603 F.Supp.3d 611
N.D. Ill.2022Background:
- Hollis (material handler) was fired after a Nov. 28, 2018 warehouse incident with coworker Phillip Bayer; CEVA relied on three written statements (white witnesses) and credited them over three African American witnesses who disputed touching.
- CEVA had three security cameras pointed at the incident area; recordings generally retained 30–90 days. A supervisor had previously accessed footage for an unrelated August 2018 investigation.
- On Dec. 5, 2018 (day after termination), Hollis sent a written complaint alleging race discrimination and specifically requested that CEVA pull and review the security video.
- CEVA never produced or showed it attempted to preserve the footage; in discovery CEVA initially said no video existed and named Unisight as custodian, but Unisight said it only sold the equipment and never held footage.
- Hollis moved for a missing evidence instruction under Fed. R. Civ. P. 37(e). The court found the video was ESI, a duty to preserve was triggered by Hollis’s letter, CEVA failed to take reasonable steps to preserve it, and the footage cannot be restored or replaced.
- The court found Hollis prejudiced by the loss, left intent to the jury (declining harsher sanctions), and imposed a Rule 37(e)(1) curative measure: factual findings and a jury instruction about the lost ESI (attached as an appendix).
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Existence of the video (ESI) | Video was recorded; cameras pointed at incident; supervisor had used footage recently | No proof video ever recorded; no obligation to produce non-existent ESI | Court found inference that video existed is reasonable and video is ESI |
| Duty to preserve | Hollis’s Dec. 5 letter and termination made litigation reasonably anticipated and put CEVA on notice | Duty arose only when EEOC charge was served (Mar. 2019) | Duty to preserve arose when Hollis’s Dec. 5 letter put CEVA on notice |
| Relevance of footage | Footage would be directly probative of who initiated contact and discrimination/pretext | Video might have hurt Hollis; witness statements already support CEVA’s version | Video was relevant and should have been preserved |
| Reasonable steps to preserve | CEVA did nothing after notice to view or preserve footage | CEVA speculates technical failures could explain absence | CEVA failed to take reasonable steps to preserve the ESI |
| Restorable/replaceable | Footage cannot be restored; witness statements are not a substitute | Witness statements can substitute for lost video | Court: ESI cannot be restored/replaced through discovery; statements are insufficient |
| Prejudice / Intent | Loss thwarts Hollis’s ability to obtain critical evidence; intent inference supported by conduct and misleading discovery response | CEVA may have been negligent/incompetent, not intentional; no conclusive proof of intent | Prejudice found; intent not resolved—left to jury; court granted curative instruction under Rule 37(e)(1) |
Key Cases Cited
- Clipper v. Takoma Park, 876 F.2d 17 (4th Cir. 1989) (courts recognize routine law‑enforcement use of video evidence)
- Freidig v. Target Corp., 329 F.R.D. 199 (W.D. Wis. 2018) (video recordings are ESI and video retention obligations can be triggered by incident reports)
- DR Distributors v. 21 Century Smoking, 513 F. Supp. 3d 839 (N.D. Ill.) (framework applying Rule 37(e) thresholds and remedies)
- Schaffer v. Weast, 546 U.S. 49 (2005) (burdens of proof often rest with party having better access to evidence)
- Scott v. Harris, 550 U.S. 372 (2007) (video evidence can be dispositive and alter summary judgment analysis)