Hollis v. CEVA Logistics US Inc.Hollis v. CEVA Logistics US Inc.
Case Information
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF ILLINOIS WESTERN DIVISION
DARREN HOLLIS, )
Plaintiff, )
) No. 19 CV 50135 v. ) Judge Iain D. Johnston
)
CEVA LOGISTICS U.S., INC., )
Defendant. )
MEMORANDUM OPINION AND ORDER
For years now, even before the advent of TikTok, video recordings have been ubiquitous.
Many of these recordings evidence the bizarre fascination of recording every aspect of human
existence. Some video recordings, such as cat videos, serve useful societal purposes. Jessica
Gall Myrick,
Emotion regulation, procrastination, and watching cat videos online: Who
watches Internet cats, why, and to what effect?
, 52 Computers in Human Behavior 168
(November 2015) (watching cat videos relieves stress and improves mood). But one of the most
important and useful purposes of video recordings is to investigate various allegations of
wrongdoing. For decades now, law enforcement has used video recordings from all manner of
sources to investigate allegations, including but not limited to, dash camera video recordings,
body camera recordings, CCTV recordings, cell phone recordings made by witnesses, and
doorbell video recordings—just to name a few. Indeed, for decades, basic police investigative
work involves obtaining and reviewing video recordings.
See, e.g., Clipper v. Takoma Park
, 876
F.2d 17, 19-20 (4th Cir. 1989). And pulling video is not limited to law enforcement. Indeed, it
is a basic investigative tool used by human resources departments nationwide.
See, e.g., Davis v.
Huntington Ingalls, Inc.
, No. 20 CV 18,
For the following reasons, the Court will impose a curative measure for CEVA’s failure to take reasonable steps to fulfill its duty to preserve relevant ESI that cannot be restored or replaced, resulting in prejudice to Darren Hollis. The Court will leave to the jury the decisions of whether CEVA possessed the requisite intent, and if so, whether the spoliated ESI was unfavorable to CEVA. So, the Court grants, in part, and denies, in part, Hollis’ Motion for Missing Evidence Instruction. Dkt. 65.
A. Background Facts
Based on the parties’ filings, the following facts are undisputed.
CEVA hired Mr. Hollis on November 12, 2017, to work as a material handler/operator, a non-managerial position. He worked in the receiving area of the warehouse. On November 28, 2018, an incident involving Mr. Hollis and coworker Phillip Bayer occurred, though exactly what happened is hotly disputed. According to CEVA, witnesses reported that Mr. Hollis got into an argument with Mr. Bayer, yelled at him, and initiated some form of physically threatening behavior or touching. These alleged actions resulted in Mr. Hollis’ termination on December 4, 2018. CEVA identifies three written statements from the day of the incident from witnesses, including Mr. Bayer, who all reported that Mr. Hollis was yelling and pushing or grabbing Mr. Bayer. Those three witnesses are white. CEVA also collected written statements from Mr. Hollis and one other witness describing Mr. Hollis putting his hands up to stop Mr. Bayer, but not touching Mr. Bayer. A third witness later stated in a declaration that he told Mr. Hollis’ supervisor, Anthony Berkshire, that he never saw Mr. Hollis touch Mr. Bayer. Those three witnesses are African American. As a result, CEVA faced a classic swearing contest as to whom to believe. Ultimately, Mr. Berkshire credited the three white witnesses who claimed that Mr. Hollis grabbed Mr. Bayer on November 28, 2018, rather than the African American witnesses who asserted that Mr. Hollis never touched Mr. Bayer. Based on this credibility determination, CEVA fired Mr. Hollis.
Three security cameras were aimed at the area of the incident. CEVA presented no evidence that any of its employees ever attempted to view, preserve, or recover the footage before Mr. Hollis’ termination. On December 5, 2018, the day after his termination, Mr. Hollis wrote to CEVA’s human resources department about the termination in a document he labeled a “formal letter of complaint against CEVA Logistics for workplace race discrimination.” Dkt. 65 at 97. Twice in the letter he refers to his request that someone review footage of the incident: “I suggested Tom pull and watch the video as the entire warehouse is being monitor[ed],” and “Finally, if I had put my hands around any person’s neck, management could confirm what took place by viewing the cameras.” Id. at 98. So, the evidence establishes that the very next day after the incident, Mr. Hollis verbally requested the general manager to review the video recordings, and about a week later in a document complaining about race discrimination, twice requested a review of the video recordings that he asserted would clear him of wrongdoing.
Mr. Hollis timely filed a charge of discrimination with the EEOC on March 13, 2019, and, after receiving a right-to-sue letter, filed this suit on June 6, 2019. The plaintiff served discovery requests on February 18, 2020, seeking the video recordings and the identity of the custodian of the video. CEVA responded on April 3, 2020, that no video existed and that the custodian of the video recordings was Unisight, a third-party vendor. But in a deposition, a representative of Unisight testified that it was never the custodian of footage from the CEVA plant, that Unisight merely sold the recording equipment, and that CEVA owned and operated the system and recordings. Recordings on CEVA’s security camera equipment are normally retained between 30 and 90 days.
Critically, in August 2018—before Mr. Hollis’ termination—CEVA supervisor Anthony Berkshire investigated an unrelated claim of misconduct brought by a different employee. During that investigation, Mr. Berkshire pulled security camera video recordings of the alleged incident to review. During his deposition, Mr. Berkshire described the simple process he used to obtain the video: He requested it by contacting security.
B. Applicable Law
Rule 37(e) provides the sole source to address the loss of relevant ESI that was required
to be preserved but was not because reasonable steps were not taken, resulting in prejudice to the
opposing party.
See DR Distributors v. 21 Century Smoking
,
If all these threshold requirements are met, the court must then determine if the party
seeking the ESI has suffered prejudice or if the party with possession, custody, or control of the
ESI intended to deprive the seeking party of the ESI.
See
Fed. R. Civ. P. 37(e)(1), (2). If
prejudice but not intent exists, then the court may impose curative measures, including but not
limited to, an instruction that jurors may consider the circumstances surrounding the loss of the
ESI.
See DR Distributors
,
The Court reviews each of the relevant inquires in turn.
C. Analysis
1. Was the Information ESI?
Mr. Hollis alleges that the video recording of the incident between him and Mr. Bayer
existed but was not preserved. Video is a form of ESI,
see Freidig v. Target Corp.
, 329 F.R.D.
199 (W.D. Wisc. 2018);
see also Stanbro v. Westchester Cty. Health Care Corp.
, No. 19 CV
10857,
The Court begins with the burden of proof. CEVA contends that the burden falls on Mr.
Hollis to prove that the video existed, and to do so by a preponderance of the evidence, citing in
support
Sonrai Sys., LLC v. Romano
, No. 16 CV 3371,
Other district courts outside the Seventh Circuit seem to support CEVA’s contention that
the party seeking relief bears the burden of establishing that video footage existed.
See, e.g.,
Reed v. Royal Caribbean Cruises, Ltd.
, No. 19 CV 24668,
But even if the burden were to fall on Mr. Hollis, the Court finds he has satisfied it. CEVA does not dispute Mr. Hollis’ assertion that just weeks earlier the security camera system was working, and that a supervisor knew how to access the recordings and obtained and reviewed video recordings as part of his investigation of an unrelated incident. CEVA does not contest Mr. Hollis’ assertion that multiple security cameras were pointed in the direction of the incident. Instead, CEVA speculates about events that could have prevented its cameras from recording the event, such as a power outage. But no evidence in the record—zero—even remotely hints that any of these events occurred or that anything else interfered with the camera systems’ normal and intended function. The most reasonable inference is that given CEVA’s investment in security equipment to capture video of unexpected events, it would make efforts to keep the equipment operational. After all, why install video recording equipment if the video will not be viewed when it can answer a swearing contest, which would ensure an accurate employee disciplinary decision. In the absence of any other evidence, the inference that video recordings of the incident between Mr. Hollis and Mr. Bayer existed is bolstered, if not proven, by CEVA’s previous use of video recordings in a similar incident in the same warehouse. Based on this record, the Court finds video of the November 28, 2018, incident between Mr. Hollis and Mr. Bayer was recorded, and therefore was ESI.
2. Was There a Duty to Preserve the ESI?
The duty to preserve under Rule 37(e) is based on the common law, and so is triggered
when litigation is commenced or reasonably anticipated.
The Sedona Principles
, 19 Sedona
Conf. J. at 51. This means that the duty to preserve can arise before litigation is filed.
Philips
Elecs. N. Am. Corp. v. BC Technical
,
CEVA contends that no duty to preserve the video footage arose until March 27, 2019,
the date on which it claims that it first learned of Mr. Hollis’ charge of discrimination filed with
the EEOC. By then, it contends, the ninety day retention period would have passed and the
video would no longer be available, if it ever was. In support, it relies on
Jones v. Bremen High
Sch. Dist. 228
, No. 08 CV 3548,
CEVA attempts to distinguish
Freidig
because the incident between Mr. Hollis and Mr.
Bayer was not a slip-and-fall. So what? Both types of incidents—a slip and fall and a racially
motivated termination—potentially subject a defendant to liability. And, according to the
statements CEVA relied on to fire Mr. Hollis, the incident was at least as noteworthy as a slip-
and-fall, and may well have constituted a battery. Whether a duty to preserve has arisen is an
objective inquiry, viewed from the perspective of the defendant at the time.
Id.
CEVA’s
knowledge of the incident on its premises, its termination of Mr. Hollis for his role in the
incident, and Mr. Hollis’ letter alerting the defendant to his allegation of discrimination and that
video of the incident would be relevant to determining what occurred, triggered a duty to
preserve any video of the incident that existed. Under these facts, litigation was reasonably
anticipated.
See Storey v. Effingham Cty.
, No. 4:15 CV 149,
3. Was the ESI Relevant?
The next factor is whether the ESI “should have been preserved,” which amounts to
whether the ESI is relevant.
[2]
See Snider
,
CEVA has not addressed this analytical step explicitly. But throughout its brief CEVA claims that if the video existed, it would not necessarily have helped Mr. Hollis because written witness statements, plus similar deposition testimony obtained later from witnesses, confirm that Mr. Hollis grabbed or pushed Mr. Bayer. According to CEVA, “[b]ased on this evidence, it seems highly likely the video may have ended Hollis’s case.” Response [83] at 10. But this argument establishes the evidence’s relevance. Indeed, even under Fed. R. Evid. 401, the relevance of evidence does not turn on whether it supports its proponent’s position, but rather it is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence.” (emphasis added). And, of course, CEVA’s argument entirely ignores that Mr. Hollis has presented witness testimony supporting his position, and contrary to the witnesses upon which CEVA relied. Additionally, as most counsel and courts know, sometimes eyewitnesses change their testimony when confronted with video recordings.
To the extent that CEVA is arguing that Mr. Hollis had a burden to establish that the
video recordings would have been favorable, some courts have rejected that contention.
See,
e.g., Ungar v. City of New York
,
4. Was the ESI Lost Because a Party Failed to Take Reasonable Steps?
Some courts place the burden on the party seeking sanctions to show that the opposing
party failed to take reasonable steps to preserve ESI that no longer exists.
See, e.g., Sosa v.
Carnival Corp.
, No. 18 CV 20957,
Regardless of which party bears the burden, in this case, nothing before the Court even hints that CEVA ever intervened to stop its security system from proceeding as designed and discarding any video recordings after thirty to ninety days. Even after Mr. Hollis’ December 5, 2018, letter alerted CEVA to the relevance and potential importance of any footage that had been recorded, CEVA did nothing. During his deposition, in particularly damning testimony that CEVA ignores, CEVA’s general manager testified that he could not recall any reason why it would not have looked at the video to determine which version of the events was more accurate. Dkt. 53-2 at 110-11. The Court concludes that CEVA did not take reasonable steps to preserve any security footage after learning about the incident, or even after receiving Mr. Hollis’ letter asking that the footage be reviewed. Indeed, CEVA took no steps, let alone reasonable steps, to preserve the video recording. Assuming Mr. Hollis bore the burden on this issue, he met it with evidence of CEVA’s complete failure to take any steps to preserve the ESI.
5. Was the Lost ESI Unable to be Restored or Replaced?
As with the reasonable steps factor, some courts place the burden on the moving party to
show that the lost ESI in incapable of being replaced or restored.
See, e.g., Sosa
, 2018 U.S. Dist.
LEXIS 204933, at *47-48. This Court has the same concerns about such an allocation. But
again regardless of the burden, nothing before the Court establishes that the video recording can
be restored or replaced. CEVA asserts that statements of witnesses can serve as a substitute for
the security footage. But obtaining statements from witnesses is
not
what Rule 37(e) meant by
“restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). The question is
whether the
electronically stored information
can be restored or replaced.
Id.
And, in any event,
the witnesses are not in agreement about what happened between Mr. Hollis and Mr. Bayer.
That’s the point. In contrast, video of the incident would have definitively established what
occurred.
See Schmalz v. Vill. of N. Riverside
, No. 13 CV 8012,
6. Was There Intent to Deprive/Was There Prejudice?
Having navigated the five-part inquiry and arriving at the conclusion that the record
establishes that the video existed, a duty to preserve it existed, the video would have been
relevant, CEVA failed to take reasonable steps to preserve it, and the video cannot be restored or
replaced, the focus now turns to the questions of intent and prejudice. If there was intent, then
under Fed. R. Civ. P. 37(e)(2) the court may impose sanctions such as adverse jury instructions,
default, or dismissal. Fed. R. Civ. P. 37(e)(2), advisory committee’s notes to 2015 amendments.
If intent is established, then prejudice is presumed.
See DR Distributors
,
The Court begins with prejudice. Establishing prejudice can be a dicey proposition
because the ESI is gone.
See Schmalz
,
“Prejudice” under Rule 37(e) includes the thwarting of a party’s ability to obtain the
evidence it needs for its case.
J.S.T., Corp. v. Robert Bosch, LLC
, No. 15 CV 13842, 2019 U.S.
Dist. LEXIS 90645, at *19 (E.D. Mich. May 30, 2019),
expert advisor’s report and
recommendation adopted by
Turning now to intent, obviously, intent is difficult for a moving party to prove and for a
court to find.
See SL EC, LLC v. Ashley Energy, LLC
, No. 4:18 CV 1377, 2021 U.S. Dist.
LEXIS 179169, *13 (E.D. Mo. Sep. 21, 2021);
Wheeler Bros. v. Jones
, No. 2:14 CV 1258, 2016
U.S. Dist. LEXIS 203181, *17 (M.D. Ala. May 20, 2016) (“intent to deprive” is a difficult
question). The evidence used to establish intent is almost always circumstantial, not that there is
anything wrong with that.
BankDirect Capital Fin., LLC v. Capital Premium Fin., Inc.
, No. 15
CV 10340,
In this case, plenty of evidence exists in the record that could lead a reasonable person to conclude that CEVA acted with intent. Specifically, there is evidence that CEVA does not know of anything done in response to Mr. Hollis’ request for video, even though just months earlier it pulled and reviewed video of an unrelated incident. As Judge Reinhard noted in his order denying CEVA’ motion for summary judgment, CEVA’s
decision not to review the surveillance video is certainly difficult to understand. . . . An inference can be drawn in plaintiff’s favor from the investigators’ decision not to review, or even look for, video of the Incident—video they knew was likely available. The inference that can be drawn is that the investigators did not want to know what the video might show; that they preferred to make their decision using only the witness statements and interviews and to make their determination of witness credibility based on factors other than what they might have been able to see with their own eyes by viewing the video. Deciding to ignore the video is not a decision likely to be made by investigators seeking the truth.
Order [61] at 4-5 (emphasis added). This evidence supports a reasonable inference that CEVA intentionally disregarded Mr. Hollis’ request so that the ESI would be lost, no one could view what actually occurred, and Mr. Hollis could not use the video evidence to get his job back or support a likely lawsuit.
In addition, when CEVA responded in 2020 to Mr. Hollis’ discovery requests seeking the identity of the custodian of the security video, CEVA stated that the custodian was “Unisight,” a third-party vendor in Colorado. But in response to a subpoena, Unisight stated that it merely sold the video equipment to CEVA and had never been the custodian of any video recorded by the equipment. CEVA responds that its discovery response shows only that it was wrong, not that it acted in bad faith. But a reasonable person could conclude that CEVA’s response was an attempt to deflect attention away from its own intentional conduct of allowing the automatic deletion of the video. As Magistrate Judge Jeff Cole aptly noted, “False exculpatory statements are often evidence of consciousness of guilt.” See BankDirect Capital Fin., LLC , 2018 U.S. Dist. LEXIS 57254 at *31.
The Court has recounted evidence that could support a conclusion that CEVA intentionally allowed ESI to be destroyed. And tellingly CEVA has failed to even present the usual obligatory after-the-fact affidavit so often filed in spoliation cases that it did not intentionally fail to preserve the video recordings.
But a competent counsel who is willing to argue that her client is not inculpatory but is
instead incompetent could make a reasonable argument that the failure to pull, preserve, and
peruse the video recordings was not intentional. Granted, a jury may not credit this argument,
but that should not prevent CEVA from attempting to sell that pitch under these facts. Like
District Judge Tom Durkin, the Court is a believer of Hanlon’s Razor.
See Raila v. Cook Cty.
Officers Electoral Bd.
, No. 19 CV 7580,
Because of the difficulty to establish intent, the Court will leave that determination to the jury. See Fed. R. Civ. P. 37(e) advisory committee's note to 2015 amendment. At this point, the Court will not impose sanctions under Rule 37(e)(2), such as instructing jurors to presume that the missing ESI would have been unfavorable to CEVA. However, based on its findings that all five prerequisites under Rule 37(e) are established, the Court will impose curative measures.
D. Curative Measure Imposed.
Under Rule 37(e)(1), the Court may impose only those measures that are no greater than necessary to cure the prejudice resulting from the loss of the ESI. [3] A common curative measure is instructing the jury that it can consider the circumstances surrounding the loss of the ESI. Thomas Y. Allman, Dealing with Prejudice: How Amended Rule 37(e) Has Refocused ESI Spoliation Measures , 26 R ICH . J. L. & T ECH . 1, 64-66 (2020) (collecting cases). This Court will provide factual findings to the jury along with an instruction as to how to apply that factual finding under Rule 37(e). The factual findings and instruction are attached to this order as an appendix. The Court has not decided when it will provide the factual findings and instruction to the jury. The three options are (1) during the introductory instructions, (2) at the close of Mr. Hollis’ case-in-chief, or (3) at the close of evidence and following arguments, with all the other instructions. The Court will obtain the input of the parties before deciding this issue.
CONCLUSION
For these reasons, the motion for a missing evidence instruction [65] is granted in part.
The jury will be provided with the attached appendix for use in its deliberations.
Date: May 19, 2022 By: __________________________________________
Iain D. Johnston
United States District Judge
Notes
[1] An analytical decision tree is depicted in Hon. Iain D. Johnston & Thomas Y. Allman,
What Are the
Consequences for Failing to Preserve ESI: My Friend Wants to Know,
Circuit Rider 57-58 (2019). This
decision tree has been printed in full in other court opinions.
See, e.g., Hamilton v. Oswego Cmty. Unit
Sch. Dist. 308,
No. 20 CV 292,
[2] This factor likely has a proportionality component to it, as well.
[3] Although not a perfect analog, Rule 37(e)(1)’s guidance is reminiscent of Title 18, Section 3553(a)’s command when sentencing a criminal defendant: “The court shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in paragraph (2) of this subsection.” 18 U.S.C. § 3553(a).