Leen, Peggy A., United States Magistrate Judge
Trial court denied motion for sanctions following the destruction of videotape evidence where the duty to preserve had attached, but there was no prejudice. Plaintiff brought claims for civil rights violations after she was mistakenly arrested on April 25, 2008 because her name was the same as that of a person with an outstanding bench warrant. Although plaintiff’s social security number did not match the person with the warrant, plaintiff was still arrested because her date of birth, hair color, eye color and height were an exact match. Plaintiff was booked and stayed in custody overnight, subjected to a full strip search, and forced to retain counsel to defend against the charge. The charges were eventually dismissed.
On August 21, 2008, plaintiff’s counsel notified the Sheriff in writing informing him of the civil rights violations inflicted on plaintiff. Additionally, plaintiff’s counsel provided a courtesy copy of the complaint to the Sheriff and also mailed a copy to the police department’s general counsel. The letter requested that general counsel preserve evidence related to the matter, but did not specifically request any preservation of video evidence.
Less than a year later, plaintiff served a request for production requesting copies of the video surveillance. Defendant responded that pursuant to the police department’s policy all videos are destroyed after one year “unless special circumstances existed.” Defendant’s response came some one year and four months after plaintiff’s arrest.
Plaintiff moved the court to grant sanctions in the form of a rebuttable presumption that the destroyed video surveillance was adverse to defendant, or in the alternative, for a permissive adverse inference. Plaintiff argued that defendant willfully destroyed the video surveillance after receiving actual notice of the lawsuit and demanded that electronic evidence be preserved. Defendant argued that since plaintiff’s letter did not specifically request preservation of the video, the letter was vague and thus there was no duty to preserve.
The court agreed that defendant had a duty to preserve the evidence because defendant’s own policy provided for preservation where a special circumstance existed as was the plaintiff’s case. Plaintiff’s mistaken arrest and detention was enough to constitute a special circumstance so as to trigger the police department’s duty to preserve. However, because the information on the video could be obtained through deposition testimony, and plaintiff had the names of the booking officers, there was no prejudice and the court declined to issue sanctions.
v.
LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Defendant
Counsel
Charles C. Rainey, Rainey Devine, Jeremy R. Kilber, Weil & Drage, APC, Henderson, NV, for Plaintiff.Craig R. Anderson, Micah S. Echols, Marquis & Aurbach, Las Vegas, NV, for Defendant.
ORDER
Per LVMPD policy and procedure, the tapes are only kept for one year unless special circumstances exist. See LVMPD's Standard Operating Procedure 09.17.00 Control Center attached hereto as Exhibit “6.”