White v. United States, No. 4:15CV1252 SNLJ (E.D. Mo. Jan. 9, 2018).

In this wrongful death case, the plaintiff moved for spoliation sanctions against the U.S. government for destroying video evidence. The court denied the motion without prejudice, holding that the plaintiff had not yet proved that the lost evidence was irretrievable. However, citing its “serious concern” about the potential loss of evidence, the court ordered the U.S. to search its files and produce anything relevant to the plaintiff. This case began with a “sting” operation conducted by the U.S. Bureau of Alcohol, Tobacco, Firearms, and Explosives (“ATF”). During the sting, ATF agents shot Myron Pollard, a passenger in the front seat of the targeted vehicle. Pollard died the next day. His mother, Hope White, sued the U.S. for Pollard’s wrongful death and other claims. Prior to the sting, an ATF agent set up four separate video cameras to record the events. Each of those cameras wirelessly transmitted data to a remote server. After the operation, the ATF burned video from each of the four cameras onto DVDs. It stored the DVDs in a sealed envelope in an evidence room. The U.S. provided copies of those DVDs to White during discovery. However, none of the videos filmed the shooting. Two cameras were “obscured by other objects,” and two were “missing the video frames” from over four seconds, encompassing the entire shooting. White’s counsel emailed the U.S. counsel to ask for the original SD card or device that recorded all four videos. However, he never filed a formal request under Federal Rule of Civil Procedure 34. Another ATF agent stated in a declaration that he thought he had “deleted the video files from the server … as part of routine maintenance” after confirming that the government no longer needed the files. The U.S. assigned an investigator to examine the server “to determine if it still contained data” about the missing video. However, the U.S. refused to produce the server both “because [White] had not properly requested it” and because it might contain video related to other incidents. The U.S. ultimately “recovered 75 deleted files from the server” but could not identify the dates of those recordings. After viewing one file and determining that it was unrelated, the U.S. refused to continue to search without a court order requiring it to do so. White moved for spoliation sanctions under Rule 37(e), requesting either judgment against the U.S. or an adverse inference jury instruction. The court began by reviewing Rule 37(e). It noted that the rule only applies where a party loses data that “cannot be restored or replaced through additional discovery.” Here, White had not yet established that the lost video frames were irretrievable. The court reasoned that the videos might be “among the 75 recovered files” from the server. The court pointed out that White had neither directly requested the files nor filed a motion to compel their production. Indeed, White did “not even mention the recovered files” in her brief. Therefore, allowing for the possibility “that the video files are not irretrievably lost,” the court denied White’s motion without prejudice. But the court went further. Noting its “serious concern that the key four seconds of the video during the shooting itself were somehow lost,” the court ordered the U.S. to “inspect the 75 deleted video files and produce any files that relate” to White’s case.

Takeaways on preserving evidence

Do not delete original data until you have confirmed that the more readily accessible copies are intact. While there’s no need to keep data in multiple different formats or sources, you must maintain at least one complete copy of potential evidence if litigation is pending or reasonably anticipated. Assuming, for now, no nefarious intent on the part of the ATF agents involved, it’s hard to imagine how no one noticed that the DVD videos did not capture the critical incident before deleting the original data.

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