In Stovall v Brykan Legends, LLC, No. 17-2412-JWL (D. Kan. Feb. 7, 2019), an employment discrimination case, the court denied Plaintiff’s motion for sanctions based on Defendant’s alleged spoliation of surveillance video footage, stating that “[P]laintiff has failed to meet the requirements of Fed. R. Civ. P. 37(e)(2).”
The case stems from a 2016 incident in which Plaintiff suffered alleged injuries during a physical confrontation with her supervisor. Plaintiff asserted that Defendant’s surveillance cameras captured and recorded the incident. Shortly after the confrontation, Plaintiff filed a claim for workers’ compensation based on her injuries and later filed a discrimination charge filed with the Kansas Human Rights Commission. The Commission sent Defendant a letter advising that it must not destroy any records related to the allegations. In February 2017, Plaintiff’s counsel also sent a letter to Defendant advising of its obligation to preserve all records and videos pertaining to Plaintiff’s employment and discharge.
On July 3, 2018, Plaintiff served a document request to Defendant for, among other things, “surveillance footage, recordings or other video … that refer to or relate to any events alleged in Plaintiff’s Complaint.” Defendant responded that there “was a surveillance tape that depicted the altercation,” but that Defendant “is unable to locate the tape.” Further, Defendant stated that a “copy or link” of the video was provided to Defendant’s attorney in the worker’s compensation matter, but that “the link has expired.” Finally, Defendant’s counsel testified that it had maintained a copy of the surveillance video in a desk drawer but could no longer locate the tape despite “desperately looking” for it. Plaintiff accordingly moved for sanctions regarding the lost footage.
In ruling on Plaintiff’s motion for sanctions, the Court observed initially that “the parties agreed the surveillance video is a form of ESI subject to the preservation requirements of Rule 37(e).” The court held that Defendant had a duty to preserve the ESI as of October 11, 2016, when it received notice of Plaintiff’s discrimination charges, and that Defendant failed to take reasonable steps to preserve the ESI. The court specifically rejected Defendant’s argument that sending a copy of the footage to its worker’s compensation insurer qualified as reasonable preservation. However, the Court concluded that Plaintiff fell short of proving that the lost footage could not be replaced or restored. Specifically, Plaintiff acknowledged that she had not issued a subpoena to the worker’s compensation insurer in an attempt to retrieve the ESI. As such, the Court concluded that Plaintiff had not met the prerequisites for spoliation. But in any event, the court noted that even if Plaintiff had met the spoliation prerequisites, Plaintiff failed to demonstrate bad faith on the part of Defendant. The Court stated, “although the defendant’s failure to take steps to preserve the ESI may be negligent, even grossly negligent, nothing in the record suggests the defendant intentionally lost the video.”