Garcia v. Alka
| Docket Number | 19 CV 5831 |
| Decision Date | 20 January 2022 |
| Parties | Jonathan Garcia, Plaintiff, v. North Chicago Police Officer Muhammad Alka, Star #49; North Chicago Police Officer James Ramirez, Star #12; North Chicago Police Officer Marc Keske, Star #58; North Chicago Police Officer Gary Grayer, Star #1848; and North Chicago Police Officer Steven Roberts, Individually and as Employees/Agents of the City of North Chicago; and the City of North Chicago, Defendants. |
| Court | U.S. District Court — Northern District of Illinois |
In addition to thirteen motions in limine addressed by the Court in a separate order, [ECF No. 98], the parties also have briefed two other pretrial motions on which the Court must rule in anticipation of the pretrial conferences currently set for February 1, 2022 and February 7, 2022. Trial on all of Plaintiff's claims, including the Monell claim, is scheduled to begin on March 7, 2022. The Court addresses each motion in turn.
Plaintiff's Motion for a Spoilation of Evidence Instruction [ECF No. 74] asks this Court to give Seventh Circuit Civil Pattern Instruction 1.20 to the jury at the close of evidence. This instruction is warranted, in Plaintiff's view, because Defendants failed to preserve certain Response to Resistance Reports completed by two individual Defendant Officers - Officers Alka and Ramirez - concerning their use of force during the incident at the heart of this litigation. Plaintiff asserts that Defendants had a duty to preserve those reports because litigation involving Plaintiff was foreseeable and the North Chicago Police Department's own policies require that those documents be retained. Because Defendants breached that duty and acted willfully or in bad faith, Plaintiff says, the jury should be given Instruction 1.20 to ameliorate the prejudice he suffered because he could not review the contents of the reports.
Defendants do not dispute that the Response to Resistance Reports Plaintiff sought in discovery existed at one time but have since been lost or destroyed. Notwithstanding that fact Defendants counter that giving Seventh Circuit Pattern Instruction 1.20 would not be appropriate in this case because Plaintiff has failed to make the threshold showing that Defendants acted willfully or in bad faith specifically required by Seventh Circuit precedent. The Court agrees with Defendants for the reasons explained below.
Instruction 1.20, which targets the spoilation of evidence, is intended to provide the jury with a framework for drawing an adverse inference from missing evidence, consistent with the law in the Seventh Circuit and Federal Rule of Civil Procedure 37. In general, “[s]poliation is 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.” Costobile-Fulginiti v. City of Philadelphia, 719 F.Supp.2d 521, 529 (E.D. Pa. 2010). Spoilation occurs when the destroyed or lost evidence was in the opposing party's custody or control, is relevant to the claims or defenses in the case, was destroyed for the purpose of hiding adverse information, and the opposing party had a duty to preserve the evidence. Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir. 2008); Lewis v. McLean, 941 F.3d 886, 892 (7th Cir. 2019). In the Seventh Circuit, when a party intentionally destroys evidence in bad faith, the judge may instruct the jury to infer the evidence was incriminating to that party. Faas, 532 F.3d at 644. “The crucial element is not that evidence was destroyed but rather the reason for the destruction.'” S.C. Johnson & Son, Inc. v. Louisville & Nashville R. Co., 695 F.2d 253, 258 (7th Cir. 1982). In that respect, bad faith, intentional conduct is a “prerequisite to imposing sanctions for the destruction of evidence, ” LaSalvia v. City of Evanston, 2011 WL 5867967, at *3 (N.D. Ill. 2011), where “bad faith” means that the evidence was destroyed for the purpose of hiding adverse information. Faas, 532 F.3d at 644; see also, Everett v. Cook Cty., 655 F.3d 723, 727 (7th Cir. 2011); Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558 (7th Cir. 2001).
Although the record evidence shows that Defendants had the Response to Resistance Reports in their possession and control at one time, may have had a duty to preserve those reports in anticipation of litigation with Plaintiff, and that the reports have since been destroyed, misplaced, or lost, Plaintiff's request for an adverse spoilation instruction falters because he has not set forth any facts that suggest Defendants intentionally destroyed the reports in bad faith. Plaintiff bears the burden, as the party requesting a sanction pursuant to Rule 37 in the form of an adverse inference jury instruction, of making at least a threshold showing of an intentional, bad faith act to support the giving of the proposed instruction. And Plaintiff has not done so here. Instead, the facts Plaintiff has put forth show only that Defendant Officers Alka and Ramirez generated the reports on the date of the incident (which could, converse to Plaintiff's position, be construed as an attempt to preserve the information in the first instance), that the reports could not be located by Defendants and the North Chicago Police Department during the course of discovery, and that they are now presumed lost, destroyed, or misplaced. There is a complete absence of competent evidence about what happened to the reports, including whether they were destroyed by a “human, [machine], or Mother Nature herself.” LaSalvia, 2011 WL 5867967, at *4. This leaves the Court with no more than mere speculation to substantiate an adverse evidence instruction that, at its core, is a sanction for destructive action undertaken to hide the truth or purposely keep damaging evidence out of the hands of an opposing party. See, e.g., Bentz v. Lindenberg, 854 Fed.Appx. 55, 58 (7th Cir. 2021); Gabryszak v. Aurora Bull Dog Co., 427 F.Supp.3d 994, 1004 (N.D. Ill. 2019); Bracey v. Grondin, 712 F.3d 1012, 1020 (7th Cir. 2013) (); Faas, 532 F.3d at 645. Under these facts, it would not be appropriate, proportional, or consistent with well-established case law to impose an adverse inference sanction without any showing by Plaintiff that Defendants acted with the requisite intent.
Similarly, the record does not suggest to the Court that the reports were destroyed “for the purpose of hiding adverse information.” Faas, 532 F.3d at 644. As Defendants state in their response, the factual information requested by the Response to Resistance Reports also is contained in other police documents, albeit not conveniently aggregated into one, subject-specific report that addresses the use of force by each individual officer. [ECF No. 75] at 2-3.The booking room video footage, which Defendants turned over to Plaintiff during discovery, also purportedly captures the incident itself and will likely illuminate the who, what, where, and how of the officers' use of force that would have been the subject of the now-missing reports. Given the volume of related evidence Defendants did preserve and provide to Plaintiff, Court cannot infer from Defendants' actions that they acted with the intent to hide unfavorable information by purportedly destroying the two isolated reports at issue here.
In an attempt to circumvent the threshold showing of bad faith clearly required by Seventh Circuit precedent, [1] Plaintiff suggests in a footnote that the Court should modify instruction 1.20 and instruct the jury that they may draw an adverse inference if Defendants were “at fault” for the destruction of the reports or acted recklessly in failing to preserve them. [ECF No. 74] at 7 n.1, 10-11. Yet Plaintiff cites no relevant case law in support of this request, save for one forty-five-year-old Supreme Court case generally addressing what sanctions may be available for a party's failure to timely answer written interrogatories under then-existing Rule 37. [ECF No. 74] at 10 (citing National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639, 640 (1976)). Suffice it to say, this Court believes amending Pattern Instruction 1.20 to include an “at fault” or “reckless” standard would contradict the law of this circuit and this Court's own interpretation of Rules 37(c) and 37(e). It may be that some lesser sanction would be appropriate under Rule 37 for a party who was simply “at fault” for the destruction of evidence, but the specific relief Plaintiff seeks here - an adverse instruction sanction - should only be imposed on a party as a consequence of a bad faith, intentional act.
On that point, Rule 37 has repeatedly been amended since the Supreme Court ruled in National Hockey League in 1976, in part to codify common law spoilation principles in the context of electronic discovery. The plain language and intent of Rule 37(e), amended as recently as 2015, further support the Court's conclusion that the adverse instruction sanction Plaintiff requests here requires a finding of bad faith or intent. Rule 37(e) provides that “[i]f electronically stored information that should have been preserved in the anticipation 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 court… only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may… instruct the...
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