ORDER
Plаintiff Ron Zachary Pettit filed a motion for spoliation sanctions in January 2014. Doc. 163. The Court held a hearing on March 26, 2014, at which it heard oral argument on Plaintiffs motion. Doc. 195. Based on the argument, the Court allowed Plaintiff to conduct additional discovery and file a renewed motion for sanctions. Id. Plaintiff has now filed the renewed motion against Defendants Torrey Smith, Scott Mueller, Jose Luque, and Amy Morrow. Doc. 219. The motion is fully briefed and the Court heard oral argument on August 13, 2014. For the reasons that follow, the Court will grant the motion in part and deny it in part.
I. Background.
Plaintiff is a prisoner at the Arizona State Prison Complex—Eyman, Special Management Unit I, in Florence, Arizona. The Eyman facility is operated by the Arizona Department of Corrections (“ADC”). Defendants are correctional officers employed by ADC and assigned to Eyman. Plaintiff alleges that on April 16, 2011, Defendant Smith violated Plaintiffs Eighth Amendment rights by using excessive force during an еscort of Plaintiff from the shower to his cell. In his renewed motion for sanctions, Plaintiff asserts that several items of evidence relevant to his claim are now missing.
At the time of the alleged unlawful use of force, Plaintiff had been returned by Defendants from the shower and was standing inside his cell “facing away from the closed door.” Doc. 163 at 5. His arms were behind him and extended through the
Defendants allege that Plaintiff is “notorious for assaulting staff, disobeying orders, starting fires, and was designated ‘high risk.’ ” Doc. 167 at 2. They argue that Plaintiff attempted to grab Smith’s “stab vest” and repeatedly yanked his lead chain, and that Smith’s conduct was necessary to “compel [Plaintiff] to be properly uncuffed.” Id. at 5-6. Defendants do not dispute that Smith used “some modicum of force, up to and including pressing down on and/or striking [Plaintiffl’s hand/wrist/ arm[.]” Id. at 6.
Defendants also do not dispute the following facts: (1) Defendant Mueller recorded the incident on a video camera and Sergeant Morrow immediately took the video recording to her supervisor, Lieutenant Littleton; (2) Morrow reported to Lit-tleton that Smith had behaved unprofessionally, which caused Littleton to order her to write a personnel notation (“PACE report”) for Smith; and (3) Plaintiff went to medical on April 20, 2011, where he was interviewed about the incident and his hand was photographed. Doc. 149 at 3-8.
At some point on the day of the alleged assault, Morrow, Mueller, and Sergeant Navarrette (Smith’s supervisor) spoke to Plaintiff about the incident. Doc. 163 at 6. The accounts of this conversation vary, but it apparently caused Navarette to report to Littleton that the issue was resolved. Doc. 219-4 at 17 (“I had been notified by Sergeant Navarrette .... Everything was resolved. No issues.”). Plaintiff was also visited by a nurse on the day of the incident. The nurse noted injuries to his hands and gave him ibuprofen. Doc. 163 at 6.
Later that night, Plaintiff wrote an inmate letter to “CO III McClellan” which stated several times that he had been assaulted by Smith, that he “was repeatedly grilled by Sgt. Navarrette to resolve the issue,” and that he “started to feel threatened by [Navarette’s] words, so [he] just gave in” to make it back to his cell safely. Doc. 142-1 at 2.
Plaintiff was taken to medical on April 20, 2011—four days after the alleged assault—where an investigative report was completed by Sergeant Reyes and a photograph was taken of Plaintiffs hand. Doc. 149 at 8. Reyes’s report notes that on the date of the incident Navarette asked Plaintiff multiple times if he was going to “pursue” the incident and Plaintiff said he would not pursue anything as long as he was taken back to his cell. See Doc. 219-2 at 2.
At issue in this motion are several pieces of evidence that are missing. The first is the escort video. Littleton testified to several facts in his deposition: (1) he reviewed the video, (2) it showed Plaintiff acting belligerently, (3) it did not show Smith doing anything wrong, and (4) the camera’s view at the moment where Smith is accused of using excessive force was obscured by other Defendants who were standing between the camera and Plaintiffs cell door. Doc. 219 at 8. Littleton testified that he ordered the video to be erased three to five days after the incident. Id. at 9; Doc. 219-4 at 21, 26.
Plaintiff initially alleged that two investigative reports were missing: a report by the Criminal Investigation Unit (“CIU”), and an internal investigation report based on the April 20, 2011 interview of Plaintiff by Reyes (“SSU report”). Doc. 219 at 5. Following discovery, there is some uncertainty as to whether this incident was ever actually referred to the CIU. Plaintiff alleges that Deputy Warden Curran “asked the [CIU] to investigate the incident, which per ADC policy should have triggered the creation of a CIU report.” Id. at 5. But no CIU report exists, and Curran stated in a declaration that his signature on the CIU refеrral form was “scribbled out” and he does not know whether it was ever actually submitted to CIU for action. Id. at 11.
As to the SSU report, during discovery Defendants produced a one-page SSU memorandum, written by Reyes, which had not been produced at the time of Plaintiffs initial spoliation motion. Doc. 219-2 at 2. At oral argument, Plaintiffs counsel argued that the final sentence of the memorandum, which states that “[a]U information has been forwarded to administration for review and further action if needed,” indicates that the report was accompanied by supporting documentation which has not been produced. It is unclear whether any such documentation exists, but defense counsel stated that if it does, it may be available for production.
The April 20, 2011 photograph of Plaintiffs hand is also missing. No new information was uncovered in discovery regarding the location of the photo. Defendants cannot explain its disappearance. Plaintiff asserts that Captain Ping took the photo, but she testified that she does not recall taking the photograph and does not know what happened to it. Doc. 219-6 at 10.
As a remedy for loss of the video, PACE report, photo, attachments to the SSU report, and possibly a CIU report, Plaintiff seeks case-dispositive sanctions. He asks the Court to “designate as established for purposes of the case, that Defendants used excessive force and [Plaintiff] was injured as a result.” Doc. 219 at 21. He further asks the Court to “exclude evidence by Defendants regarding the amount of force used, to instruct the jury that Defendants have destroyed evidence that, if admitted at trial, would show that Defendants used excessive force against [Plaintiff] and that [Plaintiff] was injured as a result[.]” Id. Essentially, Plaintiff asks the Court for a directed verdict.
II. Legal Standard.
“The failure to preserve electronic оr other records, once the duty to do so has been triggered, raises the issue of spoliation of evidence and its consequences.” Thompson v. U.S. Dep’t of Hous. & Urban Dev.,
“A party seeking sanctions for spoliation of evidence must prove the following elements: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or al
“There are two sources of authority under which a district court can sanction a party who has despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive litigation practices, and the availability of sanctions under Rule 37 against a party who ‘fails to obey an order to provide or permit discovery.’ ” Leon v. IDX Sys. Corp.,
The Ninth Circuit has instructed that before a district court imposes the “harsh sanction” of dismissal or a directed verdict, it “should consider the following factors: ‘(1) the public’s interest in the expeditious resolution of litigation; (2) the сourt’s need to manage its dockets; (3) the risk of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic sanctions.’ ” Leon,
III. Analysis.
A. Duty to Preserve.
A duty to preserve information arises when a party knows or should know that the information is relevant to pending or future litigation. See Surowiec v. Capital Title Agency, Inc.,
1. Initial Considerations.
Although the duty to preserve is well established, there is some debate in this case as to who bore that duty. The
Defendants ask the Court to hold that no sanctions are appropriate in this case because they personally have no culpability for the loss or destruction of any evidence and ADC is not a party and therefore had no duty to preserve evidence. But ADC is not a disinterested third party. It is responsible for Defendants’ training and conduct, and it had complete control over the relevant evidence in this case and over Plaintiffs ability to access that evidence and Defendants’ ability to preserve it. Defendants individually had no ability to control the evidence; Morrow, for example, could not have wаlked into the office of her superior— Littleton—and taken custody of the video and the PACE report in order to preserve them for her defense. Nor could an inmate like Plaintiff exercise any control over evidence in ADC’s possession.
What is more, the State of Arizona, of which ADC is an agency, indemnifies its employees for “any damages ... for which the ... employee becomes legally responsible if the acts or omissions resulting in liability were within the ... employee’s course and scope of employment.” A.R.S. § 41-621(P). Arizona also funds the defense of its employees in civil cases arising out of the scope of their employment. See A.R.S. § 41-192.02(A). Thus, although suits directly against ADC and Arizona are barred by the Eleventh Amendment, suits brought against ADC employees have virtually the same effect—Arizona funds the defense and pays any judgment.
Because ADC controls the evidence and who has access to it, and the State is defending this case and will pay any judgment that results from it, the Court cannot conclude that ADC is merely a disinterested third party with no duty to preserve evidence. In all practical respects, ADC is in the same position as parties on whom courts routinely impose a duty to preserve—it is an agency of the State that funds the defense and pays any judgment, its employees are subject to suit for their actions while in its employ, and it has sole custody and control over most of the relevant evidence. Given these special circumstances, the Court finds that ADC had a duty to preserve evidence relevant to this case once it knew that litigation was reasonably likely. See Wilson,
2. Is There An Exception to the Duty?
Defendants “do not deny that a common law duty could apply to the evidence in question” (Doc. 232 at 13), but argue that requiring ADC to retаin videos of inmate escorts would be unduly burdensome (id. at 4-6). Defendants contend that “an inordinate amount of space would be required to preserve the voluminous and sizeable videos of inmate escorts conducted on a daily basis.” Id. at 4. But nobody has suggested that ADC must preserve every video of every escort. The common law duty to preserve arises only when a party reasonably anticipates litigation. The vast majority of escorts at ADC undoubtedly are unremarkable events that give no reason to anticipate litigation. No duty to preserve would apply to the recordings of such escorts.
3. Additional Issues Regarding the Duty in this Case.
Having concluded that ADC is not exempt from the common law duty to preserve, the Court must address additional factual issues regarding when exactly the duty arose in this case. Defendants argue that the letter written by Plaintiff on the evening of the escort was sent to “COIII McClellan” and not to any of the Dеfendants, Littleton, or Navarette. Doc. 232 at 16. They contend that McClellan did not respond to Plaintiff until April 28, 2011, and that there is “no indication that he had discussed the matter with Lt. Littleton about preserving the video.” Id. These facts, combined with Littleton’s assertion that Navarette told him the issue with Plaintiff had been resolved, raise a question about whether Defendants reasonably could have anticipated litigation before the video was deleted a few days after the event in question.
As discussed above, the duty to preserve applies to ADC. The relevant question, then, is not when Defendants or Littleton could reasonably anticipate litigation, but when ADC could reasonably anticipate litigation.
The Court is mindful that “the duty to preserve evidence should not be analyzed in absolute terms ... because the duty cannot be defined with precision.” Victor Stanley II,
Plaintiff submitted his grievance letter to McClellan on the night of the incident, alleging that he had been assaulted by Smith. See Doc. 142-1 at 2. At oral argument, defense counsel argued that no duty to preserve arose at that time. Counsel argued instead that the duty would not arise until after ADC had the opportunity to review Plaintiffs grievance and determine its merit. The Court has great difficulty with this suggestion. If a party has no duty to preserve evidence until after it has evaluated the merits of a potential claim, then presumably that party can with impunity destroy relevant evidence while the evaluation is being conducted. The party can, in effect, immunize itself from liability by dеstroying the very
At the same time, the Court recognizes that some entities, particularly prisons, undoubtedly receive hundreds or thousands of complaints and grievances, some portion of which are plainly meritless and should not. trigger a duty to preserve evidence. How one balances this reality against the need to preserve evidence in clearly anticipated claims is not easy to determine in the abstract. Such line-drawing is perhaps best left to the experience-based development of the common law.
The Court can conclude in this case, however, that a duty to preserve arose bеfore the evidence was destroyed. This was no routine transport or frivolous complaint. Morrow was sufficiently concerned about what occurred at Plaintiffs cell door to take the video to Littleton, tell him of Smith’s unprofessional conduct, and then write a PACE report at Littleton’s direction. That evening, Plaintiff wrote a grievance letter to McClellan asserting that he had been subjected to excessive force by Smith. The Court concludes that these facts were sufficient to put ADC on notice that litigation was likely and to trigger a duty to preserve relevant evidence. The Court does not purport to adopt a broader rule.
B. Imputation.
Defendants correctly note that none of them was responsible for the loss or destruction of evidence in this case—the evidence was lost while in the hands of others within the prison system. Defendants would have the Court conclude that Plaintiff has no remedy because they are not personally responsible for the destruction of evidence. The Court must therefore decide whether ADC’s loss of evidence may be imputed to Defendants for purposes of resolving this case.
Plaintiff contends that courts “regularly impute any spoliation by the real party in interest—the state and its agencies—to the named officer in a § 1983 action,” and cites three district court cases where spoliation sanctions were granted against § 1983 defendants. Doc. 219 at 12 (citing Peschel,
Defendants argue that the Court cannot sanction them because they were not involved in the alleged spoliation, аnd that sanctioning them for conduct of other prison staff would violate the sovereign immunity granted Arizona by the Eleventh Amendment. Doc. 232 at 8. Defendants contend that the Court has no jurisdiction over Arizona or ADC because neither is a party, and Arizona has neither consented to jurisdiction nor waived its sovereign immunity. Id. No party has suggested, however, that the Court exercise jurisdiction over Arizona or ADC. The question is whether the Court should impose spoliation sanctions in this case for the loss of evidence by ADC.
Defendants argue that a recent Ninth Circuit decision, Peralta v. Dillard,
Peralta does not control this case. Per-alta concluded that assessing a damаges award against the defendant dentist which the State ultimately would pay through its indemnification duty, on the basis of the State’s wrongdoing (failure to provide adequate medical resources for its prisons), would be tantamount to awarding damages against the State for its wrongful conduct, something the Eleventh Amendment forbids. Such an award would constitute “an end run around the Eleventh Amendment by subjecting the state to precisely the kind of economic pressure against which the amendment protects.” Id.
This case is different. Plaintiff seeks damages for violation of his constitutional right to be free from cruel and unusual punishment, not for spoliation of evidence. He asks the Court to impute ADC’s loss of evidence to Defendants in order to remedy the loss of evidence through appropriate trial sanctions. He does not ask the Court, as did the plaintiff in Peralta, to impute to Defendants any wrongful actions by the State that contributed to or caused the constitutional violation. Thus, this is not a case where the requested imputation would effectively establish the State’s violation of Plaintiffs constitutional rights and subject it to an award of damages for that violation—a tactic which constituted the “end run around the Eleventh Amendment” in Peralta.
Plaintiff provides other valid distinctions. He notes that the state action at issue in Peralta was a “policy or practice” of California, and that such policies and practices are protected from suit by the Eleventh Amendment. Doc. 235 at 10. He argues that the spoliation here is not a policy or practice of Arizona and accordingly “does not subject Arizona to ‘the kind of economic pressure against which the [Eleventh Amendment] protects.’ ” Id. (quoting Peralta,
The authority cited by the parties is largely unhelpful in determining whether spoliation may be imputed to Defendants. Indeed, the Court has had difficulty finding any authority squarely considering whether spoliation of evidence may be imputed to a defendant who did not participate in the spoliation. The court in Victor Stanley II noted that an act of spoliation by an agent is attributable to the principal.
The Sixth Circuit has affirmed a district court’s denial of spoliation sanctions in a case that is factually similar to Plaintiffs. In Adkins v. Wolever,
Although the facts of the assault in this case are similar to those in Adkins, the facts surrounding the spoliation of evidence are not. The video in this case was deleted by an ADC staff member who knew that a supervising officer viewed the incident as professional misconduct. Further, the Adkins court did not address whether the prison itself had any duty to preserve evidence or to intervene in the operation of their computer system, and it is unclear whether arguments regarding those issues were presented. Adkins is therefore unhelpful in resolving the issue of imputation in this case.
For the same reasons that the Court found that ADC had a duty to preserve the evidence lost in this case, the Court finds that there is strong reason to impute the spoliation of ADC to Defendants to ensure that fairness is done at trial. But the Court need not go that far to resolve this motion. As will be explained below, the Court does not find that Plaintiff has made the showing required for case-dispositive sаnctions. The Court instead concludes that ADC’s breach of duty and loss of
C. Relevance and Prejudice.
Defendants argue that the spoliated.evi-dence is of “dubious relevance,” and assert that “the Court should recognize that all witnesses are available for testimony and cross-examination at trial, as is the critical mass of information reports, supplements, the CIU complaint, SSU Memorandum, and Petit’s medical records.” Doc. 232 at 18. Defendants further argue that the video would be duplicative of Plaintiffs testimony, and that the PACE reports would also be duplicative of other evidence. Id. The Court does not agree.
The video recorded the very events that Plaintiff claims constituted excessive force and that Morrow found sufficiently troubling to report to her superiors. The Court and Plaintiff can take no comfort in Defendants’ assertion that defense witnesses, who will favor the defense position, can testify about these events at trial. Nor is it sufficient to say that Plaintiff, a convicted felon being held in high security, can testify against uniformed prison guards at trial. The video camera was an objective witness that bore neither the potential pro-defense leanings of the defense witnesses nor the credibility problems of Plaintiff. Without question, that objective evidence was highly relevant to the сlaims at issue in this case. In addition, as other courts have explained in virtually the same circumstance: “Despite the limited viewing angle of the videotape ... it is likely that it did still capture at least some of the altercation (whether sights or sounds) and could have potentially assisted the jury to understand the ten- or of the event and to evaluate the credibility of the witnesses who are providing conflicting descriptions.” LaJocies, 20Í
The PACE report and the medical photograph were also plainly relevant. They were contemporaneous records, recorded without the influences of a federal court lawsuit and the risks of trial. They would have provided valuable information about the extent of Plaintiffs injuries and Morrow’s fresh perception of Smith’s conduct. The fact that other evidence about the incident is available does not diminish the relevance of the missing evidence. Plaintiff clearly has been prejudiced by the loss of important evidence.
D. Culpability.
Various Ninth Circuit cases have noted that sanctions may be imposed “not only for bad faith, but also for willfulness or fault by the offending party.” Unigard
The concepts of willfulness and fault are imprecise. Willfulness could include virtually any intentional act, such as adoption of an email management system that deletes stored emails after 30 days, even if the intentional action was not taken with an intent to destroy relevant information. Fault is also broad, including mere negligence. Ninth Circuit cases cited by the parties and found by the Court have not imposed case-terminating sanctions for negligence-level actions.
In Leon, the Court of Appeals affirmed a dismissal sanction. Leon cited the “willfulness, fault, or bad faith” standard,
In Anheuser-Busch, a case upon which Leon relied, the Ninth Circuit affirmed a dismissal sanction where the party had repeatedly and willfully lied that relevant documents were destroyed in a fire, when in fact she knew they had survived the fire. The case quoted the “willfulness, fault, or bad faith” standard, but the Ninth Circuit noted that the sanctioned party “had willfully and in bad faith violated the rules of discovery by withholding the documents from Anheuser and had repeatedly violated [the trial court’s order].” Anheu-ser-Busch,
In Halaco Engineering, the Ninth Circuit again cited the “willfulness, fault, or bad faith” standard, but reversed the district court’s dismissal of an EPA counterclaim for misleading and incomplete litigation disclosures. Although the Ninth Circuit did not dispute that the EPA had improperly failed to disclose portions of an investigative report and had used improper accusatory language in another public document, it held that “[t]he fault at issue was insufficiеnt to support a dismissal.”
Finally, the Supreme Court’s leading decision on a trial court’s use of inherent power to impose sanctions, Chambers v. NASCO, Inc.,
There is no question in this case that the video was intentionally deleted at Little-ton’s direction. It is unclear exactly when the video was deleted, but Littleton testified that he met with Deputy Warden Cur-ran approximately “three to five days after” the incident (Doc. 219-4 at 21) and had ordered that the video be deleted before he spoke with Curran (id. at 26). It is also unclear what Littleton knew about Plaintiffs allegations of assault at the time the video was deleted. McClellan received Plaintiffs’ grievance in the evening after the incident occurred, but there is no evidence that Littleton was told about it. Further, Littleton testified that he was told by Navarette that the issue between Plaintiff and Smith had been resolved. See id. at 17.
On the other hand, the evolution of Lit-tleton’s testimony about the video is concerning. Defendants filed a declaration by Littleton on February 7, 2013 in response to Plaintiffs original motion for sanctions. Doc. 130-1. The declaration says nothing about Littleton watching the video or ordering its deletion. In his subsequent deposition, Littleton testified that he remembered—about “a month and a half’ before the deposition—that he had in fact watched the video. See Doc. 219-4 at 34. Littleton now recalls specific details of what the video showed. While it is possible that Littleton had a sudden resurgence of memory, his testimony is at least suspicious. The suspicion is compounded by the fact that the PACE report Littleton ordered Morrow to write about the inci
This suspicion notwithstanding, Plaintiff has not shown that the video, PACE report, photo, and other possible documents were deliberately destroyed for the purpose of making them unavailable in this lawsuit. And Defendants do provide at least some explanation for why they were not retained.
Considering the evidencе as a whole, the Court cannot conclude that Defendants acted in bad faith. The Court can conclude, however, that ADC breached a duty to preserve important evidence. ADC clearly had reason to believe the evidence was relevant to likely litigation. Morrow’s reaction to the incident strongly suggested that something improper had occurred at Plaintiffs cell door. The same day, a nurse visited Plaintiff and found injuries. That night, Plaintiff wrote a letter of complaint to an ADC supervisor. In light of these facts, the Court concludes that intentional deletion of the video and failure to preserve the PACE report and the photo of Plaintiffs injuries were at least grossly negligent.
E. Sanctions.
Although Rule 37 does not appear to be implicated in this case because there was no violation of a court order or other discovery rule, the Court concludes that sanctions are warrаnted under the Court’s inherent powers. The Court must “exercise caution in invoking its inherent power[.]” Chambers,
The Court is not convinced that Plaintiffs requested sanction—instructing the jury that Defendants used excessive force which injured Plaintiff—is appropriate. Such a sanction would direct judgment in favor of Plaintiff. Although the circumstances surrounding the destruction of evidence are suspicious, Plaintiff has not presented clear evidence of bad faith. The Ninth Circuit’s instruction to adopt a resolution that favors disposition of this case on the merits, and that is the least onerous sanction needed to cure the prejudicе caused by ADC’s loss of the evidence, persuade the Court that it should not impose a case-dispositive sanction.
Instead, the Court will allow the parties to present evidence and argument concerning the lost evidence and will instruct the jury that ADC had a duty to preserve evidence, ADC did not preserve the evidence, and the jurors may, but are not required to, infer that the lost evidence would have been favorable to Plaintiff. The Ninth Circuit has authorized adverse inference instructions where the spoliator acted wrongly, which requires notice that the destroyed evidence was relevant to likely litigation. See Akiona v. United States,
The Court will also preclude Defendants from presenting the videos they created after-the-fact to suggest that the lost video would not have contained helpful information. Permitting the display of such videos when the actual video was not retained would, in the Court’s view, be very unfair.
These sanctions will restore, as much as possible, the accuracy of the fact-finding process and relieve the disadvantage imposed on Plaintiff.
IT IS ORDERED that Plaintiffs renewed motion for sanctions (Doc. 219) is granted in part and denied in parí as set forth above.
Notes
. These five factors, which have been developed and applied most often in cases of failure to prosecute or disobedience of court orders, are not all applicable in a spoliation analysis. The factors of expeditious resolution of cases and management of the court’s docket, for example, often will not be implicated when spoliation issues arise. The Court nonetheless will apply the analysis consistent with the direction in Leon.
. The Court notes that Captain Hope Ping, an associate deputy warden with ADC, testified in this case that videos from the Browning facility are routinely saved to a computer hard drive. Doc. 219-6 at 15. ADC apparently has encountered no capacity or cost problems in retaining these videos.
. In Unigard, the Ninth Circuit addressed Chambers and Roadway Express and observed
. The Ninth Circuit faced a unique situation in Unigard, where the plaintiff insurance company sued the manufacturer of a space heater that allegedly had caused the insured boat to catch fire. Before the lawsuit was filed, but after its experts had examined the space heater and the boat, the plaintiff innocently destroyed the space heater and sold the boat for salvage, depriving the dеfendant of any opportunity to examine this key evidence. As a result, the district court precluded the plaintiff from presenting testimony from its experts and, because the plaintiff could not prove its claim without its experts, entered summary judgment for the defendant. The Ninth Circuit affirmed, noting that the plaintiff's actions "precluded Lakewood from any opportunity to inspect the evidence” and "rendered unreliable virtually all of the evidence that a finder of fact could potentially consider.”
. The Court would reach this conclusion even if case-terminating sanctions were available for conduct less severe than bad faith. Decisions affirming case-ending sanctions have involved more culpable conduct than has been shown here. See, e.g., Leon,
. The Court does not mean by this holding to suggest that adverse inference instructions— which rightly are viewed as serious sanctions—should be too readily imposed. The Court notes that the Advisory Committee on the Federal Rules of Civil Procedure, of which the undersigned is the current chair has proposed that adverse inference instructions be allowed for the loss of electronically stored information ("ESI”) only when the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation. See www.uscourts.gov/ uscourts/RulesAndPolicies/rules/civil rules redline.pdf at 36-47. The reasons for this recommendation can be found in the Advisory Committee Note to the proposed amendment. Id. Although this case concerns deletion of a digital video file, it does not concern ESI in the sense addressed in the proposed amendment, which is concerned more with the operation of modern ESI systems and the ease with which information can be added to and lost by such systems.
. Defendants argue that the Court may not impose sanctions because current Rule 37(e) provides that “a court may not impose sanctions ... on a party failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed.R.Civ.P. 37(e). This rule, which refers to operations that occur "without the operator’s specific dirеction or awareness,” Fed.R.Civ.P. 37 advisory comm, note (2006), has no bearing here. The video was not "lost as a result d the routine, good-faith operation of an electronic information system”—it was deliberately deleted. Furthermore, even if ADC had an ESI system that deleted the video, once a party is aware of reasonably anticipated litigation it has a duty to intervene in the operation of such a system to prevent the loss of potentially relevant evidence. Id. ("When a party is under a duty to preserve information because of pending or reasonably anticipated litigation, intervention in the routine operation of an information system is one aspect of what is often called a ‘litigation hold.’ ”). There has been no allegation that the other missing evidence was lost due to the operation of an electronic information system. All indications are that the PACE report and photographs were physical copies rather than electronic. Rule 37(e) therefore does not apply to them.