Electronic Discovery Case Law Update - ESI Preservation and Spoliation
by BLS Member Steven Teppler
In the November 6, 2017 decision at GREGORY WOODEN, Plaintiff, v. CLYDE BARRINGER, et al., Defendants., No. 3:16-CV-446-MCR-GRJ, 2017 WL 5140518 (N.D. Fla. Nov. 6, 2017) from the Northern District of Florida denying a motion for spoliation sanctions, United States Magistrate Judge Gary Jones offers up a cogent review of preservation obligations, together with the requirements for the imposition of sanctions under the 2015 amendments to Fed.R.Civ.P. 37.
This matter arose from the plaintiff’s allegations of excessive force by a member of the Alachua County Sheriff’s Office (ACSO) while the plaintiff was incarcerated at the Alachua County Jail (ACJ). The Plaintiff’s wife called ACSO requesting a copy of the video the plaintiff asserted he was told existed. Defendants ultimately produced three video recordings that formed the basis for the spoliation claim that the videos had been altered such that they “fail[ed] to show the prolonged choking of Plaintiff by Defendant Barring, or Defendant Barringer’s falling down, or the inmates cleaning up the blood from Plaintiff’s wounds.” Plaintiff also alleged that Defendant ACJ acted in bad faith to destroy the video recordings from the hallways and medical by not taking the requisite actions to preserve the evidence, despite having a duty to do so.”
Citing the Middle District decision in Southeast Mech. Serv. v. Brody, 657 F. Supp. 2d 1293 (M.D. Fla. 2009), Magistrate Judge Jones first recites the definition of spoliation as the “intentional destruction of evidence and meaningful alteration of a document or instrument.” The Court then acknowledges the intent (at least from the perspective of the Advisory Committee) that amended Rule 37 “forecloses reliance on inherent authority” and thus “significantly limits a court’s discretion impose sanctions for ESI spoliation.”
The Court then describes how the new rules eschewed old Rule 37’s “safe harbor” provision, which gave cover for spoliation where information was lost due to the routine, good faith operation of an electronic information system:
“Instead [amended] Rule 37(e) requires the Court to conduct the following step-by-step analysis:
1. Was there a duty to preserve?
2. If so, were reasonable steps taken to avoid the loss of the data?
3. If not can the lost data be restored or replaced through additional discovery?
4. If not, was the other party prejudiced by the loss of data?
If so, the Court may impose measures “no greater than necessary to cure the prejudice.”
The Court points out that amended Rule 37(e)(2) provides that if the data was lost “with the intent to deprive another of the information’s use in litigation,” the Court may presume that the lost information was unfavorable to the party and may “instruct the jury that may or must presume the information was unfavorable to the [spoliating] party” or “dismiss the action or enter a default judgment.”
Here, the issue before the Court was whether the data in question ever existed—a point which, as in this case seems to be a defending (against spoliation) party’s first line of attack. Here, the Court scrutinized the time notations on the video (which was in electronic format) and states that there is no evidence “suggesting that the videos were altered or otherwise missing segments of footage during the use-of-force incident.” The plaintiff alleged that the videos, if unaltered, would have shown him being choked by one of the Defendants’ staff, but provided no evidence other than “his own unsupported version of events” to support his claim of alteration or spoliation.
Interestingly, the Court also noted that the Defendant (and individual) accused of using excessive force had no duty to preserve evidence because although he was an ACSO employee, he did not have the requisite rank to access the jail’s video system or the videos taken by the camera system. Procedurally, this case was rife with errors. As noted by the Court, Plaintiff sued the ACSO employees in their individual capacities and not as employees of the ACSO. Neither the ACSO nor the Alachua County Sheriff were sued in their original capacities. Taken together, this amounted to:
Sheriff’s employee was sued in his individual capacity and therefore had no custody, control, or possession, and thus no duty to preserve. Sheriff and Sheriff’s Office were not sued, were therefore non-parties who had no duty to preserve absent a court order.
The remainder of the Court’s analysis:
1.Were reasonable steps taken to avoid the loss? Yes, assuming a duty existed, the recording could have been preserved.
2. Can the lost data be restored or replaced through additional discovery? No, as the videos were overwritten by routine practice every thirty days.
3. Was the other party prejudiced? The Court found no prejudice by the loss of the data, even if the answer to questions one and two were “no.” The Court notes that Plaintiff’s medical records can be used to establish his case and, most importantly, that “nothing suggests that the videos were lost with intent to deprive the Plaintiff of use of the videos” in that litigation.
Plaintiff’s motion for spoliation sanctions was denied.