Sanctions Granted Due To Defendant “Willfully” Acting To Prevent Plaintiff From Accessing Photographic Evidence
In Wilmoth v. Deputy Austin Murphy, No. 5:16-CV-5244 (W.D. Ark. Aug. 7, 2019), an Arkansas District Judge granted Plaintiff’s motion for spoliation on the grounds that Defendant’s conduct exhibited an “intent to deprive” Plaintiff of the use of photographs that supported Plaintiff’s excessive force claim against Defendant.
This case involves claims of excessive use of force by Defendant, a deputy, stemming from an incident on August 12, 2016, in Plaintiff’s prison cell. While noting that the facts surrounding the incident are heavily disputed, the Judge stated that it is undisputed that Plaintiff sustained “at least some bruising following the event.”
Immediately following the incident, and pursuant to standard operating procedures, a non-defendant deputy took photographs of Plaintiff and his injuries using the deputy’s personal cell phone. These photographs were then used in the resulting report of the incident. However, the photographs were then either 1) never uploaded to the jail’s internal incident reporting system or 2) were uploaded and subsequently misplaced or deleted. As a result, the photographs were never produced to Plaintiff during discovery. Plaintiff claimed the photographic evidence was intentionally destroyed or made unavailable to him by Defendant and thus, requested an adverse inference instruction based on spoliation of evidence.
Upon finding that Defendant had a duty to preserve the photographs, the Judge noted that “the evidence as a collective whole indicates that there were many times when defense counsel buried her head in the sand in this case and never fully committed to producing this evidence or discovering where it was” and “that includes conduct which might readily be viewed as intentional deception before this court.”
As a result, the Court ordered the following sanctions: “First, in light of Sergeant Lira’s role in conducting the investigation into [Plaintiff’s] sexual assault allegations, the Court finds it literally incredible to hear Lira explain that he does not remember what he did with the pictures that he acknowledged viewing in his report or why these photographs would not have been uploaded as a crucial part of his investigatory file in accordance with county policy. The Court finds that his actions in this case have severely undermined his credibility. Given his direct involvement in viewing and in failing to ensure the preservation of these photographs, the Court finds that his actions demonstrate bad faith and that it would be appropriate to prevent the defendant from calling him as a witness in his case. The same sanction will also apply to Deputy Hale. Hale admitted during his deposition that although standard policy would have already required him to preserve and upload these photographs to the system, he certainly should have done so here given the nature of [Plaintiff’s] accusations against [Defendant]. Yet, he failed to take any reasonable steps to ensure preservation of the materials that he knew were crucial to the resulting investigation… Second, under Rule 37(e)(2)(B) and in light of the Court’s earlier finding that Defendant and his counsel have willfully acted to prevent Plaintiff from accessing this documentary evidence that he claims would support his case, the Court will instruct the jury that it may, but is not required to, presume that the photographs in question would have supported Plaintiff’s claimed injuries arising from his in-cell confrontation with Defendant and that the lack of such photographic evidence should not be held against Plaintiff in this case.”