In Hollis v. CEVA Logistics U.S., Inc., No. 19 CV 50135 (N.D. Ill. May 19, 2022), Illinois District Judge Iain D. Johnston, finding the five threshold requirements of Rule 37(e) were met and that the plaintiff was prejudiced by the loss of video evidence, but because of the difficulty to establish intent, left the intent to deprive decision to the jury in the form of factual findings and instruction.

Case Discussion

In this case involving claims of discrimination and wrongful termination of the plaintiff, an incident happened between the plaintiff and the co-worker where two sets of witnesses had differing accounts, with three witnesses (who were white) claiming the plaintiff put his hands on the co-worker, and three other witnesses (who were African American) claiming he didn’t. The defendant ultimately chose to believe the three white witnesses and the plaintiff was fired.

Three security cameras were aimed at the area of the incident. The defendant presented no evidence that any of its employees ever attempted to view, preserve, or recover the footage before the plaintiff’s termination, nor was it preserved to address his EEOC complaint or eventual lawsuit. The day after his termination, the plaintiff verbally requested the general manager to review the video recordings, and about a week later in a document complaining about race discrimination, twice requested a review of the video recordings that he asserted would clear him of wrongdoing.

Judge’s Ruling

Judge Johnston evaluated Rule 37(e)’s five threshold requirements, as follows:

1. The information must be ESI: Judge Johnston rejected the defendant’s claim that the burden of proof that the video existed resided with the plaintiff, stating: “Under CEVA’s theory, as a practical matter, the spoliation itself prevents a claim of spoliation.” He also stated in finding that the first requirement had been met: “the inference that video recordings of the incident between Mr. Hollis and Mr. Bayer existed is bolstered, if not proven, by CEVA’s previous use of video recordings in a similar incident in the same warehouse.”
2. There is a Duty to Preserve the ESI: Judge Johnston also rejected the defendant’s argument here that the duty to preserve didn’t begin until months later, when the plaintiff filed an EEOC complaint, by referencing the plaintiff’s “formal letter of complaint against CEVA Logistics for workplace race discrimination” sent the day after his determination as satisfying the second requirement.
3. The ESI was Relevant: Referencing the defendant’s claims that, based on the statements of the three white witnesses, the video wouldn’t have helped the plaintiff, Judge Johnston stated, in finding the third requirement met: “this argument establishes the evidence’s relevance. Indeed, even under Fed. R. Evid. 401, the relevance of evidence does not turn on whether it supports its proponent’s position, but rather it is relevant if ‘it has any tendency to make a fact more or less probable than it would be without the evidence.’”
4. The ESI was Lost Because the Party Failed to Take Reasonable Steps: Judge Johnston stated, in finding the fourth requirement was met: “nothing before the Court even hints that CEVA ever intervened to stop its security system from proceeding as designed and discarding any video recordings after thirty to ninety days. Even after Mr. Hollis’ December 5, 2018, letter alerted CEVA to the relevance and potential importance of any footage that had been recorded, CEVA did nothing.”
5. The Lost ESI is Unable to be Restored or Replaced: Judge Johnston stated, in finding the final requirement was met: “the Court finds that nothing in the record establishes that the video recordings can be restored or replaced.”

Judge Johnston also found the plaintiff was prejudiced by the lost ESI, stating: “despite Mr. Hollis alerting CEVA to the importance of the video recording, CEVA took no steps to view, let alone preserve, the video. As a result, the video is lost and unavailable. Because Mr. Hollis is left unable to obtain the video of the incident he needed for his case, the loss of ESI has prejudiced him as that term is used under Rule 37(e).”

Regarding the intent to deprive decision, Judge Johnston stated: “plenty of evidence exists in the record that could lead a reasonable person to conclude that CEVA acted with intent”, referencing how the defendant cited the seller of the video equipment as the custodian of the security video, when they had no role in the process. However, when considering the intent to deprive decision, he also stated: “a competent counsel who is willing to argue that her client is not inculpatory but is instead incompetent could make a reasonable argument that the failure to pull, preserve, and peruse the video recordings was not intentional.” He also referenced “Hanlon’s Razor”, which says “in its most polite form, that we should not infer malice from conduct that can be adequately attributed to incompetence.”

As a result, Judge Johnston decided to leave intent to deprive decision to the jury and provided an appendix factual findings and instruction that he planned to give to the jury at some point during the trial.

So, what do you think? Are you surprised that Judge Johnston decided to leave intent to deprive decision to the jury?  Please share any comments you might have or if you’d like to know more about a particular topic.

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