I. Introduction.

*1 This matter is before the Court upon the motions of Plaintiffs Shandle Marie Riley [Doc. 49][1] and Maxwell Jarnagin [Doc. 10 in 1:20-cv-44] to require Hamilton County to preserve electronically stored information (“ESI”) and to allow Plaintiff to conduct a forensic examination of data repositories that may contain such ESI (hereinafter, the “ESI motions”). The Court conducted a hearing on these motions on March 31, 2020. Because of the Covid-19 pandemic and the need for social distancing, the hearing was conducted telephonically. Present for Plaintiffs were Attorneys Robin Flores and John Cavett; present representing himself was Plaintiff William Klaver; present representing Hamilton County were Dee Hobbs and Sharon Milling; present representing other individually-named Defendants were Attorneys Gerald Tidwell, Micah Guster and James Exum. For reasons that follow, the ESI motions [Doc. 49] [Doc. 10 in 1:20-cv-44] will be GRANTED to the extent specifically set forth below.

II. Background

By way of background, Defendants Daniel Wilkey, Jacob Goforth, Tyler McRae, Bobby Brewer and Trista Rice were employed as deputy sheriffs for the Hamilton County Sheriff's Office (“HCSO”). Ten separate lawsuits[2] were filed—between July 2019 and mid-December 2019—against Hamilton County Government (“Hamilton County”) and various combinations of these deputies alleging a variety of civil rights violations committed by Defendants. More specifically, Plaintiffs allege an assortment of inappropriate acts on the part of the HCSO deputies including harassment, groping, a baptism in lieu of arrest, a roadside body cavity search and other misconduct. The sole deputy sheriff accused of being involved in every one of these incidents is Defendant Daniel Wilkey.

Most, if not all, of these incidents involve traffic stops and roadside interactions between the deputies and Plaintiffs. For that reason, any audio or video recordings (e.g., dashcam videos, in-car videos, bodycam videos, digital or analog audio recordings), as well as any other ESI in connection with these traffic stops (e.g., emails, texts and instant messages, voicemails, incident reports, NCIC searches, electronic records of online activity from a deputy's in-car computer, call logs, phone records, etc.), may constitute highly probative evidence with respect to the issues in these lawsuits.

*2 At some point in the course of prosecuting these lawsuits, Plaintiffs' attorneys Robin Flores and John Cavett became aware of the failure of a server on which the HCSO “in-car videos”[3] were stored, and that such server failure resulted in the loss of all of the videos stored on that server. More specifically, in connection with the pending ESI motions presently pending before the Court, Plaintiffs' counsel attached a copy of an undated memorandum from “Ron Bernard, Hamilton County Sheriff's office Director of IT/Finance” addressed to “Sheriff Hammond/Chief Garrett” with the subject line, “Catastrophic Data loss in-car video footage.” The memo provides in relevant part:

The memo then goes on to explain the unsuccessful efforts made by the HCSO technical staff, with the assistance of outside vendors, to recover the approximate fifteen months of lost in-car video footage. And, it outlines the successful steps taken to build a new server to hold pre-October 25, 2018, and post-January 23, 2020, video footage.

Plaintiffs counsel in the nine lawsuits referenced above (as well as Plaintiff William Klaver in his pro se lawsuit) are understandably concerned about what they view as the potential loss of highly relevant evidence with respect to their claims against the Defendants. Further, because of the coincidental timing of this loss of evidence approximately one month after the last lawsuits were filed, they have expressed understandable skepticism concerning Hamilton County's explanation that the loss was accidental. Consequently, Plaintiffs' counsel filed the present ESI motions asking the Court to require Hamilton County to preserve all relevant ESI; to allow Plaintiffs to conduct a forensic examination of the HCSO's failed server to determine whether lost video footage can be restored; and to allow Plaintiffs to conduct a forensic examination of other HCSO data repositories that may contain relevant ESI. Prior to the court hearing on the ESI motions which took place on March 31, 2020, Hamilton County's attorneys did not file a written response to Plaintiffs' ESI motions. Consequently, the Court had to glean Hamilton County's position from its attorneys' oral representations in open court at the motion hearing.

III. Analysis

As a general rule, a party's duty to preserve evidence is triggered when that party has a reason to anticipate litigation, and certainly, no later than when the party actually receives notice that litigation has been filed against it. See Fed. R. Civ. P. 37(e). The duty to preserve evidence extends to all evidence that can reasonably be characterized as relevant to the claims and defenses in the lawsuit and proportional to the needs of the case. See Fed. R. Civ. P. 26(b)(1). To prevent the loss or destruction of such evidence, an attorney representing a party will customarily issue a written litigation hold to the party's various custodians believed to possess relevant ESI and documents to instruct them to take immediate steps to preserve such evidence. Beyond that—particularly when the evidence is in the form of electronically stored information—the attorney will generally oversee the collection of such ESI from desktop computers, laptops, servers, mobile devices and other data repositories to prevent its loss. All trial attorneys should be mindful of their obligations to identify, preserve, collect and produce relevant ESI.

*3 As indicated, between July 2019 and mid-December 2019, ten separate lawsuits were filed against Hamilton County and various combinations of deputies Daniel Wilkey, Jacob Goforth, Tyler McRae, Bobby Brewer, and Trista Rice. By December 2019, Hamilton County's attorneys were on notice that Hamilton County had a duty to preserve, at a bare minimum, documents and other evidence—specifically including ESI—relating to any interactions between Plaintiffs herein and the five deputies identified as Defendants in the ten lawsuits. The Court does not know what specific steps were taken by Hamilton County's attorneys to prevent the loss or destruction of such evidence. At the motion hearing, Hamilton County was represented by Attorneys Dee Hobbs and Sharon Milling, both of whom are identified in the Court's electronic filing system as part of the Hamilton County Attorney's office. Upon questioning by the Court, Attorney Hobbs indicated that he did not issue a written litigation hold with respect to any of the ten lawsuits referenced above. Rather, he simply called one or more representatives of Hamilton County to notify them that they needed to preserve evidence. Attorney Milling did not indicate that any written litigation holds initiated, although to be fair, the Court may not have specifically directed that question to her at the hearing.

With respect to the ostensibly lost “in-car video footage” for the time period from October 25, 2018, to January 23, 2020, Hamilton County's attorneys confirmed at the hearing that the server failed and that the video footage on the server has not been recovered. They indicated, however, that they have in their possession approximately 180 hours of in-car video footage. This video footage was not downloaded from the server and saved in response to a litigation hold generated in connection with the ten civil lawsuits filed by Plaintiffs herein. Rather, this footage was downloaded and provided to deputy Wilkey's attorney, Ben McGowan, prior to the failure of the server. Attorney McGowan requested such video footage because he is representing deputy Wilkey in connection with a criminal investigation by the Hamilton County District Attorney which eventually resulted in the return of a forty-four count indictment against Wilkey. Attorneys Hobbs and Milling were unable to describe for the Court the events depicted on that 180 hours of video footage; however, they confirmed that Hamilton County retained a copy of the footage and it is available for review.

At some point in the hearing, one or more attorneys represented that it is their understanding that Hamilton County District Attorney Neal Pinkston (“DA Pinkston”) has in his possession approximately 500 hours of video footage obtained from Hamilton County in connection with the criminal investigation of Wilkey. Upon further questioning by the Court, Hamilton County's attorneys verified that such video footage was provided to DA Pinkston prior to the server failure, but indicated that Hamilton County did not retain a copy. Hamilton County's attorneys did not know to what extent the 500 hours of video footage in DA Pinkston's possession overlapped with the 180 hours of video footage furnished to Attorney McGowan and preserved by Hamilton County. It follows then, that counsel do not know to what extent the 500 hours of video footage in DA Pinkston's possession and the 180 hours of video footage in Hamilton County's possession collectively depict the various traffic stops and interactions between the Plaintiffs and the five deputies identified in the ten lawsuits. Until the attorneys and the Court can determine what is contained in the in-car video footage identified as still available, there is no way to determine whether relevant in-car video footage was lost when the Hamilton County server failed. In other words, some possibility exists that all of the in-car video footage relevant to Wilkey's interactions with Plaintiffs was copied and provided in connection with the criminal investigation and is still available for review. And, to the extent Wilkey was present when the other four deputy sheriff Defendants interacted with the Plaintiffs, video footage of Wilkey may also capture all of Plaintiffs' interactions with Defendants Jacob Goforth, Tyler McRae, Bobby Brewer, and Trista Rice. These things remain to be seen and will require thorough analysis of the video footage still available for review.

*4 Fed. R. Civ. P. 37(e) governs the appropriate actions to be taken by the Court if a party fails to preserve electronically stored information:

In this case, it is critically important for the Court to determine whether relevant in-car video footage or other ESI that should have been preserved in the anticipation or conduct of this litigation has been lost. This is true for two reasons. First, in order to prosecute their lawsuits, Plaintiffs are entitled to discover all evidence in Defendants' possession that is relevant to the claims and defenses and proportional to the needs of these cases. Second, the litigants, the Court—and indeed the public—must confirm the truthfulness of the reasons given by Hamilton County for losing fifteen months of in-car video footage potentially depicting the very events which are the subject of the ten lawsuits pending before this Court. The timing of the server failure was extremely unfortunate and unavoidably suspicious. Moreover, Fed. R. Civ. P. 37(e) imposes an obligation upon Hamilton County's attorneys to preserve all relevant ESI in the anticipation or conduct of litigation.

IV. Conclusion

To satisfy the concerns expressed above, the Court will—consistent with the guidance provided in the preamble to Fed. R. Civ. P. 37(e)—focus its inquiry on the following two issues: (1) whether ESI that should have been preserved in the anticipation or conduct of litigation was lost because Hamilton County failed to take reasonable steps to preserve it; and (2) whether the lost ESI can be restored or replaced through additional discovery. To that end, it is hereby ORDERED that:

SO ORDERED.