Storey v. Effingham County et al

Filing 225

ORDER granting in part and denying in part 172 Motion for Spoliation of Evidence to Strike Answer and Obtain Default for Defendants. Signed by Magistrate Judge G. R. Smith on 6/16/17. (jlm)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
KEITH STOREY, as executor of
the Estate of Valerie Storey and
Executor of the Estate of Kenneth
Cartee,
Plaintiff,
v.
EFFINGHAM COUNTY, et al.,
Defendants.

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CV415-149

ORDER
Plaintiff Keith Storey, in his various executory capacities, moves
the Court to sanction several of the defendants 1 by striking their
respective answers and entering a default judgment against them, for
spoliation of video evidence that he believes would prove his case. See
doc. 172. Defendants oppose. See doc. 178 at 4.

1

The defendants allegedly subject to sanction for the destruction of evidence are
(1) the “County” defendants the Effingham County Board of Commissioners,
Effingham County, Sheriff Jimmie McDuffie, and Jail Captain Robert L. Brown, and
(2) the “individual” defendants Deputy Ashby Lee Zydonyk, Corporal Bryan
Shearouse, Jailer Cora Mae Gains, Jailer Dorothy Hopf, Jailer Garett Buckles, Jailer
Johnny Reinhart, Sergeant Layonya Cooper, Jailer Corporal Leslie Minor, Officer
Paul Davis, Deputy Ryan Casey Williams, and Jail Officer Tiffany Tisby. Doc. 172 at
1-2.

I.

BACKGROUND
Storey pursues this civil rights action to recover for injuries

suffered by the decedent, Kenneth Cartee, while in the custody of
Effingham County Jail.

See doc. 172 at 2-7; doc. 178 at 2.2

After

threatening to harm himself and his daughter on the morning of
September 9, 2012, Cartee was taken to Effingham County Hospital by a
Sheriff’s Department Officer for mental examination. Doc. 172 at 2. At
the hospital, he was involved in an altercation with the Officer. Id. at 23.

In order to subdue Cartee, the officer “placed his knee between

Cartee’s shoulder and neck.” Id. at 3.
Cartee was then arrested for felony obstruction and transported to
Effingham County Jail, where he was involved in a second altercation
after refusing to comply with jail staff’s instructions. Id. at 3-4. He was
tased and strapped, naked, for several hours, in a “restraint chair.” Id.
Again combative when released from the chair (to take him back to the
hospital), Cartee was thrown to the ground, hogtied, and tased once
more. Id. at 4-5. At the hospital, he was sedated and treated for several

2

Since the facts of Cartee’s injury are not directly relevant to the present motion,
the Court relies on plaintiff’s account. That reliance should not be construed as an
endorsement of the merits of plaintiff’s claims.
2

days before being transported to “Georgia Regional” for mental health
treatment. Id. at 5. He complained for the first time of having difficulty
walking when he was released, but was able to walk unassisted
approximately 35-40 feet to get into the police transport cruiser. Id. at 6.
After returning to the Jail, Cartee again complained he could not
walk. Doc. 172 at 6. When officers couldn’t cajole him into walking, once
again the taser appeared and was used one to three times (the officer
doesn’t remember). Id. Cartee was put in a wheelchair at that point,
and escorted to booking.

Id.

Two days later, after officers tired of

helping Cartee go to the bathroom -- as he still could not walk -- he was
taken back to Effingham Hospital and diagnosed with renal failure, as
well as several broken ribs, a cervical spinal cord injury and a T11
vertebral facture, sepsis, severe dehydration, and several cuts, bruises,
and sores. Id.; see also doc. 172, Exh. O at 66-67; doc. 72 at ¶ 54. Upon
being informed of Cartee’s renal failure (it is unclear whether the other
various diagnoses were also communicated) Captain Brown released
Cartee on his own recognizance. Doc. 172 at 7; see also doc. 172, Exh. O
at 80-81.
At the time of these events, Effingham County Jail had a

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surveillance system set up with cameras throughout the facility,
including two video cameras in the sally port, cameras at the booking
area, a camera in each holding cell, a camera from booking down the
hallway, cameras in each of the big cell blocks, and a camera that
captured at least part of one of the two isolation cells. Doc. 172 at 7; see
doc. 172, Exh. P at 56-69. The video records are retained in a centralized
storage for at least 14 and up to 30 days, id. at 66-69, and it was the
policy of the Jail to retain a video when there were disciplinary issues,
allegations of wrongdoing, a use of force by staff, or an investigation was
started (for any reason) before the video had been routinely destroyed,
id. at 71-73. Also, whenever the safety was flipped off of a taser, a video
was automatically taken -- akin to a police body camera video. Doc. 172,
Exh. E at 14-84.
Here, no video taken during Cartee’s time at Effingham County
Jail -- from the first when he was (1) booked, tased, and strapped in a
restraint chair, (2) cuffed, put in leg irons, and then tased a second time,
(3) tased a third (to perhaps a fifth) time and wheeled to booking, to the
end when (4) he was finally wheeled to the hospital for renal failure -was preserved, neither the jail’s routine surveillance video nor the

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automatic taser footage.

Apparently, defendants didn’t know they

should suspend their routine video-destruction policy to preserve that
video footage, since they didn’t know “that Cartee sustained any injury
at the Jail,” doc. 178 at 3 -- despite, it bears repeating, multiple physical
altercations, tasings, Cartee’s own declarations that he was going to
“sue,” and being discharged to the hospital for physical injury. Doc. 172
at 2-7; doc. 199 at 3; see also doc. 172, Exh. A at 226. Plaintiff asks that
the Court strike defendants’ Answers and enter default judgments
against them or order an adverse jury instruction as a sanction for the
destruction of the videos. Doc. 172.
II.

ANALYSIS
“Spoliation is the destruction or significant alteration of evidence,

or the failure to preserve property for another’s use as evidence in
pending or reasonably foreseeable litigation.” Brown v. Chertoff, 563 F.
Supp. 2d 1372, 1377 (S.D. Ga. 2008). The Court has “broad discretion”
to impose sanctions as part of its “inherent power to manage its own
affairs and to achieve the orderly and expeditious disposition of cases.”
Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005).
Spoliation sanctions may include dismissal, exclusion of testimony, or an

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instruction to the jury to presume that the evidence would have been
unfavorable to the spoliator. Fed. R. Civ. P. 37(e). The Court examines
“the extent of the prejudice caused by the spoliation (based on the
importance of the evidence to the case), whether that prejudice can be
cured, and the culpability of the spoliator.” Oil Equip. Co. v. Modern
Welding Co., 661 F. App’x 646, 652 (11th Cir. 2016).
A.

Defendants Without Possession, Custody, or Control of
the Video Evidence

As an initial matter, spoliation sanctions are only available against
the party who had possession or control of the missing evidence. Brewer
v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995) (“it is
essential that the evidence in question be within the party’s control.”)
(cite omitted), cited in Watson v. Edelen, 76 F. Supp. 3d 1332, 1343 (N.D.
Fla. 2015) (“For a spoliation sanction to apply, it is essential that the
evidence in question be within the party’s control, that is, the party
actually destroyed or was privy to the destruction of the evidence.”).
Storey has not articulated any connection between the majority of
the defendants and the destruction of the evidence. See docs. 172 & 199.
Defendants point out, and Storey cites nothing to contradict, that “there
is no evidence that any Effingham Defendant other than the Sheriff and
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Defendant [Jail Captain Robert] Brown had the authority to preserve any
of the video at issue.” Doc. 178 at 4 (italics added). In fact, nothing in
plaintiff’s motion even explains their inclusion in the motion for
sanctions to begin with: none of the individuals is even specifically
mentioned, much less directly accused of spoliation.
Accordingly, regardless of whether spoliation occurred, Storey is
not entitled to sanctions against the individual Effingham defendants,
who could have done nothing to prevent or spur the destruction of these
videos regardless of their own awareness of their importance.

His

motion (doc. 172) is thus DENIED in part, as to the individual
Effingham defendants: Deputy Ashby Lee Zydonyk, Corporal Bryan
Shearouse, Jailer Cora Mae Gains, Jailer Dorothy Hopf, Jailer Garett
Buckles, Jailer Johnny Reinhart, Sergeant Layonya Cooper, Jailer
Corporal Leslie Minor, Officer Paul Davis, Deputy Ryan Casey Williams,
and Jail Officer Tiffany Tisby. C.f. Wilder v. Rockdale Cty., 2015 WL
1724596 at * 3 (N.D. Ga. April 15, 2015) (sanctions were not appropriate
against a jail’s health care provider for the destruction of a jail
surveillance video because “[i]t is not clear what [the provider] could
have done to get [the county] to preserve video[, and] there [was] no

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evidence that [the provider] played any role in deleting video footage.”);
Sentry Select Ins. Co. v. Treadwell, 734 S.E.2d 818, 848 (Ga. Ct. App.
2012) (“[i]t is axiomatic that in order for there to be spoliation, the
evidence in question must have existed and been in the control of a
party.”). 3
B.

Defendants With Possession, Custody, or Control of
the Video Evidence

As to the County defendants, those who arguably had control over
the video evidence and the video retention policy (i.e., the Effingham
County Board of Commissioners, Effingham County, Sheriff Jimmie
McDuffie, and Jail Captain Robert L. Brown), the analysis becomes more
complicated. The text of Rule 37(e) establishes a multi-step analysis that
courts must apply to determine if sanctions (or curative measures) are
appropriate. First, some electronically stored information (ESI) must
have been “lost.” Id. Second, that information (or evidence) must be of
the sort that “should have been preserved in the anticipation or conduct
of litigation.” Id. Third, the evidence must have been lost “because a

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The Eleventh Circuit has discussed and relied on Georgia state law in spoliation
cases, even though federal law applies to the issue of spoliation sanctions, because
“Georgia state law is wholly consistent with federal spoliation principles.” Flury, 427
F.3d at 944.
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party failed to take reasonable steps to preserve it.” Id. Fourth, the
court must find that the evidence “cannot be restored or replaced
through additional discovery.”

Id.

Further, “[a]bsent exceptional

circumstances, a court may not impose sanctions under these rules on a
party for failing to provide electronically stored information lost as a
result of the routine, good-faith operation of an electronic information
system.” Id. Here, there’s no debate that the surveillance and taser
videos are ESI, that they’re the type of relevant evidence that ought to
have been preserved, or that they have been irretrievably “lost.” The
only debate is whether the County defendants failed to prevent that loss
despite a duty to preserve the videos in anticipation of litigation. See
docs. 172 & 178.
Defendants contend that they had no reason to suspect litigation
was imminent and emphasize that plaintiff’s complaint was filed 11
months after Cartee’s release -- 10 months after any video footage was
destroyed as part of their routine retention policy. Doc. 178 at 3-4. But
Cartee was tased, tied up, and roughed up several times, taken to and
from the hospital, and was in renal failure and had cracked ribs,
vertebrae, and visible cuts and bruises when finally released. Doc. 172 at

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7.

He hooted and hollered that he would sue, and despite needing

restraints when first brought to the jail, he had to be wheeled out in a
wheelchair because he could no longer walk. Id.; doc. 199 at 2. And
tasings are not so ordinary or commonplace that ensuing litigation -after 3-5 tasings of one prisoner in mere days -- would be a surprise. See,
e.g., doc. 172, Exh. A at 213 (inmates are only tased 2-3 times a year),
Exh. B at 20 (prior to tasing Cartee once (or thrice), Officer Davis had
never tased another inmate and has only tased one since). The Court
cannot fathom a reasonable defendant who would look at those facts and
not catch the strong whiff of impending litigation on the breeze. See
Wiedeman v. Canal Ins. Co., 2017 WL 2501753 (N.D. Ga. June 9, 2017);
Jenkins v. Woody, 2017 WL 362475 (E.D. Va. Jan. 21, 2017).4

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The

Constructive notice may be based on a variety of circumstances, including “the
type and extent of the injury; the extent to which fault for the injury is clear;
the potential financial exposure if faced with a finding of liability; the
relationship and course of conduct between the parties, including past
litigation or threatened litigation; and the frequency with which litigation
occurs in similar circumstances.” The Court may also consider “not only what
the plaintiff did or did not do after the injury and before the evidence in
question was lost or destroyed, but also what the defendant did or did not do in
response to the injury, including the initiation and extent of any internal
investigation, the reasons for any notification of counsel and insurers, and any
expression by the defendant that it was acting in anticipation of litigation.”
However, “the mere fact that someone is injured, without more, is not notice
that the injured party is contemplating litigation sufficient to automatically
trigger the rules of spoliation.”

Wiedeman, 2017 WL 2501753 at *3 (quoting Phillips v. Harmon, 774 S.E. 2d 596, 603
10

County defendants were on notice that litigation was a distinct
possibility, if not very likely, and thus had a duty to preserve the video
evidence from their routine document destruction policy. They failed to
do so.
Litigants need not, “upon recognizing the threat of litigation,
preserve every shred of paper, every e-mail or electronic document, and
every backup tape.” Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217
(S.D.N. Y. 2003). 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.” Id. When reasonably anticipating litigation,
a party must “preserve what it knows, or reasonably should know, is
relevant in the action, . . . [or] is reasonably likely to be requested during
discovery and/or is the subject of a pending discovery request.”

Id.

(quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72
(S.D.N.Y. 1991)).
Given that the County defendants must have (at least) perceived
the risk of oncoming litigation, and given that it is undisputed that
during his time at the jail Cartee was involved in several altercations

(Ga. 2015) (cites omitted).
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with officers and tased by more than one officer, any videos of those
interactions (either system surveillance or the automatic taser feeds)
should have been obviously relevant and likely to be requested during
discovery. That video evidence not only constituted relevant evidence
that the County defendants had a duty to preserve, but it held the best
evidence, both neutral and objective, of just what happened to Cartee.
And it was lost because the County defendants failed to take reasonable
steps to preserve it. Fed. R. Civ. P. 37(e).
But Rule 37(e) reserves the harshest discovery sanctions, such as
adverse inference instructions, dismissals, or default judgments, only for
cases in which the court can “fin[d] that the [spoliating] party acted with
the intent to deprive another party of the information’s use in the
litigation.”

Fed. R. Civ. P. 37(e).

The Court is not convinced that

defendants’ negligence -- even recklessness -- in allowing the normal
video destruction policy to patter away unimpeded rises to the stringent
“intent” requirement set forth in the amended Rule 37(e). See Fed. R.
Civ. P. 37(e) advisory committee’s note to 2015 amendment (Rule
37(e)(2) “rejects cases . . . that authorize the giving of adverse-inference
instructions on a finding of negligence or gross negligence.”); Oil Equip.

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Co., 661 F. App’x at 653 (generally, “bad faith” is found where the
spoliator’s actions are both responsible for the destruction of the
evidence and he “fully appreciated the significance of the evidence to the
anticipated litigation.”) (quote and cite omitted); In re Delta/Airtran
Baggage Fee Antitrust Litigation, 770 F. Supp. 2d 1299, 1313 (N.D. Ga.
2011) (noting that “[i]in hindsight, Delta should not have waited” to take
steps to preserve e-mails, but “without some evidence that Delta’s delay
was intentional, its failure to act more quickly does not prove bad faith”).
Plaintiff is not prejudiced to such an extent that the only remedy is
striking the County defendants’ Answers or giving an adverse-inference
instruction.

Plaintiff has been able to fully depose all the relevant

witnesses and gather sufficient facts to establish what happened and
when to the decedent. See doc. 172, Exhs. A-Q; In re Delta/Airtran, 770
F. Supp. 2d at 1311 (any prejudice the plaintiffs suffered was mitigated
by their opportunity to depose Delta employees who had knowledge of
facts related to the plaintiffs’ claims). “While videos might have shown
the jailers’ actions through [Cartee’s unhappy stay], the video is not the
only evidence available to Plaintiff to help h[im] prove h[is] case . . . .
The ability to depose witnesses at least partially mitigates the loss of the

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video.”

Wilder, 2015 WL 1724596 at * 4.

Plaintiff is simply not

prejudiced to such an extent that he is unable to prove his case. See
Point Blank Solutions, Inc. v. Toyobo Am., Inc., 2011 WL 1456029 at *27
(S.D. Fla. Apr.5, 2011) (if the plaintiff “cannot show that it is
‘sufficiently impaired in [its] ability to prove its case,’ then it cannot
show ‘entitlement to an adverse inference based on any destruction of
[documents]’”). Storey has simply not demonstrated that the harshest
sanctions should be imposed.
But, plaintiff has been prejudiced by the County defendants’
carelessness. Again, the lost videos deprive plaintiff “of the best and
most compelling evidence of what happened” to Cartee and would have
offered “the only unbiased and dispassionate depiction of events” that
(allegedly) led to Cartee’s renal failure, spinal cord injuries and vertebral
fracture, broken ribs, and other myriad injuries.

Jenkins, 2017 WL

362475 at * 18. “[U]pon finding prejudice to another party from loss of
the information, [the court] may order measures no greater than
necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1); see also Fed. R.
Civ. P. 37(e) advisory committee’s note (when imposing sanctions under
Rule 37(e)(1), “[t]he range of [curative] measures is quite broad” and

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“much is entrusted to the court’s decision.”); id. (“[i]n an appropriate
case, it may be that serious measures are necessary to cure prejudice
found by the court, such as forbidding the party that failed to preserve
information from putting on certain evidence, permitting the parties to
present evidence and argument to the jury regarding the loss of
information, or giving the jury instructions to assist in its evaluation of
such

evidence

or

argument,

other

than

[adverse

inference

instructions].”); West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779
(2d Cir. 1999) (any sanction should “serve the prophylactic, punitive, and
remedial rationales underlying the spoliation doctrine.”); id. (any
sanction imposed should be “designed to: (1) deter parties from engaging
in spoliation; (2) place the risk of an erroneous judgment on the party
who wrongfully created the risk; and[,] (3) restore ‘the prejudiced party
to the same position he [or she] would have been in absent the wrongful
destruction of evidence by the opposing party.’”). Limited sanctions are
therefore appropriate to redress this prejudice. See Jenkins, 2017 WL
362475 at *18.
III. CONCLUSION
Given the unique and irreplaceable nature of the evidence, the

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Court will order the following sanctions for the County defendants’
destruction of, or failure to preserve, the system surveillance and taser
videos:
(1)

The Court will tell the jury that the video was not preserved;

(2)

The Court will allow the parties to present evidence and argument
at trial regarding the County defendants’ destruction of, or failure
to preserve, the videos. The jury will be instructed that it may
consider that evidence along with all the other evidence in the case,
in making its decision; and

(3)

The Court will preclude any evidence or argument that the
contents of the video corroborated defendants’ version of events. 5

These sanctions will go some way in restoring Storey to the same
position he would have been in had the County defendants abided their
duty to preserve. Plaintiff’s motion for sanctions is thus GRANTED in
part as to the County defendants (the Effingham County Board of
Commissioners, Effingham County, Sheriff Jimmie McDuffie, and Jail
Captain Robert L. Brown).

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Again, there will not be any Rule 37(e)(2) adverse inference instruction that the
destroyed evidence is unfavorable to defendants.
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SO ORDERED, this 16th day of June, 2017.

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