Greene v. Rochdale Village Inc. et al
Filing
91
ORDER re: 86 plaintiff's motion in limine: For the reasons stated in the attached opinion, plaintiff's motion is granted in part. Though plaintiff's request for spoliation sanctions is denied, defendant is precluded under Fed eral Rule of Evidence 403 from introducing the portion of video footage and associated photographs that depict individuals running out of a staircase and through a service hallway. Additionally, plaintiff may admit the first sentence from exhibit 14, though he must obtain a business-record certification if he wishes to admit the redacted document itself. Ordered by Judge Allyne R. Ross on 1/14/2019. (Zimmer, Allison)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
--------------------------------------------------------------------TROY GREENE,
Plaintiff,
-againstROCHDALE VILLAGE SPECIAL PATROLMAN
KENDALL BRYAN,
Defendant.
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15-cv-249 (ARR)(RER)
Not for electronic or print
publication
Opinion and Order
ROSS, United States District Judge:
On January 4, 2019, Troy Greene (“plaintiff”) submitted a motion in limine seeking the
following relief from this court: (1) a preclusion order barring Kendall Bryan (“defendant”) from
introducing video footage at trial; (2) an adverse inference jury instruction based upon the
destruction of relevant video evidence; and (3) admission into evidence of an exhibit that recounts
a statement the defendant alleges was made to him by plaintiff. Defendant opposed plaintiff’s
motion on January 10, 2019. For the following reasons, plaintiff’s motion is granted in part.
BACKGROUND
I assume familiarity with the underlying facts of this litigation, which are set forth in detail
in my order denying the parties’ motions for summary judgment. See Op. & Order, July 23, 2018,
ECF No. 75.
On December 7, 2013, defendant, a special patrolman who had been deputized as a peace
officer under New York City Administrative Code section 14-106(c), arrested plaintiff at Rochdale
Village, a private housing complex located in Jamaica, Queens. Id. at 1–2. During the course of
the incident, plaintiff suffered a tibial plateau fracture of his left leg. Id. at 4. He alleges that he fell
down the stairs when defendant pushed him, causing him to tumble from the fifth-floor landing
1
before eventually coming to a stop between the second and first floors. Id. at 7. Plaintiff was
subsequently charged with trespass, and on November 17, 2015, the case against him was
dismissed on speedy trial grounds. Id. at 9. Plaintiff asserts claims of excessive force, false arrest,
and malicious prosecution.
Jury selection and trial is set for February 4, 2019. On January 4, 2019, plaintiff moved in
limine to (1) admit plaintiff’s exhibit 14, (2) preclude defendant from introducing video footage
and associated photographs, and (3) obtain an adverse inference jury instruction regarding the
destruction of video evidence. See Pl.’s Mot., ECF No. 86.
1. Plaintiff’s Exhibit 14
Pursuant to section 710.30(1)(a) of the New York Criminal Procedure Law, the state must
provide a criminal defendant with “evidence of a statement made by a defendant to a public
servant” whenever the state “intend[s] to offer [such statement] at a trial.” Before the trespass
charge against plaintiff was dismissed, the state provided him with a notice—currently labeled
plaintiff’s exhibit 14—in compliance with the rule.1 The notice reports that the state intends to
offer evidence of an oral statement that plaintiff made to defendant while both parties were at
Jamaica Hospital on December 8, 2013 at 1:30.2 Pl.’s Ex. 14. Specifically, plaintiff was alleged to
have said, “in sum and substance,” “I jumped the steps from the 5th floor to the 4th, 4th to 3rd[,] and
Though defendant does not object to the introduction of plaintiff’s exhibit 10 in the joint pretrial
order, I note that exhibit 10, like exhibit 14, also recounts statements alleged to have been made
by plaintiff as part of the state’s obligations under section 710.30(1)(a).
1
2
The notice does not indicate whether the time was in the early morning or the afternoon, but
plaintiff asserts in his motion in limine that the statement was alleged to have been made at 1:30
a.m. See Pl.’s Mot. 14. Because the arrest occurred on the evening of December 7 and plaintiff
was subsequently taken to Jamaica Hospital for medical treatment, plaintiff’s timeline seems to
make sense, assuming that the statement was made soon after plaintiff had arrived at the hospital.
2
then started rolling down because I was in so much pain. I’m mad I’m in so much pain for a
summons. I was visiting someone. There was a brolic [sic] Spanish guy behind me.” Id.
During his deposition, defendant admitted that he told the district attorney about statements
he alleges plaintiff made to him after his injury. See Decl. of Richard J. Washington in Supp. of
Pl.’s Mot. for Summ. J. (“Washington Decl.”), Ex. 6, at 150, ECF No. 58-3 (“Bryan Dep.”).
Specifically, he testified that he reported to the D.A. that plaintiff told him that he “jumped from
the steps from the fifth floor to the fourth floor, fourth to the third, and then started rolling down
because he was in so much pain.” Id. at 153. He further testified that plaintiff made that statement
while both parties were in the hospital. Id.; see also Pl.’s Mot. 16–17 (arguing that defendant
admitted to providing a portion of the statement to prosecutors). Plaintiff did not ask defendant
about the other statements contained in plaintiff’s exhibit 14.
2. Video Footage from Rochdale Village
During discovery, defendant produced a video segment that captured footage from the
night of plaintiff’s arrest and injury. Pl.’s Mot. 1. Plaintiff asserts that the building where the
incident occurred, Building 9, had at least three other cameras that would have recorded relevant
footage during the incident, though this footage has not been provided to plaintiff. Id. He alleges
that Rochdale Village maintained cameras outside of the building, in its lobby, and inside the
elevator used by defendant to arrive at the fifth floor just prior to plaintiff’s arrest and injury. Id.
Plaintiff attempted to obtain this footage on multiple occasions, but he was unsuccessful. Id. 1–2.
From 2012 until the end of 2017, Marlon Small3 served as a DVR Investigator at Rochdale
Village. Washington Decl., Ex. 9, at 6–9, ECF No. 58-6 (“Small Dep.”). In that role, he was
3
Though both parties often refer to Mr. Small as Mr. Smalls, see, e.g., Joint Pretrial Order, ECF
No. 78, he signed and wrote his own name as “Marlon Small” on his declaration attached to the
3
responsible for locating and copying relevant video footage from the facility’s cameras. Id. at 8.
He regularly pulled video footage “whenever an incident happened on the complex,” including an
injury. Id. Each camera maintained by the complex records and saves video footage for up to thirty
days; if video footage is not pulled from the cameras within thirty days of its initial recording, the
footage is erased and new footage is recorded over it. Id. at 12–14, 27–28. Mr. Small testified that
the lobby of Building 9 has a camera, but he is not able to recall whether the camera was working
on December 7, 2013. Id. at 17. He also testified that the elevator in Building 9 has a camera,
though he could not recall whether it was operable at the time. Id. at 17–18. In an affidavit dated
January 10, 2019, he later clarified that the camera located in the elevator “w[as] pointed toward
the interior of the elevator . . . and would not capture the hallways on the floors.” Def.’s Reply Ex.
A, Small Aff. ¶ 12, ECF No. 88 (“Small Aff.”). Finally, he testified that he was not asked to pull
footage from the outside of Building 9, though he did not explicitly affirm that the complex
includes a camera in that location. Small Dep. at 17. However, defendant does not dispute the fact
that there is a camera positioned outside Building 9, and he has neither argued nor provided any
evidence to suggest that the cameras located in the lobby, outside Building 9, or in the elevator
were not in operation at the time of plaintiff’s injury and arrest. See Def.s’ Reply, ECF No. 88.
Within thirty days of December 7, 2013, Mr. Small was asked to retrieve video footage
recorded on that date. Small Dep. 14–15. Though he cannot recall who made the request, he
believes that the instruction came because the complex had completed an “aided injury” report
indicating that someone had been injured on the complex’s property. Id. He was instructed to
“capture the footage of one specific area” in connection with the injury, id. at 16, though he also
defendant’s reply to plaintiff’s motion in limine. See Def.’s Reply Ex. A, Small Aff., ECF No. 881 (“Small Aff.”). Therefore, I refer to him as Marlon Small, or Mr. Small, throughout this order.
4
testified that he frequently searched for footage on his own based on instructions from the
requesting officer, see id. at 25–26. The record is ambiguous, based on Mr. Small’s testimony and
subsequent affidavit, regarding the exact process used to pull the video footage recorded on
December 7, 2013. While the defendant argues that Mr. Small’s testimony reveals that he “pulled
all of the video that he believed to be relevant to the ‘aided’s injury,’” Defs.’ Reply 12 (emphasis
added), Mr. Small testified during his deposition that he was told “[t]o capture the footage of the
specific area” relevant to the aided injury report, and that he followed instructions accordingly.
Small Dep. 16–17. However, in an affidavit attached to defendant’s reply to plaintiff’s motion,
Mr. Small stated that he “retrieved the video footage that [he] believed to be related to the
incident,” Small Aff. ¶ 6; see also id. ¶ 8, suggesting that he exercised some authority in the
selection of footage. He does not know whether defendant was the person who asked that he
retrieve video from December 7, 2013, but, as a special patrolman, defendant would have had the
authority to direct him to do so. Small Dep. 18.
At trial, defendant intends to offer the video footage recorded by Mr. Small and
subsequently provided to plaintiff during discovery. The disc provided by defendant displays the
following key events: (1) several officers enter the front door of Building 9; (2) three individuals
run out of the stairwell and enter a service hallway; and (3) plaintiff appears slumped on the
staircase, and is subsequently surrounded by officers and later lifted onto a stretcher after
emergency medical technicians arrive in the building. Plaintiff maintains that this footage is
incomplete, as it does not include footage from the outside of Building 9, the lobby, or the elevator.
Pl.’s Mot. 1–2.
I.
Motion for Sanctions
5
Plaintiff’s request for a preclusion order and an adverse inference jury instruction can be
properly understood as a motion for sanctions related to defendant’s alleged spoliation of relevant
video evidence. “[A] court may impose sanctions on a party for misconduct in discovery under its
inherent power to manage its own affairs” or under Federal Rule of Civil Procedure 37, which
governs the discovery process. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99,
106–07 (2d Cir. 2002). Spoliation is defined as “the destruction or significant alteration of
evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably
foreseeable litigation.” West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999).
When crafting a sanction for a party’s spoliation, “a district court has broad discretion” and may
impose a variety of sanctions, including declaring a mistrial, delaying the start of a trial, or
providing the jury with an adverse inference instruction. Id.
As plaintiff acknowledges, see Pl.’s Mot. 9–11, Federal Rule of Civil Procedure 37(e),
which provides for sanctions in the event that “electronically stored information” is destroyed, is
the rule that best applies to his motion.4 See, e.g., Ungar v. City of New York, No. 15-CV-6091,
2018 WL 5777123, at *2 (E.D.N.Y. Nov. 2, 2018) (applying Rule 37(e) to a motion for sanctions
involving electronically stored video surveillance footage). Under Rule 37(e), a court may issue
sanctions if “electronically stored information that should have been preserved in the anticipation
Plaintiff’s lawsuit was filed on January 16, 2015, see Compl., ECF No. 1, about a year before
Rule 37(e) took effect on December 1, 2015. However, in his order accompanying the amendments
to the federal rules, Chief Justice John G. Roberts ordered that the amendments, including those
to Rule 37, shall apply to “all proceedings then pending” at the time that the new rule goes into
effect, “insofar as just and practicable.” CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488,
496 (citing 2015 U.S. Order 0017). Plaintiff does not present any argument for why the application
of Rule 37(e) would be unjust or impracticable and, indeed, he admits that the court may properly
seek to apply that rule to his motion. Furthermore, though defendant does not address which
version of the rule should apply to this motion, courts have held that the application of the rule to
the party against whom sanctions are sought is not inequitable because the amendment is more
lenient than the original rule. See id. at 496.
4
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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 Rule provides for two categories
of sanctions. First, after a party proves the threshold requirements of the rule, sanctions that are
“no greater than necessary” may be ordered if the party seeking sanctions suffered prejudice due
to the loss of the information. Fed. R. Civ. P. 37(e)(1). Alternatively, if the party seeking sanctions
proves that the opposing party “acted with the intent to deprive another party of the information’s
use in the litigation,” the court may impose more severe sanctions, including “instruct[ing] the jury
that it may or must presume the information was unfavorable to the party.” Fed. R. Civ. P.
37(e)(2)(B). The requirement of intent, which is unique to Rule 37(e), distinguishes the destruction
of electronically-stored information from alternative forms of evidence; for all other types of
evidence, a movant can obtain a severe sanction, including an adverse inference instruction, upon
a showing that a party engaged in only “negligent spoliation.” Ungar, 2018 WL 5777123, at *3
(citing Residential Funding Corp., 306 F.3d at 108).
Defendant first argues that plaintiff’s motion for sanctions should be barred because it is
untimely. See Def.’s Reply 6–7. “Rule 37 does not establish any time limits within which a motion
for sanctions must be filed, [but] unreasonable delay may render such motions untimely.” Ferrari
Club of Am., Inc. v. Bourdage, No. 6:12-CV-06530 EAW, 2017 WL 6419053, at *2 (W.D.N.Y.
Apr. 20, 2017) (quoting Shamis v. Ambassador Factors Corp., 34 F. Supp. 2d 879, 886 (S.D.N.Y.
1999)). Plaintiff initially expressed an intention to move for sanctions when he filed his pretrial
memorandum on September 6, 2018. See Pretrial Memorandum, ECF No. 79. Thus, though I only
recently asked that he brief his motion, his request actually came several months ago. Additionally,
plaintiff’s motion involves a relatively narrow set of facts, and the parties do not dispute many of
the relevant facts—including that there may have been other video footage taken of the incident
7
on December 7, 2013 and that any other footage has since been destroyed. Cf. Goodman v. Praxair
Servs., Inc., 632 F. Supp. 2d 494, 508 (D. Md. 2009) (noting that the timeliness of a spoliation
motion is particularly important when it will require the court to engage in an evidentiary hearing
or reopen discovery to identify relevant facts).
However, even assuming that plaintiff’s motion is timely, he fails to demonstrate that he is
entitled to sanctions.
A. Though defendant may have been in control of the relevant video footage, he did not
have a duty to preserve it at the time that it was destroyed.
The party seeking spoliation sanctions has the burden of establishing that he meets the
elements under Rule 37. See Tchatat v. O’Hara, 249 F. Supp. 3d 701, 706 (S.D.N.Y. 2017),
objections overruled, No. 14 Civ. 2385 (LGS), 2017 WL 3172715 (S.D.N.Y. July 25, 2017).
Plaintiff’s motion fails to demonstrate the threshold requirements for the issuance of sanctions
under Rule 37(e): that the evidence should have been preserved and that it was lost “because [the]
party failed to take reasonable steps to preserve it.” Though this language differs slightly from the
language applicable to non-electronic evidence, a party seeking sanctions under either rule must
demonstrate that there was an obligation to preserve the evidence, which can be met by
demonstrating that the party “was on notice that litigation was likely and that the information
would be relevant.” Leidig v. Buzzfeed, Inc., No. 16 Civ. 542 (VM) (GWG), 2017 WL 6512353,
at *8 (S.D.N.Y. Dec. 19, 2017) (quoting Fed. R. Civ. P. 37(e) advisory committee’s note to 2015
amendment); see also id. (noting that the duty to preserve standard under Rule 37(e) “is the same
standard applicable to the traditional spoliation test”).5 “Th[e] obligation to preserve evidence
5
Plaintiff does not argue that the standard differs between the two rules or that Rule 37(e) imposes
a greater obligation on a defendant to preserve evidence. If he did, such an argument would be
unavailing. See, e.g., Distefano v. Law Offices of Barbara H. Katsos, PC, No. CV 11-2893 (PKC)
(AKT), 2017 WL 1968278, at *3 (E.D.N.Y. May 11, 2017) (“Rule 37(e) does not purport to create
8
arises when the party has notice that the evidence is relevant to litigation—most commonly when
suit has already been filed, . . . but also on occasion in other circumstances, as for example when
a party should have known that the evidence may be relevant to future litigation.” Kronisch v.
United States, 150 F.3d 112, 126 (2d Cir. 1998).
The party seeking sanctions must show that the opposing party had control over the
evidence. See Residential Funding Corp., 306 F.3d at 107. A party need not maintain exclusive
physical control over the relevant evidence in order to be deemed “in control.” See In re NTL, Inc.
Sec. Litig., 244 F.R.D. 179, 195 (S.D.N.Y. 2007) (“[D]ocuments are considered to be under a
party’s control when that party has the right, authority, or practical ability to obtain the documents
from a non-party to the action.” (quoting Bank of N.Y. v. Meridien BIAO Bank Tanz. Ltd., 171
F.R.D. 135, 146–47 (S.D.N.Y. 1997), aff’d sub nom. Gordon Partners v. Blumenthal, No. 02 Civ.
7377(LAK), 2007 WL 1518632 (S.D.N.Y. May 17, 2007)). Here, Mr. Small testified during his
deposition that defendant would have had the power to ask him to retrieve video footage related
to plaintiff’s arrest and injury. Small Dep. at 18. This is likely sufficient to demonstrate that
a duty to preserve. The new rule takes the duty as it is established by case law, which uniformly
holds that a duty to preserve information arises when litigation is reasonably anticipated.” (quoting
Comm. On Rules of Practice & Procedure, Report to the Judicial Conference, at App. B-15 (Sept.
2014), http://www.uscourts.gov/file/14523/download)). To be sure, the standard that applies to
non-electronic evidence has been developed in the case law to require that the “defendants ‘had an
obligation to preserve [the evidence] at the time it was destroyed.’” Tchatat, 249 F. Supp. 3d at
707 (alteration in original) (quoting Chin v. Port Authority of New York & New Jersey, 685 F.3d
135, 162 (2d Cir. 2012)). This language more plainly indicates that the relevant inquiry revolves
around the responsibilities and obligations of a particular party, as opposed to the more ambiguous
language of Rule 37(e) itself, which asks about whether “electronically stored information . . .
should have been preserved” without identifying a specific individual as the responsible party.
However, given the clear instructions of the Standing Committee, I find that the obligations are
identical, notwithstanding the slight differences in language.
9
defendant had the right, authority, and practical ability to obtain the relevant evidence and would
have been in a position to preserve it—thus establishing control.
However, plaintiff fails to demonstrate that defendant himself was under a duty to preserve
the relevant evidence, as opposed to Rochdale Village or other former defendants to the action.6
He makes two primary arguments: (1) that defendant had a duty to preserve the evidence because
he was aware that plaintiff would be prosecuted in a criminal case, and (2) that defendant was
aware that there may be future civil litigation filed against him. Pl.’s Mot. 6–7. Both arguments
fail to establish that defendant had an obligation to preserve the video footage.
First, though plaintiff argues that “[t]he complete video was relevant to the criminal case
that began the moment Plaintiff was arrested,” id. at 6, “there is no free-floating obligation to
preserve evidence in a criminal prosecution.” Tchatat, 249 F. Supp. 3d at 709. Though the
prosecution must preserve and provide exculpatory evidence as part of its obligations under Brady
v. Maryland, 373 U.S. 83 (1963), that obligation applies only to “evidence that is actually favorable
to the accused, not to ‘preliminary, challenged, or speculative information,’” Tchatat, 249 F. Supp.
3d at 709–10 (quoting United States v. Agurs, 427 U.S. 97, 109 n.16 (1976)). Furthermore, the
obligation applies only to evidence in the government’s possession, id. at 710; here, the evidence
was in the possession of a private housing complex, not the prosecuting officers. Therefore,
plaintiff’s arrest did not, on its own, impose a duty upon either Bryan or Rochdale Village to
preserve any video footage that might have been relevant to plaintiff’s criminal case.
Additionally, while plaintiff has presented evidence that suggests that some individuals at
Rochdale Village might have been aware that plaintiff could later bring civil litigation against the
Earlier in the litigation, Rochdale Village Inc. was named as a defendant to plaintiff’s lawsuit,
though the housing complex was later terminated as a defendant when plaintiff filed a second
amended complaint on May 3, 2018. See Compl.; Am. Compl., ECF No. 68.
6
10
complex and its officers, he has not provided evidence to indicate that Bryan was himself aware
of the possibility of future litigation. Plaintiff notes that plaintiff’s mother called the complex
several times while plaintiff was in the hospital, “threatening lawsuits and legal action” against the
officers who had arrested him. Pl.’s Mot. 7 (citing Washington Decl. Ex. 20, ECF No. 60-3
(“Unusual Occurrence Report”)). In a form addressed to Chief Thomas Mason, Sergeant Curtis
Rogers recounted the events leading up to and during plaintiff’s hospital stay. He wrote that
“[Greene’s] mother has continuously called threatening lawsuits and legal action and is unaware
of the capabilities of a New York City Peace Officer.” Unusual Occurrence Report. However, the
form does not indicate the source of this information, and it contains no information to suggest
that defendant himself was aware of plaintiff’s mother’s phone calls. Indeed, in his deposition,
Bryan testified that he had no knowledge that any members of plaintiff’s family attempted to visit
plaintiff while he was in the hospital, and he said that he was “not sure” whether Sergeant Rogers
“generate[d] a memo regarding Mr. Greene’s family attempting to visit him.” Bryan Dep. at 162.
Plaintiff’s evidence fails to establish that defendant was aware or should have been aware that he
may later be named as a defendant in a civil case brought by plaintiff.
While it is true that “certain types of incidents tend to trigger litigation,” Taylor v. City of
New York, 293 F.R.D. 601, 610 (S.D.N.Y. 2013), an obligation to preserve evidence arises only
where the party with knowledge of the potential for future litigation was the party that failed to
preserve the evidence. For example, in Field Day, LLC v. County of Suffolk, the court declined to
impose spoliation sanctions upon the individual defendants, finding that, while there was sufficient
evidence in the record to show that the county had notice of future litigation after the plaintiff filed
a notice of claim form, there was no evidence that the individual defendants were themselves aware
of the possibility of future litigation until plaintiff filed a lawsuit. No. 04-2202, 2010 WL 1286622,
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at *5 (E.D.N.Y. Mar. 25, 2010); see also Grant v. Salius, No. 3:09cv21 (JBA), 2011 WL 5826041,
at *2 (D. Conn. Nov. 18, 2011) (declining to impose sanctions upon individual defendants where
there was no evidence that the individuals—as opposed to others connected to the events and
litigation—“had any control over the recordings, any duty to maintain them, or were in any way
involved in the failure to preserve them”); Parlin v. Cumberland County, No. 08-cv-186-P-S, 2009
WL 2998963, at *2 (D. Me. Sept. 16, 2009) (holding that, while the county, a former defendant to
the action, was responsible for the destruction of evidence, “there is nothing in the record
indicating that [the only remaining individual defendants] were involved in the destruction of the
videotape,” and thus sanctions were inappropriate). Likewise, where the evidence demonstrates
that another party—and not the defendant against whom sanctions are sought—was responsible
for record-maintenance, courts have declined to impose sanctions against a defendant who
reasonably expected that the other party would assume the responsibility of preservation. See
Braham v. Lantz, No. 3:08cv1564(DEW), 2014 WL 1270096, at *5 (D. Conn. Mar. 27, 2014).
The record before me fails to demonstrate that defendant either knew or should have known
that litigation was likely, and thus, plaintiff has not met his burden of demonstrating that defendant
had an obligation to preserve the evidence. While other former defendants to the action may have
had a duty to preserve the video footage, their failure to do so is insufficient to impose spoliation
sanctions upon defendant.7
B. Certain video footage is inadmissible under Federal Rule of Evidence 403.
Even if plaintiff’s evidence did establish that defendant was under a duty to preserve the evidence,
he would not be entitled to the severe sanction of an adverse inference, as nothing in the record
remotely demonstrates that the failure to preserve the relevant video footage was intentional as
opposed to merely negligent. See, e.g., Ungar, 2018 WL 5777123, at *4 (noting that the fact that
the defendant “acted without the requisite intent . . . is fatal to Plaintiff’s request for an adverse
inference instruction” under Rule 37(e)).
7
12
Though I find that sanctions under Rule 37(e) are inappropriate, I am persuaded by
plaintiff’s argument that defendant should be precluded from introducing certain video footage
under Federal Rule of Evidence 403. Rule 403 authorizes a court to “exclude relevant evidence if
its probative value is substantially outweighed by a danger of . . . unfair prejudice, . . . misleading
the jury, . . . or needlessly presenting cumulative evidence.” Defendant seeks to introduce several
minutes of video footage and associated still images. Plaintiff argues that the portion of the video
that “depicts several individuals (not the Plaintiff) fleeing from the stairwell” should be precluded
under Rule 403 because it “has little probative value, and threatens to mislead the jury as to the
events that preceded the video segment.” Pl.’s Mot. 11. I agree.
It is undisputed that several individuals who were on the fifth floor of Rochdale Village
fled the scene after the officers, including defendant, exited the elevator. See, e.g., Pl.’s 56.1
Statement ¶ 35, ECF No. 57-2. In his deposition, plaintiff himself testified that everyone other than
plaintiff and his friend Jonathan Skinner ran from the officers after the officers arrived on the fifth
floor. See Washington Decl. Ex. 4, at 158, ECF No. 58-1. Skinner also testified that several men
fled after the security officers arrived. See Washington Decl. Ex. 12, at 94, ECF No. 60-1. Thus,
the portion of the video footage that depicts several men—not including plaintiff—running out of
the stairwell and into a service hallway is minimally probative, as the information it displays is not
in dispute and will be confirmed by several of the witnesses who will testify at trial.
In contrast, there is a serious danger that the footage would mislead the jury, as it could be
misinterpreted as evidence that plaintiff also fled from the officers. Defendant maintains that
plaintiff ran as soon as the officers arrived, and he argues that plaintiff’s flight helped to establish
either probable cause or arguable probable cause for his arrest. By depicting several individuals
13
running to escape the officers, the video could be misinterpreted by the jury as evidence that
plaintiff was part of that same group before he suffered his injury.
After balancing the potential for misinterpretation against the minimally probative nature
of the footage, I conclude that this portion of the footage should be precluded under Rule 403. The
footage’s very slight probative value is substantially outweighed by the danger that it will be
misleading and unnecessarily cumulative, as it duplicates information that will be repeated by
several witnesses and could mislead the jury into believing that it proves a fact that is heavily
disputed.
II.
Plaintiff’s Exhibit 14
Plaintiff’s motion argues that he should be allowed to admit exhibit 14 at trial. As discussed
above, the document recounts a statement allegedly made by plaintiff and later repeated by the
defendant to Queens County prosecutors. Defendant argues that the statement is “a double hearsay
statement and inadmissible as a matter of law.” Def.s’ Reply 17. I disagree, though I conclude that
plaintiff is authorized to admit only a portion of the statement and that he must obtain a businessrecord certification if he wishes to introduce the document itself at trial.
Though defendant is correct that there are two layers of potential hearsay contained in this
statement, see id., both are resolved by exceptions to the hearsay rule. First, the document recounts
a statement that plaintiff was alleged to have said. However, plaintiff denies having ever made the
statement, and instead seeks to argue that the statement was “fabricated” by defendant “in an effort
to conceal his actions in pushing the Plaintiff down the stairs.” Pl.’s Mot. 15. Because the rule
against hearsay applies only to statements offered by a party “to prove the truth of the matter
asserted in the statement,” Fed. R. Evid. 801(c)(2), the statement is not hearsay, as plaintiff seeks
to introduce the statement to discredit the defendant rather than to prove the truth of its substance.
14
Second, the document recounts a statement that defendant was alleged to have said. This
layer of hearsay is resolved by the party-opponent-statement exception, which allows a party to
introduce an out-of-court statement against an opposing party where “the [opposing] party
manifested that it adopted or believed [the statement] to be true.” Fed. R. Evid. 801(d)(2)(B). In
his deposition, defendant testified that he made a portion of the statement provided in exhibit 14
to the prosecutors, recounting a statement made to him by plaintiff. See Bryan Dep. at 153. After
he was asked whether he communicated the first sentence, defendant acknowledged that he made
this statement. See id. Thus, defendant “adopted” a portion of the statement as his own, and the
statement is not hearsay within the meaning of Rule 801(d)(2)(B).
However, because defendant was not asked about the other sentences contained in exhibit
14, he neither adopted those statements nor admitted that they represent statements he made to the
prosecutors. Those additional sentences are thus inadmissible, because defendant has not
confirmed that he heard plaintiff make those statements or that he then repeated those statements
to the prosecutors. Cf. Abreu v. City of New York, No. 04-CV-1721 (JBW), 2006 WL 401651, at
*8–9 (E.D.N.Y. Feb. 22, 2006) (declining to admit a 710.30(1)(a) statement because the defendant
testified “that he did not recall hearing the statement” and the statement’s relevancy was dependant
on a finding that defendant “did, in fact, attribute [the statement] to plaintiff”).
As a result, plaintiff may introduce the first sentence of exhibit 14, as it was adopted by
defendant during his deposition. If he wishes to introduce the remainder of exhibit 14, he must
redact the other sentences and obtain a business-record certification pursuant to Rule 803(6)(D).
Alternatively, plaintiff may use defendant’s deposition testimony to introduce the statement
contained in the first sentence of exhibit 14 without introducing the written document itself.
15
During the pretrial telephone conference scheduled for January 16, 2019, plaintiff’s
counsel should be prepared to provide the court with information about the manner in which he
intends to introduce this statement at trial so that the court may craft an appropriate limiting jury
instruction.
CONCLUSION
For the foregoing reasons, plaintiff’s motion in limine is granted in part. While plaintiff’s
request for spoliation sanctions is denied, defendant is precluded under Federal Rule of Evidence
403 from introducing the portion of video footage and associated photographs that depict
individuals running out of a staircase and through a service hallway.8 Additionally, plaintiff may
admit the first sentence from exhibit 14, though he must obtain a business-record certification if
he wishes to admit the redacted document itself.
SO ORDERED.
Date: January 14, 2019
Brooklyn, New York
_____/s/________________
Allyne R. Ross
8
The parties have not discussed any objections to the other two events captured in the video
footage: (1) the arrival of the officers to Building 9; and (2) the arrival of emergency medical
technicians and the subsequent removal of plaintiff from the stairwell on a stretcher. Because these
events are not disputed, I assume that the defendant does not intend to offer this footage or the
associated photographs into evidence.
16
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