The U.S. District Court for the District of Arizona recently held that whether a non-party intended to deprive plaintiff of video evidence was a question for the jury. This case serves as an important reminder that even non-parties can have a duty to preserve evidence in pending or future litigation, and the question of intent can be an issue for the jury.
In Woods v. Scissons, plaintiff Dustin Woods filed an action against Prescott Police Department officer Jason Scissons and alleged that the officer used excessive force when arresting him. No. CV-17-08038-PCT-GMS, 2019 WL 3816727, at *1 (D. Ariz. Aug. 14, 2019). Plaintiff sought spoliation sanctions against non-party City of Prescott on the grounds that it violated a duty to preserve evidence by allowing video footage from fellow officers’ vehicles that might have captured the incident to be automatically deleted a year later. Id.
After concluding that deleting the footage prejudiced plaintiff, the court evaluated whether non-party the City of Prescott had a duty to preserve video footage from the officers’ vehicles. Id. at *4. The court recognized that as an agency of the City of Prescott, the Prescott Police Department had exclusive control over the video recordings and plaintiff would not have been able to access the videos. Id. Further, the City of Prescott paid officer Scissons’ attorney fees and would indemnify him for any judgment. Id. The court pointed out that the “duty to preserve information arises when a party knows or should know that the information is relevant to pending or future litigation,” and “[t]he duty to preserve is triggered not only when litigation actually commences, but also extends to the period before litigation when a party should reasonably know that evidence may be relevant to anticipated litigation.” Id. at *5. The court determined that “the City should have foreseen that litigation could arise from [plaintiff’s] arrest” because it prepared a “Use of Force Report” involving the incident, was “aware that this was not a run-of-the-mill case” due to the injuries plaintiff suffered, and the City of Prescott conducted a further internal review of the incident. Id. Additionally, the City of Prescott knew that plaintiff had commenced litigation before its system automatically deleted the videos. Id. Therefore, “the City had a duty to preserve the video footage that arose before the date on which the footage would have been automatically deleted.” Id.
The District Court then acknowledged that the “question of whether spoliation by a non-party employer can be imputed to an employee that is a party has not been answered by the Ninth Circuit. District courts within the circuit have split.” Id. at *6. Here, because the Police Department was “not merely a disinterested party,” the court found it was in the “same functional position as other parties subject to sanctions for spoliation.” Id. Moreover, “allowing the Police Department to destroy evidence and then declining to impose appropriate sanctions simply because it is not a party could incentivize such behavior by future non-party indemnifying employers.” Id. Therefore, the court held “it is appropriate to impute the spoliation of the video recordings by the Prescott Police Department to Scissons for the purpose of imposing sanctions.” Id.
In terms of the type of sanctions available, to impose adverse inference sanctions under Rule 37(e)(2) “there must first be a determination that the spoliating party acted with the intent to deprive another party of the information’s use in the litigation.” Id. However, the Woods court “decline[d] to make such a finding on the facts before it” and determined that it was a decision for the jury. Id. The court concluded that it would instruct the jury that the City of Prescott had a duty to preserve the video footage, and if the jury determines the Police Department intended to destroy the footage to deprive plaintiff of that evidence, it may infer the footage would have been favorable to plaintiff. Id. at *6-*7.
Woods v. Scissons serves as an important reminder that non-parties can also have a duty to preserve evidence in anticipation of litigation, and the question of whether an entity or person intended to spoliate evidence might be a jury question. Even if the jury determines the non-party did not have the requisite intent to deprive a party of evidence, the implications of simply introducing such evidence to the jury is an issue counsel should consider.