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#CaseoftheWeek Episode 14: Failure to Preserve Body Cam Video Evidence

Our featured #caseoftheweek on the ACEDS livestream evaluates the ediscovery decisions on Reed v. Royal Caribbean Cruises, 2021 WL 515624 (S.D. Fla. 2021) and the failure to preserve body cam video evidence.

Good morning and welcome to our #CaseoftheWeek for February 23rd, 2021. I am Kelly Twigger, the CEO and founder of eDiscovery Assistant and the principal at ESI attorneys. Through our partnership with ACEDS, each week we select and talk about a different case in eDiscovery and the practical implications of that decision on what it means for you, your clients and your practice.

Before we get started with this week, I want to do a couple of announcements. One, I mentioned last week that we are partnering with Doug Austin at eDiscovery Today to put out a 2020 annual case law report. We’ll show you some trends on the issues that are being covered in eDiscovery every year. We’ll also identify a number of cases that were covered on the eDiscovery Today blog, some of which were also covered by our #CaseoftheWeek video series, as well as on the eDiscovery Assistant blog. That will be available next Wednesday. We’ll be announcing that availability during next week’s #CaseoftheWeek. It will be sent out to subscribers of the eDiscovery Today blog, as well as the eDiscovery Assistant blog. If you are not signed up and you would like to receive that report, you’ll have to pop over to either eDiscoveryAssistant.com/blog or eDiscoveryToday.com to sign up. (Pro tip, if you’re reading this, you can subscribe to this blog in the right sidebar to receive the report when it comes out.)

Links for today’s session are in the events page on whatever platform you’re watching. You’ll have numerous links today. One is to the February 11th, 2021 decision in Reed v. Royal Caribbean Cruises that we’ll be discussing. Another is to the October 2nd, 2020 decision also in the Reed case that we’ll review, just to set the stage for the case we’re going to talk about. Also link to the eDiscovery Today post from Doug Austin about the October 2020 decision, as well as the link to register for the University of Florida eDiscovery Conference that’s coming up on March 18th, 2021.

That conference is 9.5 CLE credits and 1 ethics credits, and it is free to attend. It is virtual. We’re going to be using the Zoom webinar platform. I know you’re familiar with it, but this is a great opportunity for you to get some really compelling CLE credits that’ll be free for you. The conference is in Florida. The CLE is in Florida. Most bars will accept certification of the CLE, and I’ll get back to you some more on that next week.

OK, let’s dive into our case for this week.

Our decision this week comes from a case called Reed v. Royal Caribbean Cruises. The decision that we’re going to do analysis on is from February 11th, 2021. It is a motion for sanctions, for failure to preserve video evidence, specifically body cam evidence. There’s an earlier decision in this case from October 2nd, 2020, that does a better job of laying out the facts of this case and really setting the stage for our decision on February 11th. I’m going to go through that October 2nd decision more in the way that we usually outline our facts here and give you the court’s analysis there to set the stage for our case for today.

One of the things as we talk about takeaways are always that with discovery decisions, and I’ve noted this numerous times, we often don’t get all of the facts in the decision that we’re looking at. One of the things I would caution you on is if you are citing to case law, analogous case law, to try and make your case or trying to distinguish a point factually, make sure that you have all the factual background for that case. Go look at the earlier decisions.

If you are an eDiscovery Assistant user, additional discovery decisions are available on the left side of the case, on the case law page within the application. Otherwise, make sure that you’re looking at earlier decisions in whatever research application you’re using.

What are the facts here?

The plaintiff, Reed, was a cruise ship passenger on board a Royal Caribbean Cruise, Royal Caribbean here is referred to as RCCL Royal Caribbean Cruise Lines, on April 12th, 2019 (which incidentally, was my birthday) the plaintiff participated in a cruise organized dance party doing a line dance. (Most of the line dances that I have done in my life, although it has been many years, have been side by side as opposed to necessarily having a partner, although there are some that require a partner.) During the line dance portion, an intoxicated male passenger, who is named John Doe for purposes of litigation, approached the plaintiff and wanted to dance with her. She consented to dance with him, but not to any touching between the two of them, which is the language in the case.

The facts further state that John Doe grabbed the plaintiff’s hand and ignored her pleas that he not twirl her. He then spun her around and forcefully released her, causing her to fall and land on the marble floor. She suffered traumatic injuries that included a fractured wrist that required surgery. Immediately after the incident, the plaintiff provided a written and oral statement to RCCL staff. Crew staff also obtained her permission to record her oral statement, in which she told staff that the passenger was drunk at the time of the incident.

On May 15th, just over a month after the incident, the plaintiff’s counsel sent a letter of representation and requesting preservation generally of the complete scene, the CCTV footage of his client taken during the entire cruise, as well as anywhere that alcohol could have been served to the intoxicated passenger on the date of the incident for the hour preceding and the hour after the incident occurred. That preservation letter was sent on September 3rd.

A few months later, the plaintiff filed a motion for sanctions regarding the defendant’s failure to preserve more than six minutes of the CCTV footage of the incident and failure to preserve the body camera footage of the plaintiff’s oral statement concerning the incident. So, two separate sources of ESI here. We’ve got CCTV footage, which would just be capturing everything that happened during the actual incident of all passengers that were involved, but would also capture the incidents of what happened between the plaintiff and John Doe. Then a separate source, which would have been body camera evidence captured by RCCL employees who took the plaintiff’s oral statement.

This body camera footage is just about the plaintiff’s oral statement. That’s important to note, because we’re going to get to body camera coverage of the potential John Doe statement on the February case that we’re going to talk about.

September 3rd, the plaintiff filed this motion and essentially what they said is, the cruise line preserved six minutes of footage. They preserved three and a half minutes before the incident occurred, the time the incident occurred, and two and a half minutes after the incident occurred, but that’s it. That’s all they kept, was that six minutes of CCTV footage. Essentially, the plaintiff argued that more footage should have been captured.

The Court went through the analysis on a motion for sanctions under Rule 37(e), which is the section of Rule 37 that governs the failure to preserve evidence. Again it was for two particular things, the incomplete CCTV footage and allegedly missing  body camera footage of the plaintiff’s oral statement.

Plaintiff argued that the defendant should have preserved a minimum of five minutes before and five minutes after the incident. We’re talking about an additional minute and a half before the incident, an additional two and a half minutes after the incident. They complained about the missing body camera footage of the plaintiff’s oral statement. Then in the analysis, we hear that there was also an oral statement given by the plaintiff’s traveling companion, both of whom claim that they asserted that John Doe was drunk in order to show that the plaintiff knew he was intoxicated before she brought the lawsuit, meaning that she was not trying to state for purposes of building up the lawsuit that the passenger was intoxicated in order to create liability. She was trying to show that that evidence had been established prior to her bringing the lawsuit.

Again, we’re still on the October decision here. Rule 37(e) requires: 1. That the evidence is ESI. 2. That it should have been preserved. We have no question that the evidence is ESI, so we get to the second prong, whether the evidence should have been preserved.

The question here is not whether there was a duty to preserve, but how much footage should have been preserved. That was really the issue that the Court’s looking at in this earlier decision. The request from the plaintiff for five minutes before the incident and five minutes after the incident was based on the testimony of a cruise line employee in another case in which she gave a deposition and said that five minutes before and five minutes after for preservation of CCTV footage was basic investigation for the cruise line. In this case, though, she gave testimony that although she had given that previous testimony, that there was no specific policy for the cruise line on the amount of video to be preserved for an injury.

The defendant also noted that in her written statement, the plaintiff wrote that she had indicated that she lost her balance while dancing. Put together, the cruise line essentially argued that what they captured was sufficient because of the nature of the incident and the fact that they felt as though plaintiff had said she lost her balance and fell, they captured the actual incident, some conduct leading up to it, some conduct after.

In that October decision, the Court found no violation of an existing policy and that the preservation was appropriately focused on, and this is the standard they looked at, “the nature and significance and proportionality of the portions of CCTV footage preserved.” Essentially, the Court said, looking at other case law, even that was established prior to the 2015 amendments which changed Rule 37(e), that the nature and significance and proportionality of the portion of footage that was captured is really the standard for how much should be captured in the absence of a policy. If the cruise line had had a specific policy here that they had violated, we might have had a different outcome. That was with regard to the CCTV footage. The Court basically said what they captured is sufficient. You don’t have a claim under Rule 37(e).

With regard to the body camera footage of the oral statements of the plaintiff and the plaintiff’s companion, the party’s disputed whether there was ever a recording made. So, the Court ordered a status hearing to resolve that factual dispute, but he also noted that the record did not evidence any prejudice to the plaintiff from the allegedly missing body camera footage.

The plaintiff here wanted to use the footage to show that she told the staff that the passenger was intoxicated versus it being an issue of her losing her balance. The Court held that, assuming that the Court allows it at trial, both the plaintiff and her companion could testify to the intoxicated behavior, meaning that evidence could be entered in another way, which is part of the analysis under Rule 37.

Based on those two things, the Court denied the motion for sanctions in October.

Turning now to the current case on January 4th, 2021. The plaintiff filed a second motion for sanctions for spoliation of the body camera footage of the interview of John Doe. The point being that process for the cruise line was to conduct an interview of John Doe following the incident as well.

There were three issues at the status hearing. First, which side bore the burden of proof in establishing that body camera of John Doe’s interview even existed. Second, whether an evidentiary hearing is necessary to determine whether evidence of it existed. Third, what evidence the parties will be prepared to present if the hearing was warranted.

Again, the Court is looking at an analysis based on Rule 37(e) for failure to preserve ESI.

Plaintiffs sought a remedy of exclusion of the six minutes of the CCTV footage (that we heard on the previous motion for sanctions) or an adverse inference instruction. The defendant said there is no video evidence, there is no video that was taken of the John Doe interview. Nothing exists. We don’t have anything.

Plaintiff relied on the testimony of the RCCL security supervisor to substantiate that this video evidence of the John Doe interview existed. That supervisor said that he, he being John Doe, was interviewed outside of the medical facility because he was not injured and that the normal procedure when interviewing someone outside of the medical facility is to turn on the body camera during an interview and that the footage is saved on the workstation for the investigation.

The defendant argued at the status hearing that the plaintiff has the burden of establishing the existence of the body camera footage. Essentially you’ve got plaintiffs saying, “Look, this is the process you tell us that you normally engage in. Why wouldn’t there be video footage?” And you’ve got the defendant saying, “Well, there’s no video footage.” Those are the facts as they’re laid out in the opinion.

What’s the analysis of the Court? Again, as I mentioned, we’re looking at Rule 37(e) and we’ve got to prove three things. First, that the missing evidence existed at the time. Second, that the alleged spoliator had a duty to preserve the evidence. And third, that the evidence was crucial to the movement being able to prove its prima facie case.

The testimony from the RCCL representative that there was no body camera footage available was the only evidence that was offered. Plaintiff argued that the normal procedure for interviews outside the facility said that the video should have existed, but had nothing else basically to substantiate that. I have many questions about what kind of additional steps could have been taken in discovery to determine whether or not that evidence existed.

The testimony that is cited in the case is very thin. Of course, that doesn’t mean that we know all of the testimony that was taken or how well the deposition went into these facts, but the testimony that’s cited in the case is very thin on really establishing whether video evidence was taken and the process by which it was stored on a workstation, how long it would have been kept on that workstation, whether it was still available for inspection on that workstation to see what files would have existed in what files would not have. Had that video been stored with the date of April 12th, 2019 listed next to it and other files in date order would have been there, and that file had been removed, forensic examination of the workstation would have been able to show that the evidence in fact existed and at some point was removed. So, I have those questions leading into what other steps could the plaintiff have done to meet their burden here to show that this evidence actually existed? Maybe those steps were taken. They’re not articulated in the decision, so I’m guessing not, but that’s a possibility. The Court found here, though, that that by simply articulating that the evidence should have existed based on procedure was not sufficient for the plaintiff to meet its burden to show that the information actually existed.

The question for you to take home is, what else could the plaintiff have done here? If this is the crux of the case, if she needs this video to show that she knew and her companion knew that this passenger was intoxicated and it was not her own fault that she slipped and fell and broke her wrist, then how would she be able to get to that evidence?

Counsel here did a great job of sending a preservation letter, making motions for sanctions to be able to get at potential spoliation issues, but how much more work could have been done to really identify the evidence to begin with? Point being here is that because the plaintiff failed to make their burden, that the evidence even existed, they got no further on a Rule 37 motion. What the Court said was you didn’t meet the requirements of Rule 37(e); your motion’s denied. The Court will determine at trial if any witnesses can be examined about whether or not any body camera footage of John Doe existed.

If you put these two decisions together, the one from October 20th where the Court says we’ll decide at trial if witnesses can give testimony about the intoxication of John Doe, and now you’ve got another question about whether or not you can even ask questions about the potential of body camera footage existing for John Doe. It doesn’t look very likely that you’re going to be able to get information about whether or not any body camera footage should have existed or did exist.

That’s going to be a problem for plaintiffs if the CCTV video, the six minutes that they did have, really shows that the plaintiff, in effect, fell down and doesn’t show any aggravated behavior by John Doe to suggest that he’s intoxicated. It’s really important from an evidentiary perspective.

What are our takeaways here? Plan, plan, plan.

We talk all the time about document, document, document. One of the biggest things that we say when we sit down to analyze a case with any client is what do you want to get up and say to the jury? What do you want to tell the jury? Obviously that’s going to change as you understand the evidence that exists in the case, but you need to plan for how you’re going to get and use ESI very early on. You need to make sure that you have all your bases covered. The moving party on a sanctions motion, has the basis to establish that the evidence existed. Is that fair? In some instances, no, but we can’t just prove a negative and you can’t make it incumbent upon a party who doesn’t have information that you’re looking for to show why they don’t have information that they’re looking for. If you’re the one making the motion, you have that burden. It’s important to note that.

Second take away when you’re looking at discovery decisions. I mentioned this at the outset. Make sure you’re reading earlier decisions that provide you further facts, so that you have the whole story. Here I started reading this decision without having read the earlier decision, and when I went back and read the earlier decision, we had not only CCTV footage issues, but also body camera issues with regard to the plaintiff and the plaintiff’s companion and then subsequent body camera issues with regard to the John Doe. Essentially what you’ve got is three people here who the plaintiffs claim their footage should have been captured of the oral statements that they gave to RCCL personnel, but none of them were captured. It’s hard for the Court to to look at that and be able to place some sort of burden on the defendant here for information that doesn’t exist.

Another take away, although it was easily cured here, the fact that RCCL had taken an inconsistent position on the amount of video footage that was retained for a particular incident could have been more problematic if the video captured had not been judged on a different standard. We talked about the fact that the standard that the Court applied was that the video that was captured was focused on “the nature and significance and proportionality of the portions of footage that was preserved.” If RCCL had a policy of capturing five minutes before and five minutes after and failed to meet that policy. The analysis here might likely have been different.

That’s important. Make sure that your clients have consistent policy and practices, either that they’re following or know that testimony that you give in one case is going to be able to be found and used against you in another case. Be consistent when you’re responding to questions regarding ESI and discovery related issues for your clients.

Another take takeaway. I mentioned this earlier, but the early preservation letter sent here is really key. Plaintiff’s counsel did a good job of getting that letter out immediately. The next question we have is, what additional things could the plaintiff’s counsel have done to be proactive about seeking out the information that was available? There’s no information about that in the two decisions that we looked at, there could have been more information, facts in the case that we don’t know about. That’s a really important thing to think about. You can send out that preservation letter and that’s a great thing to do, but you need to be actively involved in understanding what types of information are available.

Plaintiff’s counsel here had the opportunity to interview their client. She testified that she was asked to have her oral statement recorded. That’s in the facts. The plaintiff’s companion, it doesn’t say whether she was asked to have her oral statement recorded. There’s no information about whether or not John Doe was available for deposition or interview in this particular case, so there’s no ability to ask whether he was asked to have his oral statement recorded, which was the precursor to turning the body camera on. Some of those pieces would have gone a little bit further in the Court’s analysis of proving that burden, or at least potentially shifting it over to the defendants. Think about all of those pieces. Don’t just do the preservation letter; start doing actively the work of identifying the sources that you need from opposing counsel. The faster you do it, the less likely you’re going to end up with spoliation. Sanctions motions can be beneficial to your case when you truly have spoliation, but they are never going to be as good as having the actual evidence.

Again, we already know this, but you have the burden if you’re moving for sanctions, you have the burden of proving that evidence existed that no longer exists before you can even get to the second and third prongs of analysis under 37(e). Our testimony here was not abundantly clear on exactly what steps were taken or what, if any, measures were done to determine the existence of other evidence. I mentioned some of that. Could we have done an analysis of the workstation contemporaneous to the claim? Could there have been a demand for preservation of the workstation? There’s no discussion, really, of how long footage is kept by RCCL. Why would the longer footage not be available? What was the retention policy and when did they get rid of the rest of the footage?

Those are takeaways from this week and that’s our #CaseoftheWeek for this week. Thank you so much for joining me. I’ll be back next week with another edition. Be sure to sign up at eDiscoveryAssistant.com/blog or at eDiscoveryToday.com to receive the annual 2020 Case Law Report, which will show key issues in case law over the past year.

Also, we’ve had a few questions this week from ACEDS members regarding eDiscovery Assistant. There is a discount available if you’re a current ACEDS member and also a trial for folks who are taking the ACEDS exam. If you’re interested in that, please just reach out to us directly at ACEDS@eDiscoveryAssistant.com. One of our team will be in touch with you to help get you set up.

Please remember to register for the UF Conference coming up on March 18th and then share that information with your networks. If you’re part of groups on social media who would benefit from getting that information, please share with them. We’d like to get it out to as many people as possible. A lot of us are putting a lot of time and effort into putting that together for you and we’d love to to reach as many folks as possible and get the education needed. We all need high quality free CLE right now, and this is a great opportunity to hear from both judges and top practitioners in the eDiscovery space. We already have more than 1,100 registrations, so you will be in great company, and we’re also putting together some networking events associated with the conference.

That’s it for me. Have a great week. Please stay safe and healthy and I look forward to seeing you next week. Thanks again.

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