Tassin v. Bob Barker Company, Inc. et al

Filing 8

ORDER denying 4 Motion Expedite an Order to Persevere Video of Accident. Signed by Magistrate Judge Erin Wilder-Doomes on 09/28/2017. (ELW)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

ROBERT A. TASSIN, JR. (#117747)

CIVIL ACTION

VERSUS
BOB BARKER COMPANY, INC., ET AL.

NO. 16-0382-JWD-EWD

ORDER
Before the Court is Plaintiff=s Motion to Persevere [sic] Video of Accident (R. Doc. 4),
pursuant to which he seeks to compel state officials, specifically agents of the Louisiana
Department of Public Safety and Corrections, to preserve video recordings that may exist of an
accident that occurred on the morning of June 15, 2015 at the Louisiana State Penitentiary (“LSP”).
As discussed hereafter, Plaintiff’s motion shall be denied.
This matter involves a claim asserted by Plaintiff against the sellers/manufacturers of
allegedly defective shoes that caused him to sustain a fall and injury at LSP on the referenced date.
According to Plaintiff, he sent correspondence to LSP Investigative Services on June 20, July 23
and September 14, 2015, requesting that any video of the incident be preserved.

When no

response was forthcoming, Plaintiff allegedly sent correspondence to an LSP supervisory
employee, Trish Foster, on September 14, 2015 and February 17, 2016, making a similar request.
Again, however, no response has been forthcoming.

Plaintiff thereafter commenced this

proceeding against the sellers/manufacturers of the referenced shoes two days shy of the
anniversary date of the incident complained of and now seeks an Order from this Court compelling
LSP officials, none of whom are named as defendants in this proceeding, to preserve the referenced
video evidence.

“‘Courts have a right to expect that litigants and counsel will take the necessary steps to
ensure that relevant records are preserved when litigation is reasonably anticipated, and that such
records are collected, reviewed, and produced to the opposing party.’” Quantlab Technologies
Ltd. (BGI) v. Godlevsky, 2014 WL 651944, *7 (S.D. Tex. Feb. 19, 2014) (citation omitted).

“The

duty to preserve ‘arises when a party has notice that the evidence is relevant to litigation or …
should have known that the evidence may be relevant to future litigation. Generally, the duty to
preserve extends to documents or tangible things … by or to individuals likely to have discoverable
information that the disclosing party may use to support its claims or defenses.’”
(citations omitted).

Id. at *8

This duty may extend to a non-party to a proceeding when there is a special

relationship involving the non-party or when the non-party enters into an agreement to preserve
the evidence sought to be obtained.

See Andra Group, LP v. JDA Software Group, Inc., 2015

WL 12731762, *15 (N.D. Tex. Dec. 9, 2015) (addressing the obligation of non-parties to preserve
evidence and noting that, “[a]bsent some special relationship or duty rising by reason of an
agreement, contract, statute, or other special circumstance, the general rule is that there is no duty
to preserve possible evidence for another party to aid that other party in some future legal action
against a third party” (internal quotation marks omitted)).

“Spoliation” of evidence “refers to the

destruction or material alteration of evidence or to the failure to preserve property for another’s
use as evidence in pending or reasonably foreseeable litigation.”
Corp., 271 F.3d 583 (4th Cir. 2001).

See Silvestri v. General Motors

See also Rimkus Consulting Group, Inc. v. Cammarata, 688

F. Supp. 2d 598, 612 (S.D. Tex. 2010).
In the instant case, Plaintiff apparently forwarded correspondence to LSP officials shortly
after the incident complained of and requested that any video recordings of the incident be
preserved. There is no indication in the record that Plaintiff’s request was not complied with or

even whether such recordings exist or existed.

See Dixon v. Greyhound Lines, Inc., 2014 WL

6087226, *3 (M.D. La. Nov. 13, 2014) (collecting cases addressing the obligation to preserve
video evidence or an accident or incident). Further, there is no indication that intervention by the
Court is warranted to preserve evidence that may or may not have been retained, particularly when
Plaintiff’s request for such intervention comes more than a year after the incident complained of.
In any event, the Court will not generally enmesh itself in discovery matters in the absence of any
showing that such involvement is warranted by dilatory, bad faith or wrongful conduct by another
party or entity.

Finally, Plaintiff is advised that Rule 34(c) of the Federal Rules of Civil

Procedure allows a party (such as Plaintiff) to request by subpoena the production of electronically
stored information and/or tangible things (such as any video footage of the accident) from a nonparty to a proceeding (such as LSP).

The Court will refrain from addressing the issue of

spoliation pending a response by LSP officials regarding the existence or non-existence of the
referenced evidence, if the information is properly requested by Plaintiff.

Accordingly,

IT IS ORDERED that Plaintiff=s Motion to Persevere Video of Accident (R. Doc. 4) is
hereby DENIED.
Signed in Baton Rouge, Louisiana, on September 28, 2017.

S
ERIN WILDER-DOOMES
UNITED STATES MAGISTRATE JUDGE