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Was Spoliation Intentional? Court Will Let Jury Decide: eDiscovery Case Law

Court Denies Defendant’s Motion to Overrule Plaintiff’s Objections to Discovery Requests

In Cahill v. Dart, No. 13-cv-361 (N.D. Ill. Dec. 2, 2016), Illinois District Judge John Z. Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

Case Background

In this case involving state claims for false arrest and malicious prosecution and a federal claim for violation of the Fourth Amendment, the plaintiff was initially arrested on December 15, 2011 by police officers with the Cook County Sheriff’s Office, for driving on a suspended license.  He was transferred to the lockup for processing and patted down by one of the officers, who claimed that he saw the plaintiff drop a small, tissue-wrapped, white package to the floor which turned out to be cocaine.  The plaintiff denied that he dropped the package and denied that he was ever in possession of cocaine, but was charged with possession based on the officers’ accounts.

There were surveillance cameras present and the plaintiff’s criminal defense attorney acted quickly after the arrest to attempt to obtain all video footage of his client’s time at the lockup, sending a subpoena to the Sheriff’s Office and also the County legal department.  A lieutenant with the Sheriff’s Office also took action to preserve the video, submitting a hold request shortly before the video was scheduled to be destroyed.  Despite that, the video was initially thought to have been destroyed, but some of it was preserved, but only after the package had already been dropped.  After viewing the video, the Assistant Cook County State’s Attorney handling the case concluded that the state would not be able to prove the charges against the plaintiff and dismissed the charges. The plaintiff then brought this lawsuit.

In his Motion for Sanctions for Spoliation of Evidence, the plaintiff contended that the defendants had a duty to preserve the entire video footage and intentionally failed to do so because the video would have proven his innocence, by showing that someone other than him dropped the cocaine.  The plaintiff’s motion proposed sanctions ranging from default judgment to an adverse inference instruction, a prohibition on defendants’ use of certain evidence and attorney fees related to the filing of the motion.

Magistrate Judge Cox held a hearing on the motion and heard from numerous witnesses, including James Collins, the technician who had provided a copy of the video.  In her Report and Recommendation, Judge Cox concluded that (1) Defendants were under a duty to preserve the evidence; (2) their allowing the video to be destroyed was grossly negligent, though not intentional based on the evidence presented; (3) Cahill “suffered substantial prejudice” from the loss of this “essential” evidence; and (4) a sanction was appropriate, which was determined to be to bar Defendants “from making any arguments or presenting evidence stating that the lost portion of the videotape showed Plaintiff dropping cocaine on the Maywood Lockup floor, including, but not limited to, Collins’s notes or any testimony from Collins relating to what he saw on the video other than the portion of the video that was preserved.”  In response, the plaintiff filed timely objections, arguing that the sanction Judge Cox recommended was insufficient to counter the prejudice he will suffer from the loss of video that he says would have shown someone else dropping the cocaine.

Judge’s Ruling

Judge Lee indicated that the defendants proposed that the jury should be informed simply “that only a portion of the video exists,” and each party should then be allowed to present “their theory of what is on the missing video”, but that suggestion was at odds with Judge Cox’s Report and Recommendation.  So, “having conducted an independent review”, Judge Lee adopted Judge Cox’s Report and Recommendation “with modifications”, concluding that, “at the very least, the jury should be informed that the video is missing because Defendants failed to fulfill their duty to preserve it.”

As for whether the plaintiff was entitled to the adverse inference instruction he seeks, Judge Lee stated that “[a]lthough the Court disagrees with Judge Cox that Cahill presented no evidence of intent, the question is a close one.”  Because “evidence not directly tied to the fate of the video could nevertheless illuminate Defendants’ intent regarding the video”, Judge Lee decided that “that the best course is for the jury to decide the question of intent.”

As a result, Judge Lee adopted, with modifications, the Report and Recommendation of Magistrate Judge Cox regarding the plaintiff’s motion to sanction the defendants for destruction of evidence, indicating that Judge Cox’s proposed sanction would be imposed and also that the jury would be informed that the defendants failed to meet their duty to preserve video, giving the plaintiff the option to argue to the jury that the failure to preserve the video was intentional.

So, what do you think?  Should juries be left to decide whether spoliation of evidence is intentional?  Please share any comments you might have or if you’d like to know more about a particular topic.

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