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In Cahill v. Dart, No. 13-cv-361 (N.D. Ill. Dec. 2, 2016), Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Case Background

In this case involving state claims for false arrest and malicious prosecution and a federal claim for violation of the Fourth Amendment, the plaintiff was initially arrested on December 15, 2011 by police officers with the Cook County Sheriff’s Office, for driving on a suspended license.  He was transferred to the lockup for processing and patted down by one of the officers, who claimed that he saw the plaintiff drop a small, tissue-wrapped, white package to the floor which turned out to be cocaine.  The plaintiff denied that he dropped the package and denied that he was ever in possession of cocaine, but was charged with possession based on the officers’ accounts.

There were surveillance cameras present and the plaintiff’s criminal defense attorney acted quickly after the arrest to attempt to obtain all video footage of his client’s time at the lockup, sending a subpoena to the Sheriff’s Office and also the County legal department.  A lieutenant with the Sheriff’s Office also took action to preserve the video, submitting a hold request shortly before the video was scheduled to be destroyed.  Despite that, the video was initially thought to have been destroyed, but some of it was preserved, but only after the package had already been dropped.  After viewing the video, the Assistant Cook County State’s Attorney handling the case concluded that the state would not be able to prove the charges against the plaintiff and dismissed the charges. The plaintiff then brought this lawsuit.

In his Motion for Sanctions for Spoliation of Evidence, the plaintiff contended that the defendants had a duty to preserve the entire video footage and intentionally failed to do so because the video would have proven his innocence, by showing that someone other than him dropped the cocaine.  The plaintiff’s motion proposed sanctions ranging from default judgment to an adverse inference instruction, a prohibition on defendants’ use of certain evidence and attorney fees related to the filing of the motion.

Magistrate Judge Cox held a hearing on the motion and heard from numerous witnesses, including James Collins, the technician who had provided a copy of the video.  In her Report and Recommendation, Judge Cox concluded that (1) Defendants were under a duty to preserve the evidence; (2) their allowing the video to be destroyed was grossly negligent, though not intentional based on the evidence presented; (3) Cahill “suffered substantial prejudice” from the loss of this “essential” evidence; and (4) a sanction was appropriate, which was determined to be to bar Defendants “from making any arguments or presenting evidence stating that the lost portion of the videotape showed Plaintiff dropping cocaine on the Maywood Lockup floor, including, but not limited to, Collins’s notes or any testimony from Collins relating to what he saw on the video other than the portion of the video that was preserved.”  In response, the plaintiff filed timely objections, arguing that the sanction Judge Cox recommended was insufficient to counter the prejudice he will suffer from the loss of video that he says would have shown someone else dropping the cocaine.

Judge’s Ruling

Judge Lee indicated that the defendants proposed that the jury should be informed simply “that only a portion of the video exists,” and each party should then be allowed to present “their theory of what is on the missing video”, but that suggestion was at odds with Judge Cox’s Report and Recommendation.  So, “having conducted an independent review”, Judge Lee adopted Judge Cox’s Report and Recommendation “with modifications”, concluding that, “at the very least, the jury should be informed that the video is missing because Defendants failed to fulfill their duty to preserve it.”

As for whether the plaintiff was entitled to the adverse inference instruction he seeks, Judge Lee stated that “[a]lthough the Court disagrees with Judge Cox that Cahill presented no evidence of intent, the question is a close one.”  Because “evidence not directly tied to the fate of the video could nevertheless illuminate Defendants’ intent regarding the video”, Judge Lee decided that “that the best course is for the jury to decide the question of intent.”

As a result, Judge Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

So, what do you think?  Should juries be left to decide whether spoliation of evidence is intentional?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

In Reed v. Kindercare Learning Centers et. al., No. 15-5634 (W.D. Wash., Nov. 17, 2016), Washington District Judge Benjamin H. Settle (yes, that’s his real name!) granted the plaintiff’s motion for discovery sanctions with respect to spoliation of physical evidence in the form of the facility where the plaintiff worked, but denied the plaintiff’s motion with regard to spoliation of ESI.

Case Background

In this disability discrimination case, the plaintiff had previously filed a Motion to Compel production of documents, which had been granted by the court (with certain limitations). After the defendants did not comply with the order, the plaintiff filed a motion for sanctions as well as a motion to compel entry upon land to inspect the facility where the plaintiff worked.  The plaintiff argued that, after she served the defendants with a notice of entry upon land to inspect the center where the plaintiff had worked, the defendants closed the center without notice and informed the plaintiff that the center had closed and that an inspection would not be possible, eventually informing the plaintiff that the fixtures/furniture were removed from the center and an inspection would not be possible, offering another center with a similar layout as an alternative.

The plaintiff also argued that Defendants “(a) failed to secure relevant email accounts prior to destruction; (b) searched for email and other records for the first time in response to this motion; and (c) possess dozens of relevant documents that were never produced or listed on a privilege log.”

The defendants filed a response to the motion for sanctions and also filed a motion for clarification or reconsideration of the granted motion to compel.

Judge’s Ruling

With regard to the request for the Court to clarify or reconsider its order based on the scope of the production and the deadline for production, Judge Settle, in denying the request, stated that “Defendants do not show a manifest error of law and, at most, submit new evidence that could have been brought to the Court’s attention earlier. Defendants previously argued, without support, that the requested production would not be proportional to the needs of the case. The Court dismissed this argument because it declined to evaluate proportionality in the absence of actual evidence. Thus, the fact that production may be disproportionate to the needs of the case is not an issue the Court will reconsider.”

With regard to the request for sanctions regarding spoliation of physical evidence (i.e., the center where the plaintiff had worked), Judge Settle stated “These facts show that Defendants have acted in at least a grossly negligent, irresponsible and cavalier manner with regard to the Notice of Entry upon the Lakewood center. Accordingly, the Court finds that an adverse instruction may be appropriate. The language of any instruction will be determined after Reed collects evidence from KinderCare’s other centers because, at this time, the Court is unable to properly weigh the prejudice Reed has suffered.”  Judge Settle also granted the plaintiff’s motion to inspect two other defendant locations, rejecting the defendant’s objection that the motion was untimely.

With regard to the request for sanctions for spoliation of ESI, Judge Settle stated that “[w]hile Defendants could have implemented better retention policies and more actively searched for electronically stored information, Reed has failed to show that Defendants have spoiled any evidence. In fact, Defendants have recently discovered and produced a relevant employee file.”

So, what do you think?  Was the Court’s argument for denying the ESI spoliation claim sufficient?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by CloudNine. eDiscovery Daily is made available by CloudNine solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Daily should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.