In Storey v. Effingham County et. al., Case No. 15-149 (S.D. Ga., June 16, 2017), Plaintiff is the executor for the estate of Kenneth Cartee, who died from injuries he sustained during an arrest by Effingham County police. According to the complaint, police pressed down on Cartee’s shoulder and neck to subdue him during an altercation; he was then arrested and involved in another altercation at the jail. He was tased and strapped naked to a restraint chair, then tased again when he was released. He was sedated for several days before receiving mental health treatment. When he returned to jail, he complained that he could not walk. The officers tased him several times to get him to move. After two more days, he was taken to the hospital, where doctors diagnosed him as having several broken ribs, injury to his cervical spine, sepsis, renal failure, severe dehydration, and multiple abrasions and bruises.
The jail’s surveillance system included cameras in various areas where Cartee was taken. Jail policy required retention of video in centralized storage for at least 14-30 days, but longer than that in the case of disciplinary issues, allegations of wrongdoing, use of force, or an investigation. Video was also automatically taken when the safety was removed from a taser. In this case, however, no video existed despite the beatings, the fighting, the tasing, and Cartee’s multiple threats to sue during the predicament. Plaintiff filed a Motion for Sanctions, seeking to have Defendants’ Answer stricken and default judgment entered against them or, in the alternative, an adverse inference instruction.
The court initially found that Defendants could not be sanctioned for the video’s destruction because the individual defendants were not in possession, custody or control of the video. Upon further review, though, the court observed that sanctions are appropriate if ESI was lost that should have been preserved in anticipation of litigation because a party failed to take reasonable steps to preserve it and it cannot be replaced or restored through additional discovery. Sanctions are not appropriate if a party lost ESI because of routine, good faith operation of an electronic information system. Accordingly, the court considered whether Defendants had a duty to preserve and breached that duty with its failure to preserve video of the altercation.
The court found that in light of the egregious circumstances of Cartee’s injuries, Defendants had notice that litigation was a “distinct possibility.” Defendants should have known that the video would be needed for a lawsuit and failed to preserve it. In considering the severity of the sanctions and that the harshest sanctions were reserved for parties who destroyed evidence with bad intent, the court found Defendants acted with carelessness but not bad faith. The court also found that Plaintiff could prove his case through other means and was not so prejudiced by the loss of the video. The court ordered a jury instruction that the video had not been preserved and allow the parties to present evidence and argument at trial regarding the destruction of the video. The court also precluded any evidence or argument that the contents of the video supported Defendants’ version of events.