Opinion
Civil Action No. 91-2321, C/W 96-0244
June 22, 2000
ORDER AND REASONS
Defendants Patrick J. Canulette, in his official capacity as Sheriff of St. Tammany Parish, and Deborah McCormick, have filed a motion for summary judgment dismissing the claims asserted by the plaintiff against them in consolidated Civil Action 96-0244 which was filed in January, 1996. Plaintiff Gerald Burge asserted in that complaint a cause of action for spoilation of evidence or impairment of a civil claim based upon the fact that the "original investigatory file" regarding the murder of Douglas Frierson cannot be located and was apparently destroyed by the employees of the St. Tammany parish Sheriff's Office. Plaintiff Gerald Burge opposes the motion.
Plaintiff's complaint for spoilation of evidence or impairment of a civil claim is an adjunct of a suit he filed in 1991 for civil rights violations against a number of defendants, including Patrick J. Canulette, in his official capacity as Sheriff of St. Tammany Parish. The gravamen of these civil rights violations is that certain exculpatory material, otherwise known as Brady material, which was contained in the Sheriff's investigatory file in connection with the Douglas Frierson murder investigation was not provided to his attorney at the time of his first trial. The plaintiff's conviction was overturned by the state courts on the grounds that specific items considered by the state courts to be Brady material was not transmitted to the defendant at or prior to trial. After the material was provided and a retrial was held, the plaintiff was acquitted.
In January 1995, long after the plaintiff filed his 1991 civil rights action and was in possession of the statements in question, Burge's counsel in discovery requested a copy of the "original investigatory file" in the murder of Douglas Frierson. Plaintiff's counsel had been provided a copy of the entire file in 1991, which was produced from a microfilmed copy of the file, containing duplicates of all statements at issue which were allegedly not provided to the District Attorney's Office or to the plaintiff prior to his first trial. Counsel for the Sheriff conducted an investigation to determine where the "original" file was, which the Court surmises to be a paper or "hard" copy of the file, and determined that it had been destroyed, probably as a result of a routine destruction of old files. However, a microfilm of the file was and is maintained and plaintiff has been given multiple copies of the file.
In plaintiff's civil rights actions, he claims that he was deprived of certain exculpatory material. The specific documents which he alleges were Brady material and which he was provided with prior to his conviction at his first trial are:
1) A statement by Jean Frierson, the mother of the victim;
2) A statement by Joe Pearson, Burge's co-defendant;
3) Two statements by Jo Ella Prestwood, Pearson's girlfriend;
4) The original resume report of Gary Hale, an investigating officer with the St. Tammany Parish Sheriff's Office.
Each of these documents appears in the copy of the original investigative file and on both microfilm copies. Burge has been provided with multiple copies of the file and in each file there is a copy of these documents. Burge suggests that each copy of the material contains different pages, but nowhere does he establish what material was omitted or added to the original file material of which he was provided. The evidence is uncontroverted that the microfilm copies were made from the "original" file.
Burge also admits that he has obtained the affidavits of several persons employed by the District Attorney's Office at the time in question, including Assistant District Attorneys Richard Schwartz, Paul Katz, and Harry Patusek, and District Attorney Investigator Ronald Jenkins, all of whom stated that they were never provided copies of exculpatory statements which were the basis of Gerald Burge's Motion for New Trial in his criminal case.
The specific facts regarding the destruction of the "original" file are these. The Frierson murder investigation file had a 1980 item number. Burge's complaint, which was initially filed in 1991, was dismissed on a motion for summary judgment in 1992, and ultimately reversed in September 1993 by the appellate court. The "original" file was destroyed between June, 1991, and January, 1995. During 1994, the Sheriff's Office purged hundreds of files with numbers prior to 1983, as was the Frierson file, after verifying that all information contained in the original files had been microfilmed. According to internal procedures, the "original" paper copy of the file may not have been slated to be destroyed because it was a murder investigation file and was the subject of litigation, but nevertheless it apparently was shredded.
However, duplicate microfilm copies of the original file have been retained, are available for inspection, and, as described below, have been copied on more than on occasion for the plaintiff. The "original" file was produced in district court in St. Tammany Parish in June, 1990, and copied by the St. Tammany Parish Sheriff for the St. Tammany Parish District Attorney in 1990. A copy of the District Attorney's file, which was made from a copy of the "original" file furnished to the District Attorney, was provided to the plaintiff. Sheriff's Office counsel had a copy of the "original" file made and provided it to the plaintiff's counsel in 1991. The Sheriff's Office photographed the entire file on microfilm and made a duplicate of the microfilm, and these exist and are in the custody of the Sheriff's Office. Copies of both the original microfilm and the duplicate microfilm have been produced to plaintiff's counsel.
Recently, the Louisiana Fifth Circuit Court of Appeal has reviewed the tort of spoliation of evidence, the parameters of which are still being defined by the courts, in Pham v. Contico International, Inc., No. 99-945 (La.App. 5th Cir. Mar. 22, 2000) 2000 WL 325700. The Pham court observed:
The theory of "spoliation of evidence" refers to an intentional destruction of evidence for purpose of depriving opposing parties of its use. Hooker v. Super Products Corp., 98-1107 (La.App. 5 Cir. 6/30/99), 1999 WL 459360; Kammerer v. Sewerage and Water Board of New Orleans, 93-1232 (La.App. 4th Cir. 3/15/94), 633 So.2d 1357. The tort of spoliation of evidence has its roots in the evidentiary doctrine of "adverse presumption," which allows a jury instruction for the presumption that the destroyed evidence contained information detrimental to the party who destroyed the evidence unless such destruction is adequately explained. Randolph v. General Motors Corp., 93-1983 (La.App. 1 Cir. 11/10/94), 646 So.2d 1019, writ denied, 95-0194 (La. 3/17/95) 651 So.2d 276 Kammerer v. Sewerage Water Bd. of New Orleans, supra. Prior to 1997, the only remedy Louisiana courts have granted for spoliation of evidence claims has been the application of the above-mentioned adverse presumption. Recently, several Louisiana jurisdictions may have set the stage to recognize spoliation of evidence as a distinct and separate tort.
2000 WL 325700 at *3
The courts discussing the tort of spoliation of evidence have uniformly held that in order to sustain such a cause of action, the plaintiff must show more than a negligent impairment or destruction of the evidence, i.e., he must show "an intentional destruction of evidence for the purpose of depriving the plaintiff of its use." Kammerer v. Sewerage and Water Board of New Orleans, 633 So.2d 1357, 1358 (La.App. 4th Cir. 1994). As noted by the court in Vick v. Texas Employment Commission, 514 F.2d 734 (5th Cir. 1975), in finding spoliation of evidence or in applying an adverse inference to the destruction of records or evidence:
The adverse inference to be drawn from destruction of records is predicated on bad conduct of the defendant. "Moreover, the circumstances of the act must manifest bad faith. Mere negligence is not enough, for it does not sustain an inference of consciousness of a weak case." McCormick, Evidence § 273 at 660-61 (1972), 31A C.J.S. Evidence § 156(2) (1964). There was an indication here that the records were destroyed under routine procedures without bad faith and well in advance of Vick's service of interrogatories. Certainly, there were sufficient grounds for the trial court to so conclude.514 F.2d at 737.
Similarly, plaintiff has brought forth no evidence that the destruction of the "original" file was in bad faith or for the purpose of depriving him of its use. Indeed, plaintiff has been provided multiple copies of the material and duplicate microfilm copies of the "original" file are available to him. He argues that in order to prove that someone must have removed the statements in question from the "original" file he must have the "original" file. However, the microfilm was made from the "original" and the statements in question were in that file at the time it was copied. While plaintiff can ask the jury to infer that someone removed the statements from the "original" file, since the microfilm has the statements, as does every copy which was made from the "original" file, there is no evidence to support plaintiff's argument that the "original" file would prove his civil rights case.
Thus, in addition to being unable to establish that the records were intentionally destroyed, plaintiff is unable to establish how this act was the proximate cause of any injury to himself or to his case. Plaintiff may certainly argue that the jury can infer that the statements were removed from the original file before the file was provided to the District Attorney prior to the first trial. However, plaintiff has simply failed to meet its burden on summary judgment of establishing that there is a genuine dispute of material fact which precludes summary judgment on his claim that the evidence was impaired because the original paper copy of the file is not longer available. Rule 56, Federal Rules of Civil Procedure.
For the above and foregoing reasons, the Court finds that there is no genuine dispute as to any material fact concerning the liability of the defendants, Patrick J. Canulette, in his official capacity as Sheriff of St. Tammany Parish, and Deborah McCormick, for the tort of spoliation of evidence and/or impairment of a civil claim under Louisiana law, and that as a matter of law, they are entitled to judgment on these claims.
Accordingly,
IT IS ORDERED that the motion of defendants Patrick J. Canulette, in his official capacity as Sheriff of St. Tammany Parish, and Deborah McCormick, for summary judgment on the state law claims of spoliation of evidence and/or impairment of a civil claim, which were asserted in consolidated civil action Number 96-0244, be and is hereby GRANTED.
Unless the parties agree that the consolidated civil actions should be separated, and a F.R.Civ.P. 54(b) judgment should be entered at this time to allow the matter to be appealed immediately, the Court will maintain the consolidation so that all issues may be the subject of one consolidated appeal. This action has already been the subject of more than one appeal, and in the interests of judicial economy, the Court finds no reason to separate these actions at this time.