Jury to Determine Question of Bad Faith and Whether to Draw Adverse Inference as Sanction for Loss of Video Pursuant to Document Retention Policy
Rattray v. Woodbury County, 2010 WL 5437255 (N.D. Iowa Dec. 27, 2010)
In this case, the court imposed sanctions for defendants’ failure to preserve relevant video footage and ordered an instruction allowing the jury to determine whether the recording was destroyed in bad faith and, if so, to infer that it would have been unfavorable to the defendants. In so holding, the court cited as an important factor that the video was the only recording of what occurred, “which weighs heavier in this case than the lack of actual knowledge that litigation was imminent at the time of the destruction.”
Rattray was arrested on August 16, 2006 for operating a motor vehicle while intoxicated. As part of the booking procedure, Rattray was strip searched. At that time, she refused to submit to the search, screamed “Rape!”, and told the officers she intended to file a lawsuit. There was no dispute that the Woodbury County Jail recorded Rattray’s treatment following her arrest. On September 14, 2006, Rattray filed a motion seeking an order for the production of the recording in her criminal case. On September 15, 2006, the Iowa district court entered an order to preserve “any video recordings of [Rattray], at the time she was booked into the jail … with respect to the charge (OWI) pending in this case.” On October 24, 2006, Rattray’s counsel in her criminal case sent a letter to the Sheriff’s Department complaining about Rattray’s treatment “and demanding answers” but did not specifically threaten litigation or request a copy of the video recording.
Despite the above, a portion of the recording was lost. The assistant to the chief and to the jail administrator explained that she had previously copied recordings when ordered by the court to do so, but that the copies only depicted the booking procedure. Likewise, in the present case, the copy of the relevant recording terminated prior to Rattray being taken from the holding cell. The assistant further testified that the policy regarding recordings had since changed, and that she was now required to copy the entire recording from the time an arrestee walks into the jail until they are placed in a temporary cell. Any footage not copied was automatically overwritten after approximately thirty days.
Rattray sought an adverse inference. Defendants objected and argued, among other things, that pursuant to the court’s order, they were only required to preserve the recording of the “booking procedures” and disputed that they knew or should have known that the lost portions of the recording constituted relevant evidence subject to preservation. Reasoning that the recording had already been routinely overwritten at the time of correspondence from plaintiff’s counsel and that they had preserved the recording of the booking pursuant to the court’s order, they argued that there was no basis for the imposition of sanctions.
Taking up the analysis, the court set forth the law of spoliation in the Eighth Circuit. Specifically, to impose an adverse inference “where a routine document retention policy has been followed … there must be a finding of intentional destruction indicating a desire to suppress the truth, i.e., bad faith” and a finding of prejudice to the opposing party. Further, the court established that the prejudice requirement could be satisfied “‘from the very fact that [the lost evidence] is the only recording of’ the incident in question.” The court went on to hold “that the question of whether or not the party who allegedly destroyed evidence acted in bad faith may be submitted to the jury along with the question of whether or not to draw an adverse inference” following the court’s determination that there is sufficient evidence from which a reasonable juror could find that allegedly missing evidence “once existed,” was in the control of the allegedly spoliating party, and that it was destroyed in bad faith thus causing prejudice to the opposing party.
Turning to the facts of the present case, the court found that the above requirements had been met and that there was a “sufficient basis for an inference of bad faith … to submit the question to the jury”:
Similarly, here, the court finds that the defendants had at least general knowledge that the video recording of Rattray's treatment would be important to any subsequent litigation and might even be important to the litigation of the criminal charges against her. The Iowa district court order was not limited in any way as to the specific subject matter of the recording that the defendants were ordered to retain. Rather, the Iowa district court ordered the Woodbury County Jail to "preserve any video recordings made of the defendant, MAUREEN B. RATTRAY, at the time she was booked into the jail in the early morning hours of August 19, 2006, with respect to the charge (OWI) pending in this case." (Emphasis added). Jurors are entitled to consider whether "at the time [Rattray] was booked" could reasonably be construed to limit the recording to the booking procedures or whether it simply identified the date of the recordings that the defendants were required to preserve. While the court believes that Rattray has "oversold" an inference of her intent to pursue civil litigation from her attorney's letter complaining of her treatment, a reasonable juror could conclude from the order of the Iowa district court and Rattray's protests at the time of her strip search that the recording would be important to a criminal or civil case. Moreover, as in Stevenson, an important factor here is that the missing video recording is the only contemporaneous recording of what occurred not just during Rattray's strip search, but after it, and such evidence is highly relevant to potential litigation over Rattray's condition and her treatment, which weighs heavier in this case than the lack of actual knowledge that litigation was imminent at the time of the destruction. Id. The prelitigation destruction of the concluding portion of the video recording in this combination of circumstances, though purportedly done pursuant to a routine retention policy, creates a sufficiently strong inference of an intent to destroy it for the purpose of suppressing evidence of the facts surrounding Rattray's treatment at the Woodbury County Jail to warrant an adverse inference instruction. Id.
There is also sufficient evidence that the "prejudice" requirement is satisfied here "by the nature of the evidence destroyed in the case." Id. Again, even if the missing portion of the recording cannot be shown to be "a smoking-gun," "the very fact that it is the only recording of" the incident in question is sufficient to show prejudice. Id.
Thus, the court finds that it is appropriate to submit to the jury the question of whether the defendants acted in bad faith in destroying the portion of the recording in question, as well as whether or not to draw the permissive adverse inference.
(Emphasis added (bold)).