Court clarifies when "adverse inference" charge results from lost ESI evidence

This case went to trial in federal court in White Plains. The plaintiff alleged that City of Yonkers police officers used excessive force in arresting him by activating their Taser. The plaintiff lost at trial, but he appeals on the basis that the jury should have been allowed to hold it against the City for not producing the Taser video. Plaintiff loses the appeal.

The case is Hoffer v. Tellone, issued on February 13. At trial, plaintiff testified that the police Tased him twice in the lower back while he was incapacitated, lying face down his hands under his stomach, and being kicked and punched by 8 to 10 officers. I have represented people who got Tased, and they will tell you it is the world's worst pain. The body is immobilized for five seconds, and during that five-second period, which feels like five hours, you feel like you are being electrocuted. The police will Tase people who resist arrest and there is no other way to get them under control. You cannot Tase someone merely to punish them.

The officers admitted that plaintiff was Tased, but they explained that they did so because after the first Tasing, plaintiff tried to get up and and run away. The tiebreaker would bre the video generated by the Taser gun. The officer said the second Tasing overrode the first video. But plaintiff's girlfriend, Goff, who was present at the scene, testified that she heard the officer tell a colleague that the USB drive in his hand "shows everything that we did and nothing that he did."

This all led plaintiff to ask the trial court to issue an adverse inference instruction, which allows the jury to assume that the police intentionally or negligently discarded the video and that the video, therefore, may have helped plaintiff's case. The trial court denied the charge and jury ruled in favor of the police after deliberating for two days. So this was a close case.

In 2015, the Federal Rules of Civil Procedure were amended to address what happens when a party does not produce electronically-stored information, or ESI. If the ESI is wrongfully lost, the court can take "measures no greater than necessary to cure the prejudice." Sanctions against the offending party may include issuing an adverse inference charge to the jury. Key to this rule is the offending party's "intent to deprive" the other side of relevant evidence. The Court of Appeals reaffirms that standard, which applies to this case and results in the appellate loss for plaintiff, who could not prove the police intended to misplace or destroy the USB drive. 

The party desiring the adverse inference must show the offending party violated the ESI protocols by a preponderance of the evidence. The Court of Appeals (Walker, Park and Nathan) articulates this rule for the first time. The preponderance test is used in most other civil cases, so it makes sense to apply it here. This rule does not just apply to police cases. It will apply to your case, also, whether it involves employment discrimination or a civil fraud claim.

What it means for plaintiff is that the court, and not the jury, must determine whether the offending party deserves the adverse inference sanction. Rule 37 makes that clear, the Court of Appeals notes, and the trial court is usually responsible for determining an appropriate discovery sanction. The trial court in this case said the police did not intend to deprive plaintiff of the USB video. 

The astute reader can predict how the Court of Appeals resolves this issue in this case. Once we agree that the trial court makes the factual finding on "intent to deprive," and we know the trial court ruled against plaintiff on this issue, it is almost impossible for plaintiff to win the appeal. The standard of review in challenging the trial court's factual findings is "clearly erroneous," and standard is the kiss of death. Sure enough, that's what happened in this case. Here is the reasoning:

In  denying  Hoffer’s  request  for  an  adverse  inference instruction, the district court, applying the correct “intent to deprive” standard, concluded that the evidence was insufficient to establish that any defendant acted with the intent to deprive Hoffer of the use of the first taser video.  The district court reasoned that it did not “know what to make of” the taser report, which reflected only one use of the taser during the arrest, and that there was “just not enough evidence for [the court] to be even convinced” that there ever existed a video of the first taser deployment. The district court further observed that it was “not at all clear” what Officer Goff meant by  information  being  “overwritten,”  and  that  “nothing  about Sergeant  Goff’s  testimony  suggested  that  he  had  any  direct knowledge or experience with the document management system for these taser videos, let alone anything having do with this particular video.” These findings were not clearly erroneous.