In Rapp v. Naphcare, Inc., No. 3:21-cv-05800-DGE (W.D. Wash. May 31, 2023), Washington District Judge David G. Estudillo granted the plaintiff’s motion for sanctions, issuing a default judgment against Kitsap County in Washington for spoliation of video evidence related to the suicide of an inmate in the Kitsap County Jail.

Case Discussion

In this case involving the suicide of an inmate in the Kitsap County Jail and the alcohol and opioid withdrawal assessments of the inmate leading up to the suicide, plaintiffs emailed and faxed litigation preservation letters to the Kitsap County’s Sheriff’s Office and Prosecutor’s Office on January 17, 2020. These letters specifically requested Kitsap County preserve “[a]ll video/audio footage of Mr. Rapp while in custody, both while alive and deceased.” The letters further requested “all materials related to the arrest, prosecution, incarceration, medical treatment, and death of Nicholas Winton Rapp must be preserved and left unedited and unredacted for future litigation.” According to Lieutenant Keith Hall, a corrections officer tasked with managing the Kitsap County Jail’s surveillance system, the Kitsap County Jail maintained a 60-day retention policy for video recordings in the jail, so the videos were still available to the County on the date this request was sent.

Once the Kitsap County Sheriff’s Office received these litigation preservation letters, Lieutenant Hall determined, “apparently unilaterally”, that the relevant “event” for purpose of information preservation was Mr. Rapp’s suicide. Lieutenant Hall then reviewed Mr. Rapp’s inmate log to determine Mr. Rapp’s location during the entire time he was detained at the jail. Lieutenant Hall decided that because the surveillance cameras purportedly could not capture images of inmates while in their cells and because inmates in Central A Unit were on lockdown (e.g., could not leave their cells) during the afternoon of January 1st, the surveillance video from the afternoon and evening of January 1st “would not capture any footage of Mr. Rapp.” However, Lieutenant Hall did not “personally watch all footage captured during Mr. Rapp’s incarceration.” 11 hours of video of Central A Unit from 12:59 PM to 11:59 PM on January 1, 2020, were ultimately deleted pursuant to Kitsap County’s data retention policies.

After the case was filed and requests for production were sent, Kitsap County did not mention in its response to Request for Production No. 1 that 11 hours of video of Central A Unit had been deleted. In mid-August 2022, approximately five months after Kitsap County served its initial responses to Plaintiffs’ requests for production, Plaintiffs reached out to Kitsap County seeking recordings from Central A Unit for the afternoon and evening of January 1, 2020. On August 16, 2020, Kitsap County confirmed they did not have video of Central A Unit from 1:00 PM to 11:59 on January 1, 2020.

Judge’s Ruling

Regarding the video spoliation, Judge Estudillo stated: “Neither party disputes that 11 hours of videotape of Central A Unit from January 1, 2020, has been deleted and there is no way to replace it. Kitsap County also does not dispute it was on notice of an obligation to preserve evidence upon receiving Plaintiffs’ litigation preservation letters nor does it dispute it was under an obligation to ‘preserve video evidence depicting the events of and immediately surrounding Mr. Rapp’s suicide.’ Instead, Kitsap County asserts it intentionally did not retain the video at issue because Lieutenant Hall did not believe the video at issue was relevant to Plaintiffs’ requests.”

Continuing, he stated: “The Court notes, with astonishment, that Lieutenant Hall was apparently solely responsible for determining what videos were or were not responsive to Plaintiffs’ litigation preservation letter…Kitsap County has provided no other evidence or assertions to the Court about what role counsel played in the document preservation process in the aftermath of Mr. Rapp’s suicide…The Court cannot find Kitsap County acted reasonably when it took no steps to implement what have long been considered standard ESI preservation practices.”

Finding intent to deprive, Judge Estudillo said: “The totality of the circumstances suggest it is appropriate to infer Lieutenant Hall, and by extension Kitsap County, intended to deprive Plaintiffs of the 11 hours of videotape from January 1, 2020…Lieutenant Hall appears to have been solely responsible for determining which video was relevant to both Plaintiffs’ preservation request and the concurrent public records act request…Counsel for the Sheriff’s Office does not appear to have issued a litigation hold notice after receiving Plaintiffs’ litigation preservation letter and did not provide Lieutenant Hall with any guidance as to what materials should be preserved.”

Stating that “Kitsap County’s deletion of this video, in defiance of Plaintiffs’ preservation request and in the absence of guidance from legal counsel ‘interfere[s] with the rightful decision of the case’” and that an adverse inference instruction for one defendant which needed to be completely disregarded for the other defendants would “’confuse the jury and create a risk that the jury would impermissibly consider the adverse inference when determining the liability of’ the other Defendants”, Judge Estudillo issued a default judgment against Kitsap County, awarding attorneys’ fees and costs to the plaintiff’s regarding the spoliation of evidence, with damages to be determined at trial.

So, what do you think? Are you surprised that the Court issued a default judgment against Kitsap County instead of a lesser sanction? Or was it warranted, given the level of spoliation of evidence? Please share any comments you might have or if you’d like to know more about a particular topic.

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