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Wooden v. Barringer

United States District Court, N.D. Florida, Gainesville Division

November 6, 2017

GREGORY WOODEN, Plaintiff,
v.
CLYDE BARRINGER, et al., Defendants.

          ORDER

          GARY R. JONES UNITED STATES MAGISTRATE JUDGE.

         This matter is before the Court on ECF No. 50, Plaintiff's Motion for Spoliation Sanctions. Defendant Barringer has responded, (ECF No. 52), and the matter is therefore ripe for review. For the following reasons, Plaintiff's motion is denied.

         I. INTRODUCTION

         This is a straightforward excessive force and deliberate indifference case. Relevant to the instant motion, Plaintiff claims Defendant Barringer, a correctional officer employed by the Alachua County Sheriff's Office (“ACSO”), used excessive force against Plaintiff on February 11, 2016, while Plaintiff was incarcerated at the Alachua County Jail (“ACJ”). Plaintiff brought his claims against Defendant Barringer in his individual capacity.

         II. BACKGROUND

         Plaintiff filed an informal grievance on February 12, 2016, reporting the use-of-force, in which he requested that his disciplinary report be dropped and that Officer Barringer be educated on officer rules. (ECF No. 50 at 29-31, Ex. A.) Plaintiff's classification officer, Ms. Brow, responded to the informal grievance on February 26, 2016, informing Plaintiff that he must file a formal grievance about a use-of-force. (Id.) Accordingly, Plaintiff filed a formal grievance on March 5, 2016, again addressing the use-of-force, in which he requested that the C-dorm pod 3 (“pod”) cameras be reviewed. (Id. at 33, Ex. B.) Captain Corey Warren denied the grievance on March 16, 2016. (Id.)

         Plaintiff then filed a notice of intent to initiate litigation regarding the incident with Alachua County Sheriff Sadie Darnell on April 12, 2016. (Id. at 35-38, Ex. C.) In the notice Plaintiff discussed the use-of-force, noting that Nurse Hewitt examined Plaintiff in medical following the use-of-force.

         On April 25, 2016, Plaintiff's wife also filed a notice of intent to initiate litigation regarding the incident with Sheriff Darnell, the Honorable C. Wegant (General Counsel), the Florida Department of Financial Services, Captain S. Maynard (Internal Affairs), and City of Alachua Mayor Gib Coerper. (Id. at 40-43, Ex. D.) Plaintiff says his wife spoke to Sergeant Duncan via telephone and requested a copy of the video from the incident. (Id. at 4.) Plaintiff claims Sergeant Duncan told Plaintiff's wife that no video was available. (Id.) Captain Certain later contacted Plaintiff's wife and allegedly told her that the video was available, he would review the video, and then get back in touch with her. (Id. at 4-5.) Captain Certain, however, never followed-up with Plaintiff's wife. (Id. at 5.)

         Plaintiff initiated this case pursuant to the mailbox rule on December 21, 2016. (ECF No. 1.) The Court issued summons to Defendant Barringer on January 17, 2017. (ECF Nos. 6-7.) Defendant Barringer was served with the summons and a copy of the Complaint on March 3, 2017. (ECF No. 8.)

         After this case proceeded to the discovery stage, Plaintiff sent Defendant Barringer his first requests for production on May 11, 2017. (ECF No. 50 at 45-47, Ex. E.) In the request for production Plaintiff requested the video recordings from medical and from the pod where the incident took place on February 11, 2016. Defendant Barringer responded that no video footage existed from medical. Defendant Barringer did, however, produce three video recordings from three different angles that captured the incident in the pod on February 11, 2016. (Id. at 5.)

         Plaintiff sent Defendant Barringer his second requests for production on June 8, 2017. (Id. at 49-56, Ex. F.) Plaintiff requested documentation regarding the placement of video cameras in medical, the hallways leading from the pod to medical, and the pod. Defendant Barringer objected that the request was not relevant to any party's claim or defense.

         Then on July 28, 2017, Plaintiff send Defendant Barringer his second set of interrogatories. (Id. at 58-74, Ex. G.) One interrogatory asked whether any recordings or photographs show Plaintiff's face, neck, and/or torso regions after the use-of-force. Defendant Barringer responded that the only video recordings that show Plaintiff's face, neck, and/or torso after the incident were already produced. Another interrogatory asked whether the route Defendant Barringer and Plaintiff took from the pod to medical following the use-of-force had operational video surveillance cameras, as well as whether medical had operational video surveillance cameras. Defendant Barringer responded that both the route and medical had operational video surveillance cameras.

         Plaintiff then requested in his third request for production the video recordings from the route taken to medical following the incident and from medical during his post-use-of-force examination. (Id. at 76-80, Ex. H.) Defendant Barringer responded that other than the three video recordings from the pod-which were already produced to Plaintiff-there were no additional responsive documents. Defendant Barringer explained that while the ACJ saves videos capturing use-of-force incidents upon a use-of-force allegation, absent such an allegation the video footage is only retained for 30 days and then the video overwrites itself.

         Plaintiff has now filed the instant motion for sanctions. Plaintiff claims the three video recordings that Defendant Barringer produced are incomplete and have been manipulated to not show the use-of-force. For example, Plaintiff claims one of the videos “fails to show the prolonged choking of Plaintiff by Defendant Barringer, or Defendant Barringer's falling down, or the inmates cleaning up the blood from Plaintiff's wounds.” (Id. at 5.)

         Plaintiff also says Defendant Barringer acted in bad faith to destroy the video recordings from the hallways and medical by not taking the requisite actions to preserve the evidence, despite having a duty to do so. (Id. at 18-20.) Plaintiff claims he “suffered extensive wounds to his eye-, eyebrow, and forehead-area with blood streaming down his face and onto his torso, ” that he had “gratuitous amounts of blood all over [his] face, neck, and torso, ” and that Defendant Barringer dragged Plaintiff away from the area where he was assaulted. (Id. at 15.) Plaintiff says he is prejudiced by Defendant Barringer's failure to preserve these video recordings because the videos would have shown Plaintiff's injuries, Defendant Barringer's demeanor after the use-of-force, and the “great disparity between the sizes and weight of Plaintiff compared to that of Defendant Barringer.” (Id. at 16.) Plaintiff further alleges that although Nurse Hewitt's examination notes only disclose that Plaintiff sustained minor wounds, the video recordings would have demonstrated Plaintiff's “extensive injuries.” (Id. at 17.)

         Accordingly, Plaintiff seeks spoliation sanctions in the form of a default judgment against Defendant Barringer as to liability, and referral to arbitration to determine the amount of damages to be awarded to Plaintiff.

         Defendant Barringer contends that Plaintiff's motion should be denied. (ECF No. 52.) Defendant Barringer argues Plaintiff's allegations that the three produced videos are incomplete and manipulated are baseless, conclusory, and false. Additionally, Defendant Barringer argues that Plaintiff's allegations that Defendant Barringer destroyed video recordings of him escorting Plaintiff to medical and of Plaintiff in medical are baseless, conclusory, and false. Defendant Barringer further says Plaintiff has failed to establish that Defendant Barringer acted in bad faith. Defendant Barringer has filed evidentiary materials in support of his response, including a copy of the three videos (ECF Nos. 52-1, 53), Plaintiff's inmate medical file (ECF No. 52-2), and a sworn affidavit from Defendant Barringer (ECF No. 52-4).

         III. DISCUSSION

         Spoliation is the “intentional destruction of evidence or the significant and meaningful alteration of a document or instrument.” Southeastern Mech. Servs., Inc. v. Brody, 657 F.Supp.2d 1293, 1299 (M.D. Fla. 2009) (citing Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003)). A district court's power to sanction a party for spoliation of evidence derives from two sources: (1) the Federal Rules of Civil Procedure; and (2) the court's inherent power to control the judicial process and litigation. See Fed. R. Civ. P. 37(e); Flury v. Daimier Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (citations omitted) (district courts have inherent power to impose sanctions for discovery abuses in order to “prevent unfair prejudice to litigants and to ensure the integrity of the discovery process”). These principles are applicable to spoliation of documents but are not applicable to a claim of spoliation involving electronically stored information. (“ESI.)

         Rather, when dealing with ESI Federal Rule of Civil Procedure 37(e) now governs a district court's power to sanction a party for spoliation of electronically stored information (“ESI”). Rule 37(e), which was amended effective December 1, 2015, “authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures.” Fed.R.Civ.P. 37 advisory committee's note (2015). The new version of Rule 37(e) “forecloses reliance on inherent authority . . . to determine when certain measures should be used.” Id. The current version of Rule 37(e), therefore, significantly limits a court's discretion to impose sanctions for ESI spoliations. Accordingly, this Court must first determine whether the ACSO's surveillance videos constitute ESI.[1]

         The Federal Rules of Civil Procedure do not explicitly define ESI. Instead, the advisory committee notes discuss the breadth of the term ESI, which covers all current types of computer-based information not in tangible form. See Fed. R. Civ. P. 34 advisory committee's note (2006). When Rule 37 was amended in 2006 to specifically address the alteration and deletion of ESI, a court could not impose sanctions on a party “for failing to provide electronically stored information lost a result of the routine, good-faith operation of an electronic information system.” Fed.R.Civ.P. 37 advisory committee's note (2015). The rule applied only to information lost due to the “routine operation of an electronic information system, ” which “includes the alteration and overwriting of information, often without the operator's specific direction or awareness, a feature with no direct counterpart in hard-copy documents, ” features “essential to the operation of electronic information systems.” Fed.R.Civ.P. 37 advisory committee's note (2006).[2]

         In this case, there is no dispute that the surveillance video recordings were taken through and stored on the ACSO's Endura camera system. (ECF No. 52-4 ¶ 9 (“Barringer Aff.”).) The system automatically overwrites the recordings after 30 days. (Id.; ECF No. 50, Ex. H.) Thus, a recording is not saved beyond 30 days unless a copy of the recording is burned to a disc. (Barringer Aff. ¶¶ 4, 6, 9; ECF No. 50, Ex. H.) Thus, the video recordings (which presumably are digital) constitute ESI. See Storey v. Effingham Cty., No. CV415-149, 2017 WL 2623775, at *3 (S.D. Ga. June 16, 2017) (noting there was no debate that the county jail's surveillance and taser videos were ESI); Jenkins v. Woody, No. 3:15cv355, 2017 WL 362475, at *14, 17 (E.D. Va. Jan. 21, ...


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