PHILANDER JENKINS, Plaintiff, v. COUNTY OF HENNEPIN, MINNESOTA, CITY OF MINNEAPOLIS, MINNESOTA, OFFICER JEFFREY JINDRA, and MARGARET PEDERSON Defendants CIVIL NO. 05-979 (ADM/JSM) United States District Court, D. Minnesota Filed May 25, 2007 Counsel Jill Clark, Jill Clark, PA, Golden Valley, MN, Jill M. Waite, Waite Law Office, Minneapolis, MN, for Plaintiff. James Anthony Moore, Minneapolis City Attorney, Minneapolis, MN, for Defendants Mayerson, Janie S., United States Magistrate Judge ORDER *1 The above matter came before the undersigned United States Magistrate Judge on upon plaintiff’s Motion for Sanctions due to Spoliation of Evidence or Failure to Preserve Evidence [Docket No. 57]. Jill Clark and Jill Waite appeared on behalf of plaintiff; Toni Bietz appeared on behalf of defendant County of Hennepin, Minnesota; and James Moore appeared on behalf of defendants City of Minneapolis, Minnesota and Officer Jeffrey Jindra. The Court, upon all of the files, records, and proceedings herein, now makes and enters the following Order. IT IS HEREBY ORDERED that: Plaintiff’s Motion for Sanctions due to Spoliation of Evidence or Failure to Preserve Evidence [Docket No. 57] is GRANTED in part and DENIED in part, as set forth in the Memorandum below. MEMORANDUM I. FACTUAL AND PROCEDURAL BACKGROUND A. General Background This case arises out plaintiff Philander Jenkins’s 42 U.S.C. § 1983 and state assault and battery law claims against defendants. On the morning of May 21, 2003, Jenkins alleges that Minneapolis police officers executed a no-knock warrant at a house where Jenkins was a guest. See Amended Complaint [Docket No. 20], ¶ 6. Jenkins also claimed that defendant Minneapolis Police Officer Jeffrey Jindra, without provocation or justification and while he was restrained, kicked Jenkins in the head until his jaw broke, and that police at the scene also assaulted him in the head, face, and abdomen, causing injury to his person. Id., ¶ 7. Officer Jindra asserted that he encountered Jenkins as part of high-risk entry into a residence, and observed him putting a cellophane baggie into his mouth. See Affidavit of James A. Moore (“Moore Aff.”), Ex. 1 (“Jindra Dep.”) at pp. 37-39. According to Officer Jindra, he pinned Jenkins onto the ground prior to handcuffing him in order to prevent him from eating crack cocaine in the cellophane baggie and to secure his person. Id. at pp. 80, 84-85. After the encounter at the residence, Jenkins was taken to the Hennepin County Adult Detention Center (“ADC”). See Amended Complaint, ¶ 8. According to Jenkins, defendant Margaret Pedersen (“Pedersen”), a nurse supervisor at ADC, deliberately downplayed the injury to his jaw in order to avoid liability for Hennepin County. Id., ¶ 9.5. Jenkins alleged that despite having reports from her nurses at the ADC of his serious condition, Pedersen delayed his treatment. Id. Jenkins also claimed that Pedersen instructed other nurses to chart his medical records in a way that made it appear as though his condition was not serious. Id. Jenkins was charged in Hennepin County with possession of a controlled substance, being a prohibited person in possession of a firearm, and possession of a weapon with the serial numbers removed. See Affidavit of Toni A. Beitz (“Bietz Aff.”), Ex. 7 (Amended Criminal Complaint). Attorney Peter Nickitas initially represented Jenkins in his criminal matter. Id., Ex. 8. Attorney Nickitas issued Notices of Claim for monetary damages on behalf of Jenkins to the City of Minneapolis on October 23, 2003, and to Hennepin County on November 14, 2003, related to the injuries allegedly inflicted upon Jenkins by Officer Jindra and the lack of medical care he received for those injuries while at the ADC. See Affidavit of Jill Clark, Esq., Supporting Plaintiff’s Memorandum of Law Supporting his Motion for Sanctions due to Spoliation or Failure to Preserve Evidence (“Clark Aff.”), Exs. F, G. Attorney Nickitas also made the following Minnesota Data Practices Act Request to the Hennepin County Attorney on November 14, 2003. *2 I respectfully request all data of and concerning the detention of Mr. Jenkins in the Hennepin County Public Safety Facility and the Hennepin County Adult Detention Center from 21 May 2003 to the present. This includes, without limitation, the following: videotapes of Mr. Jenkins in hiscell [sic], his booking papers, her [sic] fingerprints (if taken), mugshot, statements taken from him, grievance forms, reports relating to medical treatment of him from 21 May 2003 to 28 May 2003 in the PSF, ... See Bietz Aff., Ex. 11. Jenkins’s present attorney, Jill Clark, took over his criminal defense on December 22, 2003. On December 31, 2003, Jenkins pled guilty to felony possession of cocaine, and the weapons charges against him were dismissed. See Affidavit of Anita Jehl (“Jehl Aff.”), ¶ 10; see also Clark Aff., ¶ 8. The present civil action before the Court was commenced on May 20, 2005. During the course of discovery, Jenkins sought production of three different items bearing on his claim: a gun found at the residence; a color photograph of him taken by police after the encounter at the residence; and audio recordings of phone calls made by prisoners at ADC to nurses during the period of May 21-26, 2003. All three of these items were destroyed prior to the commencement of this lawsuit. Jenkins is now before this Court seeking sanctions for spoliation of this evidence. B. Facts Pertaining to the Alleged Spoliation of the Firearm After Jenkins had been placed into handcuffs, officers discovered a .38 caliber gun on the floor. See Moore Aff., Ex. 1 (Jindra Dep.) at pp. 71-75. When officers asked another male in the room if the gun was his, Jenkins allegedly blurted out, “[n]o, it’s mine.”[1] See Moore Aff., Ex. 2 (Jindra Police Report) at pp. 71-75. The firearm was inventoried as seized evidence on May 23, 2003. See Affidavit of Gina Werner (“Werner Aff.”), Ex. 5. The firearm was retrieved on December 17, 2003 by Hennepin County Paralegal, Gina Werner, for use at Jenkins’s criminal trial and was returned to the Minneapolis Police Department on January 2, 2004 by Dana Kloss,[2] after a plea had been reached on December 31, 2003. See Werner Aff., ¶ 10, Ex. 5; see also Jehl Aff., ¶ 10. The firearm was destroyed by employee #461 with the Minneapolis Police Department on August 31, 2004. See Werner Aff., Ex. 5. C. Facts Pertaining to the Alleged Spoliation of the Polaroid Picture During the May 21, 2003 encounter, color Polaroid pictures were taken of the individuals arrested at the suspect residence, including Jenkins. See Clark Aff., Exs. B, C. Nevertheless, only a black-and-white copy of Jenkins’s Polaroid picture was provided to Jenkins during discovery, despite the existence of the original color picture taken on the day in question. See Clark Aff., ¶¶ 4, 7. The parties have now determined that the original color Polaroid picture of Jenkins was introduced during an evidentiary hearing on September 16, 2003 and was labeled as Exhibit 5. See Bietz Aff., Ex. 9, Tr. 47. After the hearing, the original photograph was inventoried into evidence by Officer Beaurpe, as “POLAROID PHOTO MARKED EXHIBIT # 5.” See Werner Aff., ¶ 5, Ex. 1. The Polaroid photograph of Jenkins was retrieved by Hennepin County Paralegal, Gina Werner, on December 3, 2003 for its use at Jenkins’s criminal trial, and was returned to the Minneapolis Police Department on January 7, 2004, after a plea was reached in Jenkins’s criminal case on December 31, 2003. Id.; see also Jehl Aff., ¶ 10. The original color Polaroid photograph of Jenkins was destroyed by employee #461 with the Minneapolis Police Department on August 31, 2004. See Werner Aff., Ex. 5. D. Facts Pertaining to the Alleged Spoliation of Recorded Calls Made to the Nurseline by Jenkins *3 In order to establish his efforts to obtain treatment for the injury to his jaw and to support his claim that Pedersen deliberately downplayed this injury to protect Hennepin County, during the course of this suit, Jenkins demanded production of the recorded calls he had made to nurses while he was detained at ADC, through what is referred to as the “nurseline”. See Beitz Aff., ¶ 12. The nurseline is a system by which inmates can contact nurses for medical assistance by telephone during appointed hours. See Clark Aff., Ex. M(a) (Pederson Dep.) at pp. 40-44. The nurseline consists of two separate lines, each with one nurse answering the telephone who is on duty to speak with inmates two times per day (1:00 - 2:00 p.m. and 6:00 - 7:00 p.m.) for period of one hour. Id. at pp. 41-42. One of the nurselines operated out of the City Hall facility and the other line operated out of the Public Safety Facility (“PSF”). Id. at p. 42. The ADC’s medical unit’s documentation of nurseline calls consisted of an entry in the medical record of the caller and a notation on a log maintained to keep track of the usage of the nurseline. See Clark Aff., Ex. M(a) (Pederson Dep.) at pp. 39-40, 43-44. In addition, a third party vendor recorded calls made to the nurseline. See Affidavit of Det. Lt. Donald J. Johnson (“Johnson Aff.”), ¶ 6. Jenkins asserts that he called the nurseline once on May 21, 2003, and thereafter, two times a day until May 26, 2003. See Clark Aff., Ex. P (Jenkins Dep.) at pp. 79-80. However, neither Jenkins’s medical records nor the nurses’ logs indicate that Jenkins sought or received medical assistance until May 26, 2003.[3] See Beitz Aff., Ex. 15. Therefore, to support his assertion that he called the nurseline every day between May 21 and May 26, 2003, Jenkins sought production of the recordings of the calls made to the nurseline during this time period. These recordings are no longer available because the recordings were not routinely preserved, and depending on call volumes, were taped over by new calls after eight months to a year. See Johnson Aff., ¶¶ 3-8.[4] However, In a submission by Hennepin County dated December 19, 2006, the County represented that Securus Technologies was able to retrieve electronic data concerning telephone calls that had been made to both the City Hall and PSF nurselines during the time period Jenkins claimed to have made thirteen separate calls to the nurseline. See December 19, 2006 Second Letter Brief [Docket No. 86] at p. 1; Third Affidavit Det. Sgt. Scott W. Larson (“Third Larson Aff.”), ¶ 1. In this submission, Hennepin County also provided information regarding the location of Jenkins during the period of May 21 to May 28, 2003. See Third Larson Aff., ¶ 2. The information provided by Hennepin County established tha t between May 21 and May 26, 2003, Jenkins was located only in areas within City Hall and that no calls to the PSF nurseline were made from locations within City Hall. Third Larson Aff., ¶¶ 2, 3. The information further showed all phone calls made to the City Hall nurseline from phones in the areas where Jenkins was located, the time of these calls and lengths of these calls during the relevant timeframe between May 21 and May 26, 2003. See Third Larson Aff., ¶ 5, Ex. 16. *4 In summary, the information provided by the City showed the following information regarding the location of Jenkins, the calls made to the City Hall nurseline, and information contained on the nurses’ logs: • On May 21, 2003, Jenkins was located in the Intake Post Booking area until approximately 6:15 p.m. Third Larson Aff. ¶ 2(b). At 6:04 p.m., a phone call was made from this location to the City Hall nurseline that lasted 3 minutes and 37 seconds. Third Larson Aff., Ex. 16. This call was made during the period that the nurseline was staffed, yet this call is not reflected on the nurses’ logs. See Bietz Aff., Ex. 15. No other calls were made to the City Hall nurseline on evening of May 21, 2003. Id. • Jenkins remained in Quad 1F from May 21, 2003 at approximately 6:15 p.m. until noon on May 22, 2003, when he was transported to the court staging area. See Third Larson Aff., ¶ 2(b). Jenkins was then transferred from the court staging area back to Quad 4B, in the Minneapolis City Hall, at approximately 4:00 p.m. on May 22, 2003. Id, ¶ 2(c). On May 22, 2003, one call was made from Quad 4B at 7:52 p.m. and lasted 12 seconds, which was after the 6:00 - 7:00 p.m. period that the nurseline was staffed. See Third Larson Aff., Ex. 16. No phone calls were made from the court staging area to the City Hall nurseline on May 22, 2003. Third Larson Aff., ¶ 6. • From May 22, 2003 at approximately 4:00 p.m. until May 28, 2003, Jenkins was housed and remained in Quad 4B in City Hall. Third Larson Aff., ¶ 2(c). On May 23, 2003, six calls were made from Quad 4B to the City Hall nurseline. Four of these calls were made during the 1:00 - 2:00 p.m. period when the City Hall nurseline was staffed, and they lasted 24 seconds (starting at 1:02 p.m.), 1 minute 27 seconds (starting at 1:03 p.m.), 1 minute (starting at 1:13 p.m.) and 58 seconds (starting at 1:40 p.m.), respectively. See Third Larson Aff., Ex. 16. The nurses’ logs show four calls during this time period. See Bietz Aff., Ex. 15. • On May 24, 2003, only one call was made from Quad 4B at 12:52 p.m. and it lasted 23 seconds. Third Larson Aff., Ex. 16. No calls were made to the City Hall nurseline during the 1:00 - 2:00 p.m. and 6:00 - 7:00 p.m. periods that nurselines were staffed. Id. • On May 25, 2003, two calls were made from Quad 4B to the City Hall nurseline. Third Larson Aff., Ex. 16. Both calls were made during the 6:00 - 7:00 p.m. period that the nurseline was staffed and lasted for five seconds and one second. Id. The nurses’ logs filled out by the nurses documented no calls to the nurseline during this time period. See Bietz Aff., Ex. 15. • On May 26, 2003, three calls were made from Quad 4B to the City Hall nurseline, and all three calls were during the 1:00 - 2:00 p.m. that the nurseline was staffed. See Third Larson Aff., Ex. 16. One of the calls lasted for 24 seconds (starting at 1:03 p.m.), the second call lasted 1 minute and 11 seconds (starting at 1:33 p.m.), and the third call lasted 1 minute and 3 seconds (starting at 1:35 p.m.). Id. The nurses’ logs filled out by the nurses state that Jenkins called the nurseline on May 26, 2003 at 1:44 p.m. • No calls were received by City Hall nurseline from Quad 4B the on May 27, 2003. See Third Larson Aff., ¶ 7, Ex. 16. E. Present Motion for Sanctions *5 With regards to the destruction of the firearm, the color Polaroid picture of Jenkins, and the recording of calls he made to the nurseline, Jenkins argued that in order to place him in the same position he would have been but for the spoliation of this evidence by defendants, he is entitled to the following sanctions against defendants: 1. An order that no defendant can put [on evidence] or argue at trial that Jenkins’ jaw was fractured prior to his encounter with police on 5-21-03; 2. An order that defendants cannot put on evidence of the gun, and cannot argue that Jenkins possessed the gun or that it was Jenkins’ gun (Jenkins unable to prove it did not have his DNA); and 3. An order that the County Defendants cannot put on evidence that the nurse line logs are accurate, or that Jenkins did not call the nurse line as many times as he said he did (or that he did not say what he says he said), and cannot argue that Jenkins did not call the nurse line and report what he testified to in his deposition. See Plaintiff’s Memorandum of Law Supporting his Motion for Sanctions Due to Spoliation or Failure to Preserve Evidence (“Pl.’s Mem.”) at p. 13. Jenkins has emphasized that by seeking this relief, he is not seeking an adverse inference against defendants. Jenkins also stated that he is not seeking at this point to establish intentional destruction or bad faith on the part of defendants. Id. at pp. 14-15. II. DISCUSSION A. Standard of Review Sanctions for spoliation of evidence may be imposed under a federal court’s inherent disciplinary powers. See Stevenson v. Union Pacific R.R. Co., 354 F.3d 739, 745 (8th Cir. 2004); Dillon v. Nissan Motor Co., 986 F.2d 263, 267 (8th Cir. 1993). “[S]anctions are appropriate when a party (1) destroys (2) discoverable material (3) which the party knew or should have known (4) was relevant to pending, imminent, or reasonably foreseeable litigation.” Lexis-Nexis v. Beer, 41 F. Supp.2d 950, 954 (D. Minn. 1999); see also Stevenson, 354 F.3d at 745-46 (finding that sanctions are appropriate for spoliation where the moving party demonstrates that the opposing party destroyed potential evidence). In addition, the court must conclude that the destruction of evidence prejudiced the moving party in order to issue sanctions against the offending party. Dillon, 986 F.2d at 267; see also E*Trade Securities LLC v. Deutsche Bank AG, 230 F.R.D. 582, 592 (D. Minn. 2005) (“An imposition of sanctions is only merited when the moving party can demonstrate that they have suffered prejudice as a result of the spoliation.”) (citing Stevenson, 354 F.3d at 748). A finding of bad faith is necessary to impose certain sanctions, such as an adverse-inference instruction, however, “a finding of bad faith is not always necessary to the court’s exercise of its inherent power to impose sanctions.” Stevenson, 354 F.3d at 745-47 (citations omitted). To exclude evidence, the court only must find that the offending party knew or should have known that the evidence was relevant to potential litigation, and a finding of bad faith is no t required. See Dillon, 986 F.2d at 267. The moving party has the burden to prove spoliation. See Stevenson, 354 F.3d at 748. B. Procedural Issues Hennepin County has argued that Jenkins’s spoliation motion should be addressed at trial before United States District Judge Ann Montgomery. See Memorandum of Hennepin County and Margaret Pederson in Opposition to Plaintiff’s Motion for Sanctions (“Defs.’ Mem.”) at p. 7. This concern is without merit given that Judge Montgomery’s chambers instructed this Court to hear the spoliation motion. In addition, Hennepin County has asserted that defendants are entitled to a full evidentiary hearing. Id. However, an evidentiary hearing is not required in this case, where the moving party, Jenkins, is not seeking to establish intentional destruction or bad faith on the part of the defendants in support of his request for sanctions. Further, the evidence submitted by the parties adequately dealt the elements required to address Jenkins’s motion including destruction of evidence, prejudice, and whether the defendants knew or should have known that the evidence was relevant to potential litigation. This Court finds that live testimony is not necessary to supplement the submissions already provided to the Court. C. Spoliation of the Firearm *6 As stated previously, Jenkins has asked for an order “that defendants cannot put on evidence of the gun, and cannot argue that Jenkins possessed the gun or that it was Jenkins’ gun (Jenkins unable to prove it did not have his DNA).” With regards to the firearm seized during Jenkins’s arrest, there is no dispute that an employee of the Minneapolis Police Department destroyed the firearm August 31, 2004. See Werner Aff., Ex. 5. In addition, there is no dispute that Jenkins placed the Minneapolis Police Department and Hennepin County on notice of his claims arising “from the infliction of excessive, unreasonable force upon his person....” See Clark Aff., Exs. F,G. What is missing, however, from Jenkins’s motion is evidence of any prejudice suffered by him due to the destruction of the firearm. Jenkins’s action is premised on violations of his civil rights action and state law claims of assault and battery, claims that arise out of the alleged abuse inflicted upon him by a Minneapolis police officer and the lack of medical treatment he received after the incident. Jenkins is not suing defendants for false arrest or malicious prosecution relating to the discovery of the firearm at issue. See Amended Complaint. Further, there have been no allegations made or evidence presented that Jenkins was in possession of the firearm during the alleged beating. Similarly, no one has claimed that the gun belonged to Jenkins based on fingerprints or DNA on the firearm. Instead, law enforcement officers have relied on Jenkins’s statement that gun was his. See Moore Aff., Ex. 2 (Jindra Police Report) at pp. 71-75; Bietz Aff., Ex. 10 (October 23, 2003 Suppression Order). Stated differently, Jenkins has not provided, nor can this Court discern, the relevance of the firearm to his civil rights action and state law claims. See Lexis-Nexis, 41 F. Supp. 2d at 955 (citing Gates Rubber Co. v. Bando Chemical Indus., 167 F.R.D. 90, 104 (D. Colo. 1996) (“[The moving party] must establish a reasonable possibility, based on concrete evidence rather than a fertile imagination, that access to the [destroyed material] would have produced evidence favorable to his cause.”)). Given Jenkins’s failure to present evidence to support a claim of prejudice caused to his case by the destruction of the firearm, his motion for sanctions due to spoliation is denied as it relates to the firearm. D. Spoliation of the Photograph With respect to the destruction of the Polaroid photograph, Jenkins has requested an order tha t no defendant can submit evidence or argue at trial that his jaw was fractured prior to his encounter with police on May 21, 2003. See Pl.’s Mem. at p. 13. As stated previously, during the May 21, 2003 search and seizure, a color Polaroid picture was taken of Jenkins, and that photograph was destroyed by a Minneapolis Police Department employee on August 31, 2004. See Werner Aff., Ex. 5; Clark Aff., Exs. B, C. According to Jenkins, the destroyed color Polaroid photograph taken of him on May 21, 2003, would have shown fresh injuries to his face caused by police and would have dispelled any suggestion that these injuries were present before his encounter with police. This Court finds that the Minneapolis Police Department knew or should have known that the photograph, taken after his arrest, was relevant to potential litigation. First, Attorney Nickitas issued a Notice of Claim for monetary damages on behalf of Jenkins to the City of Minneapolis on October 23, 2003 (Clark Aff., Ex. F), related to the injuries allegedly inflicted upon Jenkins by Officer Jindra. See Dillon, 986 F.2d at 267 (finding that to exclude evidence, the Court only must find that the offending party knew or should have known that the evidence was relevant to potential litigation, a finding of bad faith is not required). Further, this Court finds that the destruction of the photograph has prejudiced Jenkins because it was taken shortly after Officer Jindra allegedly kicked him in the head. In other words, the color Polaroid picture could have supported Jenkins’s claim that the police officer’s actions resulted in the fracture of his jaw as opposed to some other cause. Because an agent of the Minneapolis Police Department destroyed a relevant piece of evidence that the City of Minneapolis knew or should have known was relevant to potential litigation, this Court finds that the exclusion of evidence would appropriately remedy the failure by the Minneapolis Department to ensure the retention of important evidence. As such, no defendant[5] will be allowed to submit evidence or argue at trial that the injuries suffered by Jenkins to his face and head[6] occurred prior to his contact with police on May 21, 2003.[7] In addition, as the City of Minneapolis was responsible for the destruction of the photograph, it shall pay to Jenkins the reasonable attorney’s fees and costs associated with bringing this portion of Jenkins’s motion for sanctions. Jenkins shall provide this Court with an affidavit setting forth the reasonable attorney’s fees and costs incurred by him in bringing this portion of the motion on or before June 4, 2007.[8] E. Spoliation of the Recorded Calls Made to the Nurseline *7 As a general practice, calls made into the ADC nurseline were recorded, the recordings were not routinely preserved, and depending on call volumes, the recordings were taped over by new calls after eight months to a year. See Johnson Aff., ¶¶ 3-8. Consequently, any recording made of Jenkins’s alleged calls (or lack of calls) to the nurseline during the relevant timeframe, no longer exist. As a result of the County’s failure to retain the recordings to the ADC nurseline, Jenkins has asked for an order “that the County Defendants cannot put on evidence that the nurseline logs are accurate, or that Jenkins did not call the nurseline as many times as he said he did (or that he did not say what he says he said), and cannot argue that Jenkins did not call the nurseline and report what he testified to in his deposition.” See Pl.’s Mem. at p. 13. As a preliminary matter, this Court finds that Jenkins is prejudiced by the failure of Hennepin County to preserve the recordings of the calls made to the nurseline during the period of May 21 through May 26, 2003. At the center of Jenkins’s action against Hennepin County is his claim that the nursing staff deliberately downplayed his condition despite the complaints he made to them, which delayed his treatment. See Amended Complaint, ¶¶ 8, 9.5. While the nurses’ logs and the list of phone calls retrieved by Securus Technologies from the City Hall facility still exist, without the actual recordings to the nurseline, it clearly will be more difficult for Jenkins to prove that he called the nurseline as frequently as he claims, and therefore, more difficult for him to prove that Hennepin County deliberately down-played or delayed treatment of his medical condition. This is so because, as Jenkins points out, there are discrepancies between the information contained in the nurses’ logs and the information produced by Securus Technologies regarding phone calls made to the City Hall nurseline. For example, on May 21, 2003, a phone call was made to the City Hall nurseline between 6:00 and 7:00 p.m. from the site where Jenkins was located, but no calls are documented on the nurses’ logs during this time period. See Bietz Aff., Ex. 15. Similarly, on May 25, 2003, two calls were made from Quad 4B to the City Hall nurseline during the 6:00 - 7: 00 p.m. period when the nurseline was staffed. Yet the logs documented no calls to the nurseline during this period, calling into question their accuracy. While it may be that the short duration of the calls (3 minutes and 37 seconds on May 21, 2003, and 5 seconds and 1 second on May 25, 2003) suggests that the calls could not have made by Jenkins or that the calls did not involve anything of substance, the fact is that the actual recordings of the calls would have resolved this dispute rather than leaving the parties to speculate as to what occurred during those two calls. Nevertheless, despite having concluded that the destruction of the phone recordings has prejudiced Jenkins, this Court denies his motion for sanctions because it finds that Hennepin County did not know or should not have known that the recordings were relevant to potential litigation and that they should have been retained. On November 17, 2003, Jenkins’s former attorney made the following Minnesota Data Practices Act Request to Hennepin County on November 14, 2003: I respectfully request all data of and concerning the detention of Mr. Jenkins in the Hennepin County Public Safety Facility and the Hennepin County Adult Detention Center from 21 May 2003 to the present. This includes, without limitation, the following: videotapes of Mr. Jenkins in hiscell [sic], his booking papers, her [sic] fingerprints (if taken), mugshot, statements taken from him, grievance forms, reports relating to medical treatment of him from 21 May 2003 to 28 May 3 in the PSF, ... *8 See Bietz Aff., Ex. 11. In response to this request, the ADC gathered the requested documents. See Bietz Aff., ¶ 10. On November 20, 2003, Jenkins served a subpoena on Hennepin County requesting that it provide him with a “certified copy of all medical records of Philander D. Jenkins at the Hennepin County Jail, from May 21-28, ....” Id., Ex. 12. Copies of Jenkins’s medical records from the ADC were delivered to counsel in response to the subpoena on November 20, 2003. Id., ¶ 11. Jenkins’s medical records do not indicate that he sought or received medical assistance until May 26, 2003. See Beitz Aff., Exs. 14-15. Nevertheless, despite having received the medical records in November 2003, which did not show the calls that Jenkins allegedly made to the nurseline in May 2003, it was not until September 2006, that Jenkins made a specific request for the tapes of his phone calls to the nurseline. See Beitz Aff., ¶ 12. Based on this evidence, this Court finds that Hennepin County did not know and had no reason to know that it should have preserved the phone recordings to the nurseline during the period May 21 through 26, 2003. First, while Jenkins’s data practices request sought “reports relating to medical treatment of [Jenkins] from May 21 through May 28, 2003”, there is nothing about this language that would have put Hennepin County on notice that Jenkins was seeking recordings of his alleged calls to the nurseline. Similarly, there is nothing about the language in the subpoena to Hennepin County requesting that it provide him with a “certified copy of all medical records of Philander D. Jenkins at the Hennepin County Jail, from May 21-28,” that would have alerted Hennepin County that Jenkins was requesting recordings of his alleged calls to the nurseline. Further, Hennepin County has submitted evidence that it had no reason to believe that civil litigants would seek these recordings as no one had ever requested them in the past (Beitz Aff., ¶¶ 13-14), and that it maintained in the ordinary course of business the nurses’ logs. See Memorandum of Hennepin County and Margaret Pederson in Opposition to Plaintiff’s Motion for Sanctions at p. 12. For all of these reasons, there is no basis to find that Hennepin County knew or should have known that the recordings were relevant to the instant litigation until Jenkins asked for the recordings in September 2006, more than two years after they had been destroyed. Jenkins’s motion for sanctions as it relates to the nurseline recordings is denied. Footnotes [1] Hennepin County Judge William R. Howard ultimately suppressed this statement because Jenkins was not provided with his Miranda rights. See Affidavit of Toni A. Beitz (“Bietz Aff.”), Ex. 10 (October 23, 2003 Suppression Order). [2] Kloss is a forensic scientist in the Firearms Section of the Minneapolis Police Department. [3] To address this lack of evidence in the nurseline logs, Jenkins submitted the testimony of a former nurse from the ADC who stated that nurses did not always log every single call made by inmates to the nurseline. See Clark Aff., Ex. M(b) (Martin Dep.) at pp. 251-52. Hennepin County countered with the affidavits from three of the six nurses who were assigned to City Hall nurseline between the evening of May 21, 2003 through May 28, 2003. According to these nurses, the general practice was to document medically-related telephone calls, either in both the nurseline and the detainee’s chart or at least in the detainee’s chart. See Affidavit of Sherry Maddox, R.N. ¶¶ 3-5; Affidavit of Stephanie (Hinds) Horobin, R.N., ¶¶ 4-7; Affidavit of Sean Kennedy, ¶ 5. According to Sean Kennedy, his lack of entries during a particular shift meant that there were no calls made. See Affidavit of Sean Kennedy, ¶¶ 7-8. Counsel for Hennepin County was unable to contact former nurses Brian Juba and Catherine M. Sincleair who were on nurseline duty during the relevant time period. See Bietz Aff., ¶¶ 1, 4. [4] In a subsequent letter brief to the Court, Hennepin County represented that the ADC had changed phone systems, and since the equipment was removed, there was no way to tell if the telephone calls made by Jenkins were ever recorded. See December 12, 2006 Letter Brief [Docket No. 77] at p. 1. Hennepin County relied on the Second Affidavit Det. Sgt. Scott W. Larson in making this assertion. However, this Affidavit only asserted that the equipment from the ADC phone system that was in place during the relevant events in this case was removed in 2006. It did not contradict Lieutenant Donald J. Johnson’s assertion that calls were recorded and then recorded over after the tapes were full. [5] It is not clear whether Hennepin County, Pedersen or Officer Jindra intend to submit evidence or argue at trial that Jenkins’s jaw was injured due to reasons other than the encounter with Officer Jindra. However, while none of these parties actually destroyed the photograph, it is clear that both the County and the City had a duty to preserve the photo and failed to do so. In this regard, attorney Nickitas put both the County and the City on notice of Jenkins’s claim and requested that Hennepin County retain and produce documents. See Clark Aff., Exs. F, G; Bietz Aff., Ex. 11. The County took possession of the photograph during the prosecution of the criminal case, and then returned it to the City at the conclusion of the case, and never told the City to retain it. Instead, the County only told the City the case was done. In other words, while the evidence was created by the City, it was shared with and was under the joint custody and control of the County. At a minimum, once the County was done with the evidence, in addition to indicating that the case was closed, the County, on notice that the plaintiff wanted the evidence related to the incident, should have requested or instructed the City to retain the evidence and it did not do so. Having failed to do so, the County (and its agent Pedersen) will not be permitted to submit evidence or argue at trial that Jenkins’s jaw was injured prior to the incident. [6] This Court notes that the black and white copy of the Polaroid photograph only exposes his head and face. See Clark Aff., Ex. C. [7] This ruling does not preclude defendants from arguing the extent of injuries suffered by Jenkins, as the photograph is not x-ray. [8] This affidavit shall set forth the dates, hours expended, and a description of the services performed by his attorneys on this portion of the motion, along with a description and amount of all costs incurred.