When does a party that has lost video evidence avoid spoliation sanctions?

How Do You Get Away Without Spoliation Sanctions? Oops, I lost my phone!

Author: Preeya Sonia
Case Citation: Charles v. City of New York, No. 12-CV-6180 (SLT)(SMG), 2017 WL 530460 (E.D.N.Y., Feb.
8, 2017).
Employee/Personnel/Employer implicated: Plaintiff, resident of Brooklyn, NY
eLesson Learned: Plaintiff had the obligation to preserve her video of the police conduct. However, because her phone was lost negligently, rather than with gross negligence, Defendants cannot infer that the lost video would have been favorable. Thus, Defendants would need to establish at trial that the lost video would have been favorable to them.
Tweet This: Negligent Plaintiff loses iPhone video of cops – too bad for the cops.

In June 2012 Plaintiff was taking a walk in her neighborhood in Brooklyn, NY when she spotted two police officers questioning a group of neighborhood teens. She overheard one of the teens proclaiming that he had done nothing wrong. Taking matters into her own hands, Plaintiff began to approach and asked the officers why they had stopped the teens. Plaintiff, as a tax paying citizen living on the block, believed she had a right to know about a “process on the block.” Thus, she began to record the incident with the cops on her iPhone. As she recorded, the officers repeatedly asked her to step back. She did. Upon the third request to Plaintiff to step back, she refused. One of the officers then pushed her back. The cops called for backup and arrested Plaintiff. Plaintiff was held in a cell for a period anywhere between 33 minutes and 80 minutes before being released. Thereafter, she received a summons for disorderly conduct.

Plaintiff and Defendants disagree about much of the facts of this incident. Plaintiff claims she was an arms-length away from the officers as she recorded them. The cops claim she was right in their faces as she recorded. On one account Plaintiff was violently shoved, and on the other, the cop accidentally made contact with Plaintiff due to her close proximity to the cops while recording. Each party’s witnesses have differing accounts, as well.

Plaintiff’s iPhone video would have been a great help in determining the actual nature of the confrontation. Unfortunately, the phone went missing mere days after Plaintiff’s arrest.  Plaintiff claims that she viewed the video after her arrest to confirm that it had not been compromised. She also viewed the video at work in front of a coworker. Then, two days after her arrest, Plaintiff attended a gala. She brought a small purse with her and unfortunately, her phone would not fit inside and thus, she had to hold it all night. As a result, Plaintiff lost her phone and never downloaded the video. Defendants then moved for Spoliation Sanctions.

Spoliation is the “destruction or significant alteration of evidence” or the “failure to preserve property” for another party to use as evidence in pending or reasonably foreseeable litigation. Defendants sought dismissal of the lawsuit, or alternatively, an adverse inference instruction. Thus, Defendants must establish: 1) that Plaintiff had an obligation to preserve the video at the time it was destroyed; 2) that the video was destroyed with a “culpable state of mind;” and 3) that the destroyed video was “relevant” to Defendant’s claim, such that a reasonable trier of fact could find that it supports the defense. Defendants proved the first two elements based on the nature of the video and Plaintiff’s negligence in losing the phone. Plaintiff was negligent because she chose to carry a small purse in which she could not fit her phone, which contained a video with important evidence to this case. However, because this was mere negligence and not gross negligence, the court cannot infer that the video would have been favorable to Defendants. Thus, the court denied Defendant’s motion for spoliation sanctions without prejudice if evidence is introduced at trial that the iPhone video is likely favorable to Defendants.

This entire case was centered around Plaintiff’s iPhone video. Thus, she was quite aware that the video was very important evidence and she had a duty to preserve it. Plaintiff was negligent in carrying around her phone and putting it down during the gala, where there were many people around and it would be easy for her to lose the phone. Plaintiff should have kept the phone secure. Additionally, Plaintiff should have downloaded the video immediately upon her release. However, luckily for her, because she was merely negligent, Defendants could not establish that the video was favorable to them. Therefore, Plaintiff was not susceptible to spoliation sanctions. However, if Defendants somehow found such evidence and introduced it at trial, Plaintiff would be out of luck.

Preeya Sonia is a third-year law student at Seton Hall University School of Law and resides in Newark, NJ.

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