Arenas v. Georgia Department of Corrections et al

Filing 83

ORDER denying 76 Motion to Compel without prejudice. Signed by Magistrate Judge Christopher L. Ray on 1/23/19. (wwp)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
MARIA ARENAS,
Plaintiff,
v.
GEORGIA DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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CV416-320

ORDER
The facts behind plaintiff’s motion to compel production of video
evidence (doc. 76) are undisputed. In December 2014, plaintiff Maria
Arenas’ son Richard Tavara hung himself in his administrative isolation
cell at Smith State Prison.

Several officers eventually responded,

including CERT Officer Santiago, but Tavara died.

The Georgia

Department of Corrections (GDOC) conducted an investigation, and
plaintiff filed several lawsuits in state and federal courts, seeking in
discovery, among other things, “any audio or video recordings of Richard
Tavara.” Doc. 76-4 at No. 8. Defendant GDOC, having produced three
videos (video from Tavara’s dormitory on the date of his suicide and
videos from handheld cameras responding officers to his suicide held),

represented in its discovery responses that it had produced all video
recordings it had in its possession. Doc. 76-5 at No. 8.
During plaintiff’s September 2018 Rule 30(b)(6) deposition of
Dr. Javel Jackson, however, the witness produced for the first time a
“records review” that referenced a “video from [CERT Officer] Santiago’s
vest showing [Tavara] with drawn up muscles” at the time of his suicide.
Doc. 81-2 at 5 (Deposition of Dr. Javel Jackson at 12 (explaining that she
had “just put [her] hand on [the records review] today.”)). The records
review is unsigned and undated, and despite defendants’ diligent efforts,
both the author and the referenced bodycamera footage are yet to be
found. Doc. 81 at 2-4. The GDOC represents that the report was not
created as part of its internal investigation. Id.
Plaintiff seeks an Order compelling the GDOC to produce the video,
which she contends must now be in the GDOC’s possession, custody, or
control because the video once was in its possession (as it must have been
at the time the records review was written, whenever that was). Docs. 76
& 82. The GDOC responds that if such footage ever existed — and it has
been unable to confirm that it did — then the video is no longer in its
possession, custody, or control. Doc. 81 at 5-6. Defendant concedes that
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if the video ever existed, it would certainly be both relevant and
discoverable and that defendant would be required to produce it. Id. at
6. The GDOC, however, reiterates that it cannot confirm (aside from that
single reference contained in a records review of unknown provenance)
that the video existed, or exists now. Id. at 3 (in its search all possible
authors have been contacted and disclaim knowledge of the report, and
Officer Santiago himself states that he has never seen any such video but
cannot state with certainty that no video was recorded).
The Court is unclear what relief plaintiff seeks. She requests an
Order compelling defendant to produce a document that defendant
readily volunteers it would produce, if it could. This Court is not in the
business of issuing advisory orders on hypothetical situations. Perhaps
Arenas wants spoliation sanctions for the loss of the video (if, of course,
it existed). See, e.g., Storey v. Effinham Cty., 2017 WL 2623775 at *2
(S.D. Ga. June 16, 2017). Maybe she believes defendant has engaged in
discovery abuses and now blatantly misrepresents its efforts to locate the
records review author or drum up the arcane video itself, warranting the
imposition of sanctions. See Fed. R. Civ. P. 11 & 37. But the correct
vehicle to pursue such relief is not a motion to compel production.
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Plaintiff’s motion to compel (doc. 76) is DENIED without prejudice
to renewal should the Santiago bodycamera video ever be found and,
having been found, not be promptly disclosed and produced.
SO ORDERED, this 23rd

day of January, 2019.

______________________________
CHRISTOPHER L. RAY
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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