Prall v. Bocchini
Prall v. Bocchini
2014 WL 12803522 (D.N.J. 2014)
June 12, 2014

Williams, Karen M.,  United States Magistrate Judge

Failure to Preserve
Video
Spoliation
Adverse inference
Bad Faith
Sanctions
Download PDF
To Cite List
Summary
The Court found that the Defendants had spoliated evidence by failing to preserve video footage of an alleged incident. The Court granted Plaintiff's motion for sanctions and ordered that Plaintiff was entitled to a jury instruction that the video footage might or would have been unfavorable to the position of Defendants.
TORMU E. PRALL, Plaintiff,
v.
JOSEPH L. BOCCHINI, JR., et al., Defendants
Civil No. 10-1228-JBS-KMW
United States District Court, D. New Jersey
Filed June 12, 2014
Williams, Karen M., United States Magistrate Judge

ORDER

*1 This matter is before the Court on the Motion filed by pro se Plaintiff Tormu E. Prall seeking sanctions for the alleged spoliation of evidence by New Jersey Prison State Defendants Michelle R. Ricci, William J. Moleins, Chris Holmes, Jimmy Barnes, James Drumm, James Keil, Sgt. Newsom, Ortiz, Charles Warren, Stephan Alaimo, Kenneth Nelsen, J. Dominguez, M. Moura, Sgt. J. Lindsey, Officer McNair, Officer J. Ilardi (collectively, “NJSP Defendants” or “Defendants”). As a sanction, Plaintiff requests that paragraphs 123-127 of his Second Amended Complaint be deemed admitted.[1] Am. Compl., Doc. No. 135. NJSP Defendants oppose the motion. The Court held a telephone hearing on this Motion on April 1, 2014 and notes the following appearances: Tormu E. Prall, pro se Plaintiff; and Randy Miller, Esquire, appearing on behalf of Defendants. The Court has considered the submissions and the arguments of the parties and, for the reasons that follow, Plaintiff’s Motion is granted in part and denied in part.
Background
*2 In this prisoner civil rights action, Plaintiff alleges various violations of his constitutional rights. As relevant to this Motion, one of Plaintiff’s claims is that he was sexually assaulted by corrections officers. On March 16, 2012, Plaintiff filed a motion seeking injunctive relief alleging, inter alia, that on March 10, 2012, he was forced to perform oral sex on several corrections officers. Motion for Injunction, Doc. No. 81. Apparently, this incident was investigated by the New Jersey Department of Corrections Special Investigations Division and was assigned to Shawn Harrison, Senior Investigator. See Declaration of Shawn Harrison (“Harrison Decl.”), ¶ 1, Doc. No. 184-4. Harrison declares that on March 11, 2012, Lieutenant E. Mendez contacted him and advised that Plaintiff alleged that he was sexually assaulted by several corrections officers. Id. ¶¶ 4-5. During the course of the investigation, Harrison declares that he reviewed a video recording of Plaintiff’s housing assignment for the day in question. Id. ¶ 7. Harrison declares that the video showed Plaintiff “standing outside of his cell, being placed in handcuffs and escorted back into his cell, and secured in his cell.” Id. In the investigative report attached to Harrison’s declaration, he notes that after being escorted back into his cell “custody staff entered inmate Prall’s [sic] and remained inside for approximately two minutes before exiting the cell as inmate Prall was secured inside the cell.” Id., Exh. A. Harrison further declares that he interviewed Plaintiff who gave his account of the incident and he also interviewed various corrections officers. Id. ¶¶ 8-15. Based upon his investigation, Harrison found that there was no information or evidence to support Plaintiff’s allegations of sexual assault but, instead, the investigation revealed that Plaintiff “was upset with a routine cell search of his cell, refused to lock back in his cell, became angry and threatened custody officers, and, therefore, was placed in Pre-Hearing Detention.” Id. ¶ 16. In the report, Harrison notes that “[a] copy of the video will remain in the case file.” Id., Exh. A.
On December 21, 2012, the Honorable Jerome B. Simandle, Chief Judge, directed the remaining New Jersey State Prison Defendants and the newly added New Jersey State Prison Defendants to show cause, in writing, why an injunction should not be issued against the Defendants concerning Plaintiff’s allegations of ongoing physical and sexual abuse. Order, Doc. No. 64. In their response to Chief Judge Simandle’s Order, NJSP Defendants relied upon Investigator Harrison’s report and specifically referred to video footage. Br., 11, 22, Doc. No. 184.
During the course of discovery, Plaintiff requested a copy of the video viewed by Harrison. On October 31, 2013, Plaintiff filed the current Motion seeking sanctions after being informed by counsel for NJSP Defendants that “Investigator Harrison informed [counsel] that there are no tapes from the date of the March 10, 2012 Incident” because the video footage is continuously overwritten. Pl. Br. 3, Doc. No. 241. The Court addressed this issue with the parties on November 1, 2013 and ordered the following: “As to the video which is the subject of Plaintiff’s Rule 37 Motion, the Defendants shall submit Affidavits of Mr. Harrison and the IT person in opposition to said motion.” Am. Scheduling Order, Nov. 1, 2013, Doc. No. 243.
By letter dated February 4, 2014, counsel for NJSP Defendants advised the Court that he had the signed certifications confirming that the surveillance video depicting the March 2012 incident does not exist because the security camera feeds are routinely overwritten. Defs.’ Letter, Feb. 4, 2014, Doc. No. 250. On February 11, 2014, the Court directed Defendants to oppose Plaintiff’s Motion. Order, Feb. 11, 2014, Doc. No. 253. Defendants filed a letter in opposition to the Motion along with the certifications of Investigator Harrison and Matthew Dimatteo, IT Maintenance Representative, confirming that Harrison reviewed video as described in his report but no permanent video was made and the video footage, or link to said footage, no longer exists because the feeds are routinely overwritten. Defs.’ Letter, Feb. 21, 2014, Doc. No. 256. Mr. Dimatteo provided that “no permanent video would have been made, or would exist, of a video recording of a housing unit of the type Investigator Harrison would have reviewed as part of his investigation, as the original video would have been overwritten, unless a special tape would have been made By [sic] Investigator Harrison or some other party at that time.” Defs.’ Letter, Doc. No. 256-1.
On April 1, 2014, the Court addressed this Motion. During the hearing, counsel for the NJSP Defendants stated: 1) the video footage would not have depicted anything occurring inside of Plaintiff’s cell (Tr. 15:24-16:4) and 2) Harrison never viewed an actual videotape, CD, or DVD, he viewed the feeds of the incident (Tr. 16:5-12).
Law
“ ‘Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’ ” Mosaid Techn. Inc. v. Samsung Electronics Co., Ltd., 348 F. Supp. 2d 332, 335 (D.N.J. 2004). Courts utilize the following four factors to determine whether spoliation has occurred: 1) the evidence was in the party’s control; 2) the evidence is relevant to the claims or defenses in the case; 3) there has been actual suppression or withholding of evidence; and 4) the duty to preserve the evidence was reasonably foreseeable to the party.[2] Bull v. United Parcel Serv., Inc., 665 F.3d 68, 73 (3d Cir. 2012). The burden is on the party seeking a spoliation sanction. McCann v. Kennedy University Hosp. Inc., No. 12-1535, 2014 WL 282693, at *4 (D.N.J. Jan. 24, 2014). If the Court determines that spoliation has occurred, the Court must then consider the sanctions available to redress the situation. Bull, 665 F.3d at 73 n.5.
Discussion
*3 The Court finds that all four factors set forth in Bull have been met, as such, Defendants have spoliated evidence. In this regard, in his Motion, and during the April 1, 2014 hearing, Plaintiff argues that Defendants knew that they had a duty to preserve the information because the alleged incident was raised to the Court by Plaintiff via a request for injunctive relief. Tr. 17:1-6. Further, Plaintiff argues that the Defendants knew this litigation was ongoing at the time the report was prepared and the video of the incident was reviewed. Tr. 17:7-21. Plaintiff also essentially argues that because Investigator Harrison found that nothing on the video supported Plaintiff’s allegations of sexual assault, he was under an obligation to preserve the video so Plaintiff could review the video in support of his claim that he was in fact assaulted. Tr. 17:1-21; 20:9-23.
On the other hand, while Defendants concede that Investigator Harrison viewed footage related to the alleged incident, they argue that there was never an actual videotape and the footage was overwritten. Further, because Investigator Harrison saw nothing of evidentiary value contained within the video footage, it is their contention that there was nothing to preserve. Tr. 18:9-25; 19:9-12; 20:2-7.
Having already addressed the issue of control and relevance, the Court now turns to the issue of foreseeability. The Court finds that the duty to preserve the video footage was reasonably foreseeable. “The duty to preserve evidence begins when litigation is ‘pending or reasonably foreseeable.’ ” Micron Techn., Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011). This litigation has been pending for four years and the alleged incident of sexual assault occurred in 2012, when this case was approximately two years old. Thus, litigation was beyond foreseeable--it was pending and being heavily litigated at the time when the video footage depicting the alleged incident was viewed. Thus, it is beyond dispute that the Defendants had a duty to preserve this video footage.
With regard to actual suppression or withholding, it must appear that the suppression or withholding was intentional, thus, requiring evidence of bad faith. See Bull, 665 F.3d at 79. In Bull, the Third Circuit indicated “[n]o unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for.” Id.(citing 31A C.J.S. Evidence § 156(2)). Here, the Court finds that the NJSP Defendants have suppressed evidence by failing to preserve video footage of the alleged incident which occurred two years into the pending litigation. “Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a litigation hold to ensure the preservation of relevant documents.” Major Tours, Inc. v. Colorel, No. 05-3091, 2009 WL 2413631, at *2 (D.N.J. Aug. 4, 2009)(citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003)(“Zubulake IV”)). This case was filed in 2010. Plaintiff alleges that the sexual assault occurred in 2012 and there was video footage capturing the time period when the alleged assault occurred. The sheer fact that litigation was pending at the time this alleged incident occurred necessitated suspension of the prison’s retention/destruction policy of information specifically related to this litigation. However, even if the NJSP Defendants did not see fit to save and/or preserve all information related to every complaint made by Plaintiff,[3] six days after the alleged sexual assault, Plaintiff filed a motion seeking injunctive relief relating to same. Additionally, an investigation related to Plaintiff’s allegations was initiated wherein video footage of the events occurring immediately before and after the alleged assault occurred was viewed. Thus, the obligation to preserve video footage relating to a motion for injunctive relief and a pending investigation relating to the same allegations should have been painfully obvious to the NJSP Defendants. Yet, despite the NJSP Defendants’ duty to place a litigation hold on information clearly relevant to this case, same was not implemented notwithstanding the fact that permanent video could be made from the prison’s DVR system. Thus, the Court finds that there has been an actual suppression of the video footage.
*4 However, critical to any finding of suppression is a finding of bad faith and, in this regard, the Court finds that inconsistent statements regarding the preservation of the video footage establishes the requisite bad faith. See First Senior Financial Group LLC v. “Watchdog”, No. 12-1247, 2014 WL 1327584, at *7 (E.D.Pa. Apr. 3, 2014) (party’s obfuscation or lying can show that he/she acted in bad faith) (citing Bull v. United Parcel Serv., Inc., 665 F.3d 68, 77 (3d Cir. 2012)). Here, Investigator Harrison conducted an investigation and indicated that the video would remain in the file. Now that Defendants do not have the video footage, Investigator Harrison certifies that no permanent video was made because his “investigation provid[ed] no reason to produce and maintain same.” These representations are directly at odds. At one point, Investigator Harrison thought enough of the video to represent that same would be kept in the file, however, at a later point, he declares that the video was not important enough to preserve and maintain. Notably, the NJSP Defendants relied on Harrison’s report which referenced this video in response to the order to show cause issued by Judge Simandle to overcome the possibility of an injunction. Yet when called upon to produce this exculpatory evidence, Defendants could not produce same because they failed to preserve the very video footage which allegedly provided no support to Plaintiff’s claimed sexual assault.
Furthermore, to the extent Defendants argue that culpable spoliation has not occurred because the video footage was overwritten pursuant to the prison’s retention policy, courts have addressed similar issues regarding the destruction of a video pursuant to a routine policy and did not find culpable spoliation. See U.S. v. Nelson, 481 Fed. Appx. 40 (3d Cir. 2012)(finding no evidence that the videotape capturing an incident in 2009 was destroyed to prevent defendant from using it because it was destroyed 30 days later pursuant to prison policy and defendant did not request same until 2010, or some time thereafter, in connection with criminal proceedings relating to the possession of contraband); Victor v. Lawler, 520 Fed. Appx. 103 (3d Cir. 2013)(finding that plaintiff failed to show culpable spoliation of video footage taken of an extraction of plaintiff prior to the filing of the civil litigation where some relevant video was lost as defendants were trying to preserve other relevant video and evidence); McCann, 2014 WL 282693 at *5-8(defendant’s failure to preserve tapes attributable to the fact that defendant reasonably believed that same were not foreseeably related to plaintiff’s grievances). However, each case considered by this Court is distinguishable because none involved video footage that was: 1) recorded during the course of litigation, 2) used by the party in control of the footage in opposition to a request for an injunction, 3) supposed to be kept on file by Defendants but when called to produce same, it was revealed that same had been overwritten.
Moreover, on the facts presented here, if the Court declined to find bad faith due to the fact that the footage was overwritten based upon an established policy, any party could “exploit the routine operation of an information system to thwart discovery obligations by allowing that operation to continue in order to destroy specific stored information that it is required to preserve.” Advisory Committee Notes to Fed. R. Civ. P. 37. Based on the foregoing, NJSP Defendants have engaged in spoliation and the Court must now consider the issue of sanctions.[4]
*5 With regard to sanctions, Plaintiff requests that paragraphs 123-127 of his Second Amended Complaint be deemed admitted. The Court notes that granting such a request would be tantamount to awarding judgment to Plaintiff on his claims related to the alleged sexual assault which is a drastic sanction. See Paris Business Products, Inc. v. Genisis Technologies, LLC, No. 07-0260, 2007 WL 3125184, at *2 (D.N.J. Oct. 24, 2007). Furthermore, the allegations contained in those paragraphs recite facts (and conclusions) beyond what occurred immediately before, during and after the alleged sexual assault which the video footage at issue herein would have captured. Second Am. Compl. ¶¶ 123-127. Thus, in order to determine whether such a sanction is warranted, the Court considers the following factors: “ ‘(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.’ ” Bull, 665 F.3d at 74 n.5 (quoting Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 70 (3d Cir. 1994)).
First, the Court finds that fault rests solely with the Defendants. However, the Court notes that there are many Defendants in this case and clearly they do not bear the same degree of fault. For instance, the fault attributable to the prison superintendent or a prison administrator could not be attributable to a corrections officer Defendant who would presumably have less control over the maintenance and preservation of video footage.
Next, Plaintiff has been prejudiced because he has not been able to review and evaluate video footage relevant to his claims. It has been represented to the Court that the footage would not have shown what occurred inside the cell but only what occurred directly before and after the alleged incident as well as the lapse in time between the officers entering and exiting Plaintiff’s cell. While the declarations of Investigator Harrison leave some question as to what part of Plaintiff’s housing unit was captured on the video footage, if same did not capture the incident, which Plaintiff represents occurred inside the cell, then Plaintiff’s degree of prejudice is somewhat diminished as the video did not show the alleged assault in progress.
Finally, there is a lesser sanction available–a spoliation inference. The spoliation inference is “ ‘a jury instruction permit[ting] an inference ... that the destroyed evidence might or would have been unfavorable to the position of the offending party.’ ” Paris Business Products, Inc., 2007 WL 3125184 at *2. The imposition of this less drastic sanction would avoid substantial unfairness to Defendants since, as noted above, they do not all bear the same degree of fault. However, such a sanction is significant enough to deter such conduct by others in the future. Additionally, such an instruction will help to level the playing field since Plaintiff did not have the opportunity to review the footage and refute Defendants’ representations regarding the events captured therein. Bozic v. City of Washington, Pa., 912 F. Supp. 2d 257, 273 (W.D. Pa. 2012)(“ ‘the spoliation inference serves a remedial function–leveling the playing field after a party has destroyed or withheld relevant evidence.’ ”).
Conclusion
Plaintiff’s Motion seeking sanctions for the spoliation of evidence is hereby granted, thus, Plaintiff is entitled to a jury instruction that the video footage might or would have been unfavorable to the position of Defendants.
Consequently, IT IS on this 12th day of June, 2014,
ORDERED that Plaintiff’s motion [241] seeking sanctions for the spoliation of evidence shall be, and hereby is, GRANTED in part and DENIED in part. Spoliation of evidence has occurred, however, the lesser sanction of a spoliation instruction is appropriate to remedy the spoliation.

Footnotes

Although the motion for leave to file the second amended complaint was denied, Plaintiff’s claims asserting excessive force, sexual assault, denial of medical treatment and retaliatory disciplinary charges related to the March 2012 incidents were permitted to proceed. Order, Dec. 21, 2012, Doc. No. 164. The relevant paragraphs in the Second Amended Complaint provide, in part:
123. Around March 10, 2012 officers J. Dominguez and M. Moura ransacked Prall’s cell and sgt. J. Lindsey, officer McNair, officer J. Ilardi, and two unknown officers forced Prall to perform oral sex on them. Unknown named nurses, custody supervisors, sgt. B. Gilmartin, and officers Dominguez, Moura and Ilardi refused to provide medical treatment and covered up the incident until reported to Special Investigations Division on March 11, 2012.
124. On March 13, 2012 Disciplinary hearing officer C. Ralph approached Prall’s cell telling him that she came to adjudicate Prall guilty of institutional infractions that resulted from paragraph 123. Prall explained that the disciplinary reports were never served upon him. The hearing officer said she knew Prall had not been served with copies of the charge but her friends, which include defendants Holmes, Ricci, Barnes, Moleins, Warren, Nelsen, Lawrence, and Attorney General staff, among others, asked her to sanction Prall for pursuing litigation . . .
125. After receiving the disciplinary sanction, officer J. Dominguez and two unknown officers beat Prall, forced him to ingest hallucinating drugs, and forced Prall to perform oral sex on them. The inquiry that Special Investigations Division conducted both on March 11, 2012 and 14, 2012 was a sham, that officer Schawrtzer informed Prall that nothing will come out [sic] the complaint. Officer Schawrtzer was correct given that Special Investigations Division did not contact Mercer County Prosecutor’s office sexual Assault examination Unit and have Prall submit to testing for prohibited substances as mandated by State and Federal laws . . . .
The Court will only substantively address the last two factors because the Court addressed the other factors during the April 1, 2014 hearing. In this regard, the Court found there to be no dispute that the evidence was in the NJSP Defendants’ control. Second, the Court also found the video relevant to the claims and defenses in this case because it was video footage taken during the time frame in which Plaintiff alleges he was sexually assaulted. As such, the first two factors of the four factor test are met.
Indeed, the Court is in no way suggesting that the prison is under any obligation to change its policy regarding its video system nor is the Court suggesting that the prison has a duty to preserve video footage related to every complaint lodged by its prisoners housed therein.
For the sake of completeness, the Court notes that Rule 37provides that the Court, absent exceptional circumstances, may not impose sanctions on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system. Fed. R. Civ. P. 37(e). Here, because the Court finds that NJSP Defendants engaged in culpable spoliation, this Rule would not preclude sanctions as the Rule presumes that the party who fails to provide electronically stored information has acted in good faith. Indeed, the Advisory Committee Notes to Rule 37states, in pertinent part:
Rule 37(f) applies to information lost due to the routine operation of an information system only if the operation was in good faith. Good faith in the routine operation of an information system may involve a party’s intervention to modify or suspend certain features of that routine operation to prevent the loss of information, if that information is subject to a preservation obligation . . . When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a “litigation hold.”
Advisory Committee Notes to Fed. R. Civ. P. 37(e).