In brief, the motion argues that the County failed to preserve a surveillance video of an incident that took place in the jail control room during the early morning hours of May 3, 2009. Harper contends that the County's failure to preserve the video amounts to bad faith spoliation of evidence, warranting the administration of an “adverse inference” instruction at the trial of this case.[1] The County responds that the evidence was in fact not preserved, but that all of the officers who viewed the video have testified that, because the camera was located behind the two officers in the control room, it was inconclusive with regard to the type of touching that took place between the officers, and that regardless of what the video depicted, it is irrelevant to the claims raised by Harper in this suit. The County further argues that its failure to preserve the tape was not done in bad faith, but rather was at most an act of negligence.

In the Fifth Circuit, an adverse inference instruction is viewed as a “severe sanction” that is only warranted when the party seeking sanctions demonstrates that the failure to preserve the evidence was committed in bad faith. Rimkus Consulting Group, Inc. v. Cammarata, 688 F.Supp.2d 598, 614 (S.D.Tex.2010) (citations omitted). In an unpublished decision, the circuit stated that ‘ “[m]ere negligence is not enough’ to warrant an instruction on spoliation.” Russell v. Univ. of Tex. of Permian Basin, 234 Fed. Appx. 195, 208 (5 th Cir.2007 (unpublished) (quoting Vick v. Tex. Employment Comm'n, 514 F.2d 734, 737 (5 th Cir.1975)).

With regard to whether the County acted in bad faith in this case, Harper contends that:

*2 Motion at 8, ¶ 19 (Clerk's Doc. No. 33) (record citations omitted). In fact, Lieutenant Larivee and Captain Jeffrey did not testify that copies of the video were made. Lieutenant Larivee's testimony indicated the he viewed the tape on the system itself:

Motion at Exh. F, pp. 70–71 (Clerk's Doc. No. 33–6). Captain Jeffrey's testimony even more specifically identified the video as having been recorded on the older looped-tape system:

Motion at Exh. G, p. 40 (Clerk's Doc. No. 33–7). Finally, Sheriff Law's testimony was consistent with this:

Motion at Exh. H, pp. 37–38 (Clerk's Doc. No. 33–8).

The only witness who testified differently was Sergeant Horsley. His testimony is in two parts. First, on cross-examination by Harper's attorney, he stated:

Motion at Exh. B pp. 48–49 (Clerk's Doc. No. 33–2). But when questioned by the County's attorney, he equivocated:

Response at Exh5, pp. 62–63 (Clerk's Doc. No. 47–6). In short, four witnesses addressed whether a copy of the video was ever made, and which system the original would have been recorded on. Three stated that the recording was made on the jail's old system and not copied, and the fourth testified it was on the new system, but when asked specifically, was unable to recall for certain if that was correct. Further, he agreed that if he had appended a copy of the video to his report, his report would have noted as much, and it is undisputed that the report does not mention any video being attached.

The County also represented at the hearing that it had “turned the Sheriff's office upside down” in an attempt to find any copy of the video that might exist, and it has been unable to locate any copy. It is clear that it is not in the County's interest at this point in time to fail to turn over a copy if one existed. Thus, the Court rejects Harper's assertion that the County presently has a copy of the video and is refusing to produce it, as that is unsupported by any evidence.

Further, there is a legitimate question regarding whether the video is even relevant to Harper's claims. At the time of the incident, the video was being reviewed to establish whether two corrections officers had engaged in sexual misconduct, as reported by Harper. It was thus relevant to the investigation of whether these officers should be disciplined. and, at least at the time of these events, was not relevant to any investigation into any of Harper's actions. What got Harper into trouble was how she reacted to the investigation into the other officers' conduct. Harper was upset because she was excluded from the investigation, and she felt that the investigating officer should have accepted her description of the event without additional corroboration. Because she continued to complain about this up the chain of command from Sergeant to Lieutenant to Captain to Chief to the Sheriff himself, despite being told repeatedly that the issue of discipline imposed on others following a complaint was outside of her duties, she was eventually reprimanded herself, and then demoted, for insubordination. These actions ultimately led Harper to file her EEOC charge, contending that she had been retaliated against for making her report. But as the Sheriff explained during Harper's appeal to him, the County reprimanded and demoted Harper because it viewed her actions after the reported incident as insubordinate, not because of what did or did not happen in the control room between the two officers. Indeed, he made it clear that the County accepted her description of the events when it took action against those two employees. Hearing Exh. D–1 at 18, 45 lines 5–10.[2]

*5 Given all of this, it was reasonable for the County not to view the video of the events in the control room as something relevant to Harper's claims of retaliation and discrimination, and thus reasonable for the County not to retain a copy of the video. At the same time, the decision not to retain a copy is subject to criticism, and may have been in violation of the County's own regulations. But the Court cannot conclude that the decision was made in bad faith, or with any bad intention to destroy evidence relevant to Harper's claim. Given this, even if the Court ultimately determines there was actionable spoliation warranting a sanction, it is clear that an adverse inference instruction would not be one of the sanctions the Court may consider. Rimkus, 688 F.Supp.2d at 614. Thus, the Court's final ruling on the Motion for Spoliation Sanctions will not in any way impact the evidence at the trial set for April 16, 2012. Whether any lesser sanction is warranted will be addressed in a later order.