Graham v. Lone Grove, City of et al

Filing 159

ORDER by Magistrate Judge Kimberly E. West denying 124 Motion to Compel. (adw, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
TRAVIS GRAHAM,
Plaintiff,
v.
CITY OF LONE GROVE, OKLAHOMA,
an Oklahoma municipality;
BOARD OF COUNTY COMMISSIONERS
FOR CARTER COUNTY, an Oklahoma
Political Subdivision;
CHRIS BRYANT, in his official
and individual capacities;
DAVID JONES, individually;
ROBERT OLDHAM, in his official
and individual capacities; and
GILBER HENSLEY, individually,
Defendants.

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Case No. CIV-19-298-JFH

O R D E R
This matter comes before the Court on Plaintiff’s Motion to
Compel from Defendant Lone Grove (Docket Entry #124).

United

States District Judge John F. Heil who presides over this case
referred this Motion to the undersigned for final determination.
In this civil rights action, Plaintiff seeks all bodycam video
footage in the possession of Defendant Lone Grove stemming from
the shooting of Plaintiff by one of its officers.

Specifically,

at issue is three seconds of bodycam video from the camera affixed
to Officer Gilbert Hensley of the Lone Grove Police Department
during the alleged shooting of Plaintiff during a welfare check at
Plaintiff’s home.

The evidence provided in connection with the Motion indicates
that during the events at Plaintiff’s home, Officer Hensley was
wearing a bodycam which had allegedly been malfunctioning prior to
the relevant events.

The problems with the camera had existed for

some time prior to the incident.
After the shooting, the video footage was uploaded to the
Lone Grove Police Department’s dedicated bodycam computer.

The

file was then copied and provided to the Oklahoma State Bureau of
Investigation (“OSBI”) by Captain Stephen Holland with the Lone
Grove Police Department, Officer Hensley’s superior.

Defendant

Lone Grove responds that the video was saved to three separate
external drives to insure it was not lost, altered, or deleted.
Defendant Lone Grove states that the video provided to the OSBI is
the same video produced to Plaintiff in discovery in this case.
This video is approximately three seconds in duration.
During the depositions of Officer Brittani Armstrong and
Chief Robert Oldham, both with the Lone Grove Police Department,
it came to light that they had observed some three to five seconds
of additional video which precedes the video produced in discovery.
Both officers testified that the additional video footage shows
Plaintiff kicking his trailer house door open prior to the shooting
of Plaintiff by Officer Hensley.

Officer Armstrong stated in her

deposition that the video was viewed multiple times.
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Plaintiff states that he made a supplemental request for any
additional bodycam video footage from Defendant Lone Grove based
upon this deposition testimony.

No further footage has been

produced.
Plaintiff states in his Motion that he
is filing this Motion to ensure that if the footage is
(sic) still exists – on the camera, backed upon on a
server or to the cloud, or on a disk of some variety –
that it be ordered produced so Plaintiff can view it in
preparation for trial. Further, Plaintiff understands
that a Motion to Compel is a required procedural
prerequisite to enable the Court to issue discovery
sanctions beyond the inherent equitable authority of the
Court.
Plaintiff

requests

in

his

prayer

for

relief

that

the

additional footage be produced and, in the event it cannot be
produced, an affirmative statement from Defendant Lone Grove that
additional footage existed but is no longer available and the
reason for its unavailability.

Plaintiff also requests that

Defendant be ordered to pay Plaintiff’s attorney fees and costs
associated with the filing of the Motion.

He further requests

leave to re-depose Defendants at Defendant Lone Grove’s cost
“regarding any video hereafter produced should need arise after
viewing the footage.”
Defendant

Lone

Grove’s

response

attempts to address Plaintiff’s concerns.

to

Plaintiff’s

Motion

Defendant states that,

by design, the Vista model bodycam manufactured by WatchGuard was
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activated manually by Officer Hensley upon his encounter with
Plaintiff.

It acknowledges that the bodycam malfunctioned on the

night of Plaintiff’s shooting and the procedures for preservation
of the video and dissemination to the OSBI as a part of its
investigation.
Upon being informed of the possible existence of additional
video, Defendant Lone Grove undertook and internal review of the
bodycam

computer

system,

retaining

a

third-party

forensics company to locate the additional video.

computer

Defendant Lone

Grove also contacted WatchGuard’s customer service senior manager.
WatchGuard then reviewed the video from Officer Henley’s bodycam
and offered an explanation for the additional video.

According to

WatchGuard, a software anomaly existed in the WatchGuard software
wherein the viewer of recorded video on the bodycam was permitted
to view up to two seconds of “pre-roll” prior to the camera’s
record function being activated.

According to WatchGuard, “pre-

roll” was an unadvertised function of the camera’s software and
only potentially viewable when the camera was physically connected
to a docking station, the docking station was connected to a
computer, and the computer was on and actively operating the
WatchGuard software. The video file uploaded to the computer would
use the buffered video file on the camera, which contained the

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“pre-roll” video.

Once the camera was disconnected from the

docking station, normal operation of the camera would overwrite
the “pre-roll” video footage within three days of use or sooner if
operated at 1080i resolution.

The “pre-roll” feature in the

software was found to be undesirable and a security update patch
for the Vista cameras was released after the incident related in
this action which eliminated the feature.
Most importantly, the Vista cameras automatically uploaded
the video files to a computer once placed in a functional docking
station connected to a computer with the WatchGuard software
installed.

The cameras, however, do not upload the “pre-roll”

video nor could the “pre-roll” video be transferred from a bodyworn camera to the WatchGuard computer software and the software
does

not

permit

representative

video

splicing

confirmed

that

or
the

editing.

The

additional

WatchGuard

video

footage

observed by Officer Armstrong and Chief Oldham was likely “preroll” video and was only viewable when initially docked to the
computer and when disconnected, could not be viewed again and would
be overwritten.
While

See Defendant Lone Grove’s Objection at Exh. 7.

Defendant

Lone

Grove

anticipates

a

request

for

a

spoliation instruction and sanctions as a result of its inability
to produce the additional video from the bodycam, Plaintiff’s

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Motion

only

extends

to

requesting

an

order

production of the additional video, if it exists.

compelling

the

This Court will

not enter into a speculative ruling based upon unrequested relief.
Plaintiff sought the production of the additional video under
Fed. R. Civ. P. 34(a), which provides in pertinent part:
(a)

In General. A party may serve on any other party a
request within the scope of Rule 26(b):

(1)

to produce and permit the requesting party or its
representative to inspect, copy, test, or sample
the following items in the responding party's
possession, custody, or control:
(A)

any designated documents or electronically
stored
information--including
writings,
drawings, graphs, charts, photographs, sound
recordings, images, and other data or data
compilations--stored in any medium from which
information can be obtained either directly
or, if necessary, after translation by the
responding party into a reasonably usable
form;

Should the party requesting the discovery not receive it from
the party from whom it is requested, a motion to seek to compel
production under Fed. R. Civ. P. 37(a)(3)(B) may be filed as
Plaintiff has done in this instance.

It is clear, however, that

“[t]he Court cannot compel a party to produce documents that do
not exist or that are not in that party's possession, custody, or
control.”

Sonnino v. Univ. Kansas Hosp. Auth., 220 F.R.D. 633,

640 (D. Kan.), on reconsideration in part sub nom. Sonnino v. Univ.

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of Kansas Hosp. Auth., 221 F.R.D. 661 (D. Kan. 2004).
Defendant Lone Grove has engaged in a thorough investigation
into

the

circumstances

surrounding

the

disposition

of

the

additional video revealed during the depositions of two of the
employees of the police department.

Plaintiff has not shown any

basis for this Court to doubt the sincerity of Defendant’s efforts
or the accuracy of the explanation given concerning the mechanics
and deficiencies of the Vista camera or the WatchGuard software as
confirmed

by

that

company’s

representative.

The

evidence

presented would indicate that the additional video footage was not
capable of being retained by any means allowed by the software.
Additionally, this Court has no been provided no information
which

would

demonstrate

that

Captain

Holland

–

the

party

responsible for preserving the video – deviated from the police
department’s procedure for preservation or engaged in activity
which was inconsistent with securing the content of the video.

He

immediately transferred the video to a series of computer hard
drives and transmitted it to the OSBI for their investigation.
Moreover, this Court must also consider the only evidence
that exists as to the content of the additional video – the
testimony of Officer Armstrong and Chief Oldham.

It would appear,

at best, the video showed an additional three to five seconds of

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Plaintiff opening the door to his trailer house prior to the
shooting.

The two officers’ testimony was consistent in this

revelation.

Nothing in this brief recitation of the video’s

content would permit an adverse interpretation of the omitted
video.

But, again, the final determination on this issue is best

left to an appropriate request for a spoliation instruction, should
one be filed.
Because it is clear that the video no longer exists and was
not capable of being retained, the Motion will be denied.
Plaintiff

wish

to

pursue

a

deposition

of

the

Should

WatchGuard

representative or some other discovery with that entity in order
to confirm the facts surrounding the additional video, he may do
so with the appropriate discovery request.
The Court notes that Defendant Lone Grove included a request
for oral argument on the Motion because of an “anticipated attempt
to obtain a spoliation instruction.”

Since no such request for a

spoliation instruction has been made at this juncture, this Court
finds oral argument would not assist in the resolution of the
Motion.
IT IS THEREFORE ORDERED that Plaintiff’s Motion to Compel
Discovery from Defendant Lone Grove (Docket Entry #124 is hereby
DENIED.

The request for fees and costs associated with the Motion

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is also DENIED.

The request for leave to re-depose Defendants

after viewing the additional video is deemed MOOT since the video
does not exist.

Plaintiff may depose or seek discovery from the

non-party WatchGuard entity to confirm the explanation of the
operation of the Vista bodycam system with an appropriate discovery
request.
IT IS SO ORDERED this 26th day of April, 2021.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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