A recent Minnesota court ruling emphasizes the need to proactively preserve evidence that documents a major incident and its aftermath. In the case of Vogt v. MEnD Corr. Care et al (21-CV-1055, D. Minn.), regarding the death of a jail inmate, the Minnesota District Court granted plaintiff’s motion for spoliation sanctions, allowing an adverse inference instruction regarding missing surveillance footage and awarding plaintiff attorney fees and costs. Plaintiff alleged that footage from one (“Camera 18”) of three cameras that covered the area in question was not preserved. Though motions for sanctions based on spoliation are rare (a 2011 report1 found that motions related to spoliation were filed in only 0.15% of civil cases), when sanctions are imposed, the adverse inference jury instruction is the most common. In the 8th Circuit, the court must find that the party acted in bad faith. See, e.g., Hallmark Cards, Inc. v. Murley, 703 F.3d 456, 461 (8th Cir. 2013). In Vogt, the court made the requisite finding of bad faith on behalf of the county and the responsible administrators, and imputed their culpability for the spoliation to the individual defendants, who “themselves were not involved in the preservation of the video footage[.]”
Obligation to Preserve Accrues Immediately; Bad Faith Inferred from Circumstantial Evidence
A party must preserve evidence once the party knows or should know that the evidence is relevant to future or current litigation. As the court observed, a “variety of events may alert a party to the prospect of litigation.” Here, the court held that the in-custody death was a “major incident” that triggered preservation obligations. Even without direct threats of litigation, the court found that the county was aware that investigations into the incident (internal and from the state) were inevitable, and that video footage would be crucial. Most damning, in the Court’s eyes, was the jail administrator’s testimony establishing that he actually watched the Camera 18 footage as part of his own investigation but failed to preserve it for potential litigation. The court’s reasoning emphasizes that an organization’s internal treatment of a major incident – such as classifying it as “critical” or conducting internal investigations – may be seen as evidence that litigation was foreseeable.
The court found that the county’s failure to preserve the footage warranted a finding of bad faith on three grounds: first, the county knew that the footage from Camera 18 would be relevant; second, the county preserved other camera angles and had no credible explanation for not preserving Camera 18; and finally, allowing the footage to be deleted was not a “passive failure.” The court found that, as part of the county’s investigation into Vogt’s death, it had actively reviewed the footage and could have saved it. Therefore, its failure to preserve the footage was not “passive.” The court found that this combination of factors made it reasonable to infer that the county intended to destroy the footage for the purpose of suppressing evidence. The court seemed to give particular weight to the “selective preservation” of evidence, which showed that the county had engaged in a deliberative process about which evidence to save and demonstrated that it would have been possible to save the spoiled evidence.
Destroyed Evidence “Need Not Amount to the Proverbial Smoking Gun”
The defendants argued that plaintiff was not prejudiced, given the available footage from two other cameras covering the same area. The court found that even if the spoliated evidence is cumulative, its loss may be prejudicial. The lost evidence does not need to be a “smoking gun” — simply providing additional information that a jury could use to evaluate witness credibility or better “understand the tenor of events” may be enough to support a finding that the loss was prejudicial.
Culpability Imputed to Individual Defendants
When plaintiff’s motion for sanctions came before the court, the only claims remaining in the suit were against three correctional officers in their individual capacities. Plaintiff’s claims against the other defendants, including the county and the jail administrator, had been dismissed. The court acknowledged that the individual officers were not responsible for the preservation of video and were not at fault for its loss. Rather, the county itself and the jail administrator were to blame. Nevertheless, the court decided that the culpability for the lost evidence should be imputed to the individual officers. The court cited the “uniquely intertwined relationship” between corrections officers and their employers, and also stated that, because of the county’s indemnity responsibilities to its employees, a sanction against the individual officers would be, “in many important respects a sanction felt most acutely” by the county itself.
The court distinguished Burris v. Gulf Underwriters Insurance Co., 787 F.3d 875 (8th Cir. 2015), in which an adverse instruction was requested against an insurer based on spoliation carried out by its insured. The Eighth Circuit explained that because the insurer played no part in the alleged spoliation, “it defies the purpose of the sanction” to impose sanctions against it. While acknowledging that “an analogy could arguably be made” between the individual defendants here and the insurer in Burris, the court noted that, in Vogt, the lost evidence was controlled by the individual defendants’ employer (the county), and that the individual defendants could have requested that their employer preserve the evidence. Essentially, whereas the insurer-insured relationship was too attenuated, the employee-employer relationship is direct enough to sustain the imputation of fault. Notably, the justification for imputing fault in this way was not entirely dependent on the fact that the defendants were government employees or that Vogt was a civil rights case. While the court acknowledged that there are unique civil rights concerns in the jail or prison setting, the court’s reasoning about imputing culpability for spoliation could also be applicable to private employers.
The takeaways from Vogt are (1) that any organization that gathers surveillance footage in the regular course of business should understand that the very occurrence of a critical event likely triggers a duty to preserve, (2) that an organization’s internal classification of an event as “critical” or “major,” as evidenced by internal investigations into the incident, may be seen as evidence that litigation was foreseeable, and (3) that selective preservation of video surveillance footage could be seen as proof of bad faith in a spoliation motion. After a critical event, all video evidence should be immediately preserved.
1Motions for Sanctions Based Upon Spoliation of Evidence in Civil Cases, Judicial Conference Advisory Committee on Civil Rules, Federal Judicial Center 2011.