United States District Court, E.D. Wisconsin
RAYMOND J. BERGERON DAVILA, Plaintiff,
BARBARA A. TEELING, BRAD FRIEND, MELISSA MORAN, ANTHONY LACOMBE, GREGORY BUCHOLTZ, ROBERT A. MASTRONARDI, STEVEN M. CLOPE, and NICOLE L. PETERSEN, Defendants.
Stadtmueller, U.S. District Judge
before the Court are two motions for spoliation sanctions
filed by Plaintiff. The first, filed on September 25, 2017,
seeks sanctions for Defendants' alleged failure to
preserve video footage of the self-harming incident of June
16, 2016 which underlies this litigation. (Docket #33). The
motion requests that the Court sanction Defendants by
striking their Answer and entering default judgment, fining
them $10, 000, and ordering them to turn over the video
footage if it still exists. Id. Plaintiff further
asks that he be allowed argue to the jury that the video was
destroyed in bad faith. (Docket #34 at 7). Plaintiff's
second motion, submitted on September 28, 2017, claims that
Defendants altered certain jail activity logs which were
produced in discovery. (Docket #39). He styles this as a
motion for spoliation sanctions, rather than to compel.
Id. The second motion seeks relief similar to the
first. Id. at 9.
are a number of potential procedural problems with
Plaintiff's motions, including a failure to
meet-and-confer with opposing counsel about spoliation, and
an invocation of irrelevant rules of procedure, but the Court
need not address those concerns. Both of Plaintiff's
motions fail on their merits. Assessing whether spoliation
has occurred requires a two-step analysis. First, a finding
of spoliation lies "only where a party has a duty to
preserve evidence because it knew, or should have known, that
litigation was imminent." Trask-Morton v. Motel 6
Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008).
Second, once a party is under a duty to preserve evidence,
they may only be subject to spoliation sanctions when they
intentionally destroy that evidence in bad faith. Bracey
v. Grondin, 712 F.3d 1012, 1018 (7th Cir. 2013).
Bad-faith destruction occurs when a party destroys evidence
"for the purpose of hiding adverse information."
Id. at 1019 (quotation omitted); See Park v.
City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002)
("[T]he crucial element is not that evidence was
destroyed but rather the reason for the destruction.").
Plaintiff, as the movant, bears the burden of establishing
both required elements. Bracey, 712 F.3d at 1019.
has not carried his burden as to either element on either
motion. As to the first motion, Plaintiff's only notices
relating to the need for preservation were 1) a grievance
that accused Defendants of failing to protect Plaintiff from
his self-harming activities, and asking them to "[s]ave
the video please, " (Docket #34-1 at 26), and 2) a short
conversation with Defendant Brad Friend ("Friend")
asking him to save the video, (Docket #35 at 2). Defendants
deny receiving the grievance or having the conversation. Even
taken at face value, the Court finds that these
communications were not enough to put Defendants on notice
that litigation was soon in coming. At best, they vaguely
hint at potential litigation, but make no mention of its
imminence. This is reinforced by another grievance submitted
by Plaintiff after the June 16 incident, wherein he expressly
disclaimed any intention to sue Defendants relating to that
incident. (Docket #55-l).
has also failed to show that the video in question was
destroyed in bad faith. Defendants state that, without notice
of a need to preserve the video, it was automatically
recorded over after 120 days in accordance with Racine County
policy. Plaintiff's only "evidence" of bad
faith is his own speculation. He infers that because that
Defendants have saved certain evidence-video taken by a
handheld camcorder and various pictures-but not the evidence
he seeks-footage from wall-mounted cameras in the jail-they
must have intentionally destroyed the desired footage in bad
Plaintiff ascribes nefarious motives to it, the difference in
evidence preservation is not surprising. The pictures and
camcorder video could not be "written over, " while
the system for the wall-mounted cameras did precisely that,
automatically and without Defendants' specific
intervention, after 120 days. Plaintiff has shown, at best,
that the footage from the wall-mounted cameras was
overwritten inadvertently. This falls far short of proving
that Defendants intentionally destroyed the subject footage
to hide it from Plaintiff or the Court.
the second motion, it appears that it would be more
appropriately brought as a motion to compel. Plaintiff
complains that the activity logs which were produced to him
contain substantial gaps between certain entries, and he
believes Defendants deleted those entries. Defendants counter
that they were first made aware of these gaps by
Plaintiff's motion itself. Their counsel then sent
Plaintiff a more complete activity log. Counsel explained
that the gaps existed because Defendants had only produced
log entries tagged to Plaintiff himself in their computer
system. The new activity log they produced provided Plaintiff
with all of the entries for June 16, 2016, regardless of
which inmate the entry concerned. Plaintiff nevertheless
maintains that the logs were altered because he finds
discrepancies between the logs and correctional officer shift
assignments. Even assuming these discrepancies are real, it
is a matter for argument to a jury, not spoliation sanctions.
They do not prove that Defendants destroyed any log entries
"for the purpose of hiding adverse information."
Bracey, 712 F.3d at 1019.
both of Plaintiff's motions for spoliation sanctions must
be denied. Defendants' October 27, 2017 motion for leave
to file a sur-response will be denied as moot. (Docket #66).
IT IS ORDERED that Plaintiff's motions
for sanctions (Docket #33 and #39) be and the same are hereby
FURTHER ORDERED that Defendants' motion
for leave to file a sur-response (Docket #66) be and the same
is hereby DENIED as moot.
Also pending is a motion to compel
filed by Defendants, but they have indicated their desire to
withdraw the motion. (Docket #24 and #46). The case docket
will be updated to reflect the withdrawal.
Plaintiff questions the authenticity of
the grievance, which was attached to an affidavit of Friend.
(Docket #60 at 7-8). However, the handwriting in the
grievance is identical to that found in Plaintiff's
filings in his various lawsuits in this Court, including this
one. See (Docket #55-1 and #60). Plaintiff counters
that Defendants must have copied his unique handwriting and
writing style in order to produce the grievance. (Docket #60
at 7-8). The Court ...