Written by Kate Adams, Esq.
Edited by Janeen B. Koch, Esq.
Having a system in place to save electronic data for some period of time, and then have it automatically deleted may not be found sufficient to overcome the issue of spoliation of evidence.
In Jenkins v. Woody, a 2017 U.S. District Court case, the issue of spoliation of video evidence was analyzed to determine whether a Sheriff took all proper steps to preserve a missing video that recorded the last hours of Ms. Jenkins’s detention prior to her death. The Plaintiff claimed that Sheriff Woody intentionally destroyed or failed to preserve the videotape footage.
In the Jenkins case, the Plaintiff made a request under the Freedom of Information Act to obtain the video in question showing Ms. Jenkins in her cell prior to her death. The request was received on the 24th day after Ms. Jenkins’s death, and after the Internal Affairs Division (IAD) investigation had already begun. The recording equipment was set up to be saved on the server for 30 days, and after that it would be overwritten with new data. But, as the Sheriff explained, the issue was the cameras “were recording more than they were supposed to record because the motion sensitivity was set too high, and therefore the amount of expected data was taken up quicker than 30 days.” Therefore, when the FOIA request was made, the video had already been deleted and was unable to be recovered.
The Court analyzed two issues: first, should Sheriff Woody reasonably have anticipated litigation regarding Ms. Jenkins’s death; and second, should Sheriff Woody reasonably have known that the evidence contained in the video might be relevant to any anticipated litigation? The Court viewed that a policy of beginning an IAD investigation “immediately” after an inmate dies in custody to “determine whether there was any evidence of foul play,” exists, at least in part, because of a reasonable anticipation of litigation. The video evidence was the best evidence of what took place in the cell in the hours before Ms. Jenkins’ death and it was highly relevant to any anticipated litigation.
Although Sheriff Woody had a system in place to preserve videos for 30 days, through no action of his own or knowledge on his behalf, the video was not preserved as long as intended. However, the Court held that Sheriff Woody had a duty to take reasonable steps to preserve relevant evidence, which included the video in question, and the Court found that he did not take those steps. The Sheriff was put on notice of potential litigation at the latest when the IAD investigation began, and at that point should have preserved the video in question. The mere fact that the Sheriff had a retention system in place was not seen as reasonable. As the Court reasoned, the video should have been saved immediately after Ms. Jenkins’ death since the IAD investigation began immediately after her death. Although the Court declined to find that Sheriff Woody acted intentionally, the Court did levy multiple sanctions.
When revising Rule 37(e) in 2015, which addresses spoliation of electronically stored information, the Advisory Committee indicated, “courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant.” Once litigation has commenced, it is clear that electronically stored information needs to be retained. Additionally, once litigation is anticipated, conversations should take place between counsel and the client to determine what steps need to be taken to avoid electronically stored information from being lost or destroyed. “Litigants need not ‘upon recognizing the threat of litigation preserve every shred of paper, every e-mail or electronic document, and every backup tape.” However, “anyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that might be useful to an adversary.”
The duty to preserve electronically stored information does not apply when information is lost before the duty to preserve arises. But the question of when the duty arises must be determined to ensure information that should have been preserved is not lost or destroyed. For proper preservation of electronically stored information defense counsel should be familiar with their client’s digital information and storage systems so these issues can be addressed promptly and effectively. As stated in the Advisory Committee notes, the rule recognizes that “reasonable steps” must be taken to preserve the evidence but it does not call for perfection. From the holding in Jenkins, companies need to act very quickly and proactively to ensure electronic data is preserved. It is imperative to have ongoing dialog between clients and their counsel to be sure they are protected from spoliation claims which can have devastating effects on litigation. When the Court finds that a party either negligently or intentionally failed to preserve evidence, it has the authority to issue sanctions including assessing attorney’s fees and costs, giving the jury an adverse inference instruction, precluding evidence, or even imposing the harsh, case-dispositive sanctions of dismissal or judgment by default.