*1 Plaintiff Deverick Scott filed a motion for discovery sanctions (Doc. No. 36) indicating that he has been unable to watch a video he believes would be helpful in the prosecution of his case. Scott seeks $360 in sanctions for the lost video. Defendant has filed a response explaining that the video in question was destroyed months before Scott filed this lawsuit (Doc. No. 38). Counsel for defendant provides a copy of an email from her office to Warden James Gibson requesting the video and providing instructions for Scott to view it (Doc. No. 38-2). Warden Gibson's secretary replied, stating that she was not able to locate the video and “the camera systems do not go back that far.” Id. Defendant's counsel also submitted a declaration from Warden Gibson in which he explains that the camera system at Varner Unit automatically erases all security recordings that are not tagged after 45 days (Doc. No. 38-5). Warden Gibson states that his office conducted a search of the unit's archived camera footage and did not find the footage requested by Scott.

Scott's motion is denied. He has not made the showing required to justify the imposition of sanctions pursuant to Federal Rule of Civil Procedure 37(e). Scott seeks camera footage of an incident that occurred on May 17, 2018. Scott filed this lawsuit on February 27, 2019. He has not shown that defendants were on notice that the video in question should have been preserved in anticipation of litigation as required by Rule 37(e) (providing that the Court may take certain actions “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, ....”).

Further, while Scott may be prejudiced by the lost video, he has not shown how an award of $360 is an appropriate measure to cure that prejudice as is required under Rule 37(e)(1). Scott has also not shown that the defendants acted in bad faith by destroying the video, a showing necessary to impose stronger sanctions under Rule 37(e)(2) such as a spoliation instruction or default judgment. See Sherman v. Rinchem Co., 687 F.3d 996 (8th Cir. 2012) (a spoliation instruction requires a finding that the party intentionally destroyed relevant evidence in bad faith); Hallmark Cards v. Murley, 703 F.3d 456, 460 (8th Cir. 2013) (to support a spoliation instruction, court must find that: (1) the destroying party acted in bad faith in failing to preserve evidence; and (2) the opposing party was prejudiced by the failure).

IT IS SO ORDERED this 29th day of January, 2020.