Plaintiff experienced an alleged assault by excessive force while detained in the county jail. Twenty days later he submitted a grievance, which said “please save this video”, and seven days later his attorney wrote a letter to the Sheriff asking that any video evidence of the alleged incident be preserved.  No video was ever produced.  Defendant admitted that the video in question was not preserved, and was no longer in existence. A deputy testified that the cameras typically retain video footage for 30-45 days, but that the retention is ultimately based on the amount of storage available to the system.  A motion for sanctions was brought by the plaintiff, seeking entry of default.

The Court explains that while Rule 37(e)(1) (“upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice”) does not contain an intent requirement, before certain sanctions may be imposed under Rule 37(e)(2), the court must find that the party that caused the loss acted with the intent to deprive another party of the information’s use in the litigation.

“Accordingly, to determine whether sanctions are appropriate and if so, what kind, the Court engages in a five-step inquiry: First, was there a duty to preserve the data in issue? If not, the analysis ends. Second, were reasonable steps taken to avoid the loss of the data? If so, the analysis ends. Third, can the lost data be “restored or replaced” through additional discovery? If so, the analysis ends. Fourth, was the other party prejudiced by the loss of the data? If so, the court can impose “measures no greater than necessary to cure the prejudice.” Fifth, was the data lost “with the intent to deprive another party” of the use of the lost data? If so, prejudice is assumed, and the court can allow a permissive or mandatory adverse inference or impose a case-terminating sanction. With the exception of showing prejudice, the party alleging spoliation has the burden of proof.”

In this particular case, the Court was concerned by Coffee County’s failure to preserve the video. “Nevertheless, Plaintiff’s proof is insufficient to show that the County intended to deprive Plaintiff of his ability to use the evidence in this case….  Because Plaintiff is prejudiced by the loss of the video, measures no greater than necessary to cure the prejudice under Rule 37(e)(1) may be imposed. The only sanction Plaintiff specifically seeks in his motion, however, is a default judgment against Coffee County, a sanction only available under subsection (e)(2). As noted, Plaintiff has not met the stringent standard of proof for imposition of subsection (e)(2) sanctions. Under these circumstances, no unrequested sanctions will be imposed at this time.”


Cretacci v. Hare, No.19-55, 2021 WL 201778 (E.D.Tenn. Jan. 20, 2021).