LaSalvia v. City of Evanston
| Decision Date | 21 November 2011 |
| Docket Number | CASE NUMBER 10 C 3076 |
| Parties | LaSalvia v. City of Evanston et al |
| Court | U.S. District Court — Northern District of Illinois |
The Court grants Defendants' motion in limine [49](Mot. No. 6) regarding adverse inferences.
[×] [ For further details see text below.] Notices mailed by Judicial staff.
Presently before the Court is Defendants' motion in limine for an "order barring [] Plaintiff, his representatives, or his witnesses[,] from giving any testimony or argument regarding adverse inferences from the missing recording of the main [City of Evanston ("City")] police station sally port on April 5, 2010." .) Plaintiff objects on the basis that he is entitled to a spoliation of evidence jury instruction at trial, which would permit the jury to draw an adverse inference from the missing recordings if it finds that Defendants intentionally destroyed the recordings in bad faith. See, e.g., Seventh Circuit Pattern Civil Jury Instruction 1.20 (2008) (hereinafter, "missing evidence instruction").
For the reasons explained below, the Court grants Defendants' motion in limine.1
Following Plaintiff's arrest on April 5, 2010, Defendants Thomas Giese and Joseph Panek, both police officers employed by the City, transported Plaintiff to the Evanston Police Department ("Police Department") for booking. It is undisputed that on the day of Plaintiff's arrest, the "sally port"3 of the Police Department had a properly functioning security camera that would have recorded audio and video of Plaintiff. Any of the individual Defendants "could have" requested that the recordings "be preserved," but none of them did so. (Id. ¶¶ 7-16, 20-21.) Defendants explain that the "footage from the camera was not requested in any Request to Produce or the subject of a preservation order prior to it being destroyed." (Id. ¶¶ 20-21.) According to Defendants, "the footage was not reviewed prior to its destruction." (Id. ¶¶ 4-5.)
On April 30, 2010, before Plaintiff commenced this action, Plaintiff filed a state Freedom of Information Act ("FOIA") request with the City for "any and all documents, photographs, audiotapes, videotapes, reports, memoranda, notes, and/or statements" relating to Plaintiff's arrest. (Pl.'s Br., Ex. 1.) Defendants' response, if any, is not contained in the record. Following the commencement of this action on May 18, 2010, Plaintiff took certain discovery regarding the video recordings.
On July 29, 2010, Plaintiff propounded the following interrogatories on Defendants, to which Defendants responded on October 1, 2010:
(Id., Exs. 2, 9.) Additionally on July 29, 2010, Plaintiff requested that Defendants produce certain records, to which Defendants responded on October 1, 2010:
(Id., Exs. 3, 7.) On October 15, 2010, Plaintiff propounded another request for production, to which Defendants responded on November 12, 2010:
(Id., Exs. 4, 11.) The "general order" that Defendants attached to their response appears to set forth the City's procedures for processing subpoenas. (Id.)
During their depositions, Defendants Glew, Panek, and Giese each admitted that they were aware of the security camera in the sally port on April 5, 2010. (Pl.'s Br., Exs. 6, 7, 8.) Defendant Glew speculated that the data from the camera would have been downloaded to "some kind of server." (Id., Ex. 8.) In response to counsel's question about "how long . . . the video and audio from the sally port had been preserved," the sergeant responded, "I think it's 30 days." (Id.) To ensure the preservation of the audio or video, according to Sergeant Glew, "a request has to be made" through a "standardized form." (Id.) In the case of "a request by a patrolman, the supervisor has to sign." (Id.) Defendant Glew further testified that neither he nor any other Defendant acted to preserve the data, despite their ability to do so. (Id.) As he explained, "At that time it did not seem to be something we needed for our investigation." (Id.)
A jury may draw an adverse inference from missing evidence when a party has a duty to preserve evidence, yet intentionally destroys such evidence in bad faith. See Trask-Morton v. Motel 6 Operating L.P., 534 F.3d 672, 681 (7th Cir. 2008); Faas v. Sears, Roebuck & Co.,532 F.3d 633, 644 (7th Cir. 2008). "The crucial element is not that evidence was destroyed but rather the reasons for the destruction." Faas, 532 F.3d at 644; see also Park v. City of Chicago, 297 F.3d 606, 615 (7th Cir. 2002) (). "Bad faith" is a prerequisite to imposing sanctions for the destruction of evidence. See Trask-Morton, 534 F.3d at 681. "A document is destroyed in bad faith if it is destroyed for the purpose of hiding adverse information." Faas, 532 F.3d at 644; see also Norman-Nunnery v. Madison Area Tech. Coll., 625 F.3d 422, 428 (7th Cir. 2010).
In this case, the parties dispute whether sufficient evidence exists from which a jury may infer that the missing recordings "were intentionally destroyed in bad faith." Everett v. Cook County, 655 F.3d 723, 727 (7th Cir. 2011). Defendants admit that the recordings were destroyed, but point to a claimed dearth of evidence suggesting that the destruction was intentional and in bad faith. Plaintiff responds with the following proffered facts from which he contends that a jury could infer bad faith: (1) Plaintiff filed a FOIA request for the recordings 25 days after the arrest, and Defendant Glew testified that the recordings were preserved for 30 days; (2) Defendants produced audio/video recordings from cameras in the squad cars and the booking room, but not the sally port; (3) in response to a discovery request, Defendants initially agreed to produce the recordings, but subsequently stated that the recordings were destroyed before the request was made; and (4) Defendants failed to produce any document retention policy. (Pl.'s Br. at 4-5.)
As an initial matter, some of Plaintiff's factual assertions lack adequate evidentiary support, particularly his assertions that Sergeant Glew...
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