Does something seem odd about that headline? I’ll address it at the bottom of the post. 🙂 In Garcia v. Alka, et al., No. 19 CV 5831 (N.D. Ill. Jan. 20, 2022), Illinois Magistrate Judge Jeffrey T. Gilbert denied the plaintiff’s motion for spoilation instruction, requesting the Court to give Seventh Circuit Civil Pattern Instruction 1.20 to the jury at the close of evidence for the defendants’ failure to preserve certain Response to Resistance Reports completed by two individual Defendant Officers, finding that the plaintiff failed to demonstrate bad faith on the part of the defendants.
Case Background
In this civil action related to claims of excessive force by officers of the North Chicago Police Department, the plaintiff filed a motion for spoilation instruction, asking the Court to give Seventh Circuit Civil Pattern Instruction 1.20 to the jury at the close of evidence, because Defendants failed to preserve certain Response to Resistance Reports completed by two individual Defendant Officers – Officers Alka and Ramirez – concerning their use of force during the incident at the heart of the litigation. The plaintiff asserted that the defendants had a duty to preserve those reports because litigation involving the plaintiff was foreseeable and the North Chicago Police Department’s own policies require that those documents be retained. Because the defendants breached that duty and acted willfully or in bad faith, the plaintiff stated the jury should be given Instruction 1.20 to ameliorate the prejudice he suffered because he could not review the contents of the reports.
Instruction 1.20, which targets the spoilation of evidence, is intended to provide the jury with a framework for drawing an adverse inference from missing evidence, consistent with the law in the Seventh Circuit and Federal Rule of Civil Procedure 37.
While the defendants did not dispute the Response to Resistance Reports Plaintiff sought in discovery existed at one time but had since been lost or destroyed, they contended that the plaintiff failed to make the threshold showing that Defendants acted willfully or in bad faith and that the motion for spoilation instruction should be denied.
Judge’s Ruling
Judge Gilbert began his ruling by stating: “The Court agrees with Defendants for the reasons explained below.”
Continuing, he said: “Plaintiff’s request for an adverse spoilation instruction falters because he has not set forth any facts that suggest Defendants intentionally destroyed the reports in bad faith. Plaintiff bears the burden, as the party requesting a sanction pursuant to Rule 37 in the form of an adverse inference jury instruction, of making at least a threshold showing of an intentional, bad faith act to support the giving of the proposed instruction. And Plaintiff has not done so here. Instead, the facts Plaintiff has put forth show only that Defendant Officers Alka and Ramirez generated the reports on the date of the incident (which could, converse to Plaintiff’s position, be construed as an attempt to preserve the information in the first instance), that the reports could not be located by Defendants and the North Chicago Police Department during the course of discovery, and that they are now presumed lost, destroyed, or misplaced. There is a complete absence of competent evidence about what happened to the reports, including whether they were destroyed by a ‘human, [machine], or Mother Nature herself.’…This leaves the Court with no more than mere speculation to substantiate an adverse evidence instruction that, at its core, is a sanction for destructive action undertaken to hide the truth or purposely keep damaging evidence out of the hands of an opposing party.”
Judge Gilbert also noted: “the factual information requested by the Response to Resistance Reports also is contained in other police documents, albeit not conveniently aggregated into one, subject-specific report that addresses the use of force by each individual officer….The booking room video footage, which Defendants turned over to Plaintiff during discovery, also purportedly captures the incident itself and will likely illuminate the who, what, where, and how of the officers’ use of force that would have been the subject of the now-missing reports. Given the volume of related evidence Defendants did preserve and provide to Plaintiff, Court cannot infer from Defendants’ actions that they acted with the intent to hide unfavorable information by purportedly destroying the two isolated reports at issue here.”
In denying the plaintiff’s motion for spoilation instruction, Judge Gilbert also rejected the plaintiff’s suggestion that the Court should modify instruction 1.20 and instruct the jury that they may draw an adverse inference if Defendants were “at fault” for the destruction of the reports or acted recklessly in failing to preserve them, citing Rule 37(e)’s requirement of bad faith or intent for an adverse inference sanction.
So, what do you think? Do you agree with the Court’s ruling on the motion for spoilation instruction? Please share any comments you might have or if you’d like to know more about a particular topic.
P.S.: Did you catch it? The word “spoliation” is spelled as “spoilation” throughout the post, which is how it was spelled in the case ruling, so I reported it that way. Don’t blame me! 😉
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.