Plaintiff’s Motion for Spoliation Sanction Denied After Finding Defendants Had No Duty to Preserve
- ILS Team
In CANADY v. BOSTIC, ET AL., No. 7:17cv00464 (W.D. Virginia, Feb. 23, 2022), before the Court was Plaintiff’s Motion for Spoliation Sanction arising from Defendants’ alleged failure to preserve certain clips of video footage.
Plaintiff contended that on June 25, 2015, in the B-2 pod housing area at Keen Mountain Correctional Center (KMCC), another inmate attacked him and he was forced to defend himself. The altercation ceased when one of the Defendant prison officials applied force and pepper sprayed him two times. Plaintiff also alleged that another Defendant engaged his canine on him after the fight had ended. Plaintiff further contended that a Defendant nurse in the C-2 segregation unit failed to provide appropriate medical care for his injuries.
Plaintiff asked for production of certain video footage he wished to show the jury. Specifically, Plaintiff argued the Defendants should have saved:
- Clips of video footage from all the cameras placed in the B-2 pod where the force incident occurred between 8:45 and 9:10 a.m.;
- Any portable camcorder video footage from the C-2 segregation unit; and
- Clips of surveillance camera video footage from the segregation unit the day of the event between 8:50 a.m. and 12:00 noon, and the following day between 4:10 a.m. and 4:45 a.m.
In response to Plaintiff’s request, Defendants presented an affidavit from KMCC Institutional Investigator Hodges, who stated that all the footage filmed of the inmate altercation had been shown to Plaintiff. The footage depicted events from two cameras on opposite sides of the pod area. The footage was already a part of the Court’s record.
Hodges stated that the video had been recorded over its prior footage approximately every 90 days. Thus, the footage in question was lost unless it was downloaded to a separate file. Hodges indicated that during the investigation, an officer downloaded the video footage from the B-2 pod and saved it to another separate file.
Hodges also stated no other similar incident triggered retrieval of video footage from cameras in the C-2 segregation unit, and no one ever requested preservation of the footage. Thus, no video footage from the Rapid Eye system was preserved and was lost through normal operation of the video system approximately 90 days later.
Hodges said that an officer used a camcorder to take still photographs of Plaintiff’s injures, and the photographs are in the record. He reports, however, that the officer did not use the camcorder to film any video footage that day.
At the evidentiary hearing on Feb. 2, former KMCC Investigator Craig Adams testified that he conducted the investigation into the altercation. He stated that in June 2015, two Rapid Eye cameras were operating in the pod, and that since no force occurred in the C-2 segregation unit, and no one asked for the footage to be preserved, Arms did not download or save the footage from that area.
The Court questioned Arms about a diagram Plaintiff submitted to the court that showed four cameras that were positioned in the B-2 pod. Arms testified that the diagram did not accurately represent the number of cameras that were operating the day of the incident. He said when he left KMCC in 2016, the pods still had only two cameras, but with later changes to the camera system, officials installed additional cameras. Arms also testified he did not recall viewing any video footage of the incident. Plaintiff did not request to call witnesses to testify the number of cameras or offer any admissible evidence to contradict Arm’s testimony.
Spoliation of evidence “refers to the destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)). In evaluating a spoliation claim, courts employ a two-part test.
“The party alleging spoliation must show that the adverse party reasonably should have known that certain documents or materials might be relevant to reasonably foreseeable or pending litigation.” A party anticipates litigation is under a duty to preserve what it knows, or should have known, is relevant in the action.
If the court determines that a party knew litigation was pending or likely such that it had a duty to preserve evidence expected to be used in the litigation but failed to fulfill that duty, the court must find that spoliation occurred. Then, the court must look to Rule 37(e) of the Federal Rules of Civil Procedure, which governs electronically stored evidence, to determine an appropriate spoliation sanction.
The Court in the instant case concluded that the evidence that was presented did not establish any spoliation of evidence related to foreseeable, future lawsuit about the force incident on June 25 involving Plaintiff. Therefore, no spoliation occurred.
Contrary to what Plaintiff asserted, some of the video footage did not exist. The uncontroverted evidence was that KMCC had only two Rapid Eye surveillance cameras positioned in B-2 pod the day of the incident. The footage recorded by the two cameras was available already for Plaintiff to use at trial. Additionally, the evidence provided to the Court showed the camcorder only took still images that day, which were available for Plaintiff to show the jury.
The segments of the camera footage from the C-2 segregation unit Plaintiff wanted did exist but were no longer available as they had been recorded over in normal operation of the Rapid Eye system 90 days after the events and times at issue. The Court found that the mere fact that the footage had been lost was not sufficient to support a spoliation claim. Plaintiff never made a written request for preservation of video footage from that area, and the Court did not find evidence to support that prison officials should have reasonably foreseen footage from the C-2 unit would have been relevant to the case.
Therefore, Defendants did not have a duty to preserve footage from the C-2 unit, and their failure to preserve did not qualify as spoliation. Plaintiff’s Motion for Spoliation Sanction was therefore denied.