In LAWRENCE O. ANSLEY v. SECRETARY JOHN E. WETZEL, et al., Civil Action No. 1:21-CV-528 (Jan. 5, 2023, M.D. PA), before the Court was Plaintiff’s motion for sanctions based on Defendants’ failure to preserve video footage.
On March 23, 2021, Plaintiff filed his original complaint and alleged that Defendants conspired to retaliate against him, which subjected him to cruel and unusual punishment, violation of his right to due process, property loss, and defamation of character.
On April 30, 2022, Plaintiff served defense counsel with two documents entitled Requests to Preserve Footage for Jury Trial. Therein, Plaintiff requested that Defendants preserve video footage from incidents that occurred on June 25, 2022, Jan. 10, 2021, and March 18, 2021.
In response to these requests, defense counsel contacted staff at SCI-Benner Township and SCI-Coal Township to search for the videos. Staff at SCI-Benner and SCI-Coal Township were not able to locate video footage from June 25, 2020, Jan. 10, 2021, and March 18, 2021, that pertained to Plaintiff. On July 13, 2022, Plaintiff filed the instant motion that requested that the Court impose sanctions for Defendants’ purported spoliation.
“Spoliation occurs where: the evidence was in the party’s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.” Bull v. United Parcel Serv. Inc., 665 F.3d 68, 73 (3d Cir. 2012). The United States Court of Appeals for the Third Circuit has held that “a finding of bad faith is pivotal to a spoliation determination.” Id. at 79.
There are two levels of sanctions under Rule 37(e). Pursuant to Rule 37(e)(1), upon finding “prejudice” to another party from loss of the information, the court may order measures no greater than necessary to cure the prejudice. Fed. R. Civ. P. 37(e)(1). Before imposing the more severe sanctions available under Rule 37(e)(2), the court must make a finding that the party acted with the intent to deprive another party of the information’s use in the litigation. Fed. R. Civ. P. 37(e)(2).
Plaintiff asserted that the requested videos were central to the allegations in the original complaint and Defendants had a duty to preserve them.
Rule 37(e) “does not apply to information that was lost or destroyed before a duty to preserve it arose.” Bistrian v. Levi, 448 F. Supp. 3d 454, 467 (E.D. Pa. 2020) (citing Fed. R. Civ. P. 37(e) advisory committee’s note (2015)). “The duty to preserve arises no later than when a lawsuit is filed but may be triggered earlier than the filing of the complaint depending on the particular circumstances.”
This lawsuit commenced when Plaintiff filed his original complaint on March 23, 2021, after the incidents on June 25, 2020, Jan. 10, 2021, and March 19, 2021. Defendants contended that it was not reasonably foreseeable that they should have preserved the video footage from these dates and implied that any responsive video footage was deleted before the complaint was filed.
Defendants submitted declarations of Captain Jeffrey Madden and Captain Robert Bookheimer wherein they explained when video footage is retained at state correctional institutions. Captain Madden explained that video footage is typically recorded over when a camera’s memory capacity has been met, unless the video involved a planned or unplanned use of force. Captain Bookheimer further declared that video footage of an inmate’s escort to the RHU is generally not retained, unless in the event of an extraordinary occurrence report or another event deemed necessary by the Facility Manager.
The video footage at issue was not retained because the incidents did not involve either a planned or unplanned use of force, and there was no evidence that Plaintiff’s escort to the RHU involved an event triggering retention of the video.
“When a party argues that spoliation occurred before the complaint was filed, the court must conduct a fact-sensitive inquiry to determine at what point the spoliating party reasonably should have anticipated the litigation.” Bistrian, 448 F. Supp. 3d at 468.
Plaintiff stated that Defendants should have been aware of impending litigation based on two grievances he filed on Oct. 9, 2020, related to a “rape plot” fabricated by Defendants. However, the Court found that the filing of these grievances did not support a pre-litigation duty to preserve recordings.
Such an obligation arises when a party reasonably should have anticipated litigation concerning the grieved incidents. Based on the filing of grievances related to the rape plot, Defendants could not have reasonably anticipated litigation concerning the escort to the RHU on June 25, 2020, an incident on Jan. 10, 2021, and the escort to the psychiatric observation cell on March 18, 2021.
Because Defendants could not have reasonably foreseen litigation nor appreciated that the video footage at issue should have been preserved for possible use in that litigation, they were not under a duty to preserve video footage.