In Edwards v. Wells Fargo Bank, 19-cv-14409 D. New Jersey January 5, 2003, the Court awarded Rule 11 sanctions against plaintiff’s counsel for failing to obtain the authorization of his client before filing the case. At a hearing the lawyer conceded that he lacked authorization to file the case. It is difficult for me to comprehend the court’s rulings. The pertinent parts of the ruling are quoted below:
WHEREAS, the Court held a hearing on the Order to Show Cause on July 7, 2021, with both Thomas and Edwards in attendance, (ECF No. 29), and where Thomas conceded on the Record that Edwards had not hired him to bring this case and that in fact Thomas had never met Edwards prior to the Order to Show Cause hearing on July 7, 2021, (ECF No. 38 at 23:22-23); and
WHEREAS, the Court noticed Thomas at both the hearing and in the Order issued on July 8, 2021 that the Court was contemplating sanctions under Rule 11 of the Federal Rules of Civil Procedure and the Rules of Professional Conduct and gave Thomas a second chance to Show Cause to the Court; and
WHEREAS, Thomas received two extensions and nearly two months of time to prepare his second response to the July 8, 2021 Order to Show Cause (ECF Nos. 30, 31, 32, 33, 34, 36, 37); and
WHEREAS, the Court found Thomas’ explanations as to why this case was brought under Edwards’ name were insufficient, (ECF No. 39); and
WHEREAS, the Court found that Thomas was not authorized by Edwards to bring this action, (ECF No. 39 at 34-35); and…
WHEREAS, the Court found that Thomas filed and pursued this lawsuit for improper purposes, violating Federal Rule of Civil Procedure 11(b)(1), (among other violations) (ECF No. 39 at 20-21) (“the Court is unable to conceive of any proper basis Thomas could have had for filing this Complaint”) (emphasis in original); and
WHEREAS, with the Court finding a violation of Rule 11(b)(1), the case was brought improperly ab initio, without Edwards’ knowledge or consent;
In Ansley v. Wetzel, 21 cv 528 M.D. Pennsylvania, the plaintiff filed suit against prison guards for violations of his civil rights. Plaintiff sought to obtain video evidence of the incident but the video was lost. He moved for sanctions under 37, but his motion was denied because the tapes of the incident were lost prior to suit being filed.
The Defendants argued that there was no spoliation because they had no reason to retain the tapes because there was no use of force. The District court agreed with their argument:
Defendants submitted the declarations of Captain Jeffrey Madden and Captain Robert Bookheimer wherein they explain when video footage is retained at state correctional institutions. (Doc. 91-2 at 10-11, Madden Declaration ¶¶ 3-4; Doc. 91-2 at 12-13, Bookheimer Declaration ¶ 3). Captain Madden explained that video footage is typically recorded over when a camera’s memory capacity has been met, unless the video involved a planned or unplanned use of force. (Doc. 91-2 at 10-11, Madden Decl. ¶¶ 3-4). Captain Bookheimer further declared that video footage of an inmate’s escort to the RHU is generally not retained, unless in the event of an extraordinary occurrence report or other event deemed necessary by the Facility Manager. (Doc. 91-2 at 12-13, Bookheimer Decl. ¶ 3). The video footage at issue was not retained because the incidents did not involve either a planned or unplanned use of force, and there is no evidence that Ansley’s escort to the RHU involved an event triggering retention of the video.
“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.” Bistrian, 448 F. Supp. 3d at 468. Ansley states that defendants should have been aware of impending litigation based on two grievances he filed on October 9, 2020, related to a “rape plot” fabricated by defendants. (Doc. 89 at 10; Doc. 89-1 at 38). However, the filing of these grievances does not support a pre-litigation duty to preserve recordings. Such an obligation arises when a party reasonably should have anticipated litigation concerning the grieved incidents. Bistrian, 448 F. Supp. 3d at 468 (“A party `is under a duty to preserve what it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation.”). Based on the filing of grievances related to a rape plot, defendants could not have reasonably anticipated litigation concerning the escort to the RHU on June 25, 2020, an incident involving masturbation on January 10, 2021, and the escort to the psychiatric observation cell on March 18, 2021. Because defendants could not reasonably foresee litigation and appreciate that the video footage at issue should be preserved for possible use in that litigation, they were not under a duty to preserve the video footage.
Conclusion: there as no duty to preserve evidence under Rule 37(e) before the lawsuit was brought.
Ed Clinton, Jr.