How do courts address official retention policies that threaten to destroy evidence?

What Happens When An Entity’s Record Retention Policy Threatens Spoliation? Policy Suspension and Evidence Preservation

Author: Samantha Monteleone
Case Citation: Houston v. Coveny, No. 14-cv-6609, 2017 U.S. Dist. (W.D.N.Y. Mar. 13, 2017)
Employee/Personnel/Employer implicated: New York Department of Corrections and Community Supervision
eLesson Learned: When a retention policy threatens to destroy evidence, courts will suspend the policy and preserve all evidence reasonably related to the pending litigation, for the duration of the case.
Tweet This: “Court Orders ‘No Locking Those Records Behind Bars’ in Suit Against NY State Department of Corrections Employees”

The United States District Court for the Western District of New York recently ordered the New York State Department of Corrections and Community Supervision (“DOCCS”) to preserve a series of videos and audio recordings related to claims against over 40 of its employees, suspending the DOCCS’ routine policy of retaining recordings for only one year

Pro se plaintiff Tyrone Houston is an inmate at the Five Points Correctional Facility, in the custody of the DOCCS.  Mr. Houston brought a suit alleging that the defendants, some 40 prison officials, retaliated against him for filing a prior lawsuit, in violation of his constitutional rights.  In a motion to preserve evidence, Mr. Houston asked that the Court order the defendants to preserve eight videos and audio recordings, ranging from September 8, 2015 to December 31, 2015, of his tier and grievance hearings. These video and audio recordings were related to claims included in Mr. Houston’s proposed amended complaint.  In his motion, Mr. Houston attached letters from the DOCCS stating that the recordings (which Mr. Houston requested via the Freedom of Information Law) will be retained for one year, in accordance with the DOCCS’ retention policy.

The Court granted Mr. Houston’s motion to preserve evidence, reasoning that the Court may grant a preservation order if “a party can demonstrate that the evidence is in some danger of being destroyed absent court intervention.”  Pointing to Mr. Houston’s exhibits detailing the DOCCS’ retention policy, the Court found it appropriate to ensure that the recordings are preserved throughout the pendency of the case.  The Court noted that although it is not clear that Mr. Houston’s amended complaint will become the operative pleading, the recordings at issue are the subject of pending litigation and thus should be preserved.

Accordingly, the Court suspended the DOCCS’ “routine document and retention/detention policy” and ordered the DOCCS to preserve all evidence reasonably related to Mr. Houston’s existing and proposed claims

One cannot fault the DOCCS for maintaining a routine policy of retaining recordings, even if for only one year.  Certainly, most entities maintain record retention policies these days.  However, when a retention policy threatens spoliation, courts will suspend the policy and preserve all evidence reasonably related to the pending litigation, for the duration of the case.

  1. Houston v. Coveny, No. 14-CV-6609-FPG, 2015 U.S. Dist. (W.D.N.Y. June 16, 2015)
  2. Houston v. Covey, No. 14-CV-6609-FPG, 2017 U.S. Dist. LEXIS 139740 (W.D.N.Y. Aug. 29, 2017)

Samantha Monteleone is a third year law student at Seton Hall University School of Law (Class of 2018).  She was born and raised in New Jersey and has plans to practice in the state after graduation.  She has a passion for all things family law but enjoys reading and writing about all vanguard topics in the law.

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