NWEGBO v. COLWYN BOROUGH et al

Filing 45

MEMORANDUM AND/OR OPINION RE: MOTION FOR AN ADVERSE INFERENCE INSTRUCTION (DOC. #29). SIGNED BY MAGISTRATE JUDGE JACOB P. HART ON 7/10/2013. 7/11/2013 ENTERED AND COPIES E-MAILED.(tomg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA

SUNDAY NWEGBO

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v.
COLWYN BOROUGH, et al.

CIVIL ACTION

NO. 12-CV-05063

MEMORANDUM AND ORDER
JACOB P. HART
UNITED STATES MAGISTRATE JUDGE

July 10, 2013

Plaintiff, Sunday Nwegbo, a Councilman of Colwyn Borough, filed this action under 42
U.S.C. § 1983 against the Borough, its then police lieutenant, Wendell Reed, Councilwomen
Tonette Pray, Patrolman Clinton Craddock, and Borough Treasurer, MacDonald Ford. The
action stems from incidents that took place at a Borough council meeting on June 9, 2011. The
only remaining defendants are Clinton Craddock and Wendell Reed. Nwegbo alleges that he
was unlawfully arrested and attacked by Reed and Craddock and that these actions were in
violation of his First Amendment rights because they were in retaliation for his protected speech
at the Council meeting.
Currently pending is Plaintiff’s Motion for an Adverse Inference Jury Instruction.
Plaintiff argues that he is entitled to an adverse inference jury instruction due to the fact that
there is only one video of the Borough Council meeting from the night of the incident. He
alleges that the video from the second camera would have captured the incident and supported
his claims, but was destroyed, entitling him to sanctions in the form of an adverse inference jury
instruction.

DISCUSSION:
In order to demonstrate spoliation, the following factors must be satisfied: “(1) the
evidence in question must be within the party’s control; (2) it must appear that there has been
actual suppression or withholding of the evidence; (3) the evidence destroyed or withheld was
relevant to the claims or defenses; and (4) it was reasonably foreseeable that the evidence would
later be discoverable.” Ogin v. Ahmed, 563 F. Supp.2d 539, 543 (M.D. Pa. 2008). The Third
Circuit had determined that an adverse inference jury instruction is an appropriate sanction if a
party can demonstrate spoliation. See Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78
(3d Cir.1994). The Court must examine the following factors: “(1) the degree of fault of the party
who altered or destroyed the evidence, (2) the degree of prejudice suffered by the opposing
party, and (3) whether there is a lesser sanction that will avoid substantial unfairness to the
opposing party and, where the offending party is seriously at fault, will serve to deter such
conduct by others in the future.” Id. at 79. A court will not allow an adverse inference in cases
where the evidence has been lost or accidentally destroyed. Select Medical Corp. v.
Hardaway, 05-cv-3341, 2006 WL 859741, 9 (E.D. Pa. March 24, 2006) (Tucker, J.), citing
Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995). “As a general rule,
the burden of proof on a spoliation claim lies with the party asserting that spoilation of evidence
has taken place.” Byrnie v. Town of Cromwell, Bd. of Ed., 243 F.3d 93, 107–08 (2d Cir. 2001);
See also Rogers v. Allstate Ins. Co., 11-cv-7776, 2012 WL 5250513 (E.D. Pa. Oct. 23, 2012)
(Sitarski, J.).
It is undisputed that there are generally two cameras at the Colwyn Borough Council
meetings, one of them in the audience pointed at the Council table and one behind the table.
Pray testified that her husband generally operated the video cameras at the Council meetings, but

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was not present on the evening in question. (Pray dep. at 9-10). On the evening of June 9, 2011,
John Moore assisted Ms. Pray and operated the camera in the audience. (Id.) Ms. Pray testified
that she was unable to get the camera behind the table to work. (Pray dep. at 18-19, 37-38.
Plaintiff relies on the fact that Mayor Rutland saw a red light on the camera. However, while
Mayor Rutland testified that he assumed the cameras were working because he saw red lights, he
also acknowledged that he was told one of the cameras was not working. (Rutland dep at 35).
Based on Pray’s testimony, it is not clear that there ever was a second video from the July
9, 2011 meeting. Plaintiff simply has not satisfied his burden in proving spoliation. It is not clear
that a second video tape from that evening existed and he has certainly not demonstrated that
such a tape was intentionally destroyed. Defendants also contend that since Plaintiff has been
able to depose those present at the meeting, he has not been prejudiced by the absence of the
tape. See Chirdo v. Minerals Technologies, Inc., 2009 WL 2195135 (E.D. Pa. July 23, 2009)
(Stengel, J.) (finding Plaintiff was unable to demonstrate prejudice from missing emails where
they were free to depose witnesses).
Finally, Plaintiff agrees that the video (if it existed) was in the exclusive control of
Tonette Pray (Pray dep. at 34-36). Even if Plaintiff could satisfy the remaining factors to
demonstrate spoliation, Tonette Pray is no longer a party in this case. See Brewer v. Quaker
State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir.1995) (for the rule to apply the evidence in
question must be within the party's control). Clearly, the defendants in the case, Reed and
Craddock did not have control of the video. Therefore, an adverse jury instruction would punish
the wrong parties.
For all of these reasons, I enter the following:

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