In Harvery v. Hall, et al., Civil Action No. 7:17-cv-00113 (W.D. Va April 22, 2019), the Magistrate Judge denied Plaintiff’s Motions for Sanctions for Spoliation on the grounds that, despite a finding of gross negligence on the part of Defendants, Plaintiff failed to demonstrate prejudice from the loss of the ESI.
This prison case stems from an incident on June 10, 2016 involving Plaintiff and two prison guards, Hall and Blankenbeckler (“Defendants”). Plaintiff, housed in solitary confinement, received breakfast on June 10, 2016 through the tray slot safety box of his cell. After placing the breakfast in the tray, Defendant Blankenbeckler attempted to close the tray door but could not do so. According to the Plaintiff, his hand was in the sliding door and Defendant Blankenbeckler “immediately” started “repeatedly slamming” Plaintiff’s hand in the door, causing a deep laceration. Plaintiff alleged that he immediately showed the officer his “actively bleeding hand” and requested to be taken to the medical ward.
On July 12, 2016, Plaintiff submitted a regular grievance explaining what happened and specifically requested that the prison save “the video (rapid eye) footage … from 6/10/16 between the hours of 3:30-5:30 a.m.” Further, the prison’s Operating Procedure instructed that “[i]f a grievance is received that references a specific audio or video recording, a copy of the recording shall be made and maintained at the facility” for at least three years. During the litigation, however, Defendants informed Plaintiff that there was no video evidence saved for the dates requested.
In its ruling on the motion for sanctions, the Court held that a duty to preserve the requested video arose immediately upon receiving the request from Plaintiff. Next, the Court further held that Defendants failed to take reasonable steps necessary to ensure that the ESI was maintained. The Court stated, “the combined weight of the evidence— Harvey’s requests in a written grievance and appeal to save a specific clip of video that could show an officer’s use of excessive physical force against him, the respondents’ apparent indifference to those requests, and the established presence of a policy instructing VDOC officials to honor such requests—supports a conclusion that the video would have been retained for litigation had ROSP officials exercised “due care” in following their own policy, as would be “expected of a reasonably prudent person acting under like circumstances,” In re Ethicon, 299 F.R.D. at 519. Their failure to do so was negligent—perhaps even grossly negligent given the clear instructions in place for copying and saving this type of evidence.”
However, despite finding that Defendants’ conduct was negligent, the Court took a turn of direction and held that Plaintiff’s motion nevertheless failed on grounds that Plaintiff failed to make a showing of prejudice. Plaintiff argued that the video was the “best and most compelling evidence of what happened” to him on June 10, 2016, because it would have shown Blankenbeckler “slamming [his] hand in the tray slot repeatedly” and Defendants “denying [him] medical attention.” However, the Court concluded that Plaintiff failed to explain how he reached that conclusion, stating that “a party must establish relevance by ‘offering probative evidence, not the hyperbole of argument’ that the lost materials were ‘likely to have been favorable to its case.’” Instead, the Court agreed with Defendants that since the footage did not record audio nor would it should what happened inside of Plaintiff’s cell, “it would be sheer speculation to conclude” that Plaintiff’s ability to access the lost video “would have produced evidence which a reasonable factfinder could conclude supported [his] claims” against Defendants.