In Jones v. Barlow et al., No: 2:19-cv-114-JES-NPM (M.D. Fla. Jan. 24, 2022), Florida Senior District Judge John E. Steele granted the plaintiff’s Motion to Compel Production of the Complete, Unedited Videos related to the allegedly unlawful detainment of plaintiff by defendants, after the defendants had previously produced the videos with redacted audio. Because the motion to compel was granted, Judge Steele denied the plaintiff’s alternative request for an adverse inference sanction.

Case Background

In this civil action related to the allegedly unlawful detainment of plaintiff by defendants, the plaintiff sent his discovery requests to the defendants on November 7, 2019. On March 10, 2020, the defendants responded to the requests, which included the production of 8 body camera videos. However, unbeknownst to plaintiff, the defendants redacted certain audio portions from the video, but did not serve plaintiff with any objections or privilege claims concerning the redactions. The discovery deadline in this case was July 24, 2020.

The plaintiff didn’t discover the redacted audio (which included portions with witness interviews) until January 13, 2022, at which time inquired about the issue with defendants. The defendants admitted that the audio was redacted by “the city,” but refused to produce complete videos upon plaintiff’s request, leading to the plaintiff’s motion to compel (or alternatively to issue an adverse inference sanction against the defendants). The defendants opposed the motion, arguing timeliness and stated: “In some video, the audio is silenced by the officers which is permissible by the department under specific circumstances. The circumstances when the officers are silenced is when they are not speaking with anyone other than members of the department.”

Judge’s Ruling

With those facts in mind, Judge Steele stated: “The Court finds good cause to modify the scheduling order,…and in the exercise of discretion, grants plaintiff’s motion to compel…First, although plaintiff’s motion to compel was filed a short two-weeks before trial, plaintiff quickly sought court intervention once defendants admitted that the originally produced videos were altered. Plaintiff’s late request was due to, at least in part, defendants’ own actions and failure to put plaintiff on notice that the videos were, in fact, altered. Thus, good cause exists to allow plaintiff to seek to compel discovery at this stage.”

Continuing, Judge Steele stated: “Defendants did not object or assert any privilege, Fed. R. Civ. P. 26(b)(5), concerning the original production of the altered videos. Defendants cannot be permitted to evade their discovery obligations by purposefully redacting information from a file without disclosing such redaction to plaintiff. Defendants’ statement that they may silence or purposefully redact audio ‘under special circumstances’ provides no legal basis for nondisclosure. And notably, defendants do not argue any prejudice or burden if they were ordered to produce complete copies at this stage.”

As a result, Judge Steele granted the plaintiff’s motion to compel, while denying the plaintiff’s alternative request for an adverse inference sanction.

So, what do you think? Do you think the plaintiff should have noticed the redacted audio sooner?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.