448 F.Supp.3d 454
E.D. Pa.2020Background
- Plaintiff Peter Bistrian, a pretrial detainee at FDC Philadelphia, was brutally attacked in the SHU rec pen by fellow inmate Aaron Taylor while Bistrian was handcuffed and Taylor was not; the attack involved a razor weapon and required deployment of a munitions device.
- FDC surveillance cameras recorded the escort from Taylor’s cell through the SHU hallway; the hallway footage that would show whether Taylor was properly searched was automatically overwritten ~3–4 weeks after the attack and is now lost.
- Physical evidence (the razor weapon and the spent munitions canister) was preserved for Taylor’s criminal prosecution but destroyed by the FBI on June 12, 2015—two days after Bistrian requested the criminal exhibits in discovery.
- This long-running matter includes Bivens claims (against individual officers) and FTCA claims (against the United States); FTCA claims were reinstated and tried to the Court after interlocutory appeals and earlier dismissals.
- Bistrian moved for adverse inferences and sanctions for spoliation; the Court applied amended Rule 37(e) (retroactively as just and practicable) to the lost ESI (hallway video) and Third Circuit spoliation principles to tangible evidence, and reopened limited discovery to admit newly located 2006 post orders, razor logs, and certain deposition testimony.
- Court findings summarized: hallway video was ESI and within the duty-to-preserve scope but its loss was not intentional (no adverse inference); the razor and munitions were intentionally destroyed after notice—bad faith found as to the razor (but Court declined an adverse inference and imposed lesser remedies); limited new evidence admitted, some third-party-incident evidence excluded, and no fee sanctions awarded for post-order destruction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adverse inference for hallway surveillance (ESI) | Government intentionally failed to preserve hallway footage that would show whether Taylor was searched. | Footage may not be ESI; automatic overwriting; no bad faith; government preserved other relevant footage. | Rule 37(e) applies; gov’t had duty and failed reasonable steps; no intent to deprive found; prejudice proven; no adverse inference; Court will treat loss as a factor and impose lesser curative measures. |
| Destruction of razor weapon and munitions (tangible evidence) | Items intentionally destroyed after plaintiff requested exhibits; request put government on notice. | Destruction was routine under FBI policy; not prejudicial or was unknown. | FBI destroyed items June 12, 2015 after request; bad faith found as to razor weapon; munitions device caused no prejudice (stipulation); no adverse inference for razor but Court permits supplementation and will consider destruction in factfinding. |
| Reopening record to admit newly discovered materials (2006 post orders, razor logs, Millhouse/Humbert materials) | Newly located 2006 post orders and razor logs are critical to showing mandatory policies and patterns; fairness requires reopening. | Reopening prejudices government, would delay trial, and would invite mini-trials on collateral incidents. | Court exercised discretion to reopen narrowly: admitted 2006 razor and search post orders, supplemented razor logs, and certain deposition testimony (e.g., Officer Jezior, Brand); excluded factual materials about Millhouse/Humbert attacks and sally-port decision evidence that would unduly burden the government. |
| Sanctions / attorneys' fees for discovery failures and alleged false testimony | Seek fees and sanctions for failure to disclose other razor incidents, destruction of post orders, and misleading testimony by 30(b)(6) designees. | Failures were negligent or the product of informal understandings; no bad faith; witnesses corrected or credibly testified. | Court found destruction of post orders and failures were negligent, not bad faith; no monetary sanctions or fee awards; no inherent-authority sanctions; some witness testimony flaws noted but not shown to be in bad faith. |
Key Cases Cited
- Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) (establishing implied constitutional damages action against federal officers)
- Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76 (3d Cir. 1994) (recognizing adverse inference for spoliation under common law)
- Bull v. United Parcel Service, Inc., 665 F.3d 68 (3d Cir. 2012) (setting elements for spoliation of non‑electronic evidence and requiring bad faith)
- GN Netcom, Inc. v. Plantronics, Inc., 930 F.3d 76 (3d Cir. 2019) (clarifying interplay between Rule 37(e) and Third Circuit spoliation factors)
- Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003) (duty to preserve ESI and guidance on relevant preservation scope)
- Micron Tech., Inc. v. Rambus Inc., 645 F.3d 1311 (Fed. Cir. 2011) (objective test for when litigation is reasonably foreseeable and duty to preserve arises)