Palmer v. Allen et al

Filing 116

OPINION AND ORDER DENYING PLAINTIFF'S MOTION FOR SANCTIONS DUE TO SPOLIATION OF EVIDENCE 112 . Signed by District Judge Gershwin A. Drain. (TBan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

EMMANUEL PALMER,
Case No. 14-cv-12247

Plaintiff,

UNITED STATES DISTRICT COURT JUDGE
GERSHWIN A. DRAIN

v.
RYAN ALLEN, et al.,

UNITED STATES MAGISTRATE JUDGE
DAVID R. GRAND

Defendants.
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OPINION AND ORDER DENYING PLAINTIFF’S MOTION FOR SANCTIONS DUE TO
SPOLIATION OF EVIDENCE [112]
I. INTRODUCTION
On August 25, 2016, Plaintiff filed a Motion for Sanctions, seeking a
judgment of liability against former defendant City of Ecorse for allegedly
destroying video evidence from the jail. Dkt. No. 11, p. 2 (Pg. ID No. 3144).
Defendants Ryan Allen and Christoval Trevino responded on September 8, 2016.
Dkt. No. 114. A hearing was held on the motion on September 27, 2016.

II. BACKGROUND
On June 21, 2016, the Court issued an order granting in part and denying in
part Defendants’ Motion for Summary Judgment [73]. See Dkt. No. 89. In that
order, the Court dismissed all claims against the City of Ecorse, including Count
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V: Destruction of Evidence. Id. at pp. 26–31 (Pg. ID No. 1179–84). In the Court’s
ruling on this claim, the Court noted that Palmer could not sustain a claim related
to his cellphone, as it had been returned to him with the video intact. Id. at 26.
In the second part of his destruction of evidence claim, Palmer sought to
hold all of the defendants liable for destruction of the jail video. The Court
dismissed his claim against Defendants Allen and Trevino, as Palmer had not
produced any evidence that either of the two ever possessed or controlled the
video. Dkt. No. 89, pp. 29–30 (Pg. ID No. 1182–83). The Court also dismissed
Palmer’s claim against the City of Ecorse, which attempted to hold the City liable
“[t]hrough the doctrine of respondeat superior[.]” Dkt. No. 53, p. 16 (Pg. ID No.
287).
In light of this procedural posture, the Court now considers Palmer’s motion
for sanctions against the City of Ecorse.

III. LEGAL STANDARD
“A federal court’s inherent powers include broad discretion to craft proper
sanctions for spoliated evidence.” Automated Sols. Corp. v. Paragon Data Sys.,
Inc., 756 F.3d 504, 513 (6th Cir. 2014) (quoting Adkins v. Wolever, 554 F.3d 650,
651 (6th Cir. 2009) (en banc)). Rule 37(e) of the Federal Rules of Civil Procedure
governs the burden of proof and available sanctions for failure to preserve
electronically stored information.
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An amended version of Rule 37(e) applied to civil cases commenced after
December 1, 2015, “and, insofar as just and practicable, all proceedings then
pending.” See 2015 U.S. Order 0017; 28 U.S.C. § 2074(a). The previous rule,
adopted in 2006, stated:
Absent exceptional circumstances, a court may not impose sanctions
under these rules on a party for failing to provide electronically stored
information lost as a result of the routine, good-faith operation of an
electronic information system.
FED. R. CIV. P. 37(e) (effective until Nov. 30, 2015). The version of Rule 37(e)
effective as of December 1, 2015 states:
If electronically stored information that should have been preserved in
the anticipation or conduct of litigation is lost because a party failed to
take reasonable steps to preserve it, and it cannot be restored or
replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to cure the
prejudice; or
(2) only upon finding that the party acted with the intent to deprive
another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the
party;
(B) instruct the jury that it may or must presume the
information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
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FED. R. CIV. P. 37(e) (effective Dec. 1, 2015).

IV. DISCUSSION
Palmer filed the present case before December 1, 2015, when the amended
Rule 37(e) became effective. He filed the present motion on August 25, 2016, well
after the amended Rule 37 went into effect.
In the opinion of the Court, application of the amended Rule 37(e) to the
pending proceeding is both feasible and just. Cf. Applebaum v. Target Corp., No.
15-2198, 2016 WL 4088740, at *4 (6th Cir. Aug. 2, 2016) (noting that how the
amended version of Rule 37(e) would apply to a case filed in 2011). As stated
recently in this district, “[w]hile the language of the rules changed, the spirit and
principles underlying them have not materially changed in a manner adverse to
[the moving party].” Konica Minolta Bus. Sols., U.S.A. Inc v. Lowery Corp., No.
15-CV-11254, 2016 WL 4537847, at *3 (E.D. Mich. Aug. 31, 2016) (noting the
similarities and distinctions between the two versions of Rule 37(e) and applying
the new Rule 37(e) to alleged conduct occurring before the rule amendment).
Nevertheless, Palmer’s motion for sanctions fails regardless of the version of
37(e) applied by the Court. Both the new and old versions of Rule 37(e) specify
that sanctions are applicable to a “party” who failed to preserve electronically
stored information. See FED. R. CIV. P. 37(e) (effective until Nov. 30, 2015); FED.
R. CIV. P. 37(e) (effective Dec. 1, 2015). All claims against the City of Ecorse were
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dismissed in the order on summary judgment, and thus it is no longer a party to the
litigation. See Dkt. No. 89, p. 48 (Pg. ID No. 1201) (specifying that the only
remaining claims were Count I against Allen and Trevino; Count VII against
Trevino; Count XI against Allen and Trevino; and Count XII against Trevino).
Since Palmer did not provide any argument or evidence that Defendants Allen and
Trevino intentionally destroyed the video evidence in dispute, his motion is denied.
At the hearing on this motion, the Court learned for the first time that the
videos of the alleged assault in the jail were not destroyed and were in fact recently
recovered. It is deeply concerning that videos requested by the Plaintiff two years
ago, see Dkt. No. 15, have only just materialized. The explanations as to why the
video was unavailable for the four years after the incident have varied. First, the
City of Ecorse claimed that “[b]ased on information and belief,” the jail video was
“no longer in Defendants’ possession.” Dkt. No. 23, p. 2 (Pg. ID No. 87). Then, in
March 2015, Defendants’ counsel stated that the jail video was unavailable
because a “catastrophic failure of jail video equipment” resulted in no video being
available from the entire calendar year 2012. Dkt. No. 112-7, p. 2 (Pg. ID No.
3243). However, when Plaintiff’s expert examined the hard drive, thousands of
video files were found. Dkt. No. 112, p. 11 (Pg. ID No. 3153). Defendants’ counsel
now states that their own expert found video from the night of the incident in those
files, and that the video disproves Plaintiff’s allegations.
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In every case, there must be a reasonably diligent effort to comply with
legally proper discovery requests. See Model Rules of Prof’l Conduct R. 3.4(d)
(2015). While the Court does not find that there was an absence of effort in this
case, it is discouraging that it took two years to recover this video. In the interim,
the Court invested a significant amount of time working to resolve motions that
could have been more expeditiously resolved with video evidence. Moreover, case
evaluation and settlement conferences were conducted based on incomplete
evidence and allegations that the video may serve to prove or disprove. The Court
hopes that limited judicial resources will be used more conscientiously in the
future.

V. CONCLUSION
Palmer’s Motion for Sanctions Due to Spoliation of Evidence [112] is
DENIED. Neither party will be awarded costs, interest, or attorneys’ fees related
to work on the present motion. 
IT IS SO ORDERED.
Dated:

September 28, 2016
/s/Gershwin A Drain
HON. GERSHWIN A. DRAIN
United States District Court Judge

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