Fong v. U.S. Bancorp, No. 2:22-cv-01291-DC-CSK (E.D. Cal. Oct. 7, 2026), full opinion (PDF)
In a dispute over a drilled safe deposit box, a federal magistrate judge in California has ordered the bank to produce its video retention policies. The court required no proof of spoliation. It relied instead on statements by the bank's representatives suggesting that relevant footage may once have existed. In the court's view, those statements raised doubt about whether discovery had been thorough, reliable, or transparent.
What happened
The plaintiffs allege that the bank drilled into their safe deposit box without their knowledge. They allege that cash and other property from the box went missing. One plaintiff served discovery asking about surveillance video and seeking the bank's document retention policies. The bank answered that there were no cameras in the room where the box was drilled and inventoried.
The plaintiffs pointed to two statements by the bank. Before the suit, the bank responded to their complaint with the Consumer Financial Protection Bureau. The response told them they could request a copy of any available video surveillance by serving a court-issued subpoena. During the litigation, an email from the bank's former counsel stated that "there is no video of the drilling. The retention period is 90 days." According to the court, these statements suggest that other relevant footage may have existed but is now missing.
The court's analysis
The court agreed that the bank's interrogatory answer was incomplete. In its view, the answer addressed only the drilling room. It said nothing about other relevant footage, such as video of the area in front of where the box was stored. The bank must supplement the answer to address any such recordings from the day of the drilling.
On the retention policies, the court noted that decisions divide on whether a requesting party must first show spoliation. It adopted an approach under which no such showing is needed if the responding party claims that requested documents are unavailable. Indicia that the discovery process was not thorough, reliable, or transparent also suffice.
Applying that approach, the court reasoned that the plaintiffs had presented evidence of that kind. The bank now contends that no video surveillance ever covered the areas where the box was drilled and inventoried. Even so, the court stated, it remains unclear whether responsive video became unavailable because of the bank's retention policies.
The court narrowed the request, concluding that as written it was overbroad and disproportionate. Because the plaintiffs' concerns ran to video alone, the bank must produce only its retention policies for surveillance recordings. The order covers the policies in effect from the alleged drilling through the bank's response to the regulatory complaint. The court ruled on the parties' other discovery motions in the same order.
Why it matters
Under the approach the court adopted, a party can obtain an opponent's retention policy without proving spoliation. It needs either the opponent's claim that requested documents are unavailable or record evidence calling the discovery process into question. The opponent's statements can supply that evidence. Before filing a similar motion, gather what the opponent and its lawyers have already sent your side, including any response to a regulatory complaint. A stated retention period or a reference to any available video is the kind of statement to look for.
A responding party's answer about video should account for every camera that could have recorded relevant events. An answer limited to the room where the disputed event occurred invites a motion to compel.
Statements about what data exists or how long it is kept, made before or during litigation, can become evidence in a discovery dispute. Before answering a regulatory complaint or writing to the other side, a company should confirm any such statement against its actual retention schedule.
A requesting party should limit a retention-policy request to the data type and period its evidence implicates. Otherwise, the court may impose that limit on proportionality grounds.
The full opinion is available as a PDF.
