Bolger v. District of Columbia, 2009 WL 841137 (DDC 03/25/09) (Court holds that negligent destruction of evidence is sufficient to support an adverse inference instruction.) (Plaintiffs’ sanctions motion was denied without prejudice due to insufficient evidence.)
Plaintiffs were arrested in a parking garage after daylong protests of the spring meetings of the World Bank and International Monetary Fund held in Washington,D.C. in 2002. Plaintiffs claimed violations of the U.S. Constitution and D.C. common law. Plaintiffs moved for sanctions against the District of Columbia based on the destruction of recorded police radio communications sought during discovery. Specifically, plaintiffs sought an adverse iinference jury instruction.
The District had been sanctioned for prior discovery violations. While the prior sanction had some relevance to the court's analysis, it conducted a detailed analysis of the facts surrounding the alleged failure to preserve recorded police radio communications. Plaintiffs alleged that the destruction of the radio communications took place years after plaintiffs requested copies of the recordings during discovery. The purge of the radio recordings took place after the District certified in discovery responses that no such records existed. The District argued that the purge was inadvertent routine destruction necessary to allow continued recording of police radio communications. The Districtadmitted that it should have placed a litigation hold in place at the time the lawsuit was filed. It also admitted that it should have contacted the custodian of the recordings earlier in the case. Regardless of the admitted failures, the District claimed that the police recordings were minimally relevant, cumulative of other available evidence and not likely to contain evidence in support of plaintiffs’ claims.
The parties agreed that three elements must be satisfied for an adverse inference instruction: 1) a duty to preserve existed at the time of destruction, 2) the destruction was with a “culpable state of mind” and 3) the destroyed evidence was relevant. Defendants admitted point one, but denied the second and third elements necessary for an adverse inference instruction.
Regarding the second element, defendants argued that they checked a report log, which contained no information related to the arrest and therefore it was assumed that no radio communications existed. The District also argued that the purge of the recordings were routine events taking place whenever the system was near capacity. It argued that its conduct did not riseto the level of gross negligence or willful conduct. Plaintiffs countered with a laundrylist of evidence, including the District’s failure to issue a litigation hold.
The court held that the District’s argument that its actions were not gross negligence or willful did not matter. The court held that the District’s actions constituted negligence:
“This Court has recognized that ’the adverse inference doctrine embraces negligent (in addition to deliberate) destruction of evidence.’ Mazloum, 530 F. Supp. 2d at 292; see also More v. Snow, 480 F. Supp. 2d 257, 275 (D.D.C. 2007).”
Having satisfied the first two elements of spoliation, the court turned its attention to the third element – relevance. The court was troubled by the lack of evidence of relevance. Plaintiffs argued that the recordings 1) would have contained evidence that the police referred to plaintiffs as anarchists and 2) would have demonstrated the lack of an element necessary for their arrest (that the management of the parking garage did not give plaintiffs permission to be in the garage.) The Districtcountered that it conceded the firstpoint, and that the second point was nothing more than wild speculation.
The court held that the evidence before it was insufficient to establish relevancy sufficient to permit an adverse inference instruction. Plaintiffs’ evidence was too speculative. Because plaintiffs satisfied the first two elements and a full record might support the third element, the court denied plaintiffs’ motion without prejudice. The court held that plaintiffs’ could renew their motion after sufficient evidence of relevance was admitted at trial, noting that an adverse inference instruction would come at the end of the trial as part of jury instructions. For a copy of the opinion click here: http://legalholds.typepad.com/legalholds/new-cases.html.
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