Cote et al v. Hopp et al
Filing
101
OPINION by U.S. Magistrate Judge Byron Cudmore: Plaintiff Alfred Cote's Motion to Compel Danny Leezer to Produce Doucments and Recordings 96 DENIED. See written order. (Copy of Opinion sent this date via U.S. Mail to pro se Plaintiffs at their listed address.) (LB, ilcd)
E-FILED
Friday, 05 August, 2011 11:17:22 AM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
EVELYN COTE and ALFRED COTE,
Plaintiffs,
v.
TOM HOPP, et al.,
Defendants.
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No. 09-CV-1060
OPINION
BYRON G. CUDMORE, U.S. MAGISTRATE JUDGE:
This matter comes before the Court on Plaintiff Alfred Cote’s Motion
to Compel Danny Leezer to Produce Documents and Recordings (d/e 96)
(Motion).1 For the reasons set forth below, the Motion is DENIED.
BACKGROUND
Plaintiffs Evelyn and Alfred Cote (the “Cotes”) allege, inter alia, that
on July 7, 2007, Defendant Illinois State Patrol Trooper Danny Leezer
arrested Plaintiff Alfred Cote at a house owned by Cote in Nauvoo, Illinois.
Defendant Leezer allegedly used excessive force in arresting the Cotes.
Amended Complaint as of Nov 5 2009 (d/e 28), ¶¶ 4, 6. Leezer arrested
1
The Motion refers to plaintiffs in the plural on occasion. Plaintiff Alfred Cote
alone signed the Motion. He is proceeding pro se and can only sign for himself. He is
therefore the only movant. If his wife Plaintiff Evelyn Cote wishes to join in a filing with
this Court, she must also sign. The Court also notes that Alfred Cote improperly served
the Motion by email. See Text Order entered August 3, 2011. Leezer has responded to
the Motion, so the issue of service is waived.
Page 1 of 8
Cote pursuant to a warrant charging Cote with obstructing a police officer.
Report and Recommendation entered February 23, 2010 (d/e 48) (Report
and Recommendation), at 5. Plaintiff Evelyn Cote was also arrested, but
the basis for her arrest is unclear. Id. Nauvoo Police Officer Sarah
Houston (n/k/a Sarah Strope) participated in the execution of the warrant at
the Cote house in Nauvoo. The Cotes were taken to jail. While at the jail,
Leezer made some comment to Alfred Cote “about suing police or that
maybe [Alfred Cote] shouldn’t be suing the police.” Motion, at 5. The Cotes
were acquitted at trial. Report and Recommendation, at 7.
The Cotes brought this action on February 17, 2009. The action
included claims against both Trooper Leezer and Officer Strope arising
from the execution of the arrest warrant on July 7, 2007.2 During
discovery, Alfred Cote served Leezer with a request to produce two
documents:
1.
A copy of his car video camera log for July 7, 2007, that is
kept under the State Police P&Ps.
....
2.
A copy of the video and audio recorded on
July 7 2007 once his lights were activated.
2
The Cotes alleged other claims against other defendants that are not relevant to
this Motion. See Report and Recommendation entered February 23, 2010 , for a
discussion of all of the claims still at issue.
Page 2 of 8
Motion, Exhibit A, Defendant Danny Leezer’s Response to Plaintiff Alfred
Cote’s Third Request for Production of Documents (Response), at 1, 2.
Leezer responded by essentially stating that the documents sought did not
exist. In response to the first request, Leezer stated:
The encounter with and arrest of Alfred Cote was not in
connection with a traffic pursuit or stop and therefore any video
recording device in the squad car of Trooper Danny Leezer was
not activated on July 7, 2007, in connection with Mr. Cote. As
such, there is not entry of any log referencing that video
equipment was used while encountering, arresting, or
transporting Alfred Cote on July 7, 2007. Defendant objects to
producing the log for the video of any other matter or of any
person other than Alfred Cote which may have been recorded
by Trooper Leezer on July 7, 2007, on the grounds that it is not
relevant and unlikely to lead to admissible evidence.
Response, at 1. Leezer responded to the second request as follows:
The encounter with and transportation of Alfred Cote was not in
connection with a traffic pursuit or stop and therefore any video
and audio recording device in the squad car of Trooper Danny
Leezer was not activiated on July 7, 2007, in connection with
Mr. Cote. Defendant objects to producing the video or audio of
any other matter or of any person other than Alfred Cote which
may have been recorded by Trooper Leezer on July 7, 2007,
on the grounds that it is not relevant and unlikely to lead to
admissible evidence.
Id. at 2.
The Cotes then took Leezer’s deposition. Leezer stated that he was
driving a squad car on July 7, 2007. The squad car was equipped with a
video camera set in a fixed position pointing out the front windshield of
the car. Leezer also testified that he had a microphone on his shirt.
Page 3 of 8
A separate microphone may have also been installed in the vehicle.
Response to Motion to Compel Leezer to Produce Documents (d/e 100)
(Response), Defendant’s Exhibit 3, Deposition of Trooper Dan Leezer
(Leezer Deposition), at 51. The camera and microphones came on
whenever Leezer activated the emergency lights in his vehicle. Id. at 39.
Leezer then could turn off the microphones or camera, or both, manually.
Leezer testified that the recordings and a permanent log of the recordings
were kept in accordance with State Police policy if the trooper operating the
recording equipment determined that the recordings had evidentiary value
for either a criminal or civil case. Id. at 48-49. If the recordings did not
have evidentiary value, the recordings were kept for ninety days and then
the recording medium was erased and reused. Motion, at 2.
Leezer testified that he turned on his emergency lights when he
drove to the Cote’s house to execute the warrant on July 7, 2007. Leezer
did not remember whether he turned off the recording equipment
thereafter. Leezer Deposition, at 44. Leezer testified that even if the video
camera continued recording after he arrived at the Cote’s house, the
camera would not have recorded any relevant events because he parked in
such a way that the camera was not pointed at the house where the arrest
occurred. Id. Leezer further testified that the responses to the two
interrogatories quoted above were accurate. Id. at 130.
Page 4 of 8
ANALYSIS
Alfred Cote now moves the Court to compel Leezer to produce the
recordings and log from July 7, 2007. The Motion is denied. Leezer
testified in his deposition that the statements in his responses to the
request to produce, quoted above, were accurate. Therefore, the State
Police did not retain any possible recording on July 7, 2007 related to the
Cotes and did not log in any recordings for permanent retention. Since no
documents exist, there is nothing to produce.
Cote argues first that the recordings must exist. Cote argues that
because Leezer activated his lights during his trip to Cote’s house the
recording equipment came on. Cote argues that the equipment continued
to run during the arrests because Leezer could not remember whether he
turned the equipment off. Cote further argues that the recording must have
been logged in and kept permanently because the microphone would have
recorded the parties statements during the arrest and such information
would have had evidentiary value to the criminal charges and his civil suit.
He argues that Leezer’s statement to Cote at the jail about not suing the
police showed that Leezer knew that Cote would be suing, and so, knew
that the recording would have evidentiary value.
Cote’s assumptions and assertions are not persuasive. There is no
clear evidence that a recording ever existed. The evidence indicates that
Page 5 of 8
the recording equipment would have come on while Leezer drove to Cote’s
house, but there is no evidence that Leezer left the recording equipment
running after he arrived. Leezer does not recall; that does not show that
the recording existed. Leezer also testified that the responses to the
requests to produce were accurate. Those responses state that no
recording existed and no log entry existed. Thus, there was nothing to
produce.
Cote argues that if the recording was not logged in and retained
permanently, that the Court should impose an appropriate sanction upon
Leezer for failing to preserve evidence. The Court disagrees. A sanction is
only appropriate if Cotes shows that evidence was intentionally destroyed
in bad faith. See Norman-Nunnery v. Madison Area Technical College,
625 F.3d 422, 428-29 (7th Cir. 2010). Cote must show that a recording
existed and that Leezer did not mark such a recording for retention
because he wanted to hide adverse information. Faas v. Sears, Roebuck
& Co., 532 F.3d 633, 644 (7th Cir. 2008). Cote has presented no such
evidence. There is no clear evidence that a recording existed. Leezer
could have turned the recording equipment off when he arrived at Cote’s
house to serve the warrant.
Even if the recording equipment continued to operate at the scene,
Cote presents no evidence that Leezer acted in bad faith in not retaining
Page 6 of 8
the recording. The State Police policy required Leezer to log in and retain
recordings that had evidentiary value. Leezer could have very reasonably
concluded that any recording at the scene had no evidentiary value. He
was serving an arrest warrant at a house. The video camera did not record
the arrest because the camera was pointed out of the front windshield of
his vehicle down the street, not at the house. Any audio recording made at
the time of arrest had no evidentiary value to the criminal case because
the charges on which the warrant was based concerned events that
occurred days earlier.3
Cote relies on Leezer’s statement as he left the jail that Cote should
not be suing the police. Cote indicates that this statement proves that
Leezer knew that audio recordings of the arrest had evidentiary value in
Cote’s planned civil suit. The Court disagrees. The vague reference does
not show that Leezer knew that Cote was going to file a civil suit. The suit
was not filed until more than a year and a half later, in February 2009.
Leezer further could have reasonably concluded that an audio video
recording of the street in front of the Cote house at the time of this arrest
would have no evidentiary value even in a possible civil suit. There is no
3
Cote presents no evidence that he made any statement that had evidentiary
value relevant to the criminal charges.
Page 7 of 8
evidence of bad faith. The Court finds no basis for Cote’s request for
sanctions.
WHEREFORE, Plaintiff Alfred Cote’s Motion to Compel Danny
Leezer to Produce Documents and Recordings (d/e 96) is DENIED.
ENTER: August 5, 2011
s/ Byron G. Cudmore
BYRON G. CUDMORE
UNITED STATES MAGISTRATE JUDGE
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