In Chepilko v. Henry, the Southern District of New York denied plaintiff’s motion for spoliation sanctions, finding that a public records request and a civilian complaint did not trigger defendants’ duty to preserve electronic evidence. In the ruling, Magistrate Judge Stewart D. Aaron analyzed when one’s obligation to preserve camera footage “in anticipation of litigation” arises for purposes of Rule 37(e) spoliation.
Chepilko v. Henry Background
Plaintiff alleged one defendant — a lieutenant with the New York City Police Department (NYPD) — used excessive force during a street encounter.[1] One year later, plaintiff brought claims against the defendant and the NYPD, including for excessive force, failure to intervene, and malicious prosecution. During discovery, a dispute arose regarding preservation (or lack thereof) of NYPD camera footage that may have captured the incident. Although the footage at issue was destroyed pursuant to the NYPD’s 30-day retention policy for camera footage, plaintiff argued its destruction was improper because defendants had an obligation to preserve it at the time it was destroyed.
Plaintiff filed a motion for sanctions under Rule 37(e). In opposition, defendants argued that at the time of its deletion, defendants were not on any notice of an obligation to preserve the footage. Plaintiff did not file suit for more than 11 months and at no time prior to the filing did defendants reasonably anticipate litigation arising from the incident. Plaintiff countered that other factors – including a Freedom of Information Law (FOIL) records request and a civilian complaint filed with the New York City Civilian Complaint Review Board (CCRB) triggered defendants’ obligation to preserve the footage. In denying plaintiff’s Rule 37(e) motion, Judge Aaron considered each of plaintiff’s arguments.
At the outset of his decision, Judge Aaron noted the well-established “threshold” requirement for a successful Rule 37(e) sanctions motion – that the allegedly spoliating party have a reasonable “anticipation of litigation” at the time the evidence is destroyed. Judge Aaron rejected plaintiff’s argument that “the incident itself” should have put defendants on notice of litigation sufficient to trigger obligations to preserve and refused to “endorse a bright line rule that a police officer should anticipate litigation every time he issues a summons.” Moreover, where, as here, plaintiff was not injured and the force used was not excessive (as found on the merits), defendants are not deemed to have “reasonably foreseen litigation” as a result. Similarly, Judge Aaron noted that a 911 call after the incident did not trigger a preservation obligation as “Plaintiff merely advised the 911 operator that [the lieutenant] ‘pushed [Plaintiff] several times.’”
Judge Aaron also rejected plaintiff’s argument that his FOIL requests for the footage from relevant cameras, filed immediately after the incident, put defendants on notice of a duty to preserve. Because initiating a public records request does not equate to a request predicated upon a potential litigation, a FOIL request does not necessarily trigger a preservation obligation. Finally, Judge Aaron rejected the argument that a plaintiff-prompted CCRB investigation triggered an obligation to preserve. The judge found that the CCRB is a separate entity from the NYPD and merely filing a civilian complaint – a relatively common occurrence – does not necessarily trigger an obligation upon another entity to preserve evidence. Accordingly, Judge Aaron rejected plaintiff’s Rule 37(e) sanctions motion in its entirety.
Takeaways for Electronic Evidence Preservation
This case serves as a useful reminder that one’s obligation to preserve evidence is triggered when litigation is reasonably anticipated, and when that obligation is triggered can be a fact intensive inquiry. There are no bright line rules about when one should reasonably anticipate litigation, and the standard can be subjective.
[1] Plaintiff received a criminal summons for disorderly conduct in disrupting vehicular traffic for standing in the street during this encounter. The summons was dismissed soon after it was issued.