“Close” Question of Intentional Spoliation Sent to the Jury

Cahill v. Dart, No. 13-cv-361, 2016 WL 7034139 (N.D. Ill. Dec. 2, 2016)

Following Plaintiff’s arrest for driving on a suspended license, an officer claimed he observed Plaintiff dropping a small package of cocaine while at a “County lockup” and charged him with felony possession.  Although defense counsel acted quickly to ensure preservation of surveillance video that Plaintiff believed would prove his innocence (because he claimed that he did not drop the package), only a portion of the video—which began after the package was on the floor—was available. After the charges were eventually dismissed, Plaintiff brought the present lawsuit and moved for sanctions.  The magistrate judge found that the failure to preserve was grossly negligent and caused substantial prejudice and recommended that Defendants be barred from making arguments or presenting evidence that the lost portion of the tape showed Plaintiff dropping the cocaine, but would allow testimony from one officer that he saw it happen.  Plaintiff objected.  Thereafter, the District Court adopted the recommendations of the magistrate judge, with modifications, concluding that the jury should be informed that the video was missing because of Defendants’ failure to fulfill their duty to preserve.  The court also ordered that Plaintiff would be allowed to argue that the destruction was intentional and that the jury would be instructed that IF they agreed, they must presume that the lost evidence was unfavorable to the defendants.

All parties agreed that Plaintiff arrived at lockup for processing at approximately 9 PM.  The processing officer testified that he observed Plaintiff dropping the cocaine after patting him down, but that he took Plaintiff to be photographed and finger printed before picking it up.  The available footage confirmed this, showing Plaintiff and the officer returning to the area where the package already sat on the floor, Plaintiff sitting near the package seemingly “completely oblivious” to it and the officer eventually kicking and then picking up and opening the package before leaving the room with it.   After Plaintiff was charged with possession, his counsel took quick action to obtain the tape, including issuing a subpoena.  Although Defendants initially indicated that all footage was destroyed, they learned that the arresting officer had submitted a request for the video, starting at 9:20.  It was this portion of the video that was eventually provided to Plaintiff.  The video began at 9:16, when the package was already on the floor.  After viewing the available video, the prosecuting attorney dismissed the case and Plaintiff thereafter filed his lawsuit.

Plaintiff sought sanctions for failure to preserve, arguing the video was intentionally destroyed.  At the hearing, the technician who processed the arresting officer’s request testified that he saw the footage of Plaintiff dropping the package, but could not explain why the available video began after that and that he did not check the copy he made to ensure it contained the “crucial event.”  The magistrate judge concluded that Defendants’ failure to preserve was “grossly negligent” though “not intentional” and that Plaintiff suffered “substantial prejudice.”  Thus, the magistrate judge recommended that Defendants be barred from making arguments or presenting evidence that the lost portion of the tape showed Plaintiff dropping the cocaine, but would allow testimony from one officer that he saw it happen.

Upon Plaintiff’s objection to the recommended sanctions, the District Court conducted a de novo review. Thereafter, the District Court adopted the recommendations of the magistrate judge, with modifications, concluding that in light of the uncontested finding of prejudice, the jury should be informed that video was missing because of Defendants’ failure to fulfill their duty to preserve.  Addressing whether Plaintiff was also entitled to an adverse inference, the court indicated it was “less clear” and a “close” question citing Rule 37(e)(2) which allows such sanctions “only if Defendants intentionally allowed the video to be destroyed,” and also indicated its disagreement with the magistrate judge’s determination that Plaintiff presented “no evidence of intent.” Because the destruction of the video was closely tied to Plaintiff’s claim of malicious prosecution, the court was cautious:

The Court would decide that close question now except that the destruction of the video in this case is closely tied to Cahill’s malicious prosecution claim. If the video would have proven Cahill’s innocence, and Defendants intentionally allowed it to be destroyed during his prosecution, the video’s destruction would be part of their plot to frame him. This means that evidence not directly tied to the fate of the video could nevertheless illuminate Defendants’ intent regarding the video. (Judge Cox understandably confined the hearing she held to evidence more directly tied to the video.) As a result, the Court believes that the best course is for the jury to decide the question of intent.

Having determined that the jury was best suited to decide the question of intent, the court ordered that IF Plaintiff chose to present argument that the destruction was intentional, the jurors would be instructed that IF they were persuaded as to intent, they MUST presume that the lost evidence would be unfavorable to the defendants.  Notably, this approach was “called for by the 2015 Advisory Committee Notes to Rule 37.”

The court also ordered that Defendants pay Plaintiff’s attorney’s fees related to making his motion.

A copy of the court’s full opinion is available here.