Plaintiff Allowed to Present Evidence

Plaintiff Allowed to Present Evidence That Video Was Spoliated: eDiscovery Case Law

In Castro v. Smith, No. 16-CV-8147 (JGLC) (S.D.N.Y. Aug. 22, 2023), New York District Judge Jessica G. L. Clarke, while finding that defendants did not act with intent to deprive, ruled that the plaintiff was allowed to present evidence that video footage existed that would have shown, at a minimum, the aftermath of an incident with the New York City Department of Corrections (“DOC”) where the plaintiff was hit in the face.

Case Background

In this case related to an incident on September 10, 2015 that occurred when the plaintiff was incarcerated that escalated to a point where the plaintiff was hit in the face, at some point during the altercation, a DOC “Probe Team” arrived, including Officer Tracy Storey who “operated the [h]andheld camera during the alarm.” Captain David Levy testified that “[t]here was a Probe Team that went down with a video camera, but at that point, the use of force had already occurred.” There were conflicting reports about the existence of a video, with Levy having stated at one point he reviewed the video, but testifying later that he did not view it.


Regardless, on October 6, 2015, the Legal Aid Society sent a letter to DOC on behalf of Plaintiff requesting an investigation into the Incident and asking DOC to confirm that “the Department will take steps to preserve all photographs and to properly investigate Mr. Castro-Martinez’s allegations.” On October 28, 2015, Plaintiff submitted an “Inmate Grievance and Request Program Statement Form” to DOC, which contained allegations that an officer “punch[ed] [Plaintiff] in [his] face and broke[ ] his nose.”

Defendants did not produce the video footage from the Probe Team to Plaintiff. Instead, Defendants produced a declaration from DOC, in which Officer David Kim stated that “there is no record of any video … including any handheld video or any other video from EMTC, Old Clinic on September 10, 2015 at or around 11:10 am” and that if the video is not stored on the DOC server “it would have been deleted automatically.” In September 2015, DOC standard procedure “was that all handheld videos were automatically deleted within ninety days, unless they were marked to be preserved by the facility if the handheld recording device captured the actual incident of a use of force.”

While most of plaintiff’s claims were dismissed on summary judgment, his claims against two of the DOC officers (Smith and Duggins) regarding the punch in the clinic survived.

Judge’s Ruling

In considering the issues, Judge Clarke found that “the factors weigh strongly in favor of finding a special relationship between Defendants and DOC” and that “DOC’s and Defendants’ interests are ‘sufficiently aligned and closely interrelated’ such that imputing DOC’s alleged spoliation to Defendants is appropriate”.

Judge Clarke also rejected defendants’ claim that the relevant video footage never existed and their argument that “even though Storey’s report indicates that she ‘operated the handheld camera during the alarm,’ that “does not prove … that the camera was turned on”, stating: “Storey’s report indicates that she ‘responded with the Probe Team … and operated the [h]andheld video camera during the alarm.’…It defies logic to understand ‘operate’ in this context as meaning something other than creating video footage.” She also found that “Defendants’ duty to preserve evidence relevant to Plaintiff’s litigation concerning the Incident arose shortly after the assault, and certainly within the 90-day period that DOC maintained video footage before automatically deleting it.”

Judge Clarke also found: “As DOC failed to suspend their routine document destruction policy, DOC failed to take reasonable steps to preserve relevant ESI” and “even if the video did not contain footage of the alleged punch to Plaintiff’s nose, the video would have contained footage surrounding the Incident, including Plaintiff’s physical state.” So, she found that “the deleted video may have shown physical effects of the Incident helpful to Plaintiff’s claims, and he has therefore been prejudiced by its destruction. Thus, Plaintiff has demonstrated entitlement to sanctions pursuant to Rule 37(e)(1), as Plaintiff has both met the threshold requirements of Rule 37(e), described above, and has been prejudiced by Defendants’ spoliation of evidence.”

But Judge Clarke did not find intent to deprive, stating: “The scenario here, in which evidence was deleted automatically due to DOC’s failure to manually retain the video, suggests only negligence.”

As a result, Judge Clarke ruled: “Plaintiff will be allowed to present evidence to the jury that video footage existed that would have shown, at a minimum, the aftermath of the Incident, and that the video was deleted by DOC despite the department’s obligation to preserve it. This sanction will allow Plaintiff to inform the jury that this relevant evidence once existed, and thus remedy DOC’s negligence in destroying the video.”

So, what do you think? Are you surprised that plaintiff was allowed to present evidence regarding the destruction of the video evidence when there wasn’t intent to deprive? 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.

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One comment

  1. If you intentionally leave a loaded gun at a playground, do you have a specific intent that someone will be hurt? Rule 37(e) poses a comparable dilemma. If a party sets up a system that automatically deletes video evidence and, despite the party’s awareness of its duty to preserve video evidence (in the face of an express demand to do so), the party take no steps to preserve, does the party have a specific intent that the evidence be deleted? The courts have tended to say “no” (as here); yet, sometimes the courts nonetheless grant relief akin to that 37(e) prohibits in the absence of intent to deprive. They say “hard cases make bad law.” Where 37(e) is concerned, “Bad rules make hard law.”

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