Should the Jury Decide "Intent to Deprive" in Spoliation Sanction Issues? Woods v. Scissons Says Yes.
September 24, 2019
On June 25, 2016, Officer Scissons arrested Dustin Woods after a brief pursuit and a confrontation, during which Woods attempted to pull a gun on the officer. Officer Scissons successfully disarmed Woods and handcuffed him, and other officers began to arrive on the scene. After the incident, Woods filed a § 1983 action against Officer Scissons alleging that Scissons struck Woods several times while he lay face-down on the pavement, amounting to excessive use of force. Woods claimed the beating resulted in a fracture to his lower back and severe pain requiring surgery to repair.[1]
To Woods’ dismay, no video footage of the incident was available for use in the litigation. As a basis for seeking spoliation sanctions against Officer Scissons, Woods claimed video footage would have been automatically captured by the cameras in the various officers’ vehicles, and the City of Prescott violated a duty to preserve evidence by allowing the footage to be deleted from the police department’s system.
On August 14, 2019, the United States District Court of Arizona in Woods v. Scissons concluded that evidence in the record showed video recordings related to the incident existed but were not preserved by the non-party City of Prescott Police Department. Most notably, the Court held that the jury—not the Court—should hear evidence concerning the potential existence of the video footage to determine whether the police department destroyed evidence and did so with the “intent to deprive” Plaintiff Woods of the use of the video footage. For purposes of imposing sanctions for spoliation, the Court determined that the City of Prescott violated a duty to preserve evidence of the incident, but found that the question of “intent” should be submitted to the jury to determine appropriate spoliation sanctions.
Spoliation refers to the “destruction or material alteration of evidence or to the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”[2] The duty to preserve evidence arises “not only during litigation but extends to that period before litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”[3] “The failure to preserve electronic or other records, once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences.”[4] When a party breaches its duty to preserve evidence, it may face sanctions under Rule 37 of the Federal Rules of Civil Procedure or through the court’s inherent authority “to control the judicial process and litigation.”[5]
In Woods, the Court discussed two categories of remedies available under Federal Rule of Civil Procedure 37(e) for those seeking sanctions. The first category of remedies allows a court, upon finding that the loss of information has prejudiced another party, to “order measures no greater than necessary to cure the prejudice.”[6] The second category allows a court to take more drastic measures if it finds that the party “acted with the intent to deprive another party of the information’s use in the litigation.”[7] For both categories of sanctions, the court must conclude that (1) electronically stored information was lost; (2) the loss is attributable to the failure by a party to take reasonable steps to preserve it; and (3) the information cannot be restored or replaced by more discovery.[8]
The Woods Court began its analysis by concluding that evidence in the record established that dash cam footage was recorded by at least two vehicles that could have been relevant to Woods’ claims. Next, the Court concluded Woods was prejudiced by any loss of video footage due to the inherent value of video recording and its ability to allow a jury to make independent determinations. Further, the Court found that the City of Prescott, as a non-party, had a duty to preserve video footage from the officers’ dash cams. The Court then imputed the non-party police department’s spoliation to Officer Scissons.[9]
The Woods Court stopped the analysis there. For purposes of determining sanctions, the Court held that the sanctions listed in Federal Rule of Civil Procedure 37(e)(2) require a determination to be made regarding whether the spoliating “party acted with the intent to deprive another party of the information’s use in [ ] litigation.”[10] Refusing to make such a finding on the facts before it, the Court held that the jury would hear evidence regarding the potential existence of video footage that was subsequently erased and determine whether the “intent to deprive” was present. Notably, the Court determined that, should the jury find the “intent to deprive” was present, it would be instructed that the City of Prescott had a duty to preserve evidence and that it may assume the video footage would have been favorable to Plaintiff Woods.[11]
Even though the Fourth Circuit “has yet to provide guidance on the ‘stringent intent requirement’ of Rule 37(e)(2),”[12] Woods should serve as a cautionary tale for parties, interested non-parties, and attorneys facing potential spoliation sanctions. Indeed, the “intent to deprive” determination may be made by those same juries ultimately reaching the verdict in the case. On the other hand, even if the jury determines that “intent to deprive” was not present, it may prove difficult to later unring the bell.
Author: Chelsea A. Creta, Associate, Commercial Litigation
© September 2019 Jackson Kelly PLLC
[1] Woods v. Scissons, 2019 WL 3816727 (D. Ariz. Aug. 14, 2019).
[2] See Boone v. Everett, 751 Fed.Appx. 400, 401 (4th Cir. 2019) (unpublished per curium) (affirming the district court’s decision to instruct the jury that it was not permitted to draw any inference for or against either party from the fact that video recordings of an alleged physical altercation were not in evidence).
[3] In Re: Ethicon, Inc., 2016 WL 5869448, at *1 (S.D. W.Va. Oct. 6, 2016).
[4] Woods, 2019 WL 3816727, at *1 (citations omitted).
[5] In Re: Ethicon, Inc., 2016 WL 5869448, at *2 (citations omitted).
[6] Fed R. Civ. P. 37(e)(1).
[7] Fed. R. Civ. P. 37(e)(2).
[8] Woods, 2019 WL 3816727, at *2.
[9] See id. at *6 (“The City’s incentives for preserving evidence thus align with Scissons’ and the City is therefore in the same functional position as other parties subject to sanction for spoliation.”).
[10] Id. at *6.
[11] Support for the Court’s conclusion may also be found in the 2015 Committee Notes on Rule 37(e):
Subdivision (e)(2) requires a finding that the party acted with the intent to deprive another party of the information’s use in the litigation. This finding may be made by the court when ruling on a pretrial motion, when presiding at a bench trial, or when deciding whether to give an adverse inference instruction at trial. If a court were to conclude that the intent finding should be made by a jury, the court’s instruction should make clear that the jury may infer from the loss of the information that it was unfavorable to the party that lost it only if the jury first finds that the party acted with the intent to deprive another party of the information’s use in the litigation. If the jury does not make this finding, it may not infer from the loss that the information was unfavorable to the party that lost it.
[12] Knight v. Boehringer Ingelheim Pharm., Inc., 323 F.Supp.3d 837, 860 (S.D. W.Va. 2018).