MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiffs’ Second Motion for Relief and Sanctions Based on Intentional Spoliation of Evidence by Defendant City of Albuquerque, filed on March 18, 2016 (Doc. 179), as well as the parties’ supplemental briefs (Docs. 270, 272). Jurisdiction arises under 28 U.S.C. § 1331. Having considered the submissions of counsel and relevant law, the Court will GRANT IN PART Plaintiffs’ motion.
I. Procedural History and Statement of Facts
This case arises from a tragic traffic accident that occurred when Defendant Casaus’s police vehicle collided with Plaintiff Lindsay Browder’s vehicle. At issue in this motion for relief and sanctions is video footage from two city intersections. Despite the fact that several officials from the Albuquerque Police Department (APD) and Bernalillo County Sheriffs Office (BCSO) apparently saw the footage and APD Chief Schultz directed that the footage be preserved, the footage was lost before Plaintiffs were allowed access to it.
A. The Incident
Defendant Adam Casaus, a sergeant with the APD, was involved in a traffic accident with Plaintiffs Lindsay and Ashley Browder at approximately 1:31 or 1:32 a.m. on Sunday, February 10, 2013. (Doc. 8 at ¶ 26; Doc. 146, Ex. 1 at 150:13-151:20, Ex. 3 at 72:3-5.) Defendant Casaus, driving westbound on Paseo Del Norte, alleg
As he approached that intersection, he also saw a vehicle stopped in the right-hand lane of westbound Paseo Del Norte waiting on a red light. (Id. at 97:16-20; Doc. 163, Ex.' 1 at 85:6-11.) The stopped vehicle belonged to Ms. Jana Villanueva, an eyewitness to the accident who had merged onto westbound Paseo Del Norte from the Coors ramp driving a black 2008 Cadillac with tall taillights. (Doc. 146, Ex. 2 at 7, Ex. 3 at 46:2-5.) Defendant Casaus collided with the Browder vehicle in the intersection of Eagle Ranch Road and Pa-seo Del Norte. (Doc. 146, Ex. 1 at 150:13-151:20.) There is a factual dispute in this case regarding what color the traffic light was when Defendant Casaus entered the intersection. (See Doc. 205 at 4-7.)
B. The Video Footage
Investigating Deputy Leonard Armijo of the Bernalillo County Sheriffs Office, who took the lead in the initial investigation into the accident, confirmed Ms. Villa-nueva’s story. (Doc. 146, Ex. 2 at 3, 7.) Deputy Armijo viewed video footage recorded from a traffic camera located at the intersection of Coors Boulevard and La Orilla Road NW and saw what appeared to be Ms. Villanueva’s vehicle at that location approximately two minutes prior to the accident. (Id. at 7; See also Doc. 270, Ex. F at ¶¶ 3-4.) He concluded that Ms. Villa-nueva’s Cadillac could not have been the vehicle Defendant Casaus was allegedly following. (Doc. 146, Ex. 2 at 7; See also Doc. 146, Ex. 3 at 92:4-11.)
The video footage Deputy Armijo saw came from the Real Time Crime Center (RTCC). (Doc. 146, Ex. 2 at 7.) The RTCC is a division of the City of Albuquerque and the APD. (See Doc. 200 at 3 ¶ 4, Ex. A at 87:10, Ex. C at 5:15-23.) The RTCC established a citywide video network using city traffic cameras and surveillance systems from local businesses. (Doc. 200, Ex. D at 12:3-13.) The RTCC was not fully operational in February, 2013; in fact, the City did not completely finish building the center until March, 2013. (Doc. 200, Ex. C at 6:1-3, 31:8-15.) On the day of February 10, 2013, however, at least three traffic cameras captured footage Plaintiffs assert is relevant to this lawsuit. (See Doc. 179 at 3-4.) These cameras are located at the intersections of Paseo Del Norte and Eagle Ranch Road (where the accident occurred), Coors and La Orilla NW (where Deputy Armijo saw Ms. Villanueva’s Cadillac on video recorded minutes before the accident), and Paseo Del Norte and Golf Course Road. (See Doc. 179 at 4-5, Exs. 1-3.)
Plaintiffs received video footage from all three intersections, but the parties discovered at some point much later in this litigation that the footage from the Paseo Del Norte and Eagle Ranch Road and Coors and La Orilla NW intersections is from Saturday, February 9, rather than from the date of the accident, Sunday, February 10. (See Doc. 179 at 4-5, Exs. 1-3.) In the 24 hours after the accident, however, several officials from the APD, BCSO, and the RTCC were able to watch video footage from the correct date and time, as detailed infra. Any video from the
RTCC Director Mr. T.J. Wilham looked at footage from the relevant intersections with APD Chief Schultz on Sunday morning, well within 24 hours of the accident.
Deputy Paul Gonzales, who acted as the secondary investigator from the BCSO, also saw footage at the RTCC. (Doc. 200, Ex. A at 49:10-22, 52:1-3, 87:9-12.) Deputy Gonzales was called to the scene of the accident around 2:30 a.m. on February 10. (Id. at 49:19-22.) His primary responsibilities involved photographing and diagramming the accident scene. (Id. at 52:4-25, 61:14-22.) After he finished at the scene, he went to the RTCC to see if he could find any video footage from traffic cameras at or near the relevant intersection. (Id. at 87:9-12.) He found footage from four intersections: Coors Boulevard and Alameda (south of Paseo Del Norte and Coors), Coors Boulevard and Eagle Ranch Road (south of Paseo Del Norte and Coors), Paseo Del Norte and Eagle Ranch Road, and Paseo Del Norte and Golf Course Road. (Id. at 87:18-25.)
Deputy Gonzales testified he was unable to see footage of the accident itself, because the camera at Paseo Del Norte and Eagle Ranch Road was pointed toward a gas station in the northwest corner of the intersection instead of toward the street. (Id. at 88:7-16.) He believes he saw Plaintiff Lindsay Browder’s vehicle turn from Coors onto Eagle Ranch Road. (Id. at 88:23-24.) He does not remember seeing any vehicles that might match the one Defendant Casaus was allegedly following. (Id. at 89:10-15.) He got video of the four intersections from approximately ten minutes prior to the accident through ten minutes after, covering the approximate period from 1:20-1:40 a.m., burned the video footage onto CDs, and took the CDs to Deputy Armijo. (Id. at 89:1-4.)
Sergeant Felipe Garcia, the RTCC employee charged with establishing the video network and the person who was the most qualified at the time to respond to requests and produce video, also came into the RTCC on Sunday morning to help pull video footage. (Doc. 179, Ex. 5 at 33:11-14; Doc. 200 at 3 ¶ 6, Ex. D at 11:12-18, 12:3-13:6.) Mr. Wilham asserts this was the first time Sergeant Garcia had ever been instructed to pull video from the servers, so they were all learning as they went. (Doc. 200, Ex. C at 30:1-4.) Sergeant Garcia testified that he was directed to pull video from three different traffic cameras for a specific time period. (Doc. 200, Ex. D at 13:2-25.) He knew the video was related to a fatal traffic accident involving an APD officer. (Id. at 19:9-25.)
Each video pulled from the RTCC servers has a time and date stamp. (Id. at 14:5-11.) When he pulled the videos from the server where these three traffic cameras were stored, Sergeant Garcia discovered that the time shown on the server was off by one hour. (Id. at 14:12-24.)
Sergeant Garcia asserts that he did not select the wrong date intentionally, and he did not know he had selected the wrong date until counsel for Plaintiffs deposed him on February 9, 2016. (Id. at 24:18-25:11.) Because the video only stays in the server system for 24 to 72 hours, it is not possible to retrieve the correct footage now. (Id. at 18:16-21.) It is not clear from the record who Sergeant Garcia gave the CDs to; he testified that he does not know when they were given to the investigators, or who else saw the footage other than Mr. Wilham. (Id. at 56:20-25, 62:14-63:21.) Sergeant Garcia stated that when evidentiary video is given to an officer, it is up to the officer to tag it into evidence. (Id. at 28:12-14.) RTCC policy does not allow its employees to store video. (Id. at 27:22-28:8.) He also stated that he does not have the ability to edit videos on RTCC computers. (Id. at 28:16-18.)
From the initial briefs and evidence submitted to the Court (See Docs. 179, 200), it was unclear if the CDs Deputy Gonzales burned at the RTCC and brought to Deputy Armijo contained footage from February 9 or February 10. Even after supplemental briefing and additional evidence submitted by the City, it is not entirely clear from the testimony submitted to the Court how footage from both February 9 and February 10, 2013 was retrieved and burned onto CDs. Both Deputy Armijo and Deputy Gonzales testified that they saw correct video footage from February 10, 2013. (Doc. 270, Exs. E-F.) They both remember seeing a “puff of smoke” in the lower left hand corner of the video feed from Paseo Del Norte and Eagle Ranch Road; what appeared to be Ms. Browder’s Honda CR-V turn north ón Golf from Coors onto Eagle Ranch Road; and what appeared to be Ms. Villanueva’s Cadillac in the video feed from Coors Boulevard and La Orilla Road NW. (Doc. 200, Ex. A at 88:22-24; Doc. 270, Ex. E at ¶¶ 5-6, 10, Ex. F at ¶ 4.) But however the deputies managed to See footage from February 10, 2013, that footage has since disappeared.
Deputy Armijo testified that he never had possession of the CDs, he simply watched them. (Doc. 270, Ex. F at ¶ 6.) Deputy Gonzales did have possession of the CDs, but he testified that he gave them to Sergeant Paul Watkins, and he does not know what happened to them after that. (Id., Ex. E at ¶¶ 12-13.) The Custodian of Records for the BCSO said that the recordings obtained by Deputy
The City asserts that because the BCSO handled the initial investigation, no official from'the City (including the APD) ever independently obtained copies of the footage. (Doc. 200 at 10.) The City asserts (without providing testimony to this effect) that the APD Internal Affairs investigators did not obtain footage from the RTCC directly, rather, they received copies of the footage from the BCSO. (Id.)
II. The Law on Spoliation
Putative litigants are under an “obligation to preserve evidence ... when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Zubulake v. UBS Warburg LLC,
“Sanctions for spoliation serve three distinct remedial purposes: punishment, accuracy, and compensation.” Baker,
“Federal courts possess inherent powers necessary ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Jordan F. Miller Corp. v. Mid-Continent Aircraft Serv., Inc., No. 97-5089,
III. Discussion
A. Timeliness and adequacy of the litigation hold
“When litigation is ‘reasonably foreseeable’ 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.” Baker,
Complicating matters is the fact that the RTCC and the procedures for saving data were new and untested. This was the first time Sergeant Garcia pulled video from the traffic cameras, and he was learning as he went. The fact that the time stamp appeared to be an hour off, particularly since that hour was right around midnight
B. Spoliation Sanctions
“The two most important factors” the Court considers “in determining spoliation sanctions are (1) culpability of the offending party; and (2) actual prejudice to the other party.” Baker,
1. Culpability
“Culpability is the degree of fault to be assigned to the offending party.” Id. “[T]he ‘[destruction of potentially relevant evidence obviously occurs along a continuum of fault—ranging from innocence through the degrees of negligence to intentionality.’ ” Mariposa Farms LLC v. Westfalia-Surge Inc., et al., 03cv00779 JEC/LAM, Doc. 193 at 5 (D.N.M. Feb. 3, 2005) (quoting Welsh v. United States,
If this were the only time the City had lost relevant evidence, perhaps the Court would not find more than a negligible amount of culpability on the part of the City. But this is Plaintiffs’ second motion for sanctions based on spoliation (Docs. 149, 179), and Plaintiffs have another motion to compel pending based on allegations of intentional spoliation of evidence (Doc. 250). The City’s culpability—at least in the two motions for sanctions the Court has considered thus far—is not evidenced by intentional destruction of documents, but in its “questionable information management [and evidence retention] practices.” See Phillip M. Adams & Assocs., L.L.C. v. Dell, Inc.,
The City is involved in litigation on a regular basis, and it is incumbent on the City to implement effective policies and procedures to safely secure relevant information and evidence. As demonstrated by the City’s argument that the lost footage was due in part to the fact that the RTCC was new and the employees “were kind of learning as they went” (Doc. 200 ¶ 16), it is apparent that the City’s system “of questionable reliability ... has evolved rather than been planned, [and it] operates to deny [Plaintiffs] access to evidence. This should not be excused.” Phillip M. Adams & Assocs., L.L.C.,
From no more than what the Court has seen in this one case, the City’s practices place a wide variety of employees and non-employees “in the position of deciding what information is relevant[,]” (i.e., allowing the BCSO investigators to decide what evidence to preserve), as well as how to preserve evidence (i.e., giving the warehouse manager the ability to recycle Defendant Casaus’s cell phone after receiving a clearance form from the APD payroll department). See Phillip M. Adams & Assocs., L.L.C.,
2. Prejudice
The Court finds Plaintiffs have demonstrated some prejudice. First, Plaintiffs argue the lost footage would have helped establish “when the traffic light for Northbound Eagle Ranch turned green prior to Lindsay Browder’s arrival at the intersection .... ” (Doc. 179 at 3.) Plaintiffs anticipate that Defendants will attempt to make an issue of the timing of the traffic fights, as well as whether Ms. Browder drove through a green or a red fight. (See Doc. 179 at 8.) Under questioning from Plaintiffs counsel, Defendant’s hired expert, Mr. Davis, acknowledged that footage from the traffic camera at Eagle Ranch Road and Paseo Del Norte may have provided helpful information about when the traffic fights were triggered. (See Doc. 179, Ex. 6 at 181:10-184:14.) Defendant counters that Deputy Gonzales viewed footage from the correct date and “determined there was nothing relevant to the investigation, other than footage of Lindsay Browder’s Honda CRV turning north from Coors onto Eagle Ranch Road.” (Doc. 200 at 7 (citing Doc. 200, Ex. A at 88:22-24, 89:5-9).) The Court is unpersuaded by Defendant’s assertion. In gathering information for an internal investigation, Deputy Gonzales may not independently decide—nor did he even necessarily consider—what is or is not relevant to Plaintiffs’ civil case.
The Baker court noted that “prejudice is shown when the destroyed evidence goes to a critical issue and the evidence at hand is conflicting.”
Second, Plaintiffs assert that the correct footage from the intersection at Coors Boulevard and La Orilla Road NW would have “confirm[ed] with visual evidence the testimony of Jana Villanueva and the findings consistent therewith of [Deputy] Ar-mijo” that the vehicle Defendant Casaus claimed to have been following could not have possibly been Ms. Villanueva’s Cadillac. (Doc. 179 at 3.) The Court agrees- that the footage Deputy Armijo relied on would have been helpful to the question of whether Defendant Casaus could have been following Ms. Villanueva’s Cadillac. Plaintiffs are able to demonstrate real prejudice due to the loss of the video footage critical to an issue where there may be conflicting evidence (assuming Defendant Casaus intends to call Deputy Armijo’s testimony into question).
3. Sanctions
Because the Court has found that the City “was under an obligation to preserve the” video footage, the City was negligent in losing the footage (even given the extenuating circumstances complicating retrieval of the footage), the Plaintiffs were prejudiced minimally by the loss of the footage from Eagle Ranch Road and Paseo Del Norte and more so by the loss of the footage from Coors Boulevard and La Orilla Road NW, the Court must determine appropriate sanctions, keeping in mind “the purposes to be served by exercising the court’s power to sanction.” Cache La Poudre Feeds, LLC,
(1) The Court will allow Plaintiffs to present evidence to the jury that video footage from the two intersections existed, that Chief Schultz knew the importance of preserving such evidence, and that through negligence, the City lost the footage and along with it, any opportunity for the jury to learn what evidence might have been on it. Because the Court has found negligence, rather than bad faith, on the part of the City, it finds that a jury instruction requiring an adverse inference would be inappropriate. However, if either Defendant attempts to call Deputy Armi-jo’s testimony about what he saw on the February 10, 2013 video footage into question, the Court will give an instruction that allows the jury to make any inference they believe appropriate in light of the spoliation. The Court leaves it to counsel to craft a jury instruction they can agree on. Failing agreement, the Court will craft its own such instruction; and
(2) The City will pay all reasonable expenses, including attorney fees, Plaintiffs incurred in bringing this motion.
THEREFORE,
IT IS ORDERED that Plaintiffs’ Second Motion for Relief and Sanctions Based on Intentional Spoliation of Evidence by Defendant City of Albuquerque (Doc. 179) is GRANTED IN PART.
Notes
. The Court laid out the procedural history and statement of facts in its previous Memorandum Opinion and Order on this matter and has supplemented this opinion with additional facts from the parties’ supplemental briefs where relevant. (See Docs. 242, 270, 272.)
. Mr. Wilham recalls that he viewed the footage with Chief Schiiltz before anyone from BCSO contacted him. (See Doc. 179, Ex. 5 at 25:10-17.) It appears that Deputy Gonzales obtained the video and CDs from Sergeant Felipe Garcia, but the record is murky on when the various officials visited the RTCC and when the video footage was burned onto CDs. (Doc. 200, Ex. D at 19:9-12, 20:6-14.)
. Deputy Gonzales testified that he found footage from four intersections, but the parties concentrated on only three of the four intersections. (See Doc. 200, Ex. A at 87:18-25.)
. The BCSO Custodian of Records was unable to produce any evidence tags, logs, or chain of custody forms that reflected the transfer to or from any person or agency. (See Doc. 270, Ex. G.)