Van Buren et al v. Crawford, County of et al
ORDER Sanctioning Defendants for Spoliation of Evidence, Granting in Part and Denying in Part Defendant's 55 MOTION for Summary Judgment, Denying Plaintiff's 57 MOTION for Default Judgment, Denying Plaintiff's 58 MOTION for Summary Judgment, and Denying as Moot Plaintiff's 87 MOTION for Reconsideration. (Final Pretrial Conference set for 4/11/2017 at 02:00 PM before District Judge Thomas L. Ludington and Jury Trial set for 4/25/2017 at 08:30 AM before District Judge Thomas L. Ludington.) Signed by District Judge Thomas L. Ludington. (Sian, M)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
MICHELLE VAN BUREN, Personal Representative
for the ESTATE OF WILLIAM REDDIE, deceased
and WILLIAM REDDIE,
Case No. 13-cv-14565
Honorable Thomas L. Ludington
CRAWFORD COUNTY, CITY OF GRAYLING,
JOHN KLEPADLO, and ALAN SOMERO,
in their individual and official capacities,
ORDER SANCTIONING DEFENDANTS FOR SPOLIATION OF EVIDENCE,
GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT, DENYING PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT, DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT, AND
DENYING AS MOOT PLAINTIFF’S MOTION FOR RECONSIDERATION
On August 3, 2016, an opinion and order was entered addressing the parties’ cross
motions for summary judgment and determining that judgment for Defendants should be entered
based on the evidence then presented to the Court. However, entry of judgment was withheld
pending an evidentiary hearing based on Plaintiff’s assertion that Defendants spoliated evidence.
ECF No. 84. That evidentiary hearing was held on September 14, 2016,1 November 10, 2016,2
and November 28, 2016.3 Based on the testimony offered at the hearing and the briefing by the
parties, Plaintiff Michelle Van Buren’s motion for sanctions will be granted, Defendants’ motion
for summary judgment will be granted in part, and Plaintiff’s motion for summary judgment will
be denied. The evidence corroborates Plaintiff’s contention that Defendants spoliated audio
Evid. Hearing Tr. I, ECF No. 108.
Evid. Hearing Tr. II, ECF No. 114.
Evid. Hearing Tr. III, ECF No. 115.
evidence, and accordingly at trial the jury will be instructed that they are to presume that the
missing evidence would have favored Plaintiff unless the presumption is rebutted by evidence to
Plaintiff Michelle Van Buren filed this suit as personal representative of the estate of
William Reddie on November 1, 2013. Defendant City of Grayling is a municipality located in
Crawford County, which is also a defendant. Deputy Sheriff John Klepadlo4 of the Crawford
County Sheriff’s Department and Officer Alan Somero5 of the Grayling Police Department were
also named as defendants. In the complaint, Van Buren alleges that Defendants’ use of excessive
force and failure to properly train their officers resulted in William Reddie’s death. The
allegations surrounding Mr. Reddie’s death are summarized in the Court’s August 3, 2016, order.
ECF No. 84. That statement of facts will be adopted as if restated fully herein. For clarity, a brief
overview of the allegations will be given.
Because Mr. Reddie is deceased, all allegations regarding what transpired in his
apartment come solely from the testimony of the officers and care workers who were present at
the time. On February 3, 2012, Defendants Somero and Klepadlo responded to reports of a
potential domestic violence incident at Mr. Reddie’s home. The officers found no evidence of
domestic violence, but, after questioning Mr. Reddie and searching his apartment, the officers
discovered that Mr. Reddie had been using marijuana in his home. Somero told Mr. Reddie that
he would be reported for using marijuana in front in his minor child, despite Mr. Reddie’s
indication that his son was sleeping in another room at the time he smoked the marijuana.
Klepadlo is the individual who fatally shot Mr. Reddie.
Somero was present at the scene but did not fire the fatal shot. Plaintiff’s claim regarding Somero is that Somero
did not prevent the use of excessive force by Klepadlo.
Naturally enough, Mr. Reddie was upset during his conversation with the officers. Klepadlo Dep.
at 45, ECF No. 68, Ex. A. Based on that report, Child Protective Services visited Mr. Reddie,
who admitted to smoking marijuana but refused to consent to removal of his son. Child
Protective Services sought and obtained a court order to remove Mr. Reddie’s son. Somero,
Klepadlo, and two Child Protective Services care workers went to Mr. Reddie’s apartment to
effectuate the removal.
Upon seeing the officers, Mr. Reddie immediately picked up his son and retreated into
the apartment. He repeatedly told the officers he would not allow them to take his son. The
officers and care workers followed Mr. Reddie into his apartment, where the situation quickly
escalated. The officers testified that Mr. Reddie was five to ten feet away from them, separated
by a coffee table. They further testified that Mr. Reddie was playing loud music and they
believed he was preparing himself to fight.
Defendant Klepadlo testified that he drew his Taser and pointed it at Mr. Reddie. Around
the same time, the care workers removed Mr. Reddie’s son from the apartment. Soon after
Klepadlo drew his Taser, one of the care workers shouted that Mr. Reddie had a knife. In
response, Klepadlo holstered his Taser and drew his handgun. The officers testified that they told
Mr. Reddie to drop the knife, but he did not do so. Mr. Reddie then came out from behind the
coffee table. The officers testify that they told Mr. Reddie they would shoot if he did not comply
with their orders.
According to the officers, Mr. Reddie raised his hands to shoulder height and moved
towards the officers (described as a “lunge”). Klepadlo fired at Mr. Reddie, who died instantly.
The only living witnesses to the events in Mr. Reddie apartment are Somero, Klepadlo,
and the two care workers. The testimony of those four witnesses is consistent. Based in large part
on that testimony, and because Plaintiff had not raised sufficient other evidence to cast doubt on
that testimony, the Court concluded on August 3, 2016, that summary judgment for Defendants
was appropriate pending resolution of the evidence spoliation claims.
Plaintiff’s motion for spoliation sanctions, ECF No. 57, arises from the dispute about
whether audio recordings of the events leading to Mr. Reddie’s death exist. Officer Somero’s
vehicle was equipped with audio/visual recording equipment on the day in question. Defendants
later provided the Michigan State Police a single compact disc, purportedly containing the
recordings from the incident. The state police found that the compact disc was unreadable.
Because Defendants did not produce any of the requested audio or visual files, Plaintiff filed a
motion to compel access to Defendant City of Grayling’s computers to search for audio or visual
recordings of the incident. ECF No. 44. On April 15, 2015, the Court ordered Defendants to
allow Plaintiff’s consultant, Ed Primeau, to inspect the City of Grayling’s computer system. ECF
Mr. Primeau visited the Grayling Police Department on May 15, 2015, in accordance
with the Court’s April 15, 2015, order. Primeau Rep. at 4, ECF No. 85, Ex. E. Upon arriving,
Mr. Primeau was informed that the computer system had been replaced subsequent to Reddie’s
death, resulting in the destruction of all stored audio/visual data which was not transferred to the
new system. Id. Despite this setback, Mr. Primeau directed a Grayling Police Department
employee to search the new computer for relevant data under Mr. Primeau’s supervision. Id. The
search revealed a number of videos recorded from a vehicle identified as GPD01 on February 3,
2012 and February 6, 2012. Although Mr. Primeau testified that the Grayling Police Department
employees who were present stated that Defendant Somero was in GPD01 on the day of the
incident, Primeau Dep. at 29, ECF No. 85, Ex. L; Evid. Hearing Tr. III at 124, 127, ECF No.
115, Defendants contend that Defendant Somero was in GPD02 and that no contrary
representations were ever made. See Def. Resp. Supp. Br. At 13; Eifert Aff. at 1, ECF No. 73,
Ex. 6; Baum Aff. at 1, ECF No. 73, Ex. 8; Evid. Hearing Tr. III at 148. The parties now appear to
agree that Defendant Somero was in Grayling police car number two, identified as GPD02, on
the day of the incident. See Pl. Supp. Br, at 5, ECF No. 85; Def. Resp. Supp. Br. At 13, ECF No.
88. Further, the metadata on the otherwise inoperable compact disc indicates that the missing
files originated from GPD02.
At the time of the incident, the Grayling Police Department had a verbal policy that
officers were to record all interactions with a citizen. Baum Dep. at 30–31, ECF No. 85, Ex. A.
Although Officer Somero’s car was equipped to record both audio and video, Defendants assert
that the car could not have captured video of the encounter with Mr. Reddie given the car’s
location in the parking lot. Def. Resp. at 5, ECF No. 62. Plaintiff does not appear to contest that
representation. Accordingly, the primary issue is whether an audio recording of the altercation
with Mr. Reddie was created and, if so, what happened to the audio files after Mr. Reddie’s
death. A secondary issue is whether Klepadlo’s vehicle was equipped with recording equipment
on the day in question.
Defendants suggest that a bizarre series of errors resulted in the failed attempt to maintain
the SD card that was the memory device for the vehicular system, the subsequent failed effort to
transfer or burn the information on the SD card to the compact disc, and the absence of any other
electronic or physical records of the audio/visual recordings made during the Reddie incident.
Upon review of all evidence presented, that argument cannot reasonably be accepted.
At the time of the Reddie shooting, Grayling Police Department vehicles were equipped
with recording systems sold and maintained by ProVision Video Systems. Evid. Hearing Tr. III
at 5–6. The system included an in-car video camera and a lapel microphone. Id. at 28. The lapel
microphones would start recording when a button on the mike was activated. Id. At that point,
the microphone would record until it was turned off or until the battery was depleted. Id. In 2012,
ProVision sales literature represented that the lapel microphones would record audio for
approximately 1500 feet if unobstructed and about 500 feet if obstructed. Id. at 22–23.
Each Grayling Police officer was assigned a SD card which plugged into the ProVision
recording system in the vehicle and saved the recordings. Evid. Hearing Tr. I at 34. Typically, a
Grayling Police Department officer would eject the SD card from the vehicle at the end of his or
her shift. Evid. Hearing Tr. II at 53. The SD card would then be inserted into a SD card reader.
Id. At that point, the recording files would be accessible on the computer. The officers would
have the choice of directly burning the files from the SD card to a CD or saving the files to the
computer hard drive. Id. at 55. According to Grayling Police Department officer Amanda
Clough, she would typically review the recordings for significant incidents to determine if the
audio and video were “of use.” Id. at 67, 75–78. In other words, Officer Clough would only
review the recordings for incidents during her shift that she concluded were important and would
only save the recordings if the audio/visual files were intelligible. Somero also testified that, after
a shift, he would review the recordings to determine which ones he wanted to save and file. Evid.
Hearing Tr. I at 41, 62. If the officers chose not to save recording files, they were simply left on
the SD card. The officer would use the same SD card for the next shift, and eventually the old
files would be overwritten by new recordings. Id. at 62.
Somero testified that the in-car video camera in his vehicle was working around the time
in question. Id. at 11. However, he testified that the audio recording functionality “had been
problematic.” Id. According to Somero, the audio recording was hit or miss; sometimes it would
work and sometimes it would not. There was no way to know if the recording system had
captured a given incident until the files were played at the end of the shift. Id. at 29–30. Officer
Clough was sharing a vehicle with Somero, on alternate shifts, during the time period in
question. Evid. Hearing Tr. II at 49. She testified that the system was “more miss” than hit and
that she never obtained any audio from the lapel microphone. Id.6
Chief Baum testified that there were “operational issues” with the ProVision systems. Id.
at 72. When asked what those issues were, Chief Baum stated that he did not know. Id. When
asked if he had reviewed any documents or records in the past three years that might refresh his
memory about those issues, he stated “I have not reviewed any of that.” Id. When asked if
records of those issues might exist at all, he stated “I don’t personally have records of that, no.”
Id. When asked if there might be any other person with records of the equipment issues, Chief
Baum stated “I don’t know that there would - - that there would be any.” Id.
Somero testified that, on the day of the Reddie shooting, he activated his recording device
prior to both visits with Mr. Reddie. Evid. Hearing Tr. I at 12, 34. Somero also testified that he
believed the in-car video was working but not the audio. Id. at 15. After Mr. Reddie was fatally
shot, Somero remained at the apartment. Id. at 36. Once additional officers arrived, Somero was
assigned to guard the apartment door. Id. During the approximately forty-five minutes Somero
was securing the scene, he did not return to his vehicle. Id. Eventually, Grayling Police Chief
Notably, Officer Clough also testified that she would save recordings only if there was audio of the incident. See
id. at 53.
Baum told Somero to report to the Grayling Police Department and await questioning by the
Michigan State Police (MSP). Id. Somero drove his vehicle, by himself, back to the department.
Id. at 37. He testified that he followed normal procedures for handling the SD card: he removed
the card from the system, gathered his other equipment, and set everything down on his office
desk. Id. Somero denies ever moving the SD card off that desk and particularly denies putting the
card into a computer. Id. at 38. Somero waited alone in his office for an unknown period of time.
Id. at 63. Somero testified that he was interviewed by the MSP and began writing his statement
that evening. Id. at 39. According to Somero, when Chief Baum and the MSP detective arrived to
interview him, he informed Chief Baum that the SD card was present. Id. at 64. Somero testified
that he does not remember whether he handed the card to the Chief or simply referred to the
presence of the card. Id. Regardless, Somero testified that he physically furnished the card to
Chief Baum. Id. at 65. See also Somero Dep. at 157–59, ECF No. 85, Ex. B. According to
Somero, he has not seen the SD card since that evening. Evid. Hearing Tr. I at 65. He further
testified that he never talked to any other person about the SD card. Id. at 44–45.
Chief Baum’s account of events is different. He testified that he does not have “memory
of exactly how” the post-incident events occurred. Id. at 84. However, he did assert that “I did
not make a copy of it because I did not have the knowledge to do that.” Id. Chief Baum further
stated that he did not know what happened to the SD card and that he did not have a memory of
ever seeing it. Id. When asked if he ever handled it, Chief Baum said, “Not that I remember.” Id.
When asked if he had ever represented that the SD card had been given directly to the MSP,
Chief Baum denied any knowledge of making that representation. Id. at 84–85. At the
evidentiary hearing, Chief Baum was asked whether the SD card should have been handled with
a proper chain of custody. Id. at 89. He admitted that it should have been and that leaving the SD
card lying on a desk would violate chain of custody principles. Id. He also admitted that, to the
best of his recollection, the SD card was in Grayling Police Department custody when taken out
of Somero’s vehicle. Id. at 90.
Detective Rick Sekely was the investigating MSP detective. Id. at 125. He testified that
he received a compact disc which purportedly contained the recordings from Somero’s car on
March 1, 2012, twenty-seven days after the Reddie shooting occurred. Id. at 126. Detective
Sekely was never given the SD card and never discussed the SD card during his investigation. Id.
at 126–27. Detective Sekely requested a copy of the recordings from Chief Baum on the night of
the shooting. Id. at 127. He testified that, when questioned about the recordings, both Chief
Baum and Somero stated that there would be no audio, but that “we’ll see if there’s video.”7 Id.
at 128. Detective Sekely also testified that Chief Baum told him that the manufacturer helped the
department download the SD card to the compact disc. Evid. Hearing Tr. II at 38. ProVision has
no records of doing so and Defendants have not provided any other substantiation for this theory.
The conflicting stories regarding who had possession of the SD card is reflected in
Defendants’ counsel’s representations regarding the SD card. In Defendants’ Surreply to the
Motion for Summary Judgment,8 they stated that “it is undisputed that, after the incident, Officer
Somero gave the SD card from his assigned vehicle to Chief Baum.” ECF No. 98. However, on
January 29, 2015, Defendants’ Counsel sent a letter to Plaintiff’s counsel which represented the
Chief Baum advises me that Officer Somero never downloaded the information
from the SD Card into the Grayling Police Department computer. Rather, when he
spoke to the MSP detectives and they asked about the video, Officer Somero
Detective Sekely did not investigate independently to confirm that the audio recording equipment in Somero’s
vehicle was nonfunctional. Id. at 129.
This sequence of briefing was ordered by the Court in the August 3, 2016, order which concluded that summary
judgment for Defendants was appropriate pending resolution of the evidence spoliation claims. ECF No. 84.
retrieved the video in the form of the SD Card from his vehicle and gave it
directly to the MSP detectives. The SD Card is no longer in our possession.
Letter Regarding Subpoenas, ECF No. 85, Ex. D.
According to Detective Sekely, he asked for a copy of the recordings from Somero’s
vehicle during his initial investigation of the shooting. Evid. Hearing Tr. I at 127.9 Detective
Sekely did not receive the recordings, in the form of a compact disc, until March 1, 2012.10
According to Detective Sekely, Chief Baum contacted him when the disc was available. Id. at
138. Detective Sekely traveled to the Grayling Police Department and picked up the compact
disc along with some paper reports. Id. Detective Sekely is unsure if Chief Baum came out to
greet him. Id. Several days later, Detective Sekely tried for the first time to play the files on the
disc. Id. He was unable to get the files to play, despite trying several different computer
programs. Id. at 139. Detective Sekely then emailed Chief Baum and asked if a special program
was needed to view the files. Id. at 141. Chief Baum did not respond, and Detective Sekely never
followed up. Id. The identity of the person who burned the compact disc remains unknown.
The SD card is not the only missing evidence. The computer that Grayling Police
Department officers used to download the SD cards was replaced after the incident. Id. at 92.
Chief Baum was unable to remember exactly when the old computer was replaced with a new
one. Id. at 123. Plaintiff sent a “Notice to Preserve Evidence” to the Grayling Police Department
on April 13, 2012. Id. at 97. When presented with the document at the evidentiary hearing, Chief
Baum denied any memory of receiving the document. Id. However, he did admit that the notice
contained the police department’s correct address. Id. Chief Baum admitted that he might have
Chief Baum does not remember who he talked to at the scene and did not recognize Detective Sekely in court. Id.
Metadata contained on the compact disc indicates that the disc was not burned until February 28, 2012, almost
four weeks after the shooting. Hearing Tr. III at 44.
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received the notice and indicated that it might be “in the file.” Id. at 123. The Court then asked,
“what do you mean it could be in the file? Don’t you know today whether it is in the file?” Id.
Chief Baum admitted, “I did not pull the file prior to coming today.” Id. The Court inquired:
“Have you ever pulled the file before coming today?” Id. at 124. Chief Baum replied: “It’s been
a number of years since I’ve looked at that file.” Id. at 124.
When the evidentiary hearing was continued several weeks later, the Court again inquired
whether the Grayling Police Department was representing that it had never received the notice to
preserve evidence. Evid. Hearing Tr. II at 6. Defendants’ counsel responded: “I’m sorry to say
that I can’t answer that right now. I know what he testified to. . . . And if he looked, he didn’t tell
me whether he found it or not. We specifically have not talked about that since the date of our
last hearing.” Id. at 7. The Court then directed Defendants’ counsel to ask Chief Baum about the
issue. Id. After doing so, Defendants’ counsel made the following representation: “[T]he City of
Grayling has no record of receiving - - and, again, I don’t have the actual paper in front of me
that was alleged to have sent to them. They have a Freedom of Information Act request from Mr.
Trainor’s office dated March 26th, 2012.” Id.
Although the Defendants were unsure when, exactly, the old computer where the SD
cards were downloaded was replaced, the computer the Grayling Police Department now uses
has two folders containing files from the old computer. Evid. Hearing Tr. III at 82, 144. Those
folders are entitled “Old PC” and “Old Computer.” Id. at 82. Those folders were created in
September 2012, which indicates that the old computer was still functioning at that time, at least.
Id. at 82, 144. As discussed below, those folders do not contain the missing recording files from
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The Grayling Police Department has also subsequently replaced the ProVision system
with a new recording system. Evid. Hearing Tr. I at 116. Significantly, Chief Baum testified that
the new recording system was chosen, at least in part, because it did away with officers handling
their SD cards. Id. at 117. Chief Baum also stated that he decided to replace the ProVision
system because of the previously mentioned (but not specified) technical issues. Id. at 104–06.
When asked if the decision to replace the system had anything to do with the Reddie shooting,
Chief Baum responded “[t]hat had a lot to do with that incident and other incidents.” Id. When
asked if the department had experienced other issues with officers handling SD cards, Chief
Baum replied: “We had a couple that were lost . . . or misplaced, I should say.” Id.
Based on the missing SD Card, unreadable compact disc, and replaced computer,
Plaintiff sought a court order permitting entry onto City of Grayling property to search the
Grayling Police Department computer for recordings from the Reddie shooting. ECF No. 44. The
Court granted that motion to compel in part. ECF No. 51.
Pursuant to that court order, Plaintiff’s expert Edward J. Primeau visited the Grayling
Police Department in May of 2015. Evid. Hearing Tr. III at 80. According to Mr. Primeau, when
he arrived at the police department, he was told that he could not touch the computer. Id. at 83.
Rather, Caleb Eifert, an IT professional associated with the Grayling Police Department, insisted
on being the one to input commands into the computer. Id. at 83–84. However, Mr. Primeau
acknowledges that he was able to direct Mr. Eifert to search for specific keywords, was able to
take snapshots, and was otherwise allowed to conduct the search to his satisfaction. Id. at 84–85.
Mr. Primeau retrieved 92 files which were dated February 3 and February 6, 2012. Each file
contained an audio/visual recording from a vehicle identified as GPD01, but none contained
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audio of the shooting. Id. at 88. According to Mr. Primeau, Chief Baum and Mr. Eifert told him
that Somero was in GPD01 on the day in question. Id. 82–83. Defendants strongly contest that
point now. See Def. Post Evid. Br. at 5, ECF No. 116. See also Pl. Supp. Br, at 5, ECF No. 85;
Def. Resp. Supp. Br. At 13, ECF No. 88. Regardless, Mr. Eifert testified, and Plaintiff does not
appear to dispute, that the search parameters would have returned all audio/visual recordings for
the date in question, regardless of the vehicle they were from. Evid. Hearing Tr. II at 170. In
other words, Mr. Primeau was unable to find any recordings from Somero’s car regarding the
Reddie shooting. Mr. Primeau found no audio problems or other defects in the 92 recordings
from GPD01 made in early February. Evid. Hearing Tr. III at 89–90.
During the evidentiary hearing, witnesses testified about the operation of the ProVision
system and interpreted the metadata found on the otherwise inoperable compact disc. Plaintiff’s
expert, Edward Primeau, has worked in the audio/video surveillance field for over thirty years.
Id. at 62. In that time, he provided audio/video authentication and enhancement services, as well
as evidence recovery services. Id. at 63. At the evidentiary hearing, Mr. Primeau explained that
although the compact disc provided to the MSP did not contain any audio/visual files, it
contained “metadata.” Id. at 65. According to Mr. Primeau, metadata is “information about the
file such as when it was created, the system it was created on, the date it was created, the size of
the file.” Id. at 66. This metadata can be found using special software programs. Id.
The compact disc provided to the MSP contained fourteen “.xspf files.” Id. at 69. These
files act as a kind of directory or playlist: they point towards the location of the underlying
audio/visual recordings. Id. These .xspf files are generated by the VLC Player software, a media
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player used by the Grayling Police Department.11 Id. at 71. According to Mr. Primeau, .xspf files
are created through a multi-step process. First, an audio/visual file must be accessed on a
computer. Id. at 72. Second, the file must be opened in the VLC Player. Id. Third, a playlist file
had to be created via the VLC Player, named by the user, and then saved. Id. Mr. Primeau was
able to recover metadata contained in the .xspf files which provided information about the
underlying but now missing audio/visual recording files. Id. at 72. First, he explained that each
of the 14 .xspf files were renamed by a user and contained “Reddie” in the filename. Id. at 72–
73. He further testified that the metadata indicated that each recording was exactly five minutes
long12 and that all fourteen recordings were created on February 3, 2012. Id. at 73. The metadata
also revealed that the recordings were from GPD02. In summary, Mr. Primeau testified that the
metadata showed that fourteen audio/visual recordings, which were each five minutes long, were
made on February 3, 2012. Id. at 74. Those recordings were then opened in the VLC Player and
fourteen playlist files were created. Id. Those playlist files, but not the actual audio/visual files,
were then saved to the compact disc that was provided to the MSP. Id. When asked to confirm
that the metadata proved that audio/visual recordings existed at some point in time, Mr. Primeau
explained that VLC Player would not be able to make or save the playlist files unless there was
an audio/visual file. Id. at 75–76. In order to have functionality, VLC Player must open an actual
audio/visual file. Id. However, he admitted several times that there was no way to know
Mr. Primeau later provided additional information about the software: VLC Media Player is “a software program
that interprets audio and video information from a digital format into an analog format so that you could see it and
Mr. Primeau testified that all of the ProVision recordings he recovered or reviewed metadata for were five
minutes in length. Id. at 112. He postulated that a new recording was automatically initiated every five minutes to
prevent the recording of the entire incident from being lost if a certain section of the recording became corrupted. Id.
at 113, 130. When asked if this feature would safeguard against some kinds of human error—specifically, removing
the SD card from the computer before all the files had finished burning to the CD—he agreed that all files which had
finished downloading would remain on the CD. Id. at 113–14.
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conclusively whether the recordings made in this instance contained both video and audio or
only video. Id. at 116, 140.
Mr. Primeau further testified that, if a user was attempting to burn audio/visual
recordings from an SD card to a disc, loading the files in VLC Player is both unnecessary and
“clunky.” Id. at 76. Instead, a user could simply insert the SD card into the computer, insert a
blank disc, and directly copy the files from the SD card or computer to the disc. Id. When asked
what the use of the VLC Player indicated to him, Mr. Primeau opined:
It indicates to me that the operator of this process was very knowledgeable of
taking data, putting it onto a computer and being able to open it and view it in a
player, that wasn’t the Pro-Vision player, and save it as a playlist file, and create a
name for it to help organize all of the content.
Id. at 78.
Mr. Primeau also testified that Grayling Police Department officers sometimes utilized
the simple two step approach rather than unnecessarily using the ProVision software. Id. at 85–
86. During his search of the Grayling Police Department computer, Mr. Primeau found evidence
that, on December 5, 2012, an individual logged into Officer Somero’s account “created a video
disk by dragging and dropping files from an SD card to his computer and then from the computer
onto a compact disc.” Id. at 86. As already mentioned, Mr. Primeau recovered 92 recording files
from GPD01 when he searched the Grayling Police Department computer. Id. at 132. He
testified that none of the files were .xspf files, meaning that the person who downloaded the files
did not use the VLC Player to transfer the files. Id.
Mr. Primeau was asked why an individual would choose to use VLC Player to transfer
recordings from an SD Card to a compact disc. Id. at 87. He explained that using VLC Player
was “pretty much unnecessary,” and that the only reasons he could think were “to rename the
files” or “view the files.” Id.
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Detective Wesley Smith13 also testified at the evidentiary hearing. He confirmed that the
metadata on the compact disc indicated that someone had to affirmatively name the underlying
audio/visual files. Id. at 39. He also provided several possible reasons why the compact disc
might include the .xspf pointer files but not the actual recording files: equipment failure, operator
error, or intentional deletion. Id. 41–43. He admitted that the .xspf files indicated that
audio/visual recording files had existed at some point, meaning that equipment failure was an
unlikely explanation. Id. at 43. At least, the existence of the pointer files indicated that there was
not a complete failure of the recording system. Detective Smith further testified that, after talking
with two other MSP computer specialists, he concluded that user error was the most likely
explanation for the missing files. Id. at 51–52. When asked how he concluded that user error was
the likely explanation, Detective Smith explained that, given the metadata on the disc, equipment
failure was unlikely. Id. at 56. He further opined that intentional deletion was unlikely because
there were better ways to destroy data than to create the .xspf pointer files. Id. at 58.
The witnesses who testified about the operation of the ProVision and VLC Player
systems agree that some files (in this case, the .xspf files) are saved onto the computer when a
compact disc is burned. See Evid. Hearing Tr. III at 31–32, 47–48, 52, 121. Even if the user does
not affirmatively save the recording files to the computer hard drive, the files will be saved in the
computer’s temporary directory prior to burning the compact disc. Id. Although files in the
temporary directory are not automatically saved by the computer (and thus are eventually
overwritten), computer experts are frequently able to recover files stored in the temporary
directory. Id. at 48, 54. However, because the files in the temporary directory were not
Detective Smith leads the MSP’s internet crimes office.
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transferred to the Grayling Police Department’s new computer, there is no way to recover any
remaining fragments that might have existed on the old computer. Id. at 54, 95–96.
Defendants contend that Deputy Klepadlo’s vehicle was not equipped with an operable
recording system on the date in question. Def. Resp. Supp. Br. at 8–9. See also Sekely Supp.
Rep. at 1; Wakefield Dep. at 21–22, ECF No. 85, Ex. F.
When questioned at the evidentiary hearing, Sheriff Wakefield explained that the
Crawford County Sheriff’s office had consistently experienced problems with the recording
systems in use at the time of the Reddie incident. Evid. Hearing at 103–105. The recording
system utilized VHS tapes which were stored in the back of the vehicle. Id. Sheriff Wakefield
explained that, because the police vehicles would consistently drive over rough, dusty roads, the
systems would constantly break. Id. Commonly, the eject button on the VHS casing would
become stuck, thus preventing the officer from retrieving the tape. Id. at 105, 107.
Klepadlo testified that, on the day of the Reddie shooting, his vehicle had a nonfunctional
recording system in the trunk. Id. at 79. Specifically, the eject button was broken, thus preventing
removal of the tape. Id. at 96. Klepadlo stated that the system would not record because the tape
was not removable, but did not explain why the inability to retrieve the tape resulted in an
inability to record audio and video in the first place. Klepadlo explained that his car was towards
the end of its working life and thus “was not going to be getting fixed or repaired.” Id. at 81.
Klepadlo further stated that, because the system was nonoperational, he would not have been
wearing a lapel mike in the day in question. Id. at 88.
According to Sheriff Wakefield, the recording system in Klepadlo’s car became, to the
best of his recollection, inoperable near the end of January 2012. Id. at 111. He also
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acknowledged that the system might have been inoperable for longer than that if Klepadlo had
not reported the problem. Id. at 111–12. In 2011, an eject button on a recording system in one of
the Sheriff Department’s vehicles was repaired. L-3 Mobile Repair Record, ECF No, 85, Ex. J.
When asked why only one repair record existed, Sheriff Wakefield explained “we just had
numerous problems with [the recording systems], and when they broke down, we just didn’t use
them anymore, because I knew I was in the process of trying to procure some money to buy new
systems.” Id. at 107.
Sheriff Wakefield further testified that he personally checked the recording system in
Klepadlo’s vehicle the evening of the Reddie shooting. Id. at 112. He represented that he told
Rick Sekely, the Michigan State Police investigator, that the recording system was not
functioning. Id. at 114. He denies telling Detective Sekely that Klepadlo’s vehicle was not
equipped with a recording system. Id. at 115. Detective Sekely testified, however, that Sheriff
Wakefield informed him that Klepadlo’s vehicle did not have a recording system at all. Evid.
Hearing I at 130. Detective Sekely did not ask to personally inspect Klepadlo’s vehicle, and
Sheriff Wakefield did not suggest that Sekely should. Id. at 133–34; Evid. Hearing II at 114.
On April 13, 2012, the Crawford County Sheriff’s Department received a notice to
preserve evidence related to the Reddie shooting. Evid. Hearing II at 116. The vehicle Klepadlo
was driving on the day in question is no longer in use. The current whereabouts of the car and
recording system are unknown, but Sheriff Wakefield testified that the recording system was
likely “melted down and used for something else by now.” Id. at 128. Sheriff Wakefield was
unable to provide the date, even approximately, when the vehicle was decommissioned and the
recording system was destroyed, but suggested that it was unlikely that it happened before the
notice to preserve evidence was received. Id. at 120. Despite that admission, Sheriff Wakefield
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also testified that he did not make an effort to retain the vehicle and recording system. Id. at 127.
He acknowledges that maintaining the broken equipment, as proof that the system was
inoperable, might have been important, but stated that “once I realized [the system] was broke,
honestly it meant nothing to me after that.” Id. at 128–29.
As a preliminary matter, Defendants argue that sanctions are not appropriate under
Federal Rule of Civil Procedure 37 because that rule does not govern pre-litigation destruction of
evidence. Plaintiff contends that she is not seeking sanctions under Federal Rule of Civil
Procedure 37. Pl. Suppl. Reply Br. at 1, ECF No. 92. However, the Court has the discretionary
power to sanction for evidence spoliation independent of Federal Rule of Civil Procedure 37.
Adkins v. Wolever, 554 F.3d 650, 652 (6th Cir. 2009).
To justify spoliation sanctions, Plaintiff has the burden of demonstrating:
(1) that the party having control over the evidence had an obligation to preserve it
at the time it was destroyed; (2) that the records were destroyed “with a culpable
state of mind”; and (3) that the destroyed evidence was “relevant” to the party’s
claim or defense such that a reasonable trier of fact could find that it would
support that claim or defense.
Beaven v. U.S. Dep’t of Justice, 622 F.3d 540, 553 (6th Cir. 2010) (quoting Residential Funding
Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002)).
An obligation to preserve evidence arises when the party “‘should have known that the
evidence may be relevant to future litigation.’” Byrd v. Alpha All. Ins. Corp., 518 F. App’x 380,
384 (6th Cir. 2013) (quoting Beaven, 622 F.3d at 553). See also Ross v. Am. Red Cross, 567 F.
App’x 296, 303 (6th Cir.) (upholding denial of spoliation sanctions because defendant lost the
evidence prior to learning of the potential lawsuit). The culpability element is satisfied if the
evidence was destroyed knowingly or negligently. Beaven, 622 F.3d at 554 (quoting Residential
Funding Corp., 306 F.3d at 108). There is no requirement that the destruction occur with the
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intent to breach a duty to preserve. Id. Finally, destroyed evidence is relevant to the moving
party’s claim or defense if the party makes “‘some showing indicating that the destroyed
evidence would have been relevant to the contested issue.”’ Id. (quoting Kronisch v. United
States, 150 F.3d 112, 127 (2d Cir. 1998)). Although the party seeking sanctions may “‘rely on
circumstantial evidence to suggest the contents of destroyed evidence,’” id. at 555 (quoting
Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 110 (2d Cir. 2001)), the evidence must
be sufficient for “‘a reasonable trier of fact [to] find that it would support that claim.’” Id. at 554
(quoting Residential Funding Corp., 306 F.3d at 107).
Because Plaintiff is making a separate spoliation claim against Defendants Crawford
County and Deputy Klepadlo than she is making against Defendants City of Grayling and
Officer Somero, the Defendants must be analyzed separately. Plaintiff argues that Defendants
City of Grayling and Officer Somero should be sanctioned because the Defendants failed to
retain the original recording files or create a compact disc containing the recordings. Plaintiff
also argues that Defendants Crawford County and Deputy Klepadlo should be sanctioned for
spoliation because they either failed to preserve and turn over the recordings from Deputy
Klepadlo’s car or because they ignored necessary repairs. Pl. Supp. Reply. at 7. Both sets of
Defendants utilized different recording systems and neither set of Defendants had access to the
The majority of Plaintiff’s argument for spoliation sanctions focuses on the compact disc
provided by Defendants City of Grayling and Officer Somero that included metadata but no
actual recordings. Accordingly, that argument will be analyzed first.
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The initial question is whether the City of Grayling and Officer Somero had control over
the evidence and a duty to preserve it. There can be no dispute that Defendants had an obligation
to preserve any potential recordings of the circumstances leading to Mr. Reddie’s death.
Defendants’ current position is that it did not receive the notice to preserve evidence which
Plaintiff sent several weeks after the incident. Based on Chief Baum’s testimony at the
evidentiary hearing, however, there is reason for skepticism about that representation. If, as
Chief Baum nonchalantly represented, he has not reviewed the file containing documents
relevant to the Reddie incident for several years, then perhaps the department simply misplaced
or forgot about the notice. Regardless, Defendants admit that they did receive the Freedom of
Information Act request which Plaintiff sent in March 2012. If nothing else, that document
provided clear and unmistakable notice that Plaintiff was considering litigation in connection
with the shooting and death.
Even if Defendants had not received either notice, they would still have had an obligation
to preserve audio/visual recordings of the shooting. When police officers are involved in a fatal
shooting, investigation of the events should be expected. Here, all involved parties knew that
there would be an investigation into whether the officers involved in the shooting used excessive
force, and the possibility of Mr. Reddie’s estate bringing suit must also have been anticipated.
Police officer recording devices exist, in large part, exactly for situations like this one, where the
officers involved in the fatal shooting are the only witnesses. See Peschel v. City Of Missoula,
664 F. Supp. 2d 1137, 1145 (D. Mont. 2009) (reasoning that “the obvious inherent value of the
video recording” is that it would have allowed the jury to determine whether excessive force was
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used without relying solely on witness testimony).14 Given the gravity of the situation, the
Defendants had a manifest duty to ensure that any potential recording of the incident was
Likewise, the City of Grayling and Officer Somero both had control over the recording
system and SD Card. As discussed above, there is conflicting testimony regarding who
downloaded the information on the SD Card and transmitted the files to the Michigan State
Police. However, there is no dispute that Officer Somero ejected the SD card from the recording
system in his car. Even if Officer Somero was not the one to download the card’s contents to the
Grayling Police Department computer and then burn the disc, he had control over the evidence at
perhaps the most crucial moments: during and immediately after its creation. Even under
alternative theories, like the proposition that Officer Somero turned the SD card over to Chief
Baum or that Chief Baum then worked with a Pro-Vision representative to download and
transmit the data, the City of Grayling clearly had control over the evidence during the transfer
and download process. And Somero’s testimony establishes that he spent a significant period of
time alone with the SD card. Parties can be held liable for evidence spoliation even where they
were not personally responsible for the loss of the evidence. See Adkins, 692 F.3d at 505
(collecting cases). Despite promulgating several different theories, Defendants cannot
conclusively state who took custody of the SD card, where the SD card is now, or who
downloaded the SD card to the compact disc. This shell game cannot be reasonably accepted. If
Defendants’ argument was adopted, it would incentivize police departments to store evidence
Defendants argue that Peschel is legally and factually distinguishable. First, Defendants argue that the decision in
Peschel was based in part on Federal Rule of Civil Procedure 37. Although the court in Peschel does consider Rule
37 in making its determination, the court’s reasoning is instructive regardless of the basis for the sanctions. Peschel
is factually analogous because it involves a claim for excessive force brought against police officers where a
recording of the incident existed but was lost. Defendants argue that there is no proof that a recording ever existed
here, but the rationale regarding evidence spoliation sanctions outlined in Peschel is instructive regardless. More
importantly, there is conclusive proof, discussed below, that a recording of some kind did exist.
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carelessly and maintain minimal records. Defendants cannot avoid responsibility for their failure
to preserve what is potentially the best evidence of what occurred in Mr. Reddie’s apartment by
disclaiming knowledge or records. Plaintiff has satisfied her burden of establishing that
Defendants City of Grayling and Officer Somero had control and possession of the evidence.
The next question is whether Defendants lost or destroyed the evidence with a culpable
state of mind. As already established, negligence is sufficient to justify sanctions. Beaven, 622
F.3d at 554 (quoting Residential Funding Corp., 306 F.3d at 108). Defendants argue extensively
that Plaintiff has not provided evidence which shows that Defendants are culpable in the loss or
destruction of the recording. That is inaccurate. The testimony at the evidentiary hearing
established the following facts.
Somero triggered the recording system prior to entering Mr. Reddie’s apartment. The
metadata on the compact disc provided to the MSP indicates that several recordings which
contained audio or video (or both) were made by the recording system in GPD02 on the day in
question. The metadata further shows that the compact disc was burned on February 28, 2012.
Evid. Hearing Tr. III at 70. The metadata does not indicate whether the recordings included
audio from the lapel microphone. Detective Sekely requested copies of the recording files within
several days of the shooting. Defendants have not provided an explanation for the delay in
burning and providing the disc to the MSP. Likewise, Defendants have not explained where the
SD card was during those three weeks or who eventually burned the disc. However, Chief Baum
testified that he did not have the technical knowledge to copy an SD card. Evid. Hearing Tr. I at
84. Thus, a recording existed at one point and the Grayling Police Department had possession of
the SD card containing those files for several weeks.
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Defendants argue that the recording could not have contained audio of the incident, but
that assertion is inaccurate. Both Somero and Chief Baum have consistently represented that
Somero’s lapel microphone was not working on the day of the incident, but they have presented
no additional evidence of that assertion. Defendants have produced no repair records or requests
for repairs. At the time of the shooting, ProVision’s sales literature represented that lapel
microphones would record audio at distances of up to 500 feet even if obstructed by buildings.
The testimony of Somero, Chief Baum, and Officer Clough is insufficient to establish that
Somero’s lapel microphone recorded nothing, especially considering Somero’s testimony that
the lapel microphone sometimes did work.
Further, the metadata on the disc indicates that the files were opened through VLC Player
and renamed to include “Reddie” in the title. Mr. Primeau testified that using VLC Player is
unnecessary if the user is simply trying to download the files onto a disc. Rather, loading an
audio/visual file in VLC Player is useful only if the user is renaming the files or viewing the
files. Here, it seems highly likely that whoever burned the disc also viewed the recordings. If the
user already knew which files were connected with the shooting, then there would be no reason
to open them in VLC Player and rename them. Rather, the user could have simply burned the
files directly to the disc (the easier and apparently typical method used by Grayling police
officers). Opening the files with VLC Player is thus only necessary if the user needed to view the
recordings. Given that likelihood, the failure to properly burn the audio/visual files to the disc is
especially troubling. Perhaps the user mistakenly copied only the .xspf files and not the
audio/visual files to the disc. But it seems exceedingly unlikely that the Grayling Police
Department did not confirm that the disc contained the recording files before turning the disc
over to the MSP, much less discarding the SD card.
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Officers might be careless when burning discs in the context of a relatively immaterial
incident. But this situation involved a fatal shooting which the MSP was investigating.
Defendants contend that the sequence of improbable events—the broken equipment, missing SD
card, improperly burned disc, replaced computer, and absence of repair records—are the result of
negligence, not purposeful destruction. But the simplest explanation for the missing recordings,
taking all evidence into account, is deliberate spoliation. Even if Defendants were merely
negligent (and there can be no doubt that Defendants’ behavior exceeded mere negligence, even
if it does not rise to intentional misconduct), negligence is enough to justify sanctions.15 In short,
the most reasonable conclusion is that Defendants Somero and City of Grayling destroyed the
missing evidence with a culpable state of mind.
Finally, the recording evidence that was lost was relevant to Plaintiff’s claims. An audio
recording of the incident with Mr. Reddie would be especially helpful because the only other
witnesses are the officers and social workers who were present at the shooting. Because the
officers are defendants in this case, they do not furnish an impartial perspective on what
occurred. See Peschel v. City Of Missoula, 664 F. Supp. 2d 1137, 1145 (D. Mont. 2009)
(reasoning that “the obvious inherent value of the video recording” is that it would have allowed
the jury to determine whether excessive force was used without relying solely on witness
testimony). An audio recording of the encounter would easily resolve many of the questions
Defendants argue that: “the City did not have a culpable state of mind, especially considering: (1) that it was
understood that there was no recording from Somero’s lapel mike; and (2) the City produced to the MSP what it
believed was a copy of the SD card, but later learned that it had simply made a technical error.” Post-Hearing Br.
at4, ECF No. 116. The first argument is addressed above. Defendants’ second argument is likewise inaccurate.
Besides improperly copying the SD card, Defendants also failed to back up the SD card and then lost the SD card
itself. This blatant disregard for chain of custody and other evidence protection procedures far exceeds mere
“technical errors.” Defendants’ argument would also require the Court to believe that Defendants did not test the
disc before giving it to the MSP and disregards the fact that Chief Baum did not respond when Detective Sekely
asked why the disc was inoperable.
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about Mr. Reddie’s death, including whether Mr. Reddie was complying with officer
instructions, whether Mr. Reddie was acting belligerently, and whether anyone shouted that Mr.
Reddie had a knife.
Defendants argue that the missing recording files could not be relevant because the audio
recording was not working and, alternatively, because the system would not have recorded
accurately considering the distance and obstructions impairing the signal. But Somero testified at
the evidentiary hearing that the audio recording worked sometimes.16 He further testified that it
was impossible to know whether audio had been recorded until the files were reviewed on a
computer. But he denies ever opening or reviewing the recordings of the shooting. Defendants do
not argue that Mr. Reddie’s apartment was further than 500 feet from Somero’s vehicle, which is
the distance ProVision indicated that its system would record through obstructions. Somero also
testified that he switched the microphone on before the shooting. Thus, it is reasonably likely
that audio of the shooting was recorded. For that reason, Somero’s and Chief Baum’s confidence
now and at the time of the shooting that no audio was recorded is more than puzzling.
Unfortunately, the missing files makes it impossible to confirm whether audio was recorded. If
the audio/visual files on the SD card had been preserved, determining whether the lapel
microphone worked would have been simple. The in-car recording, which Defendants admit was
recorded, would either contain the lapel microphone audio or would only contain the in-car
audio. See Evid. Hearing Tr. II at 58.
In the August 3, 2016, opinion and order concluding that summary judgment for
Defendants was appropriate (but withholding entry of judgment pending the evidentiary hearing
on evidence spoliation), the Court emphasized that Klepadlo could reasonably have believed that
Officer Clough testified that the lapel microphone never worked in GPD02. But no records of repair requests have
been produced. Further, Officer Clough testified that she always required help to download files from SD card to a
compact disc. Evid. Hearing Tr. II at 56–57. She also admitted to not being “tech savvy.” Id.
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Mr. Reddie was armed. Plaintiff, anticipating that argument, asserted that Mr. Reddie was not
armed during the crucial moments because the knife was found, closed, almost six feet away
from his body. Plaintiff further speculated that Mr. Reddie dropped the knife after being ordered
to do so. The Court rejected that argument, reasoning that the knife’s positioning was also
consistent with Mr. Reddie dropping the knife after he was shot. The Court continued:
[E]ven assuming both of Plaintiff’s conclusions about the knife in Reddie’s
apartment—that Reddie did not possess it and that it was always closed—are true,
they do not affect the result in this case. Reddie’s actual possession of the knife is
not relevant, based on the facts as they existed in Reddie’s apartment, to
determining whether Deputy Klepadlo used a constitutionally reasonable amount
of force. That is because a reasonable officer in Deputy Klepadlo’s position
would believe that Reddie had a knife because [one of the care workers] shouted
that he did and he would have had no ability to verify that fact before being faced
with a rapidly developing situation.
August 3, 2016, Op. & Order at 9, ECF No. 84.
The recording from Somero’s car would have potentially provided unbiased and incisive
evidence regarding the most relevant and contested facts in this case. It might have revealed
whether someone actually shouted that Mr. Reddie had a knife. If no one did, then Klepadlo
would not have had a reasonable basis for believing Mr. Reddie was armed. The recording might
also have indicated whether the officers commanded Mr. Reddie to drop the knife. If Mr. Reddie
responded to the officers (perhaps by denying that he had a knife, or confirming that he had
dropped the knife), those words might have been recorded. The recording might also undermine
(or corroborate) Defendants’ testimony that Mr. Reddie was playing loud music and acting
belligerently. If a recording was found which contained audio evidence of this type, serious
questions about the validity of the testimony given by the Defendant officers and care workers
would be raised. And, because the testimony given by the Defendants would no longer stand
unrebutted, summary judgment would not be entered for Defendants.
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Accordingly, the missing recording would have been highly relevant to Plaintiff’s claims.
See Kounelis v. Sherrer, 529 F. Supp. 2d 503, 519 (D.N.J. 2008) (“In a case of one person’s
word against the word of another, the unbiased eye of a surveillance camera would lend a great
deal of credibility to one side’s version of the events.”); LaJocies v. City of N. Las Vegas, No.
2:08-CV-00606-GMN, 2011 WL 1630331, at *2 (D. Nev. Apr. 28, 2011) (holding that the
missing videotape was relevant, even though it likely would have shown only a portion of the
altercation, because it “could have potentially assisted the jury” in understanding what
happened) (emphasis added).
Because all three elements of the Beaven test are met, sanctions for evidence spoliation
will be imposed against Defendants City of Grayling and Somero. The form of those sanctions,
and the interrelation between the sanctions and the outstanding motions for summary judgment,
will be discussed below.
Plaintiff argues that sanctions against the City of Grayling and Somero are justified on
alternative grounds because those Defendants did not comply in good faith with the Court’s
April 15, 2015, discovery order. First, Plaintiff argues that the Defendants did not allow Mr.
Primeau to physically inspect the computer, as ordered by the Court. Second, Plaintiff argues
that Defendants misled Mr. Primeau regarding whether certain recordings were from Mr.
Somero’s vehicle. Regardless of whether Plaintiff’s representations are accurate, sanctions are
Testimony at the evidentiary hearing established that Caleb Eifert, a technology
consultant for the Grayling Police Department, physically input commands at Mr. Primeau’s
direction during the search. Neither Defendants nor Mr. Primeau argue that Mr. Eifert refused to
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comply with Mr. Primeau’s directions or otherwise hindered the search. In one instance, Mr.
Eifert input broader search criteria than directed, but Mr. Primeau acknowledged that Mr.
Eifert’s search would have encompassed all information sought by Mr. Primeau’s originally
requested search terms. Plaintiff has not provided any evidence that they were prejudiced by the
way the search was conducted.
There is a factual dispute regarding whether Chief Baum and other City of Grayling
employees told Mr. Primeau that Somero was in GPD01 on the day in question. Even if
Defendants informed Mr. Primeau that the recordings came from Officer Somero’s car,
Defendants have since clarified which car Officer Somero drove on the day in question and
which car the recordings came from. See Pl. Supp. Br, at 5, ECF No. 85; Def. Resp. Supp. Br. At
13, ECF No. 88. There is no evidence that any false information that might have been conveyed
to Mr. Primeau during the search prejudiced Plaintiff. All parties now agree that Somero drove
GPD02 on the day of the shooting. The parties also agree that Defendants do not have possession
of the recordings from GPD02 on that day. Any misrepresentations made by Defendants during
the search have had no impact on Plaintiff’s case. Defendants will not be sanctioned for
noncompliance with the Court’s April 15, 2015, order.
Plaintiff also argues that spoliations sanctions are justified against Defendants Crawford
County and Klepadlo. Plaintiff has not provided any evidence that Crawford County or Deputy
Klepadlo had any access to the recording equipment in Officer Somero’s vehicle or were
involved in the alleged spoliation of the recordings on the compact disc. Thus, Plaintiff’s only
argument that Crawford County and Deputy Klepadlo engaged in evidence spoliation is that they
did not turn over recordings from Deputy Klepadlo’s vehicle. But Sheriff Wakefield testified at
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the evidentiary hearing that the Crawford County Sheriff’s office had experienced continuous
problems with the recording systems installed in the car. Both Klepadlo and Sheriff Wakefield
testified that the system was inoperable on the day of the shooting.17 More importantly, Klepadlo
testified that, because the system was nonfunctional, he was not wearing his lapel microphone.
Plaintiff has not offered evidence to suggest that a recording ever existed. Rather, Plaintiff argues
that Crawford County and Klepadlo spoliated evidence because they failed to keep the recording
system in working order while installed and then did not retain possession of the equipment after
they replaced the recording system.
Plaintiff has not provided sufficient evidence of wrongdoing under either theory to justify
spoliation sanctions. As regards Plaintiff’s failure to repair theory, Plaintiff is effectively arguing
not that Crawford County failed to preserve existing evidence, but rather that Crawford County’s
inaction resulted in no evidence being generated in the first place. Although police officer
recording equipment is an important and helpful innovation, Plaintiff has offered no support for
the assertion that Crawford County was under an obligation to keep the recording system in
working order at all times. Parties have an obligation to preserve evidence once they learn it may
be relevant to future litigation, Byrd, 518 F. App’x at 384, but they do not have a duty to ensure
that relevant evidence is created in the first place, especially when the incident giving rise to the
litigation has not yet occurred. Plaintiff has not provided any evidence which suggests that
Crawford County’s decision to not immediately repair its recording equipment was made to
prevent Plaintiff from accessing relevant evidence. Accordingly, Crawford County’s decision to
not repair its recording equipment does not necessitate spoliation sanctions.
Detective Sekely testified that Sheriff Wakefield told him that there was no recording equipment in the vehicle.
Sheriff Wakefield contends that he simply told Detective Sekely that the equipment was inoperable.
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Likewise, even though Crawford County later replaced its recording system and did not
retain possession of the old equipment, spoliation sanctions are not justified. Plaintiff has not
provided any evidence that even suggests that Deputy Klepadlo’s recording system contained
any relevant information. Crawford County has never indicated that a recording of the Reddie
incident existed. Because Klepadlo was not wearing his lapel microphone, no such recording
could exist. Absent some evidence that the recording system included relevant information,
Plaintiff cannot show that Crawford County had an obligation to preserve the replaced
equipment or that the decision to replace the equipment was made with “a culpable state of
mind.” Beaven, 622 F.3d at 553. Accordingly, Crawford County and Deputy Klepadlo will not
be sanctioned for evidence spoliation.
Even though the actions of Crawford County and Klepadlo did not constitute evidence
spoliation under the Beaven test, the Court is concerned about two remaining subjects. First,
there is a factual dispute regarding whether Sheriff Wakefield told Detective Sekely that there
was no recording system in Klepadlo’s car. According to Detective Sekely, Sheriff Wakefield
told him that there was no system and Detective Sekely recorded that fact in his report. Detective
Sekely relied upon Sherif Wakefield’s representation and did not independently search the
vehicle. Klepadlo’s representation that he was not wearing a lapel microphone during the
shooting stands uncontested, so the dispute over what exactly Detective Sekely was told is not
material. But the uncertainty regarding whether Klepadlo’s vehicle was equipped with a
recording system contributed to the MSP’s investigation and presumably to its conclusion that
the shooting was justified. Second, Crawford County should have retained Deputy Klepadlo’s
vehicle. Sheriff Wakefield admitted that his office received the FOIA request and notice to
preserve evidence from Plaintiffs and then subsequently disposed of the recording system. Even
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if no recording was ever made, Crawford County should have maintained possession of at least
the recording system to prove that it was inoperable. If Crawford County had maintained the
evidence, it would have put itself above reproach as regards the spoliation allegations.
Because Plaintiff has demonstrated that the City of Grayling and Somero spoliated
evidence, the next question is what degree of sanctions are appropriate. “District courts have
broad discretion to craft proper sanctions for the spoliation of evidence.” Adkins v. Wolever
(Adkins II), 692 F.3d 499, 503 (6th Cir. 2012) (citing Adkins v. Wolever (Adkins II), 554 F.3d
650, 652 (6th Cir. 2009)). Spoliation sanctions should be tailored to serve both “fairness and
punitive functions.” Adkins, 554 F.3d at 652. Further, the severity of the sanction should
correspond to the party’s culpability. Id. A party who is unable to produce evidence because the
party intentionally destroyed it will be treated more harshly than a party who lost the evidence
negligently. Appropriate sanctions can range from granting summary judgment, Adkins, 554 F.3d
at 653, to imposing a rebuttable presumption that the “missing evidence would favor the nonspoliating party,” One Beacon Ins. Co. v. Broad. Dev. Grp., Inc., 147 F. App’x 535, 541 (6th
Cir. 2005)), or simply instructing the jury that they may infer the “missing evidence would favor
the non-spoliating party.” Id. The One Beacon court described the rebuttable presumption as a
“‘middle ground’ approach appropriate for negligent loss of evidence” and described the
inference instruction as a “particularly mild sanction for spoliation.” Id.
As discussed above, Defendants’ actions exceed mere negligence. At best, Defendants
were remarkably reckless. At worst, Defendants intentionally destroyed evidence which might
have provided the only objective account of what occurred in Mr. Reddie’s apartment. If there
was no evidence other than the testimony provided at the evidentiary hearing, entry of summary
- 32 -
judgment for Plaintiff might well be justified. However, the August 3, 2016, opinion and order
considered all of the available evidence of the events in Mr. Reddie’s apartment. In that order,
the Court concluded not only that summary judgment should not be entered for the Plaintiff, but
that summary judgment for the Defendants was appropriate, pending the outcome of the
evidentiary hearing. Defendants’ actions regarding the recordings from Somero’s car suggest that
the recordings undermined Defendants’ theory regarding the shooting, but the unlawfulness of
the shooting has not been conclusively established. Given the absence of other evidence of
excessive force, summary judgment will not be entered for Plaintiff.
Rather, a rebuttable presumption that the destroyed recordings would have favored
Plaintiff will be imposed. The jury will be instructed that Defendants destroyed the recordings
from Somero’s vehicle. The jury will be further instructed that Defendants bear the burden of
proving that the contents of the recordings would not have favored Plaintiff. This sanction is
appropriate for two reasons. First, Sixth Circuit precedent describes the rebuttable presumption
sanction as a middle-ground in cases of negligent destruction of evidence. As already explained,
Defendants’ actions exceed mere negligence, meaning that this sanction is, if anything, a more
modest remedy. Second, Defendants have repeatedly professed ignorance during this evidentiary
dispute. Defendants purport to have no idea who took possession of the SD card, where the SD
card is now, who burned the disc, when the computer was replaced, when the ProVision system
was replaced, or whether the department received a notice to preserve evidence. It is unclear
whether Defendants’ inability to answer so many questions is the result of grossly incompetent
recordkeeping or purposeful obfuscation. What is clear is that Defendants should not be allowed
to profit from the missing information. Accordingly, Defendants will bear the burden of
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persuading the jury that the recordings would not have favored Plaintiff’s theory of excessive
Several issues remain. The City of Grayling and Somero are being sanctioned, but
Crawford County and Klepadlo did not spoliate evidence. Accordingly, the interaction of the
sanctions with Plaintiff’s claims against Crawford County and Klepadlo must be determined.
Additionally, the outstanding motions for summary judgment must be resolved. Finally,
Plaintiff’s motion for reconsideration of the Court’s August 3, 2016, order must be resolved.
If the presumption that the recordings from Somero’s vehicle would support Plaintiff’s
claims is not rebutted at trial, then the jury could reasonably find that Somero is liable for failing
to prevent the use of excessive force. See Floyd v. City of Detroit, 518 F.3d 398, 406 (6th Cir.
2008) (explaining that an officer who fails to prevent the use of excessive force can be held
liable when the officer had reason to know excessive force was being used and had the
opportunity and means to prevent the harm). Accordingly, granting Somero’s motion for
summary judgment would be unjustified. Further, summary judgment cannot be entered for
Klepadlo. Klepadlo did not engage in evidence spoliation. However, Klepadlo was the officer
who fired the fatal shot. If the presumption that the missing recording would have revealed
evidence supporting Plaintiff’s claims stands, and the jury finds against Somero, that conclusion
would necessarily involve a determination that Klepadlo acted with excessive force. It would
further mean that the jury did not believe Klepadlo’s sworn testimony regarding what occurred in
Mr. Reddie’s apartment. The rebuttable presumption, in combination with Plaintiff’s other
evidence of officer misconduct, thus raises a genuine issue of material fact regarding whether
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Klepadlo acted with excessive force and whether Somero failed to stop that use of excessive
force. Summary judgment cannot be granted for the individual Defendants.
However, Plaintiff’s only claim against the City of Grayling and Crawford County is that
their policies, procedures, or customs resulted in deprivation of Mr. Reddie’s constitutional
rights under Monell v. Dep’t of Soc. Servs. of City of New York, 436 U.S. 658 (1978). As
explained in the August 3, 2016, opinion and order, “Plaintiff has not presented evidence that
any of the concerning behavior was the policy of either municipality.” ECF No. 84 at 21. Even if
the jury decides that excessive force was used against Mr. Reddie, that conclusion would
establish only a single incident of unconstitutional action by city and county employees. Because
a single incident does not by itself constitute an unconstitutional custom, the rebuttable
presumption will not create a material issue of fact as to whether the City of Grayling or
Crawford County violated Monell.
Although Plaintiff may argue that Defendants’ apparently longstanding practice and
custom of ignoring needed repairs to recording equipment constitutes a Monell violation, there is
insufficient authority for that proposition. Indeed, because there is no constitutional requirement
that police departments utilize recording systems, a failure to repair existing systems can hardly
be unconstitutional. More importantly, Plaintiff’s Second Amended Complaint does not allege
that Crawford County and the City of Grayling violated Monell by not repairing their recording
Finally, Plaintiff could potentially argue that the testimony at the evidentiary hearing
revealed a policy and practice by the City of Grayling police of destroying adverse evidence in
criminal investigations. However, the evidentiary hearing established only one instance of
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evidence spoliation, albeit in several different stages. And Plaintiff’s Second Amended
Complaint does not allege that the City of Grayling violated Monell via a policy of evidence
spoliation. For those reasons, that claim is not before the Court. But such a claim might exist,
especially if, as Chief Baum admitted at the hearing, SD cards were “misplaced” by Grayling
Police Department officers in other cases as well. Regardless, that question cannot be resolved
because not raised in the allegations in the complaint and the evidence presented. Plaintiff is the
master of her complaint and chose not to allege a Monell claim based on evidence spoliation.
Accordingly, summary judgment will be entered for the City of Grayling and Crawford County.
For the reasons discussed in the Court’s August 3, 2016, order and in Section IV above,
Plaintiff’s motion for summary judgment will not be granted. Thus, the only remaining motion to
resolve is Plaintiff’s motion for reconsideration, ECF No. 87, of the Court’s August 3, 2016,
order. Specifically, Plaintiff is challenging the Court’s conclusion that Defendants Somero and
Klepadlo should be dismissed, pending the outcome of the evidentiary hearing. Plaintiff’s motion
for reconsideration will be denied because the motion is moot. At the time Plaintiff filed the
motion, neither Somero nor Klepadlo had been dismissed. Rather, the Court declined to enter
summary judgment until after the evidentiary hearing on the spoliation issue was held. As
explained, summary judgment will not be entered for Somero or Klepadlo. Thus, Plaintiff is
asking the Court to reconsider an order which was not actually entered and requesting a remedy
which has already been provided on a separate basis.
A motion for reconsideration will be granted if the moving party shows: “(1) a palpable
defect, (2) the defect misled the court and the parties, and (3) that correcting the defect will result
in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F. Supp. 2d
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731, 733-34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(g)(3)). Here, granting Plaintiff’s
motion for reconsideration would not result in a different disposition because Plaintiff’s
preferred disposition has already been ordered.18 Plaintiff’s motion for reconsideration will be
denied as moot.
Accordingly, it is ORDERED that Plaintiff’s motion for spoliation sanctions, ECF No.
57, is GRANTED in part. The jury will be instructed that Defendant Somero and the Grayling
Police Department destroyed the recordings from Somero’s vehicle. Defendants will bear the
burden of proving that the destroyed evidence would not have favored Plaintiff.
It is further ORDERED that Defendants’ motion for summary judgment, ECF No. 55, is
GRANTED in part and DENIED in part. The Defendants City of Grayling and Crawford
County are DISMISSED.
It is further ORDERED that Plaintiff’s motion for default judgment, ECF No. 57, is
It is further ORDERED that Plaintiff’s motion for summary judgment, ECF No. 58, is
It is further ORDERED that Plaintiff’s motion for reconsideration, ECF No. 87, is
DENIED as moot.
It is further ORDERED that the Scheduling Order is AMENDED as follows:
February 27, 2017
Motions in Limine:
March 14, 2017
Final Pretrial Order and Jury Instructions Due:
April 4, 2017
Even if Plaintiff’s motion for reconsideration were not moot, it would be denied. Plaintiff has not shown any
palpable defects in the Court’s reasoning in the August 3, 2016, order. Rather, Plaintiff merely reasserts arguments
and evidence already considered and rejected by the Court as insufficient to create a genuine issue of material fact.
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Final Pretrial Conference:
April 11, 2017 at 2:00 p.m.
April 25, 2017 at 8:30 a.m.
Dated: January 17, 2017
s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge
PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on January 17, 2017.
s/Michael A. Sian
MICHAEL A. SIAN, Case Manager
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