Latimore v. Suffolk County House of Correction et al

Filing 284

Magistrate Judge Marianne B. Bowler: MEMORANDUM AND ORDER re: Plaintiff's request for a Court Order (docket entry #274)(Belpedio, Lisa)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
JASON LATIMORE,
Plaintiff,
v.

CIVIL ACTION NO.
14-13378-MBB

KENNETH TROTMAN, RYAN DORGAN,
ROSEANNE BARROWS, RICHARD LIBBY,
PAULA SULLIVAN, and DANIEL ALLEN,
Defendants.
MEMORANDUM AND ORDER RE:
PLAINTIFF’S REQUEST FOR A COURT ORDER
(DOCKET ENTRY # 274)
September 29, 2021
BOWLER, U.S.M.J.
In opposing a summary judgment motion (Docket Entry # 242),
plaintiff Jason Latimore (“plaintiff”) filed as exhibits four
compact discs purportedly containing video content.
Entry # 253).

(Docket

Unable to access the video, this court contacted

the court’s Information Technology Department (“IT Department”).
The IT Department was also unable to “access the files because
they are zipped and because they are unable to run on the
Windows-based operating system used by the court.”
# 271, p. 2).

(Docket Entry

As stated in a July 2021 Procedural Order, the

four video compact discs “contain files ending with the extension
‘JS.exe’” with “unknown executable applications that raise
security concerns.”

(Docket Entry # 271, p. 2).

As a result, this court returned the four inaccessible
compact discs to plaintiff and afforded him an opportunity to
refile the same data on a compact disc or USB without zipped
files in an acceptable video file format.
p. 2).

(Docket Entry # 271,

Plaintiff filed a response to the Procedural Order

outlining the difficulties he faced in custody to format the four
compact discs.

(Docket Entry # 274, p. 2).

The response points

out that defendants Kenneth Trotman, Ryan Dorgan, Roseanne
Barrows, Paula Sullivan, Daniel Allen, and Richard Libby
(“defendants”) produced the four compact discs, which plaintiff
describes as video footage from cameras at the Suffolk County
House of Correction (“SCHOC”) (Docket Entry # 274, p. 1, ¶ 2)
(Docket Entry # 256, ¶¶ 44-101), during discovery.

As a

solution, plaintiff requests a court order: requiring defendants
to provide him with “any and all video surveillance”; and, after
he inspects the video surveillance evidence to ensure it is
neither edited nor altered “from the original disclosures in the
discovery phase,” plaintiff will forward the video surveillance
evidence “to the court in the format defendants furnish it.”
(Docket Entry # 274, pp. 2-3).
After plaintiff filed the response, this court contacted the
IT “Department a second time and inquired if there [was] any way
to obtain access to the files consistent with security concerns.”
(Docket Entry # 276).

The IT Department suggested “that a
2

Macintosh laptop with a disc drive not connected to the court’s
network might be able to access the video footage,” whereupon
this court issued a second Procedural Order instructing plaintiff
to return the four compact discs and that, “[o]nce received, this
court will attempt again to access the video footage within the
discs.”

(Docket Entry # 276).

Plaintiff complied by returning the discs, and this court
attempted to access all four compact discs using two different
versions of Macintosh laptop computers not connected to the
court’s network drive.

The video was not accessible and, at this

juncture, the video files are not in a Windows-compatible format
or a Macintosh-compatible format.1

In a further effort to obtain

guidance to access the video, this court again reached out to the
IT Department.

According to the department, video files with the

extension JS.exe originate from a system which outputs the data
to the JS.exe executable file.

Viewing these executable files

requires installation of a software program, which the court does
not have, according to the IT Department.

Furthermore, the court

does not install external, unapproved software programs on court
1

See, e.g., D. Golmakani v. Secretary of Health and Human
Services, No. 11-577V, 2013 WL 4009664, at *1 n.4 (Fed. Cl. July
7, 2013) (encountering difficulty accessing “Mac and Final Cut
Pro compatible versions” of video because “format available for
Court filings is Windows-based,” although eventually accessing
most of video with “assistance of the Court’s IT staff,” except
video files in “Final Cut Pro format”).

3

devices because of the security concerns, according to the IT
Department.
DISCUSSION
“[S]urveillance videos can often only be viewed through
specialized software.”

Lee v. City of Troy, 1:19-CV-473, 2021 WL

1318105, at *2 (N.D.N.Y. Apr. 8, 2021).

Moreover, a party cannot

“reasonably expect[] the Court to wade into the internet in hopes
of finding the one program it needed to view [a] video . . .
regardless of the resulting security risks.”

Id.

As explained

above and in the Procedural Order, the four compact discs with
the extension JS.exe raise security concerns.

(Docket Entry #

271, p. 2).
With respect to plaintiff’s requests, plaintiff is likely
correct that it was defendants who originally produced the video
footage in the four compact discs because the footage purportedly
depicts May 2014 events at SCHOC.

In light of defendants’ recent

production of accessible copies of video files misplaced by the
Clerk’s Office (Docket Entry # 271, p. 3) (Docket Entry # 272,
Ex. 13A, 13B, 13C), defendants may have or be able to provide
duplicate copies of the four compact discs in an accessible and
secure format for this court to review.2
2

Meanwhile, defendants

Plaintiff’s request for “any and all video surveillance
evidence” from defendants (Docket Entry # 274, p. 2) is
overbroad. It would expand the summary judgment record, which is
closed and fully briefed, beyond the video footage in the four
compact discs plaintiff filed as part of the summary judgment
4

represent that “[p]laintiff did not provide[] copies” of the four
compact discs to defendants when he filed the discs.3
Entry # 259, p. 8, n.4).

(Docket

Consequently, defendants do not know

the video content of all of the footage on the four compact discs
filed by plaintiff (Docket Entry # 253) and nor does this court.
Cognizant of these circumstances, this court will institute
the following procedure in a further attempt to obtain courtaccessible video footage of the content of the four compact discs
(Docket Entry # 253) consistent with security concerns.

First,

this court will return the four compact discs to plaintiff.
Second, defendants are instructed to review the video footage in
the four compact discs, to the extent they can access the footage
in a viewable format.4

If successful, and having thereby

acquired knowledge of the video content of the four compact discs
(Docket Entry # 253), defendants are instructed to determine if
they possess the same video footage and can produce such footage
in a format accessible by this court (for example, in the same
format as the recently-filed accessible compact discs (Docket
Entry # 272)).

Fourth, on or before October 13, 2021, defendants

record (Docket Entry # 253).
3

Plaintiff disagrees.

(Docket Entry # 274, p. 2).

4

If necessary for defendants to obtain possession of the
four, returned compact discs to undertake this task, plaintiff
shall assist defendants in securing their access to the compact
discs.
5

are instructed to file such footage with the court and provide
one copy to plaintiff.5

In conjunction with the filing,

defendants shall provide an affidavit attesting that the video
filed with the court is the same or substantially the same as
video footage in the four compact discs (Docket Entry # 253),
which this court is now returning to plaintiff.

After October

13, 2021, this court will proceed to adjudicate defendants’
summary judgment motion forthwith supplemented by the abovedescribed video, if any, filed by defendants.

See Lee, 2021 WL

1318105, at *2.
This approach will ensure that the summary judgment record
is not expanded at this late date to include additional material
not previously contained on the four compact discs (Docket Entry
# 253).

Requiring an affidavit will minimize the risk of an

alteration of video footage from the footage in the four compact
discs plaintiff filed (Docket Entry # 253) in the event
defendants proceed beyond step three.6

Providing the video in a

court-accessible format will alleviate security concerns.7

5

If defendants cannot access the video under step two, or
do not possess or cannot produce the same footage in a format
accessible to this court under step three, they have no further
obligation.
6

See the previous footnote.

7

Prior to accessing the video, this court will contact the
IT Department to verify that accessing the video does not pose a
security risk.
6

As a final matter, plaintiff’s response to the Procedural
Order states: “It appears that the court is attempting to limit
and restrict access to relevant video footage previously
submitted on the 4 compact discs to solely 3 building footage
[sic] when in fact the plaintiff submitted countless video files
from May 29, 2014.”8

(Docket Entry # 274, pp. 1-2).

To the

contrary, this court is not attempting to reduce access to the
footage that is on the four compact discs (Docket Entry # 253)
which, at present, this court cannot access.

The admonition to

refile only video evidence described on the handwritten labels
(Docket Entry # 271, p. 3) was intended to limit refiling to all
of the video footage in the four compact discs, including any
such footage of the booking area, hallways, and elevators noted
by plaintiff (Docket Entry # 274, p. 1, ¶ 2).
CONCLUSION
In accordance with the foregoing, plaintiff’S request for a
court order (Docket Entry # 274, pp. 2-3) is ALLOWED in part and
DENIED in part to the extent defendants shall undertake the above
procedure on or before October 13, 2021.
/s/ Marianne B. Bowler
MARIANNE B. BOWLER

8

Plaintiff’s concern arises from the Procedural Order’s
description of the “[h]andwritten labels on the jackets of the
four compact discs” and the admonition to refile the same video
evidence. (Docket Entry # 271, p. 3).
7

United States Magistrate Judge

8