Self-Preservation v. Production

Self-Preservation v. Production

Can a defendant be subject to discovery sanctions for conduct occurring before discovery even begins? Although this may seem antithetical, correctional officers at a federal prison in New Jersey were sanctioned for spoliating evidence when they were unable to produce videotape footage of an incident involving a prisoner during discovery of the Section 1983 action arising out of the incident.

In Kounellis v. Sherrer, 529 F.Supp. 2d 503 (D.N.J. 2008), plaintiff

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prisoner brought a Section 1983 action against correctional officers and prison officials after the officers allegedly assaulted the prisoner in retaliation for his filing of administrative complaints against the officers. After the alleged assault, the prisoner repeatedly requested a copy of the video surveillance footage from a camera in the area of the alleged assault. Defendants never provided the prisoner with the copy. Nor was a copy ever preserved, thus depriving the prisoner of the only source of evidence other than his word that he was assaulted. As a result, the defendants were subjected to sanctions including an award of attorneys’ fees and an adverse inference jury charge.

To be subject to sanctions for spoliation of evidence, the party facing sanctions must have had a duty to preserve relevant evidence in anticipation of probable litigation that if not preserved would harm the other party’s case. In short, someone who has something that the other party needs cannot intentionally or negligently (i.e., conveniently) lose the evidence.

In Kounellis, the defendants were supposed to preserve video surveillance footage because the footage was the only evidence, other than the prisoner’s word, that an assault had taken place. To make matters worse, the defendants also knew that charges against the prison had been filed which would require litigation. As a result, the defendants had relevant evidence in their possession while they also knew that that evidence would be needed by the prisoner at the disciplinary hearing. Unfortunately, that evidence was never held onto and the prisoner was deprived of the only evidence that could support his side of the story.

In sanctioning the defendants for spoliation of evidence, the judge determined that it was the defendants’ fault for losing the evidence and the prisoner’s case suffered as a result. As a result, the defendants were subject to monetary penalties. More importantly, the jury was instructed by the judge that they were allowed to assume that the missing surveillance footage would have been harmful to the defendants.

The ability to prevent spoliation depends on whether the spoliation was intentional or negligent. Accidents do happen and future accidents can be prevented by establishing rigid procedures for preserving evidence when that evidence may be needed in a lawsuit.

Comments (8):

  1. Where was the lawyer in all of this? Did she advise the guards to preserve the evidence and they disobeyed her request? No doubt that the prison guards were in-the-wrong, but did they know that their (probably frequent) bad practices would result in monetary sanctions?

    • @e-Discoverista, While I can’t speak for this lawyer specifically, one of my previous bosses represented prison guards regularly, and he always made sure that they retained the tapes for all times, even when no incident had occurred. In this case, I would assume that their lawyer did the same, and it was simply negligence (or possibly worse) that the tape was destroyed.

    • @e-Discoverista, While where the lawyer was is a great question, I think timing is an issue here. I am not sure what the “legal department” is in correctional facilities; however, it is possible that the destruction occurred before counsel was retained/informed/involved in the matter. Then again (not that I have lost faith in all people), is it that far out of the question to think that even if counsel was involved, and the tape was that damning, the tape still would have been destroyed?

  2. If the destruction of the video tape was in fact intentional, it’s somewhat hard to imagine that the prison guards were not aware that their actions would have adverse consequences. Many prisoners have access to legal references in their libraries and computer labs. If counsel advised the guards to retain the tapes as Sean suggests, than it was proper for the court to impose sanctions. In a setting where lawsuits frequently arise, parties should be held to higher standards.

    • @MAH,
      Hate to say it, but juries will likely suggest a lesser sentence if they don’t actually see an assault/beating than if they did. So it isn’t hard to believe that when given the opportunity, a guard would destroy a tape and roll the dice for sentencing rather than let a jury watch him beat down an innocent (well, defenseless, let’s say) prisoner.

      Issuing sanctions kind of adds that additional punishment back in. Though it isn’t additional jail time, the financial impact could make life just as miserable. But again, if you were the guard, you’d probably not want to be locked up with the prisoner you assaulted any more than you had to be…

  3. I’m interested to know what the prison’s policy is regarding surveillance tape retention. Also, are there state statutes that mandate a period of time such tapes must be retained by prison officials before they are destroyed? When an incident occurs a duty to preserve should arise, but I wonder what the standard procedures are as well. I agree with Frank – who knows how the jury will decide without being able to see the surveillance tapes. Sanctions were definitely the appropriate way to go, but even with sanctions the defendants may be getting off easy here.

    • @Al Cooley, Your comment regarding retention policies is interesting. What if the prison policy was simply to only retain tapes for 1 week? In that situation, it is unlikely that the victim of the brutality would have the opportunity to speak with a lawyer before the recording is deleted. Thus, the ruling in Kounellis will only serve as an incentive to prisons to keep retention policies short in order to avoid both sanctions and the basis for any future brutality claims.

  4. I think Al’s question regarding records retention hits right at the heart of the matter. I am a records management specialist and I am currently working on a retention schedule for local law enforcement agencies. Because these records are created by public agencies, they are public records and subject to public disclosure/FOIA requests. However, I am finding that in my state most law enforcement agencies argue that it is too costly and too burdensome to either a.) be required to review all surveillance video to determine if an incident has been captured or b.) keep all surveillance for a minimum amount of time (greater than 10-30 days or so). I find that most facilities only retain recordings when they know an incident has occured and purely at their own discretion. Clearly, this is hugely problematic. Thankfully, when public records are concerned, it generally is not up to the prison to dictate minimum retention, but the state/federal records retention schedules.

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