Motion For Spoliation Sanctions for Deletion of Surveillance Video Denied

15 Jun 2023

In OLIVER v. AMAZON.COM SERVICES LLC, Case No. 22-CV-149 (E.D. Wisconsin, May 8, 2023), before the Court, among others, was Plaintiff’s motion for spoliation sanctions based on Amazon’s alleged destruction of surveillance video that Plaintiff contended was vital to her case.

Plaintiff alleged that while she was employed at Amazon from Nov. 2018 through June 18, 2020, she experienced harassment from co-workers about her sexual orientation which triggered her mental health conditions for which she sought help from Defendant but who she alleged refused to provide a reasonable accommodation for her disabilities.

Plaintiff alleged further that Defendant retaliated against her for asserting her rights under the law, including reassigning her job duties. Plaintiff also asserted she was discriminated against based on sex in violation of Title VII, as well as due to her race in violation of § 1981. Plaintiff asserted she was ultimately “forced off the job” by Amazon in June 2020.

Plaintiff contended that Defendant spoliated two categories of evidence in its control: (1) the surveillance footage from its Kenosha warehouse and (2) applications she submitted for jobs at Amazon.

With respect to Plaintiff’s request for surveillance video, Defendant represented that it had over 1,000 security cameras in its warehouse facility and that it believed Plaintiff was requesting footage for every day she worked during her nearly two-year employment with Amazon. Plaintiff however countered that she narrowed her request to specific days and times, arguing that the cameras captured her ADA accommodation requests, sexual harassment, threats of violence towards her, physical violence enacted on her, verbal harassment, and sexual misconduct.

Plaintiff contended that the videos would show, for example, another associate groping her. Defendant did not dispute that security footage existed; however, Defendant contended that the footage was deleted in accordance with Defendant’s regular retention policies, whereby footage was deleted within fourteen days.

Fed. R. Civ. P. 37(e) provides the sole source to address the loss of relevant electronically stored information, or ESI, that was required to be preserved but was not because reasonable steps were not taken, resulting in prejudice to the opposing party. Hollis v. CEVA Logistics U.S., Inc., 603 F. Supp. 3d 611, 617 (N.D. Ill. 2022).

Rule 37(e) has five threshold requirements: (1) the information must be ESI; (2) there must have been anticipated or actual litigation that triggers the duty to preserve ESI; (3) the relevant ESI should have been preserved at the time the litigation was anticipated or ongoing; (4) the ESI must have been lost because a party failed to take reasonable steps to preserve it; and (5) the lost ESI cannot be restored or replaced through additional discovery. Id. If any of these requirements are not met, then curative measures and sanctions are unavailable under Rule 37(e). Id.

As to the first and fifth threshold requirements, Defendant did not contend that the surveillance video was not ESI, nor does it contend that the lost ESI could be restored or replaced through additional discovery. Nor could it, video has been found to be a form of ESI., id. at 618, and Rule 37(e)’s requirement that ESI “cannot be restored or replaced through additional discovery” refers to digital backups and the likelihood that electronic documents have multiple versions, Freidig v. Target Corp., 329 F.R.D. 199, 208 (W.D. Wis. 2018).

Defendant did not state that it kept backup versions of its surveillance video. Defendant argued, however, that Plaintiff could not show that Defendant had a duty to preserve the ESI, that the ESI was relevant, or that the ESI was lost because Defendant failed to take reasonable steps to preserve it.

As to the duty to preserve, this duty under Rule 37(e) is based on the common law, and so is triggered when litigation is commenced or reasonably anticipated. Hollis, 603 F. Supp. 3d 611 at 619. This means that the duty to preserve can arise before litigation is filed.

The scope of the duty to preserve includes ESI that is expected to be relevant and proportional to the claims or defenses in the litigation. Id. Defendant argued that Plaintiff “failed to meet her burden of showing that the thousands of hours of footage she seeks is relevant to the allegations made in her Complaint nor that Amazon had notice that it was.”

But Plaintiff testified that as early as July 2019, she complained to Defendant of sexual harassment based on her perceived status as transgender. Plaintiff filed a discrimination complaint with the Wisconsin Equal Rights Division (“ERD”) and the Equal Employment Opportunity Commission (“EEOC”) on August 28, 2019, asserting discrimination based on sex, specifically perceived transsexual.

Plaintiff provided Defendant a request for accommodation form dated Nov. 22, 2019, and requested accommodation based on anxiety and PTSD. Given Plaintiff’s multiple complaints to Defendant of discrimination and harassment, coupled with the multiple charges of discrimination filed with the ERD, the Court determined that it was difficult for Defendant to claim it was ignorant of the potential for litigation based on these allegations.

Furthermore, Plaintiff alerted Defendant that these incidents allegedly occurred on the warehouse floor while she was working. Defendant was aware of the security cameras throughout its facility that captured footage of employees interacting on the warehouse floor, and Defendant was aware that Plaintiff’s allegations included incidents occurring on the warehouse floor during her shifts. Thus according to the Court, Defendant’s duty to preserve this video was triggered by at least Aug. 28, 2019, with the filing of her ERD claim.

Defendant asserted, however, that it had many video cameras recording the entirety of its large warehouse twenty-four hours a day and it could not be expected to preserve the thousands of hours of footage these create.

The Court agreed. Again, the scope of the duty to preserve includes ESI that is expected to be relevant and proportional to the claims or defenses in the litigation. DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 978 (N.D. Ill. 2021). Preservation of video footage for the entire facility, running twenty-four hours a day from Oct. 2019 through June 2020 would be neither relevant nor proportional to the parties’ claims and defenses in this case. What would have been proportional and relevant, however, was retaining video footage for the hours in which Plaintiff worked and for those specific areas in which she worked.

As an example of Defendant’s duty, the Court highlighted the fact that Plaintiff was terminated from her employment effective June 19, 2020, based on an alleged physical altercation between Plaintiff and a colleague on the warehouse floor on May 23, 2020. Defendant’s Human Resources Department investigated this incident, including watching surveillance footage of the altercation. Defendant kept a screen shot from the video footage, which it has now included in support of its pending summary judgment submissions.

During the Court’s Dec. 2022 conference, Defendant’s counsel conceded that if footage of the altercation was available, it should be turned over to Plaintiff. Defendant contended, however, that the footage was “deleted during regular file clean-up.” Defendant was aware of the significance and relevance of this video, as it was relying on it, at least in part, in moving for summary judgment. Even if Defendant contended that it had no duty to preserve the entirety of the video capturing Plaintiff’s alleged incidents of discrimination and harassment, it could not reasonably argue that it had no duty to preserve the video of the altercation leading to the termination of an employee with multiple ERD complaints for discrimination.

Defendant did not specifically address whether the ESI was lost because it failed to take reasonable steps to preserve it, and simply argued that it has an automatic retention policy where footage is deleted within fourteen days. But Defendant made no showing whatsoever that it took any steps to preserve the security footage, even after the May 23, 2020 altercation leading to Plaintiff’s termination. Thus, the Court found that the ESI was lost because Defendant failed to take reasonable steps to preserve it. See Hollis, 603 F. Supp. 3d at 621-22.

Once the threshold requirements of Rule 37(e) are met, Rule 37(e)(1) and (2) provides the following remedies:

(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or

(2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may:

(A) presume that the lost information was unfavorable to the party;

(B) instruct the jury that it may or must presume the information was unfavorable to the party; or

(C) dismiss the action or enter a default judgment.

Fed. R. Civ. P. 37(e).

Plaintiff argued that she suffered “incurable prejudice” due to the destruction of the surveillance video. Plaintiff argued that witness testimony was an insufficient substitute for the surveillance video.

“Establishing prejudice can be a dicey proposition because the ESI is gone.” Hollis, 603 F. Supp. 3d at 623. Thus, “courts evaluate prejudice in the context of determining the harm inflicted by the non-existence of relevant information, an undertaking different and more challenging than the general concept of prejudice in different contexts under Rule 37.” Id. “The process can be challenging in at least two ways: (1) marshalling the evidence to show harm because of the absence of evidence, and (2) determining which party bears the burden of proof to show prejudice. Because of these difficulties, the rule gives the court discretion as to how to best determine prejudice.” Id.

The Court agreed with Plaintiff’s general proposition that witness testimony is often an insufficient substitute for video. For example, if Plaintiff had one version of events surrounding the altercation leading to her termination, and other witnesses have a different version of events, the surveillance video could resolve the question by showing what happened in real time. While Plaintiff generally argued that the surveillance video would confirm all the allegations in her complaint, it was unclear to the Court how.

Even so, Rule 37(e)(2) provides that the Court may order measures no greater than necessary to cure the prejudice. Plaintiff requested as a sanction an adverse inference that Defendant be prohibited from raising certain defenses, and that Plaintiff’s claims be found as having been established. However, sanctions under Rule 27(e)(2) require a finding that Defendant acted with intent to deprive Plaintiff of the information’s use in litigation. Defendant argued that even if it should have preserved the surveillance video at issue, Plaintiff did not show that Defendant deleted the footage with the intent to deprive her of its use in litigation. Rather, Defendant argued that the footage was deleted in accordance with Defendant’s regular retention policy of fourteen days.

“An employer’s destruction of or inability to produce a document, standing alone, does not warrant an inference that the document, if produced, would have contained information adverse to the employer’s case.” Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002).  Rather, “to draw such an inference, the employer must have destroyed the documents in bad faith.” Id. A party destroys a document in bad faith when it does so “for the purpose of hiding adverse information.” Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir. 2013) (internal quotation and citation omitted). Thus, the “crucial element” is “not that evidence was destroyed but rather the reason for the destruction.” Park, 297 F.3d at 615 (internal quotation and citation omitted).

Here, Plaintiff failed to show that Defendant deleted the surveillance footage in bad faith. The crux of Plaintiff’s argument was that Defendant knew it had a duty to preserve evidence when she filed her EEOC complaint, as the ERD and EEOC complaints notify Amazon of its duty to preserve evidence. She argued that the Court should grant her motion based on 29 C.F.R. § 1602.14, which requires an employer to preserve personnel records relevant to a formal charge of discrimination until final disposition of the charge or legal action. (Id. at 10.)

While the Seventh Circuit has found that “a violation of a record retention regulation creates a presumption that the missing record[s] contained evidence adverse to the violator”; the court has also “intimated that, absent bad faith, a violation of 29 C.F.R. § 1602.14, the EEOC record retention regulation, would not automatically trigger an adverse inference.” Park, 297 F.3d at 615 (internal quotation and citation omitted). In other words, even if Amazon failed to comply with 29 C.F.R. § 1602.14, this does not show bad faith.

Plaintiff further pointed out that Defendant was able to preserve surveillance when it benefited Defendant, and cited a case that involved an employee who was accused of stealing items from the warehouse and Defendant’s production of surveillance footage in support of its case against this employee.

While Plaintiff’s point was well-taken by the Court, proof that Defendant knew how to retain footage when it benefits it does not prove that in this case, Defendant destroyed the surveillance video to deprive Plaintiff of the information. Thus, while Defendant should have preserved the surveillance video, Plaintiff did not show that Defendant acted in bad faith so as to justify sanctions under Rule 37(e)(2).