Opinion
Case No. 19-1387
2022-02-07
Eddie BOUTILIER, et al., Plaintiffs, v. MENARD INC., et al., Defendants.
Jeffrey Dale Frederick, Frederick & Hagle, Urbana, IL, Ivo Austin, Steigmann Law PC, Savoy, IL, for Plaintiffs. Julius L. Block, Adam P. Chaddock, Quinn Johnston Henderson Pretorius & Cerulo, Peoria, IL, for Defendant Menard Inc.
Jeffrey Dale Frederick, Frederick & Hagle, Urbana, IL, Ivo Austin, Steigmann Law PC, Savoy, IL, for Plaintiffs.
Julius L. Block, Adam P. Chaddock, Quinn Johnston Henderson Pretorius & Cerulo, Peoria, IL, for Defendant Menard Inc.
ORDER
COLIN S. BRUCE, UNITED STATES DISTRICT JUDGE
This case is before the court on the Motion for Spoilation Sanctions (#84) filed by Plaintiffs Eddie Boutilier and Linda March ("Plaintiffs"). Defendants, Menard, Inc. and Unknown Employee of Menard, Inc. ("Menard") filed a Response (#90) in opposition. For the reasons provided below, Plaintiffs' Motion for Spoilation Sanctions (#84) is granted in part and denied in part.
I. Background
Plaintiffs' claims arose from an alleged incident at Menard's Champaign store on April 2, 2018. Plaintiffs allege that Eddie Boutilier ("Boutilier") was shopping in the special order shed when a Menard employee operating a forklift collided with a shelving unit near Boutilier. This caused a heavy box to fall from the shelf and strike and injure him. Boutilier reported the incident to a Menard salesman and then to Menard's assistant manager, Kristen Kern, who made a written incident report.
On May 18, 2018, Plaintiffs' attorney sent a letter to Menard requesting it preserve security camera footage from the incident. Plaintiffs first officially requested all video and pictures of the area in their Request to Produce No. 1. Menard responded: "No cameras were located in the area where the alleged incident occurred. If any security video existed from the security gate, it is no longer accessible. Investigation continues." Exhibit 6 to Plaintiff's Motion, #84-3. Menard continued to deny the existence of security cameras in the special order shed. Plaintiffs deposed Daniel Ahart, general manager at the store on the date of the incident, on September 15, 2020. Mr. Ahart testified that there were no video cameras located in the special order section or at the location of the security guards on April 2, 2018. Ahart Deposition, #96, 34:13-35:6.
Plaintiffs again requested any surveillance footage on October 12, 2020, in their Second Supplemental Requests to Produce ("Please produce any and all photographs or videos that exist showing the pre-paid special order section as it would have looked during the construction phase, including December 2017 – May 2019.") Exhibit #9, #84-6. Defendants did not disclose any videos, but did provide photographs of the special order and pre-paid area taken in October and November 2017.
Then, on January 15, 2021, Plaintiffs deposed Kristen Kern, assistant manager at the store on the date of the incident. Kern Deposition, Sealed Exhibit, #81. Kern testified to watching videos from cameras labeled "special order" soon after Boutilier reported the incident. Kern Deposition, at 93:11-95:10. Kern explained that she looked at the videos starting slightly prior to the 4:00 p.m. hour and saw Boutilier in the parking lot section. However, she did not see anyone else and did not see the incident Boutilier reported. 95:11-96:13. According to Kern, surveillance cameras covered every part of the area where Boutilier drove in, walked around, and drove out, but that Kern did not view the videos of several aisles in the area on the day of the incident. 100:4-7; 102:1-103:199. Kern acknowledged she could have written down the relevant times and submitted a request to preserve the videos, but did not do so. 100:17-22.
Kern testified that she did not preserve the video she saw because she did not see a video showing a box falling on Boutilier: "Because I didn't find it on video, so in my head it didn't need to be documented because it wasn't caught on camera." 107:11-23.
After Kern's deposition, Plaintiffs served their Fifth Supplemental Request to Produce on Menard asking Menard to "[p]lease produce all videos and recordings that Kristen Kern, Assistant Store Manager at Menards as of 4/2/2018 stated she viewed on April 2, 2018 of the yard and special order section." Exhibit 11, #84-8. In response, Menard produced four videos dated April 2, 2018, and stamped with four camera numbers: 80, 85, 88, and 92. Plaintiffs describe these videos as follows: Camera 80 showed the front parking lot of Menard's; Cameras 85 and 92 showed views of the inside of the special order shed; and Camera 88 showed a view of the yard and the outside of the special order shed.
Camera 88 shows Boutilier exit the main Menard's building, enter his truck, drive and park near the special order shed, exit his truck, and enter the special order shed at 4:13 p.m. The same camera shows Boutilier exit the special order shed at 4:17 p.m. Camera 80 shows Boutilier's truck pull up to the front of the Menard's store at 4:35 p.m. and then Boutilier enter the store to report his injury.
Plaintiffs' Motion alleges that Menard failed to properly preserve and disclose the videos requested. Plaintiffs maintain that Menard's failure to preserve some videos and timely disclose other videos prejudiced Plaintiffs. Plaintiffs ask the court to impose the following sanctions against Menard: "(1) bar Defendant from introducing any of the four videos at trial as an appropriate discovery sanction under Federal Rule of Civil Procedure 37 ; (2) instruct the jury pursuant to Federal Rule of Civil Procedure 37(e)(2)(B) ; and (3) award attorney's fees and expenses to Plaintiff for sending repeated discovery requests and deposing Defendant's former employee, Kristen Kern."
II. Legal Standard
Fed. R. Civ. P. 37(e) provides as follows:
(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court:
(1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Plaintiffs argue that they are entitled to sanctions under both Rule 37(e)(1) and 37(e)(2). Rule 37(e)(1) directs the court to determine whether the party seeking sanctions suffered prejudice from the loss of information and limits the sanctions utilized by the court. Rule 37(e)(2) has a higher bar for authorizing sanctions, as it requires a showing of bad faith. The sanctions offered by Rule 37(e)(2) are generally more severe than those allowed by Rule 37(e)(1)'s balancing test.
"[C]ourts have found a spoliation sanction to be proper only where a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent." Trask-Morton v. Motel 6 Operating L.P. , 534 F.3d 672, 681 (7th Cir. 2008). However, "simply establishing a duty to preserve evidence or even the negligent destruction of evidence does not automatically entitle a litigant to an adverse inference instruction in this circuit." Bracey v. Grondin , 712 F. 3d 1012, 1020 (7th Cir. 2013). Instead, a showing of "bad faith" is a "prerequisite to imposing sanctions for the destruction of evidence." Trask-Morton , 534 F.3d at 681 ; citing Crabtree v. Nat'l Steel Corp. , 261 F.3d 715, 721 (7th Cir. 2001). Destroying evidence intentionally is insufficient to show bad faith. Instead, "bad faith means destruction for the purpose of hiding adverse information." Mathis v. John Morden Buick, Inc. , 136 F.3d 1153, 1155 (7th Cir. 1998).
III. Analysis
a. Rule 37(e)
For relief to be granted under Rule 37(e), the court must first establish three elements: (1) the electronically stored information should have been preserved in the anticipation of litigation; (2) the party failed to take reasonable steps to preserve it; and (3) the lost information cannot be restored or replaced through additional discovery. Fed. R. Civ. P. 37(e).
Plaintiffs have established all three initial elements under Rule 37(e). First, Menard knew litigation was likely to result from the alleged incident on April 2, 2018, the day of the incident. Boutilier immediately reported the incident first to a salesman and then to Menard's assistant manager, Kristen Kern. Kern made a written incident report. The incident report described the accident: "[H]e was looking for his tile in the [special order shed] and a big white box fell from above him and hit him in the back and then when he tried to move it then hit him in the shins (right leg and back hurting)." Exhibit 1 to Kern Deposition, #81, p. 50.
This incident report shows that Boutilier made it clear to Menard that he was injured and believed Menard was responsible. The written incident report gave Menard notice of potential litigation. Kern Deposition, 76:13-21; see Freidig v. Target Corp. , 329 F.R.D. 199, 207 (W.D. Wisc. 2018) ("When a party is aware of an accident that it knows is likely to cause litigation, it triggers the party's duty to preserve evidence. That is the case here. [The plaintiff] filled out a guest incident report that said she was injured after slipping on a puddle in a checkout lane. This report gave [the defendant] notice of potential litigation. [The defendant] was well aware that an accident similar to [the plaintiff's] could lead to litigation, as reflected in its video retention policies and its formal investigation."). Accordingly, Menard knew that litigation was likely on the date of the incident, April 2, 2018, and its duty to preserve all relevant video coverage arose the same day.
Second, Menard failed to take reasonable steps to preserve the video surveillance. Menard argues that it did not locate any surveillance footage from the date of the alleged incident until responding to Plaintiff's Third Supplemental Request for Production (which sought production of items unrelated to surveillance videos). Menard acknowledges that on or around November 23, 2020, while searching for responsive items, it discovered four surveillance videos on its server. As detailed in the Background section above, none of the videos show the alleged incident. However, Menard's inability to locate videos showing the location at the relevant time does not absolve Menard of its duty to preserve evidence that was triggered on April 2, 2018.
While several Menard's employees testified that the special order shed did not have video cameras on the day of the incident, Kerns testified to the contrary in her deposition. Kerns stated that after the Boutilier incident, she went to the camera room at Menard and viewed at least one camera view that covered the area at issue, but did not see the accident. Kern Deposition, 94:2-3. Kern further explained that when she was selecting which camera's footage to view, she would have selected the cameras that are pointed in the special orders shed. Kerns Deposition, 95:3-10. She further explained that she "probably" looked at the videos starting a few minutes before 4:00 PM, but she didn't remember looking at videos timestamped after 4:00 PM.
Kerns chose not to submit a request to preserve videos at least in part because she did not view the incident on the videos she reviewed. However, it is clear from the videos that Menards eventually produced that Plaintiff did not enter the special order shed until 4:13 PM on April 2, 2018. Therefore, any video surveillance Kerns checked from prior to 4:00 PM would not have shown the alleged incident.
Furthermore, Kerns testified as to Menard's written policies that required employees to check and preserve security video footage of any incidents and of the alleged individual's behavior both before and after the incident. Kern Deposition, 55:14-17. Menard failed to preserve the surveillance videos in accordance with its own policies.
Third, Menard acknowledges that it cannot restore or replace any videos other than the four they produced late in discovery.
Because Plaintiffs established the initial three elements under Rule 37(e), the court now considers whether sanctions are warranted under Rule 37(e)(1) or 37(e)(2).
b. Rule 37(e)(1)
Rule 37(e)(1) provides that the court, "upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice." Subsection (1) allows the court to reconcile any prejudice caused to another party from loss of information caused by a party's failure to preserve. In this case, the court must first determine whether Plaintiffs suffered prejudice from Menard's failure to preserve video footage from April 2, 2018. If the court finds that Plaintiffs are prejudiced, it then "may order measures no greater than necessary to cure the prejudice."
Plaintiffs argue they have been prejudiced in two ways. First, Plaintiffs argue because of the late disclosure of the four videos Menard did produce, Boutilier was unable to use the videos to refresh his recollection of the day prior to his deposition. Second, Plaintiffs argue they would be prejudiced by Menard being able to use the four videos at trial because not all videos are available.
While Rule 37(e) does not define prejudice, the Advisory Committee Notes provide:
The rule does not place a burden of proving or disproving prejudice on one party or the other. Determining the content of lost information may be a difficult task in some cases, and placing the burden of proving prejudice on the party that did not lose the information may be unfair. In other situations, however, the
content of the lost information may be fairly evident, the information may appear to be unimportant, or the abundance of preserved information may appear sufficient to meet the needs of all parties. Requiring the party seeking curative measures to prove prejudice may be reasonable in some such situations. The rule leaves judges with discretion to determine how best to assess prejudice in particular cases.
Fed. R. Civ. P. 37(e), Advisory Committee Notes, 2015 Amendments.
The court finds no prejudice to Plaintiffs because of Menard's late production of the four videos. While Boutilier was unable to refresh his recollection before his deposition, he will be able to view the videos prior to his testimony at trial. To the extent his newly refreshed recollection differs from his prior testimony, he will have ample opportunity to explain this.
Plaintiffs were, however, prejudiced, by Menard's failure to preserve videos taken within the special order shed on April 2, 2018. As discussed above, Kern did not follow store policy when she failed to fill out the required form to preserve footage. While Kern testified that she did not view the incident when she reviewed the relevant cameras, she also testified that she viewed footage leading up to, but not after 4:00 PM, when the alleged incident occurred closer to 4:16 PM. Without these videos, Plaintiffs must rely only on Boutilier's testimony to argue that a box fell on Boutilier's back while he was in the special order shed. While the court cannot determine what the videos would have shown if they were preserved, relevant video evidence seems to have existed but is no longer available. Furthermore, Menard's own policy dictates that those videos should have been preserved once Boutilier reported the incident. The court finds that Plaintiffs have been prejudiced by the failure to preserve and will therefore order "measures no greater than necessary to cure the prejudice."
c. Rule 37(e)(2)
While the court will allow for some sanctions under Rule 37(e)(1), sanctions are not warranted under Rule 37(e)(2). As noted above, destroying evidence intentionally is insufficient to show bad faith. Instead, "bad faith means destruction for the purpose of hiding adverse information." Mathis v. John Morden Buick, Inc. , 136 F.3d 1153, 1155 (7th Cir. 1998). In this case, there is no evidence that Menard destroyed the videos or delayed producing the videos it did preserve to hide adverse information. Kerns testified that she did not log a video preservation request because the videos she saw did not show the incident at hand. It appears she watched videos that were time stamped before the alleged incident and therefore may have missed video footage that covered the time while Boutilier was in the special order shed. However, her possible negligence is insufficient to establish that Menard intended to destroy the videos to hide adverse information. Plaintiffs have not established that Menard acted in bad faith, and Plaintiffs' request for sanctions under Rule 37(e)(2) is denied.
d. Sanctions
Plaintiffs request the court: (1) bar Defendants from introducing any of the four videos it disclosed in discovery; (2) instruct the jury pursuant to Federal Rule of Civil Procedure 37(e)(2)(B) that the missing video from cameras 85 and 92 was unfavorable to Defendant in that the video showed Plaintiff being struck by a heavy box; and (3) award attorney's fees and costs to Plaintiff.
The court finds that barring Defendants from introducing the four videos it disclosed or instructing the jury that the missing video showed Boutilier being struck by a box are greater sanctions than warranted to cure the resulting prejudice to Plaintiffs. Instead, the court orders that it will instruct the jury as follows:
Defendant Menard failed to preserve all relevant video surveillance footage as required by Menard's policies and by law. As a result of that failure, the video surveillance footage from inside the special order shed at the time of the incident was unavailable for Plaintiffs' use during the trial.
Plaintiffs also seek attorneys' fees to compensate for their time spent issuing multiple discovery requests seeking the video footage and for filing this motion. The Northern District of Illinois considered a similar request for attorney fees under Rule 37(e) :
Notably absent from Rule 37(e) is the mention of attorneys' fees as a sanction, either for having to file the motion or for the failure to preserve the ESI. And the Advisory Committee Notes are shockingly silent on the issue as well. In fact, the minutes of the Advisory Committee meetings reflect that those in attendance recognized this absence, but simply chose not to do anything about it. Significantly, every other provision of Rule 37 that addresses a discovery violation provides for the imposition of attorneys' fees.
Snider v. Danfoss, LLC , 2017 WL 2973464, at *5 (N.D. Ill. July 12, 2017) (internal citations omitted).
In this case, where the failure to preserve was not done in bad faith, and where the court fashioned a jury instruction to cure any prejudice, attorney fees are not warranted.
IV. Conclusion
As detailed above, Plaintiffs' Motion for Spoilation Sanctions (#84) is granted in part and denied in part.