionally destroyed it, but also an inference that the opposing
party was prejudiced by the loss of information that would have favored its position.’”) (quoting
Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015 amendment); Hallum v. Sheriff of
Delaware Cnty., No. 21-cv-137-GKF-SH, 2023 WL 6367656, at *4 (N.D. Okla. Sept. 29, 2023)
(“If intent is found, there is no need to consider prejudice; the finding of intent supports both an
inference that the lost information was unfavorable and that the opposing party was
prejudiced.”)).
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intent through consideration of circumstantial evidence, witness credibility, motives of the
witness in a particular case, and other factors.” Id. (internal quotation marks and quotation
omitted). The intent-to-deprive standard in Rule 37(e)(2) can be “met if the evidence
demonstrates or it is reasonable to infer that a party purposefully destroyed evidence to avoid
[its] litigation obligations.” Eze v. City of Las Cruces, 2025 WL 2962609, at *4 (citing Franklin
v. Stephenson, No. 20-CV-0576, MIS-JFR, 2022 WL 6225303, at *9 (D.N.M. Feb. 16, 2022),
report and recommendation adopted, 2022 WL 6103342 (D.N.M. Oct. 7, 2022)).
“Intent is generally found where the party’s actions are responsible for the destruction of
evidence, and the party “fully appreciated the significance of the evidence to the anticipated
litigation.” SA Int’l, Inc. v. S.A. Int’l Israel Ltd, No. 2:23-CV-00877-HCN-JCB, 2025 WL
3487528, at *8 (D. Utah July 2, 2025) (citing Oil Equip. Co. v. Modern Welding Co., 661 F.
App’x 646, 653 (11th Cir. 2016)). “Intent may also be inferred if a party is on notice that the
evidence is potentially relevant and fails to take measures to preserve relevant evidence, or
otherwise seeks to ‘keep incriminating facts out of evidence.’” Id. (quoting Franklin, 2022 WL
6225303, at *9). “Courts may also consider the timing of the loss of evidence in determining
intent.” Id. (citing Franklin, 2022 WL 6225303, at *9).
The record here supports an inference that Defendants possessed the requisite intent
under Rule 37(e)(2) because they unequivocally were “on notice that the [texts were] potentially
relevant and fail[ed] to take measures to preserve [that] relevant evidence[.]” SA Int’l, Inc., 2025
WL 3487528, at *8. In so finding, the court emphasizes three critical points.
First, the clarity and specificity of the preservation demands distinguish this case from
one in which a party merely acts negligently in failing to anticipate litigation. By December 3,
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2020, Sheriff Valdez and ACSO leadership had been formally notified that: (1) a deputy “James”
was texting with Ms. Prescott; (2) “James’s” phone number was 970-398-1754; (3) those texts
were alleged to show Ms. Prescott “attempting to seduce the Deputy” and thereby laying the
groundwork for false allegations against Mr. Prescott, who was even then subject to an arrest
warrant issued at the behest of ACSO officials just hours earlier; and (4) the texts were described
as containing potentially exculpatory evidence in the pending criminal case against Mr. Prescott.
ECF Nos. 201-9, 201-23, 201-40. Indeed, Sheriff Valdez admitted that he had received the letter
Ms. Ward sent on December 2, 2020, and that he understood, as of the next morning, that the
texts were potentially exculpatory evidence that “needs to be secured.” ECF No. 267 at 98:11-19;
298:20-99:3. Undersheriff Woodman, who also reviewed Ms. Ward’s letter on December 3,
2020, likewise immediately apprehended that the texts had “evidentiary value.” Id. at 183:24-
184:2. Put simply, this is not a situation where the obligation to preserve was unclear or
technical; it was explicitly flagged for Defendants and they “fully appreciated” the point. See SA
Int’l, Inc., 2025 WL 3487528, at *8.
Second, Mr. Martinez’s explanations regarding his loss of access to the texts has shifted
over time in ways that are both inconsistent and self-serving. When Mr. Daniels, the DA
investigator, first spoke with Mr. Martinez on December 10, 2020, Mr. Martinez did not reveal
that he had changed phones or that his texts had been lost during a device migration. Instead, he
told Mr. Daniels that he had texted with Ms. Prescott about her marital problems, that he would
look for messages, and then reported that he “did not have any of the text messages.” ECF No.
201-10 at 1-2. Mr. Martinez did not tell Mr. Daniels that he had changed his number or that he
had a new phone, leaving Mr. Daniels with the impression that Mr. Martinez was then in
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possession of the same phone and number on which he had texted Ms. Prescott. ECF No. 267 at
18:24-19:11.
Five days later, in his December 15 interview with Commander Lattin, Mr. Martinez
offered a different explanation for his inability to retrieve the texts than the one he had given Mr.
Daniels: he told Commander Lattin that he had “changed his personal phone number” because of
“personal reasons involving altercations with his family members” and that he “no longer had
that phone number” and “no longer had any records of the texts.” ECF No. 201-29 at 2.
However, Mr. Martinez did not tell Commander Lattin that he had obtained a new phone since
he had texted with Ms. Prescott. ECF No. 267 at 216:4-6 (Lattin confirming that Martinez told
her he had changed his number but not the phone itself). Nor did he suggest to Commander
Lattin that he had obtained a new phone on Black Friday or Cyber Monday. Id. at 217:22-25.
Mr. Martinez told yet a different story about his phone during a second interview with
Mr. Daniels on October 1, 2024. Mr. Daniels interviewed Mr. Martinez at that time at the request
of Sean Murray, the La Plata County District Attorney, who informed Mr. Daniels “that he had
heard that Sgt. Martinez had deleted text messages and destroyed his cellphone after our
conversation on December the 10th, 2020. District Attorney Murray asked me to contact Sgt.
Martinez and ask him about that.” Id. at 19:12-22.
Only during that October 1, 2024 interview with Mr. Daniels—nearly four years after the
first interview and after three years of litigation in the instant civil case—did Mr. Martinez first
articulate the “Black Friday/Cyber Monday” narrative: that his cell phone was through “Straight
Talk,” a prepaid cell phone carrier, and that he would “often” upgrade his phone around the time
of the Black Friday or Cyber Monday sales. As Mr. Daniels explained at the evidentiary hearing:
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Q. 	And, sir, when you spoke with [Mr. Martinez] in October of 2024, what, if
anything, did he tell you about the availability of the text messages at that
point?
A. 	He told me that he often would – his cellphone was through Straight Talk.
He would often change phones, sometimes change phone numbers, but he
said he would frequently change phones on a Black Friday or Cyber
Monday or something like that, maybe get an upgrade on his cellphone.
Q. 	Did he tell you that had happened back in 2020?
A. 	Yes, sir.
. . .
Q. 	Even though he had not told you about changing phones or changing
numbers when you first interviewed him in 2020, right?
A. 	That’s right.
Id. at 20:11-20, 21:4-6. There 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. The court, then, is left with a shifting story marked by
inconsistencies that supports an inference of intent under Rule 37(e)(2).
Third, ACSO’s institutional response to the multiple notices concerning the importance
of the text messages reinforces the inference of intent. Despite the multiple notifications and
formal preservation requests, Defendants presented no evidence that any preservation measures
were ever taken. Indeed, Sheriff Valdez knew the morning of December 3, 2020, that the texts
could be exculpatory evidence, yet he set in motion a process marked by delays that resulted in
the loss of the texts. It was several weeks, at the earliest, before anyone at the ACSO asked Mr.
Martinez to provide his phone for examination. In the interim, no one directed Mr. Martinez to
preserve texts that both the Sheriff and Undersheriff understood might have constituted
exculpatory evidence in a then-pending criminal investigation. And when Mr. Martinez’s actions
with regard to the texts finally were scrutinized, at least to some extent, by Commander Lattin,
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she accepted at face value his claim that there were no texts—without taking steps to verify that
claim or to otherwise mitigate the risk of spoliation. The court cannot attribute this conduct to
mere negligence, particularly in view of Defendants’ status as trained law enforcement
professionals who must routinely comply with preservation obligations.
In short, the record before the court demonstrates a response of conscious indifference by
Defendants to information strongly suggesting that an ACSO deputy was in possession of texts
that could contain exculpatory information in an ongoing criminal case and—by any logical
construction of the circumstances—that could be relevant to future civil litigation as well. Such
litigation was especially to be anticipated in light of the contemporaneous submission, by Mr.
Prescott’s counsel, of detailed information concerning his custody rights and documentation
describing prior accusations by Ms. Prescott. This record supports the court’s finding that
Defendants “fully appreciated the significance of the evidence” and “failed to take measure to
preserve that relevant evidence.” See SA Int’l, Inc., 2025 WL 3487528, at *8 (cleaned up).
The court therefore respectfully finds, as required under Rule 37(e)(2), that Mr. Prescott
has met his burden to establish by a preponderance of the evidence that Defendants acted with an
intent to deprive him of the use of the texts in the litigation.
B. 	Sanctions
Having found that Defendants engaged in intentional spoliation under Rule 37(e)(2), the
court turns to the question of the appropriate sanction to recommend.
Mr. Prescott urges the court to find that “[t]he only sanction for [Defendants’] egregious
conduct that is appropriate is entry of a default judgment on liability against the defendants and
that is what Plaintiffs request.” ECF No. 239 ¶ 38 (citing Philips Electronics N. Am. Corp. v. BC
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Technical, 773 F. Supp. 2d 1149, 1158 (D. Utah 2011) (imposing a default judgment sanction
where “[c]ourt orders were disobeyed, documents were intentionally and irretrievably destroyed,
efforts were made to erase evidence of the destruction, and BCT employees lied under oath”)).
The court does not disagree that Defendants’ conduct, resulting in the loss of the text messages,
is a serious matter. However, upon careful consideration, the court finds that the prejudice to Mr.
Prescott may effectively be mitigated by less-severe means than the imposition of the death
sentence of a default judgment. Instead, the court concludes that an adverse-inference sanction is
appropriate to address the offending conduct.
In so finding, the court begins by rejecting Defendants’ contention that the loss of the text
messages was a benign event with no impact on Mr. Prescott. See ECF No. 234 at 12-13 (arguing
that Mr. Prescott has sustained no prejudice attendant on his lack of access to the texts). To be
sure, Mr. Prescott, “has read through all of the communications contained” in the text messages
existing as of November 29, 2020—when he made the video of the texts Mr. Martinez and Ms.
Prescott had exchanged as of that date—but that is beside the point. What Mr. Prescott has not
seen are texts that post-date November 29, 2020, including any texts that may have been
exchanged between Ms. Prescott and Mr. Martinez on the critical date of December 2, 2020,
when Ms. Prescott formally accused Mr. Prescott of being a perpetrator of domestic violence,
triggering the issuance of a warrant for his arrest, his subsequent arrest, and his confinement in
jail for a period of time. The evidence in the record provides ample grounds for the court to infer
that Mr. Martinez and Ms. Prescott were texting on December 2, 2020, given that they spoke by
phone moments before Ms. Prescott gave her report to Mr. Smith. See ECF No. 263-1 at 13.
Logically, any texts preceding, or contemporaneous with, Ms. Prescott’s report to the ACSO
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might have revealed information concerning Mr. Martinez’s actions and intentions that bear
directly on Mr. Prescott’s claims in this lawsuit, including those for malicious prosecution and
false arrest.16 Viewed in this context, Defendants’ assertions that Mr. Prescott “has failed to
show any prejudice whatsoever,” and that he has embarked on a “witch hunt” for the missing
texts, ECF No. 234 at 13, are insupportable and utterly belied by the record.
Based on its finding that Defendants intended to deprive Mr. Prescott of the text
messages, the undersigned recommends (1) that Mr. Prescott be permitted to present evidence to
the jury regarding Defendants’ failure to preserve the text messages between Mr. Martinez and
Ms. Prescott and the circumstances of the loss of those text messages; (2) that the court give an
adverse-inference instruction at trial that the jury must presume that the information contained in
the spoliated texts was unfavorable to Defendants; and (3) that the court itself presume, for
purposes of any motions filed, that the texts contained unfavorable information for Defendants.
The undersigned is persuaded that this combination of sanctions will adequately address the
prejudice Mr. Prescott has sustained, while facilitating “the judicial system’s strong
16 See Shrum v. Cooke, 60 F.4th 1304, 1310 (10th Cir. 2023) (“A § 1983 malicious prosecution
claim includes five elements,” requiring a plaintiff to show that “(1) the defendant caused the
plaintiff’s continued confinement or prosecution; (2) the original action terminated in favor of
the plaintiff; (3) no probable cause supported the arrest, confinement, or prosecution; (4) the
defendant acted maliciously; and (5) the plaintiff sustained damages.”) (cleaned up); Chambers
v. Cooper, No. 13-cv-00393-REB-MEH, 2014 WL 561371, at *8 (D. Colo. Feb. 12, 2014)
(recognizing that a plaintiff seeking to prove a false arrest claim under § 1983 must establish that
“(1) the defendant intended to restrict the plaintiff’s freedom of movement; (2) the plaintiff’s
freedom of movement was restricted for a period of time, however short, either directly or
indirectly, by an act of defendant; and (3) the plaintiff was aware that his freedom of movement
was restricted”) (citation omitted).
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predisposition to resolve cases on their merits[.]” See Ehrenhaus v. Reynolds, 965 F.2d 916, 921
(10th Cir. 1992).
With regard to the adverse-inference instruction specifically, the court recommends that
the jury be instructed in the following manner:
Evidence has been introduced in this trial of the failure of Defendants—
Archuleta County Sheriff’s Office personnel, including Sheriff Richard
Valdez, Undersheriff Derek Woodman, Operations Commander Roxanne
Lattin, and Deputy James Martinez—to comply with their obligations to
preserve text messages exchanged between Erika Prescott and Deputy James
Martinez that were potentially relevant to the claims or defenses in this case.
Evidence has also been introduced that these text messages were created,
sent, and/or received on Defendant Martinez’s cellphone and were deleted or
otherwise not preserved after Defendants were placed on notice of the
existence of the texts and that they may be relevant to a foreseeable criminal
action or civil litigation. You are instructed that federal law requires parties
to 	take 	reasonable 	steps 	to 	preserve 	electronically-stored 	information,
including text messages, when they reasonably anticipate that a criminal
action or civil litigation is likely.
You may infer that the text messages between Erika Prescott and Defendant
Martinez that Defendants failed to preserve would have been beneficial to
Plaintiffs’ claims and detrimental to Defendants’ defenses.
While the undersigned finds this adverse-inference instruction to be an appropriate sanction
based on the present record, the court recognizes that, as information is continued to be received
before and during trial, Judge Sweeney may choose to alter or amend this instruction at her
discretion.
CONCLUSION
The court concludes that Defendants had a duty to preserve the text messages; that they
failed to take reasonable steps to do so; that the messages have been lost and cannot be restored
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or replaced through additional discovery; and that Defendants acted with an intent to deprive
Plaintiff of the use of this evidence in this litigation. Accordingly, consistent with the foregoing
analysis, it is respectfully RECOMMENDED that Plaintiffs’ Motion for Sanctions for
Spoliation of Evidence be GRANTED in part and DENIED in part.17
DATED: March 5, 2026 	BY THE COURT:
______________________________
Susan Prose
United States Magistrate Judge
17 Rule 72 of the Federal Rules of Civil Procedure provides that within fourteen (14) days after
service of a Magistrate Judge’s order or recommendation, any party may serve and file written
objections with the Clerk of the United States District Court for the District of Colorado.
28 U.S.C. §§ 636(b)(1)(A), (B); Fed. R. Civ. P. 72(a), (b). Failure to make any such objection
will result in a waiver of the right to appeal the Magistrate Judge’s order or recommendation. See
Sinclair Wyo. Ref. Co. v. A & B Builders, Ltd., 989 F.3d 747, 783 (10th Cir. 2021) (firm waiver
rule applies to non-dispositive orders); but see Morales-Fernandez v. INS, 418 F.3d 1116, 1119,
1122 (10th Cir. 2005) (firm waiver rule does not apply when the interests of justice require
review, including when a “pro se litigant has not been informed of the time period for objecting
and the consequences of failing to object”).
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