PETER BISTRIAN, Plaintiff, v. WARDEN TROY LEVI, et al., Defendants.
CIVIL ACTION NO. 08-3010
IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA
March 24,
Rufe, J.
MEMORANDUM OPINION
Rufe, J.
March 24, 2020
This civil rights case brought by Plaintiff Peter Bistrian has been before this
In any long-running case like this one, it is perhaps inevitable that the evidence ultimately presented at trial will be deficient in one way or another. Memories fade, tangible things deteriorate, and electronic data disappear into the ether. Unfortunately, an extraordinary number of such evidentiary irregularities have plagued this litigation—specifically, the litigation of the FTCA claims against the United States that were the subject of the second trial—leading to accusations of spoliation, a motion for sanctions, and the reopening of discovery after both parties had rested. Those issues are addressed in this Opinion.
I. MOTION FOR ADVERSE INFERENCE
A. Background
While awaiting trial on charges of wire fraud, Bistrian was detained at the Federal Detention Center (“FDC“) in Philadelphia. He was placed in the Secure Housing Unit (“SHU“) for allegedly violating his phone privileges. While in the SHU, Bistrian was the victim of two assaults at the hands of other inmates. The second of those assaults was the subject of his failure-to-protect claim against the United States at this trial.
That second assault occurred when Bistrian and his fellow SHU inmate Aaron Taylor were placed in the same “rec pen” for their daily hour of recreation time. At the end of thе recreation period, during which inmates were unrestrained in the rec pen, each inmate had to be handcuffed before the rec pen could be unlocked to return the inmates to their cells. After Bistrian was handcuffed, but while Taylor was still unrestrained, Taylor attacked Bistrian with a weapon fashioned from one of the disposable razors regularly given to inmates to shave with. Much attention was paid at trial to the safeguards at the FDC meant to prevent inmates from retaining razors and to ensure inmates did not smuggle contraband to the rec pen.
The FDC has a vast network of surveillance cameras that capture most everything that takes place within the facility. All agree that the cameras in the hallway of the SHU—that is, the corridor between two facing rows of cells in the SHU—would have captured footage of staff retrieving Taylor from his cell and escorting him to the rec pen. That footage would also have shown whether staff properly searched Taylor before escorting him to
At trial, Bistrian moved for an adverse inference based on spoliation of evidence by the government. Bistrian argued that the government intentionally failed to preserve (1) surveillance video footage that would have shown whether Taylor was searched before being taken to the rec pen and (2) the razor weapon with which Taylor attacked Bistrian.2 Bistrian sought an inference that Taylor either was not searched at all or that any search did not meet mandatory safety requirements. Bistrian also seeks an adverse inference based on the destruction of the munitions device used by correctional officers to break up the assault on him.
B. Legal Standard
“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another‘s use as evidence in pending or reasonably foreseeable litigation.”3 When a district court finds that spoliation has occurred, it has the authority to fashion an appropriate sanction to remedy the damage to other parties.4 The adverse inference has a long history in the common law as one such sanction, as the Third Circuit has explained.5 It serves to remedy destruction of evidence, based on “the сommon sense observation that when a party
destroys evidence that is relevant to a claim or defense in a case, the party did so out of the well-founded fear that the contents would harm him.”6 “The admissibility of spoliation evidence and the propriety of the spoliation inference is well established in most jurisdictions.”7
Until recently, district courts in the Third Circuit relied on both the
i. Spoliation of ESI: Rule 37(e)
The parties dispute whether the 2015 amendment to
consistent with the default statutory rule governing amendments to the
Two cases in this Circuit have considered whether to apply the 2015 amendment retroactively. Both concluded that retroactive application was appropriate.17 It is true that those cases were filed much later than this one and that the conduct relevant to this motion occurred as much as nine years before the new rule was promulgated.18 The Court nevertheless
Once a court concludes that spoliation has occurred, it must determine what sanction to impose.21
dispositive sanctions.22 In the absence of bad faith, a court may impose a range of lesser sanctions if the loss of the information prejudiced another party.23 In addition, the Third Circuit has set out three factors for courts to consider in contemplating spoliation sanctions, which—it recently clarified—are still applicable to motions governed by the 2015 amendment to
(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substаntial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.24
ii. Spoliation of tangible items and other non-electronic information
Outside the realm of ESI, “[s]poliation occurs where: the evidence was in the party‘s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.”25 “[A] finding of bad faith is pivotal to a spoliation determination.”26 Thus, whereas some lesser sanctions may be warranted under
both the spoliating party‘s degree of fault and the adverse party‘s degree of prejudice, as well as whether any lesser sanction would adequately remedy the loss of evidence. Possible sanctions for spoliation include suppression of evidence, an adverse inference, and attorney‘s fees, as well as case-dispositive sanctions in extreme cases.28
C. Discussion
i. The Hallway Video
The parties dispute whether
a. Whether the United States Had a Duty to Preserve the Hallway Video
that was lost or destroyed before a duty to preserve it arose.33 Thus, the first question is whether the United States was under a duty to preserve the hallway video before it was automatically overwritten about a month after the Taylor attack.34
1. Common-Law Duty to Preserve in Anticipation of Litigation
A party “is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”38 This common-law standard is an objective one, asking not whether a party actually anticipated litigation, but “whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.”39 The “reasonably foreseeable” test “is a flexible fact-specific standard that allows a district court
to exercise the discretion necessary to confront the myriad factual situations inherent in the spoliation inquiry.”40 It requires something more than the “distant possibility” of litigation, but it does not require that litigation be “imminent, or probable without significant contingencies.”41
The duty to preserve arises no later than when a lawsuit is filed but may be triggered earlier than the filing of the complaint depending on the particular circumstances.42 There is no single bright line that definitively marks when litigation reasonably should be anticipated. Instead, courts consider a variety of factors, including the type and seriousness of the injury; how often similar kinds of incidents lead to litigation; the “course of conduct between the parties, including past litigation or threatened litigation“; and what steps both parties took after the incident and before the loss of the evidence, including whether the defendant initiated an investigation into the incident.43 When a party argues that spoliation occurred before the complaint was filed, the court must conduct a fact-sensitive inquiry to determine at what point the spoliating party reasonably should have anticipated the litigation.
incidents are viewed as being especially likely to lead to litigation. Incidents in which inmates are injured in prison are one such category: A number of courts have found that government defendants reasonably should have anticipated litigation from the time an inmate was seriously injured or died in custody.45 Even more specifically, courts have held that “in the correctional context, a duty to preserve may attach when an inmate is in a fight or when an inmate files grievances about [such an] incident.”46 Slip-and-fall cases are another example—courts have held that because those incidents so predictably lead to a lawsuit, defendants can often be expected to anticipate litigation soon after the event itself.47 That is not to say that the mere fact of a slip-and-fall or a prison assault is always enough to put defendants on notice of potential litigation and trigger a duty to preserve. But such an event combined with other circumstances may often be enough that defendants should reasonably anticipate litigation beginning soon after the incident itself.
What kinds of other circumstances? For one thing, the seriousness of the injury is a
Here, Bistrian argues that the United States reasonably should have anticipated this litigation well before the earliest time the video could have been overwritten—indeed, that it reasonably should have anticipated this litigation immediately after the Taylor attack. Bistrian explains that he was a likely plaintiff for five reasons. First, the attack was especially lengthy and brutal, so much so that the usual measures failed to break it up, forcing staff to deploy a munitions device. Second, he was seriously injured and required immediate and substantial medical attention. Third, he had already been attacked once in the custody of the United States. Fourth, it was the correctional staff that had placed him in a vulnerable position by handcuffing him while Taylor was unrestrained.48 And fifth, according to Officer Gibbs, Bistrian complained to him “weekly” while in the SHU that he planned to sue.49
The United States offers two responses. First, it points out that inmate-on-inmate assaults are regrettably common, and that “[i]f all or even most of these assaults led to civil litigation, the courts would be flooded with suits,” which they are assertedly not.50 Second, it argues that
because Bistrian himself did not expect to sue within the first month after the Taylor attack, the United States could not have anticipated litigation at that point, either.51 These arguments are not persuasive.
First, the argument from the claimed frequency of these incidents is odd. The United States appears to be arguing that the Court should compare the total number of assaults in the BOP with the Court‘s own subjective estimate of how overwhelmed the courts are with prisoner lawsuits stemming from inmate violence. If the Court agrees that the federal judiciary is not yet “flooded” with civil rights suits, the United States suggests, then it should conclude that such suits are rare enough that litigation is not reasonably foreseeable after any given assault. This curious methodology is not supported by the case law, to say the least. The Court finds it more appropriate to consider whether the features of this incident and these parties made this litigation reasonably foreseeable.
Even if the Court were to follow the impressionistic approach the government advocates, moreover, it would reach the opposite result. In the Court‘s experience, the judiciary handles a large volume of prisoner civil rights claims stemming from inmate violence, and based on the raw numbers the United States provides, sеrious inmate-on-inmate assaults in the BOP do not seem all that common. There were 900 100-level assaults (the most serious kind of inmate assault; the Taylor attack was designated a 100-level assault) in the
incidents at each BOP facility that year—one about every six weeks. At that rate, serious inmate assaults seem relatively infrequent compared with the Court‘s subjective impression of the volume of litigation these incidents produce.
As to the second argument—that Bistrian himself did not yet know he would sue—the reasonable foreseeability standard is objective. If a defendant‘s subjective expectations are not decisive in this analysis, then a fortiori a plaintiff‘s subjective expectations cannot be. Of course, a plaintiff‘s conduct between the relevant events and the filing of a complaint can make litigation more or less foreseeable. The United States, however, argues that it could not be expected to anticipate litigation before Bistrian himself subjectively expected to sue. That distorts the common-law standard, which is—like all reasonableness tests—an objective one.54
The Court agrees with Bistrian that the United States reasonably should have anticipated litigation soon after the Taylor attack and certainly before the video was overwritten three to four weeks later. This kind of incident—an inmate-on-inmate attack in prison—commonly leads to civil litigation.55 More importantly, this particular incident was unusual in many respects that would have prompted any reasonable defendant to anticipate this lawsuit, as Bistrian has explained. Additionally, the course of conduct between the parties showed that Bistrian repeatedly and vociferously challenged his treatment in pretrial detention through counsel56 and told correctional staff regularly that he intended to sue.57 Further, although Bistrian did not give
explicit notice of these particular claims within the video overwriting window, the United States did begin a criminal investigation, including preserving a great deal of other evidence.58 In sum, all the usual factors that trigger a duty to preserve prior to the filing of a lawsuit are present here.
2. Independent Preservation Duties
Because the Court concludes that the United States was under a common-law duty to preserve before the video was overwritten, there is no need tо conduct a full analysis of the independent preservation duties at play here. A few things bear mentioning, however.
The Advisory Committee‘s notes to the 2015 version of
Had the United States preserved the hallway video for potential use in the criminal prosecution, it should still have been available by the time Bistrian filed this lawsuit in 2008, at which point its preservation obligations were beyond any question, because Taylor‘s criminal case was still pending at that point.63 The United States does not dispute this timeline, nor does it dispute that it should have preserved potentially relevant evidence for the criminal prosecution. Instead, it argues that it was not required to preserve the hallway video because it was not relevant to any element of the assault charges against Taylor64 and because it had more than enough to convict Taylor without the hallway video.65
b. Whether the Government Knew or Should Have Known that the Hallway Video Was Within the Scope of Its Duty to Preserve
The next question in the spoliation inquiry is whether the destroyed evidence was within the scope of the duty to preserve. The United States argues that it was not obligated to preserve the hallway video because it could not have anticipated how important the video would become to the question of liability as the issues in the case evolved over the ten-year lifespan of this litigation.
Thе duty to preserve encompasses only relevant evidence. A party that reasonably should anticipate litigation “must not destroy unique, relevant evidence that might be useful to an adversary.”67 A litigant is not required to keep “every document in its possession“—rather, only those items that are relevant, “reasonably calculated to lead to the discovery of admissible evidence,” or “reasonably likely to be requested during discovery” need to be preserved.68
The government‘s arguments, however, are premised on what claims and evidence Bistrian actually focused on in the early stages of this litigation and especially in discovery. This makes little sense, because as the United States also emphasizes, the video was overwritten long before Bistrian filed this lawsuit, and even longer before he served discovery requests on the United States. The question is not whether the United States should have anticipated, based on Bistrian‘s earliest discovery requests (served in 2013) or even based on his Complaint (filed in 2008), that he might seek the hallway video. Instead, the question is whether the United States reasonably should have anticipated within three to four weeks after the Taylor attack that the hallway video was relevant to foreseeable civil claims against the United States or the correctional officers involved.
the issues of how the inmate got the razor and how he was able to bring it to the rec pen. On that latter issue, it is undisputed that the hallway video would have been dispositive.69 The hallway video was well within the scope of the government‘s duty to preserve.70
c. Whether the United States Took Reasonable Steps to Preserve the Hallway Videо
There is no evidence that the hallway video was affirmatively deleted. Instead, it appears that the video was automatically overwritten. Nevertheless, because this litigation and the relevance of the hallway video were foreseeable in October 2006, the duty to take reasonable
steps to preserve information required the United States—a sophisticated litigant—to intervene to prevent the overwriting of the hallway video.74
Preserving the video would not have been unduly burdensome, either. “[A]ggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff
d. Whether the Government Acted with Intent to Deprive Plaintiff of the Hallway Video in this Litigation
There is no question that the lost hallway video cannot be replaced or restored through additional discovery. It was overwritten within a month of the Taylor attack.77 Accordingly, the
only remaining question is whether the United States acted with intent to deprive Bistrian of the hallway video in this litigation.
Under
The loss of this evidence is disturbing. The Taylor attack was vicious, lengthy, and particularly notable for the use of a munitions device to disable and disarm Taylor, belying the notion that the significance of the Taylor attack was not immediately apparent. It came on the heels of seemingly similar attacks by other SHU inmates at the FDC, an indisputably alarming pattern that created a clear incentive to suppress any evidence that lax safety procedures might be to blame. While other video evidence from the day of the Taylor attack was contemporaneously recognized as requiring preservation, the critical, definitive evidence of potential liability—the hallway video that would have shown whether Taylor was properly searched on the way to the rec pen—was overwritten and lost forever.
Most of these considerations, however, drive at the duty to preserve, not at whether the failure to preserve was intentional. The circumstantial evidence of intent here is relatively weak. The hallway video was automatically overwritten, not affirmatively deleted, and there is no indication that most FDC staff were actually subjectively aware that litigation was likely within the short overwriting window.84 On this record, moreover, the Court cannot conclude that the BOP violated its own internal policies by failing to preserve the video. The only circumstantial evidence of intent is that FDC staff preserved certain footage while allowing the hallway video to be overwritten.85 But the mere fact that some information was preserved and some
This finding does not end the inquiry, however. In the absence of bad faith, lesser sanctions may be appropriate upon a finding of “prejudice to another party from loss of the information.”88 “Prejudice to opposing parties requires a showing [that] the spoliation ‘materially affect[ed] the substantial rights of the adverse party and is prejudicial to the presentation of his case.‘”89 This requires offering “plausible, concrete suggestions” of what the missing evidence would have shown.90
The loss of the hallway video unquestionably prejudiced Bistrian here, materially affecting his substantial rights.91 The video was critical to the question of liability, which turned on whether Taylor was properly searched before going to the rec pen. Its absence substantially hampered Bistrian in presenting his case. Aaron Taylor himself illustrated this unprompted during his trial testimony. When asked whether staff properly searched him before escorting him to the rec pen the day of the attack, Taylor answered that he thought he had not been wand searched, but that he could not definitely recall, adding: “I guess you would have to pull the tape to see that to be sure.”92 Indeed.
Bistrian has also plausibly and concretely explained what the hallway video would show. All agree that surveillance cameras captured staff taking Taylor out of his cell and escorting him to the rec pen. The lost video would have shown whether correctional officers properly searched Taylor. If
Because Bistrian was prejudiced, the Court will impose “measures no greater than necessary to cure the prejudice.”94 The “range” of measures a district court is authorized to impose under
Because the Court is unable to find that the United States acted with intent to deprive Bistrian of the hallway video in this litigation, it will not draw an adverse inference. Nor will the Court strike any of the testimony the hallway video might have contradicted, such as Captain Knox‘s testimony that SHU staff invariably followed search protocols.98 Instead, the Court will consider the video‘s destruction as one factor among many in making its ultimate determination, as the finder of fact, as to whether SHU staff properly searched Taylor. The evidence already in the record demonstrates that the video was destroyed, and although the prejudice to Bistrian cannot be fully remedied, the Court finds this lesser sanction appropriate under all the circumstances.
ii. The Razor Weapon and the Munitions Device
Bistrian also requests an adverse inference based on the destruction of two pieces of physical evidence.99 Both the razor weapon Taylor used to attack Bistrian and the munitions device SHU staff used to break up the assault wеre preserved as evidence in anticipation of Taylor‘s criminal prosecution.100 Both were destroyed in 2015, seven years after this lawsuit was filed. Bistrian argues that the razor weapon is important evidence on the question of liability and that the munitions device is significant to the question of damages.
As explained above, spoliation of non-electronic evidence occurs where “the evidence was in the party‘s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.”101 A court must find bad faith before it can find that spoliation occurred.102 It is undisputed that
a. Relevance
Bistrian argues that the razor weapon was relevant evidence because its size and shape would tend to make it more or less likely that Taylor could have concealed it on his person so that a proper search could not detect it. The United States responds that there was plenty of other evidence illustrating the size and shape of the razor weapon such that the weapon itself would essentially have been cumulative. It cannot be seriously disputed, however, that the razor weapon was relevant—the government‘s arguments go more to whether Bistrian was prejudiced by the unavailability of the razor weapon, which will be discussed below.
As to the munitions device, Bistrian argues that the exact identity of the device used is relevant to damages so that the explosive power can be determined.103 Bistrian‘s briefing at first appeared to suggest that any prejudice might have been cured by stipulation,104 but backtracked in a later brief, explaining that despite the parties’ agreement about what device was likely used, “there is no assurance in this regard, or substitute for examining the actual spent canister.”105 The United States contends that “there is no аpparent consequence to Bistrian‘s case from not knowing the precise details of the stun munition”106 because “the parties stipulated to the nature of the stun munition likely used.”107 Again, these arguments go to prejudice—the munitions device was relevant, admissible evidence.
b. Duty to preserve
When the parties first addressed the unavailability of the razor weapon and the munitions device, the United States represented that they were “lost or disposed of at some unknown point after [Taylor‘s] criminal trial concluded in December 2010.”108 If that had turned out to be true, the duty-to-preserve analysis might look different. Since then, however, it has emerged that the razor weapon and munitions device were destroyed by the FBI on June 12, 2015—two days after Bistrian requested that the exhibits from Taylor‘s criminal trial be turned over in discovery.109
Issues of foreseeability are therefore entirely irrelevant here. Bistrian had explicitly requested the exhibits before the
c. Bad faith
The timing of the destruction of evidence can be relevant to determining whether a party acted in bad faith.111 The timing here is remarkable. The razor weapon and munitions device were preserved for use in Taylor‘s criminal trial and were retained thereafter, through Taylor‘s appeals and through this ongoing civil case, until two days after Bistrian requested them in discovery.
Although the United States had ready access to the FBI‘s record of destroying these items, it had maintained until recently that disappearance of the razor weapon and munitions device was inexplicable. The United States had also strongly implied that the items were likely destroyed as a matter of course many years ago once Taylor was convicted.112 The government now contends that the destruction of the razor weapon was a “routine application of the FBI‘s policy of destroying evidence from trials following exhaustion of direct appeals.”113 But Taylor‘s conviction became final on June 24, 2013, when the U.S. Supremе Court denied his petition for a writ of certiorari,114 nearly two years before the FBI “routinely” destroyed it.
In light of the sequence of events here, it is difficult to interpret the destruction of these items as a coincidence. The factors that pointed away from intentionality in the hallway video analysis are absent here. The razor weapon and the munitions device were intentionally destroyed, not lost in an automatic process. By June 12, 2015, four months after Bistrian had been granted leave to reinstate his FTCA claims against the government, the United States not only had actual notice of this lawsuit, which had been actively litigated for seven years at that point, but also had actual notice that Bistrian was seeking these exact items.
In response, the United States points out that “the standard for discovery and preservation is reasonableness, not perfection.”115 It is not reasonable to destroy evidence immediately after an adversary requests its preservation.
The United States also asserts that neither party viewed the Taylor criminal trial exhibits as particularly important, suggesting that Bistrian did not follow up on the June 10 request. This illustrates, according to the United States, that “counsel on both sides were not focused on locating materials that plaintiff did not appear to be pursuing and that were (erroneously) assumed
d. Sanctions
Bistrian asks the Court to draw an adverse inference based on the destruction of the razor weapon and the munitions device. As explained, the degree of fault on the part of the United States is high, although perhaps very slightly mitigated by the sheer volume of discovery in this case. As to the munitions device, though, the Court finds that there was no prejudice to Bistrian—the parties stipulated to the device that was likely used and Bistrian has not argued that the exact identity of the device could affect damages. No sanction is needed or appropriate on that issue.
The prejudice from the destruction of the razor weapon is significant, however. The bigger and bulkier the razor weapon was, the less likely it would be that an officer doing a thorough pat search would not feel it. The United States points to other evidence that could shed light on the size and shape of the razor weapon, but that evidence was of very limited value. While there is a photograph of the razor weapon in the record, nothing in the photograph indicates scale, and Officer Griffiths, a witness for the United States, spontaneously noted that he could not gauge the weapon‘s size from the photograph and therefore could not opine on the likelihood that a proper pat search would detect it hidden on Taylor‘s person.118 The United States argues that this was no problem because all agree that the weapon was fashioned from one of the disposable shaving razors given to SHU inmates, and therefore the “approximate size of the weapon” was “the size of the disposable razors distributed in SHU.”119 If, however, Officer Griffiths—the SHU officer in charge of distributing razors to inmates120—was unable to gauge the size of the weapon from the photograph, then the razor itself was indispensable.
As unhelpful as the other evidence was, however, there is at least some available information about the razor weapon. The Court therefore finds it inappropriate to close off all proof on the matter by inferring definitively that the razor weapon could not have been concealed during a proper search. A lesser sanction is adequate to cure the prejudice. Accordingly, the Court will permit the parties to supplement the record with the additional documentation of the destruction of the razor
II. MOTION TO REOPEN THE RECORD
A. Background
After both sides had rested at trial, the Court scheduled closing argument. Before hearing those arguments, the Court called a conference with counsel. The Court wished to disclose to the parties and counsel that upon reviewing the trial exhibits in preparation for closing argument, the Court noticed the name “Millhouse” in the razor log used by SHU officers to keep track of which inmates received razors for shaving, which had been introduced into the trial record on the final day of the trial. The Court recognized this name as the name of a defendant in a criminal case which the Court had presided over in 2008. That criminal prosecution stemmed from an incident in which a SHU inmate had concealed a razor blade, an incident which took place close in time to the Taylor attack, as the Court realized upon reviewing the razor log. Concerned that the Court as factfinder now had potentially relevant information of which the parties might not be aware, the Court met with counsel.121
It was determined that no materials from the Millhouse case had been produced in discovery, despite at least one discovery order seeming to require that production. Plaintiff‘s counsel informed the Court that they had no knowledge of this attack but believed it was highly relevant and needed to be explored. Exercising its broad discretion to manage discovery and remedy possible discovery misconduct, the Court permitted the parties to explore the issue further, postponing closing argument.
The records from the criminal prosecution of Millhouse were recalled from storage and made available to the parties. In the incident that led to that prosecution, Millhouse, a SHU inmate, had received a razor to shave with and apparently removed the blade. He secreted the razor blade out of the SHU when he was transported to a building adjacent to the courthouse, where he attempted to attack someone with the razor blade.
Following up on this issue, Plaintiff‘s counsel communicated to the government and to the Court that he had learned of yet another аpparent razor attack in the rec pen of the SHU. In that incident, two SHU inmates, Humbert and Harper, had attacked a third inmate, Fred Roberts, in the rec pen.122
The parties exchanged several rounds of correspondence, which the Court placed on the record.123 The Court referred the matter to Magistrate Judge Wells to determine, among other things, whether any discovery order in the case required the production of information about these other attacks and whether discovery should be reopened.124 Judge Wells ruled that the Court‘s earlier discovery order
After Judge Wells issued her ruling, the Court held a conference on the record at which the parties discussed the status of the supplemental discovery.126 The Court explained that once the supplemental discovery was complete and the parties had moved for the admission of any additional evidence, the Court would determine whether it was appropriate to reopen the record.127 The Court also explained that Judge Wells would continue to preside over any disputes that arose regarding the supplemental discovery.128
Bistrian now seeks to reopen the trial record to admit evidence from the supplemental discovery. The parties have not requested oral argument.129
B. Legal Standard
District courts have broad discretion to reopen the record to take new evidence,130 which may occur on motion of a party or sua sponte.131 “Great flexibility is accorded the District Court in its determination to supplement the record, though it must avoid perpetrating any type of
injustice in so doing.”132 In deciding whether to reopen the record, district courts must consider “the burden that will be placed on the parties and their witnesses, the undue prejudice that may result from admitting or not admitting the new evidence, and considerations of judicial economy.”133 District courts have especially great latitude to reopen the record when a case is not tried to a jury.134
Allowing the government to reopen the record after a criminal defendant has moved for a directed verdict implicates very different considerations—core Sixth Amendment ones—than reopening the record in a civil case. It makes sense that greater emphasis would be placed on the prejudice to the defendant in the criminal context than in the civil one. Moreover, the Third Circuit‘s standard for reopening in that case was based on the analogous standard for suppression hearings,139 which have no direct analogue in civil cases. Nevertheless, some of the language in United States v. Trant is broader and could apply to civil cases as well.140 Because Trant is the most recent authority on reopening, the Court will incorporate these factors into its analysis.
In determining whether to admit any new evidence into the record, the Court will consider on an item-by-item basis (1) whether reopening would prejudice the government. “[P]rejudice in this context does not mean the loss of an opportunity for an unearned windfall. Prejudice results when a party experiences an unfair or unreasonable impairment of his defense.”141 A party is not prejudiced, in other words, by the admission of unfavorable evidence it hoped to keep out. Instead, a party is prejudiced if the timing of the reopening will deprive it of a reasonable opportunity to respond to new evidence142 or if the late and disruptive addition of new evidence will cause that evidence to
The Court will also consider separately for each item (2) whether Bistrian would be prejudiced if the record were not reopened to permit the new evidence and (3) whether the evidence is “admissible and has probative value.”144 Additionally, the Court must give adequate consideration to (4) the “reasonableness of [Bistrian‘s] explanation for failing to introduce the desired evidence before resting.”145
Other factors, by contrast, apply in the same way across all new evidence Bistrian seeks to introduce. In this situation, (5) concerns of undue delay146 are trivial. The parties have completed the discovery ordered by Judge Wells. Moreover, in this bench trial, there is little reason to worry that (6) late additions to the record will confuse the factfinder, resulting in distortion of the relative weight and importance of the evidence. These factors weigh in favor of reopening in this context with respect to all potential new evidence.
C. Discussion
The United States strenuously objects to any reopening beyond the missing pages of the razor log it located in supplemental discovery. It dredges up the parties’ discovery correspondence and argues extensively that reopening is not warranted because its discovery responses were adequate. But the Court‘s concerns here are not with discovery misconduct. Judge Wells ordered further discovery and the parties conducted it. The question now is whether to forge ahead on a manifestly deficient record, letting critical evidence go unexamined. Basic considerations of justice and fairness must have some role to play here—after all, “[a] trial should be a solemn exercise in a search for truth, not a game of ‘gotcha.‘”147 Weighing these factors, the Court concludes that limited reopening is required.
i. The 2006 Post Orders
In the original discovery period, Bistrian asked the government to turn over the “Post Orders, captain‘s orders and operations memoranda within the FDC.”148 The government produced Captain Jeremy Nash as a 30(b)(6) witness on this and other subjects. Captain Nash testified in late 2015 that post orders were periodically replaced with new ones and retained for
Bistrian seeks to introduce two of these newly discovered post orders from 2006, one addressing the FDC‘s policy on inmate razor access in the SHU and the other addressing the FDC‘s policy on how to conduct a search. The United States concedes that Bistrian long ago requested these post orders in discovery,151 so there can be no question that Bistrian‘s explanation for failing to introduce this evidence earlier is reasonable—the United States destroyed most copies of this information when it should have been subject to a litigation hold and failed to turn over the last remaining copy. Accordingly, the only questions are whether the post orders are relevant and admissible and the potential prejudice to either party from reopening, or declining to reopen, the record.
a. Razor Policy
A central liability issue in this case, as explained above, is whether correctional officers violated any mandatory policy concerning the distribution of razors to SHU inmates and, if so, whether that violation caused Taylor‘s illicit possession of a razor. The United States has maintained that any applicable policies were too general and vague to be mandatory, precluding FTCA liability. The 2014 policy, which all parties had assumed to be materially the same as the policy in effect in 2006, provided:
Razors will be issued and returned (intact) three times weekly. Razors will be issued and picked up on the same shift. A check will be made utilizing a magnet to ensure the razor blade is intact.152
The razor policy in the newly produced 2006 post orders is, it turns out, far more specific than the 2014 post order. It provides:
Officers will place a razor sign on the door of any inmate being issued a razor. Inmates will have 10 minutes to shave and return the razor. Officers will inspect the razor upon return to insure the blade is still intact.153
Bistrian argues that this evidence is critical to, even dispositive of, the question whether FDC policy in 2006 imposed mandatory requirements on correctional officers for the distribution and collection of razors in the SHU.
The United States’ position is not entirely clear. It states that the post orders are
These arguments both drive at whether the ten-minute time limit was a mandatory policy. That is of great importance, of course, but it is not germane to this motion—rather, it is an ultimate legal issue in this case. The question here is simply whether the post order should become part of the record. The post order in effect in 2006 is admissible and probative of the policies, if any, that governed razor use in the SHU.157
Any prejudice to the government from admitting this evidence will, it concedes, be minimal.158 The issue of what requirements, if any, governed razor use in the SHU was known to
be a central issue at the outset of trial, and the government has offered evidence, which is already in the record, to support its position that any policy was not specific enough to be considered mandatory. In other words, while the ten-minute provision is new, the basic issue is no surprise. As mentioned above, moreover, Bistrian sought this information in discovery and failed to introduce it at trial only because the government destroyed the originals and neglected to turn over the last remaining copy. If the government feels it needs another chance to address the content of the 2006 post order, it will have a reasonable opportunity to do so. The 2006 post order, pre-marked as Exhibit P-305, will be admitted.159
Another critical issue in this case is whether correctional officers properly searched Aaron Taylor on the way to the rec pen. To answer that question, it is necessary to know what a “proper” search consists of. Accordingly, the parties have disputed whether there were mandatory requirements for correctional officers searching SHU inmates before escorting them to the rec pen, and in particular, whether any mandatory policy prescribed a particular method of conducting a pat search or wand search.
The United States previously produced a 2009 post order containing the requirements for a pat search. In the latest round of discovery ordered by Judge Wells, a 2006 post order was produced containing the same requirements. Thus, this post order could establish that these requirements were in effect at the time of the Taylor attack. The United States does not object to
this post order.160 Therefore, the entirety of this post order, pre-marked as Exhibit P-306, will be admitted.
ii. Complete Razor Log
Bistrian has also moved to admit P-303, a supplemented version of the razor log spanning the period from July 1, 2006 through October 29, 2006. A razor log spanning this approximate time period was admitted at trial, but during supplemental discovery missing sections were discovered and produced. The United States consents to the admission of this evidence,161 so it will be admitted.
Bistrian further moves to admit P-304, a new portion of the razor log not previously admitted, spanning the period from January 1, 2006 through June 30, 2006. The United States allows that the log is “not objectionable” in itself, but notes that it may need to investigate further and potentially submit additional evidence on the issue of whether the ten-minute razor policy was mandatory and whether correctional officers adhered to it. The Court will admit this evidence162 and give the United States a reasonable opportunity to supplement the record in response if necessary.163
iii. Evidence Surrounding the Millhouse Attack
Next, Bistrian seeks to introduce information from the record of Millhouse‘s criminal case. Bistrian has moved to admit two categories of evidence from that record.
a. Millhouse Card File
Bistrian seeks to admit evidence of the Millhouse attack from Millhouse‘s inmate card file, including information about the razor attack he perpetrated, his prior criminal acts, an escape plan he formulated while detained at the FDC, and his other razor infractions.164 The United States objects to this evidence on the grounds that it would “force mini-trials on several secondary issues,” necessitating more investigation and more witness testimony,
The Court agrees with the government. There is obvious potential relevance in other razor attacks perpetrated by SHU inmates close in time to the Taylor attack. A pattern of incidents could shed light on the FDC‘s compliance with its own policies for handling razors, for example. That is why the Millhouse attack warranted investigation in the first placе. But determining whether a pattern existed would necessitate a much deeper exploration of particular features of the Millhouse case, the kinds of features that would demonstrate whether these incidents formed a pattern, such as how Millhouse obtained a razor, how he hid it, and how he smuggled it out of the FDC. At this late juncture, taking a prolonged detour from the liability issues in this case to fully litigate other incidents involving third parties—incidents the government might reasonably have thought were long since resolved—would unduly prejudice the government. Likewise, general information about dangerousness and flight risk pertaining to another inmate is peripheral and would open up broad areas of inquiry that were not previously explored and that are not obviously relevant. Evidence regarding Millhouse‘s razor attack or other razor infractions will not be admitted. Nor will any other information from Millhouse‘s card file be admitted.
b. Officer Jezior‘s Testimony in Millhouse
Bistrian also seeks to introduce the testimony of Officer Jezior in Millhouse.166 Specifically, he asserts that two aspects of Officer Jezior‘s testimony are relevant here. First, Officer Jezior‘s testimony is relevant to the newly revealed ten-minute time limit on razors, as he testified that an inmate “usually has about ten minutes to shave with [a razor].”167 Second, Officer Jezior testified that he had witnessed occasions when proper search procedures were not followed, and that some staff at the facility took “shortcuts,”168 in contrast to the government‘s position in this case that proper search procedures are invariably followed at the FDC. Although the United States objects generally to reopening the record beyond the complete razor log, it has not articulated a specific objection to this testimony.
In contrast to Bistrian‘s proffered evidence of the facts of the Millhouse attack, this testimony is exclusively concerned with policy. Introducing this information will therefore be minimally prejudicial to the government, as both of the policy questions Officer Jezior‘s testimony addressed (whether there was a mandatory time limit on razors and whether searches were always properly performed) are long-running issues in the case on which both parties have argued and introduced testimony. As with the post ordеrs, moreover, the government will have a reasonable opportunity to respond to the new evidence. Not admitting this relevant evidence would be highly prejudicial to Bistrian, however, in light of the government‘s position in this case—based on, among other things, Officer Jezior‘s testimony—that FDC staff invariably followed search and razor policy.
iv. Evidence Surrounding the Humbert/Harper Attack
Bistrian also moves to admit two categories of evidence from the attack by Humbert and Harper on SHU inmate Roberts.
a. Video and Photographs of Humbert/Harper Attack
Bistrian seeks to introduce information about the Humbert/Harper attack itself, including photos and video of the attack and deposition testimony about the circumstances of the attack. The United States points out, however, that other testimony in Roberts called into question whether Humbert and Harper attacked Roberts with a razor or with some other weapon. Because Roberts ended in settlement,170 this issue was never conclusively resolved.171
Like the Millhouse incident, the Humbert/Harper attack is potentially relevant here to the extent that it illustrates a pattern of similar incidents at the FDC. The Court agrees with the United States, however, that bringing this evidence into the record would necessitate extensive further investigation and testimony on the tangential issue of whether these third-party attackers used a razor to assault this third-party victim, because if they did not, this episode does not appear to be relevant. This further tangent would unduly prejudice the United States, as this issue has not been explored at all until now. The additional investigation would also burden the parties and any witnesses whose testimony would be needed to explore this issue or rebut evidence of another razor attack. Accordingly, this evidence will not be admitted.
b. Deposition Testimony of Officer Brand
Bistrian also seeks to admit the deposition testimony of Officer Brand in Roberts’ civil suit. Officer Brand testified that if an inmate is wearing a jumpsuit, staff typically would not make a search of the inmate‘s belt line as required by the post orders because that area would be
As with the testimony of Officer Jezior from Millhouse‘s criminal case, admitting this testimony would cause minimal disruption and burden and will not prejudice the United States. The issue of how officers search inmates has been thoroughly explored and this new information merely adds another data point to the evidence already in the record on this subject. Moreover, as with Officer Jezior‘s testimony, this testimony concerns policy, not the facts of the Humbert/Harper attack, and search policy within the FDC was the subject of extensive discovery. Therefore, it will be admitted and the government will have a reasonable opportunity to respond.
v. Sally Ports
Finally, Bistrian seeks to introduce deposition testimony from this case regarding the FDC‘s decision to install sally ports in the SHU rec pens. Bistrian contends that this evidence is made relevant, despite the Court‘s earlier ruling that the installation of sally ports was discretionary and therefore not actionable under the FTCA, because it is now known that there were two other razor attacks by SHU inmates close in time to the Taylor attack.
The number of razor attacks that preceded the decision to install sally ports is irrelevant. The Court ruled on summary judgment that the decision to install sally ports was a discretionary one.173 That legal conclusion is not changed by additional evidence. Because it is not potentially relevant to any issue remaining in the case, this evidence will not be admitted.
III. MOTION FOR FURTHER SANCTIONS
Bistrian contends that all of the newly introduced information in the motion to reopen the record should have been produced by the United States in discovery. He moves for an award of attorneys’ fees as a sanction for “the failure to disclose other incidents of razor and other weapon attacks by unrestrained inmates on handcuffed inmates or third parties, the destruction and failure to produce the 2006 post orders,” and the alleged presentation of “false and misleading testimony concerning razor [and search] policies and practices” made possible by the loss of or failure to produce evidence that would have contradicted that testimony. Bistrian also bases his motion on the destruction of the hallway video and the Taylor exhibits.174
The Court will first consider whether spoliation or other sanctionable misconduct occurred and then address what, if any, sanction is appropriate.
A. Post Orders
The post orders are a potential issue of spoliation because the government destroyed them during the pendency of this litigation (other than the fortuitous Roberts copies). Spoliation of non-electronic information occurs when “the evidence was in the party‘s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party.”175
The original 2006 post orders (that is, all copies other than the one retained in the
As to foreseeability, the 2006 post orders were not destroyed until well after Bistrian filed this lawsuit. The post orders were in effect in 2006 and should have been retained for three years. At the earliest, then, they would have been destroyed on January 1, 2010, when the government‘s litigation hold obligations were already in effect.177 Additionally, the Roberts copies of the post orders were still in the possession of the U.S. Attorney‘s Office until 2011, when the Roberts case file—from which the post orders have now been retrieved—was archived.
The final issue is whether the 2006 post orders were actually suppressed or withheld in bad faith to deprive Bistrian of evidenсe in this case. As discussed above, a party that reasonably should anticipate litigation “must not destroy unique, relevant evidence that might be useful to an adversary.”178 A litigant is not required to keep “every document in its possession” rather, only those items that are relevant, “reasonably calculated to lead to the discovery of admissible evidence,” or “reasonably likely to be requested during discovery” need to be preserved.179
In the context of the hallway video, the question was whether the video was foreseeably relevant (and thus needed to be preserved) within the three- to four-week overwriting window. Here, the government had two opportunities to ensure the preservation and production of the post orders. First, the United States could have ensured that the original copies of the post orders were retained pursuant to a litigation hold when it came time for their routine destruction in 2010, two years after Bistrian filed this case. Second, despite that failure, the United States could have thought to retrieve the Roberts copy of the post orders from that case file when Bistrian requested the post orders in 2014.180
B. Millhouse and Humbert/Harper Attacks
Perhaps the most hotly contested issue in this contentious matter is whether and to what extent Bistrian sought information about other razor attacks before the supplemеntal discovery period. Whether he explicitly requested this information is relevant but nowhere near dispositive in the separate determination of whether to reopen the record to introduce this information. In determining whether sanctions are appropriate, however, whether Bistrian requested this information is central. The United States maintains that it could not have “anticipate[d] that a plaintiff who had never once sought discovery of other razor episodes would be prompted by the Court to do so.”184 Bistrian contends that he did seek information about other razor episodes.
As evidence of this, Bistrian points to a discovery dispute that was resolved
- Documents relating to the need or desirability of secure sally ports for the recreational area in the SHU at the FDC from 2002-2010. . . .
- Documents that reference unrestrained inmate(s) in Federal Bureau of Prison[s] facilities being in direct contact with restrained inmate(s) from 2002-2010.186
Judge Wells‘s Order reopening discovery found that the November 30, 2015 Order,
[w]hen construed broadly, authorized full discovery of events that led to the construction of a sally port in 2008 at the FDC to prevent contact between restrained and unrestrained prisoners. The two recent prior attacks on inmates Roberts and Millhouse assuredly played a role in the decision to build a port.187
Bistrian argues that both these provisions required disclosure of the Millhouse and Humbert/Harper attacks. As to the second provision, the United States argues that technically it covered only the Humbert/Harper attack and not the Millhouse attack, as Millhouse‘s victim was not another inmate. As to both provisions, the United States has persuasively demonstrated that the parties reached an understanding about the scope of the Order that did not require the disclosure of either incident, and that in the absence of that informal understanding it would have sought a protective order clarifying the scope.
The Court deсlines to relitigate in minute detail the many contentious discovery disputes that beset this case. In light of the informal agreement reached between the parties, the Court cannot say that the government intentionally withheld this information.188 As explained, the standard for bad faith is a demanding one that is not met here.189
C. Witness Testimony
Bistrian also requests sanctions based on allegedly false testimony presented by government witnesses. District
As his basis for this request, Bistrian identifies two witnesses whose testimony was allegedly false or misleading. The first is Captain Jeremy Nash, who was offered as the government‘s 30(b)(6) witness on numerous issues, including post orders. The second is Captain David Knox, who served as Captain of the FDC from 2005 to 2012.194 Bistrian argues that each witness gave testimony that is contradicted by revelations from the supplemental discovery period.
Captain Nash testified about the razor policies contained in the post orders. He testified that to the best of his knowledge the razor policies in 2006 were the same as those in the later post orders produced by the government, which required only that “razors will be accounted for by staff.”195 As a designated 30(b)(6) witness, Captain Nash had a duty to investigate matters with which he was not already personally familiar. Yet in the absence of the 2006 post orders, the government‘s designated witness on the subject of the FDC‘s post orders was content to assume that the destroyed 2006 post orders imposed the same requirements as the available 2014 post orders.196 This guess favored the government in important ways and turned out to be flatly wrong. This testimony compounded the careless behavior that allowed the post orders themselves to be destroyed.
As the government‘s designee, Nash—assisted by government counsel—should have undertaken a more thorough effort “to collect information, review documents, and interview employees with personal knowledge.”197 Nevertheless, Nash
As for Captain Knox, Bistrian argues that his testimony that he could not recall other razor attacks at the FDC “off the top of [his] head” is not plausible in light of new information about the Millhouse and Humbert/Harper attacks.201 This is essentially a request for a credibility determination, however, which would be premature at this stage. The Court will assess all issues of competing evidence, including credibility, at the appropriate time—after hearing all the evidence and argument.
IV. CONCLUSION
Regrettably, during the protracted course of this litigation, there have been failures by the government in the presentation and timely production of evidence. After additional discovery, however, much of the important evidence Bistrian was denied has been restored. Where evidence could not be restored, the Court has imposed appropriate sanctions, recognizing the many unusual features of this protracted litigation and guided by the Third Circuit‘s strong emphasis on selecting a sanction no greater than necessary to cure any prejudice.202 This unfortunate but necessary detour can now be brought to a close. An appropriate Order follows.