#CaseoftheWeek Episode 46: The Issues Around Video and Duty to Preserve

Episode 46 marks our one year anniversary for case law livestream. This Case of the Week is an analysis by CEO Kelly Twigger of video preservation policies and the duty to preserve, and what a party has to do to put a party on notice to preserve based on the decision in Sanders v. Los Angeles Cnty. et al. 2019 WL 12831725 (C.D. Cal. 2019) from August 1, 2019.

Good morning and welcome to our Case of the Week for November 23, 2021.

My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and a a principal at ESI Attorneys. I am so happy to be here with you today. Thanks so much for joining me.

We are two days out from Thanksgiving this year and both me and my team eDiscovery Assistant want to say thank you. We have so much to be grateful for this year. As you hopefully gather with friends and family this week, we want you to know that we are grateful for you who join us each week as well as our entire ediscovery community and our users on the platform. We feel so privileged to work with the best of the best in the ediscovery world and to be able to partner with ACEDS to do this broadcast each week.

Speaking of that, last week we marked our one year anniversary of our partnership with ACEDS for the Case of the Week. We would love to give a huge shout out and say thank you to Deja, Maribel and Mike all from ACEDS who work with us so effectively to be able to allow us to put on this broadcast each week. Happy anniversary to us.

We’re glad to hear from you each week about how this broadcast helps you in your practice. Please reach out and let us know what issues are vexing you or what you’re facing so that we can add them to the queue and be able to address them as we move forward in case law.

Today, as usual, you’ll have the link to the decision that we’re discussing in the comments section of whatever platform you’re viewing us on. You can also use the link in the comment section to sign up for our weekly demo of eDiscovery Assistant. We started adding a weekly demo on Thursday.  Obviously, this Thursday is Thanksgiving, so if you sign up for a demo online, you’ll be signed up for next week’s demo, which should be December 2nd. We’ll see you on that demo if you’re interested.

You can also use the links to go to the 2020 Case Law Report. That’s, of course, coming to the end of 2021 so we’ll be putting out a new Case Law Report from 2021 in conjunction with Doug Austin and eDiscovery Today, hopefully by February this year. We’re excited about that.

We also invite you to check out the updated website for eDiscovery Assistant where you can sign up for that weekly demo and also for the blog and get an inside look at the features and information of the platform.

I picked this case because of the video preservation issues number one. Number two, we find a lot in ediscovery case law that issues start out in criminal context and evolve to the more broad civil context in business disputes. It’s always good to look at how that case law is evolving in the criminal context. Because our federal judges work in both the civil and the criminal context on a rotation, we see a lot of decisions that come out of the criminal context that have a lot of really thoughtful analysis. Then you’ll find those decisions cited in the civil context. This one is an important one from that perspective.

It’s also important because we’re talking about video. One of our goals here on Case of the Week is to always emphasize the sources of ESI and what you need to be thinking about with regards to those specific sources. This case did a great job of raising the issue of video, preservation of video, and timing of when that video preservation comes into play on a duty to preserve.

That’s really what we’re talking about today.

This case is from August 1st of 2019. This is from Judge Rozella Oliver, who is a United States Magistrate Judge in the Central District of California. If you are Ediscovery assistant case law, you know that there is an abundance of case law in the 9th Circuit—the 9th Circuit, the 2nd Circuit, 7th Circuit, and the 5th, those are our most active circuits. D.C. also gets a number of really well reasoned, great decisions, but from a quantity perspective, it’s not as high.

Let’s talk about this case. This decision comes from Sanders v. Los Angeles Cnty. et al. and again, you’ve got the link to the case itself on eDiscovery Assistant in your comments section.

Note that even if you’re not a user on eDiscovery Assistant those links are public links. You can click on that link and be able to view the case in its entirety. You can also share that link with other people, and they’ll be able to view the case in its entirety as well. One of the benefits of eDiscovery Assistant that I wanted to create is to make the case law actually available to you without putting it behind a firewall.

All right, let’s talk about Sanders.

This was a civil case, as I mentioned, brought by the plaintiff based on conduct that occurred when he was a pretrial detainee at the Los Angeles County Jail from August 16 through August 21, 2014. Those dates are really important. Again, as always on Case of the Week, we have to pay attention to the timing of when the conduct occurred relative to the duty to preserve.

This particular dispute is one of many discovery disputes in the case, which is not uncommon with pro se litigation. The plaintiff here claims that he was starved when he voluntarily refused to leave suicide watch while he was detained. The current dispute involves video footage that would have been made as a matter of routine course of the plaintiff in his cell and also within the facility, as well as other video that would have been available for other detainees. The plaintiff wanted not just video about himself but information from a certain period of time in 2014, both prior to and during his detainment at the Los Angeles County Jail.

The plaintiff had prior to this particular decision, previously asked the Court for sanctions for default judgment and an adverse inference instruction based on the fact that upon asking for the video, the Los Angeles County told them that the video was no longer available, that it had been deleted pursuant to their standard ESI preservation policy. The Court then asked the County to provide an affidavit or a declaration as to why the information no longer existed or what searches they had done to ensure that the video had existed.

The County informed the Court that the video had been deleted as part of the routine operation of the County’s ESI retention policy, which preserves video for a year due to the high cost of storing video. The declaration went on further to be more specific and state that the Sheriff’s Department had a policy of retaining video footage for a year. Under that policy, the footage from the plaintiff sell for the period of August 15th through the 21st would have been deleted a year earlier, so that would have been in 2015, which is six years before this decision.

The declaration also confirmed that none of the video footage was available and that the Sheriff’s Department was not aware of plaintiff’s lawsuit until January 5, 2017. Almost three years later, when it was served with Plaintiff’s third amended complaint. Based on the retention policy, the video footage had already been purged by the time they received notice of the lawsuit.

The plaintiff argued that the defendant was on notice of its duty to preserve well before the policy would have deleted the video. Although the complaint was not filed until May 25, 2017, the plaintiff’s motion alleged two separate bases on which it believed it informed the defendant of the soon to be pending action based on the incidents in 2014 and that those contacts put the defendant on notice and that its duty to preserve arose as of that notice.

What were those two separate bases? We’re going to talk about those and then we’ll get to the analysis of what the Court said about them.

The first was a letter dated October 14, 2014 from the County Board supervisor that was addressed to the plaintiff. That letter stated that the supervisor was in receipt of correspondence from the plaintiff, “pertaining to plaintiff’s second civil action notice against the Los Angeles County Sheriff’s Department.”  The letter went on to state that, “It is the policy of the Board of Supervisors to forward all constituent letters to the appropriate representative for the jurisdiction which handles the constituent’s concerns,” and that the plaintiff’s concerns were being forwarded to the relevant representative.

That’s the sum total of the facts about that particular letter. There is no information in the decision about the letter that the plaintiff actually sent to supervisors or what that information contained. Although it becomes clear from the Court’s decision that it didn’t contain enough.

The second basis that plaintiff asserted was sufficient to give rise to the duty to preserve was a newspaper article. The newspaper article was printed in March 2016, which based on the facts that we already know means the video would have already been deleted in 2015 before the newspaper article anyway. The newspaper article had a caption titled “Widespread Corruption in LA County Jails Leads to Federal Investigation, Indictments.”

Second basis for the newspaper article, I think almost immediately, without even looking at the Court’s analysis, we know that that’s going to be a non issue. First of all, there’s nothing specific about the plaintiff’s given complaint in that newspaper article, and the timing of it means that it would have come after the video would have already been deleted anyway. Really, the only issue is that first letter that the plaintiff asserts would have given rise to the duty to preserve.

What does the court say about this? What’s our analysis?

Well, the Court looks to both of those exhibits—the letter and the newspaper article—to determine whether the county’s duty to preserve arose prior to the deletion of the video evidence. That’s the sole issue in this case, and the two things that I want you to focus on here are the fact that we’re talking about video evidence and that we’re talking about what needs to be contained in the notice to trigger the duty to preserve. Those are the two key issues.

Now the reason that that’s so key and I wanted to discuss it today is that video is routinely deleted very quickly. In facilities where we manage video contracts for incident reporting that video is often deleted within seven days. Same is true of retail establishments. The cost of video storage is so high, and we reflected in our clients who engage with police departments and have to record or maintain video footage for those police departments. It’s astronomical how much video storage costs and then to be able to review that video and produce it is also an astronomical cost. The way to manage that effectively is to have retention policies that are followed.

In order to determine whether the duty to preserve arose here, the Court looks at multiple cases in which video data was lost in the 9th Circuit. I would encourage you to read the opinion. It’s not very long. It’s a quick, probably 10 minute read. It walks you through a number of different incidents in which video evidence was lost and what the steps were to determine whether the duty to preserve arose. Like every discovery decision, it’s very factually specific. The Court looks at those facts and distinguishes them from this case here.

The Court starts with the first three-part analysis for sanctions. We’ve talked about this a lot of times. The moving party for sanctions based on Spoliation, has to establish three elements:

1. One that the party having control over the evidence had an obligation to preserve it
2. That the records were destroyed with a culpable state of mind. That’s always the intent, and
3. That the evidence was relevant to the party’s claim.

Obviously, the Court states here that two and three were met because the County intentionally destroyed the information subject to its retention policy, so that met the culpable state of mind standard according to the Court. And 3rd that the elements were relevant, that one is also met, obviously.

Two and three are met. We’re really just left with the did the County have an obligation to preserve the information at the time the records were destroyed.

Now we’re looking strictly at the duty to preserve and the timing of it. Again, timing, timing, timing. We talk regularly about the three main things I want you to do in doing discovery effectively when it comes to ESI:

1. Plan.
2. Document.
3. Note timing, timing, timing, timing.

Plan, document, and note your timing. Those are our three main goals that we always have when engaging with ESI.

Here the Court really looked at and said that “even if a policy to delete information exists once the party is on notice that litigation is reasonably foreseeable, there is a duty to suspend that policy and retain all relevant documents and information for possible litigation.”

Now, one thing that we don’t know about here is what if a party doesn’t have a policy, but information is lost that would have otherwise constantly been maintained on their system. How is that question going to be answered? That’s a question that’s come up for us recently in litigation, and it’s a little bit different situation than we have here, but one that you probably have. And if anybody has any comments on that, I’d love to hear them.

In this particular case, the County stated that:

The department maintains a policy of retaining video footage for a year. The older footage is automatically deleted and replaced by new footage. The Sheriff’s Department has had this policy in place due to the extremely high cost data storage and to ensure that there’s enough storage capacity for current data.

Remember that the County is basically funded by taxpayer dollars, so the more video storage they maintain, the more the taxpayers of LA are going to have to pay for.

Even though this policy existed at the time, there’s no doubt that once the Sheriff’s Department became aware of the reasonably foreseeable litigation in this matter, it should have suspended this policy or at least made a backup copy of the video footage. The question before the Court is, when did they reasonably become aware of the action.

Now, the defendant argues that its duty didn’t arise until January 5th of 2017, which is when they were served with the plaintiff’s third amended complaint. There’s no discussion of the first two complaints, so I assume that they probably weren’t served on the County. The plaintiff argues that the duty arose three weeks after the incident when the plaintiff first verbally complains to corporate officers about his treatment.

The Court look first at the letter. Remember, I told you there were two separate bases for the plaintiff alleging that the County was on notice prior to the filing of the complaint and prior to the deletion of the video footage.

The letter acknowledging receipt was the first basis. That letter that the supervisor sent acknowledging receipt of the plaintiff correspondence, and the Court found that the letter didn’t have any information that would sufficiently put the County on notice of a duty to preserve it did not state what claims were being addressed. It didn’t state what the relevant time period was or what kind of information was actually being requested by the plaintiff.

Those are all extremely crucial when you’re sending a letter for preservation purposes, and we recommend to our clients regularly that you send a preservation letter and that it be broad enough to encompass all potential sources of ESI. That is really up to the party who maintains the information to determine what the sources are that should be preserved. You do need to give sufficient boundaries for that preservation letter in order for it to be effective. And here it wasn’t because it didn’t include any of those pieces.

The second basis that the plaintiff looked to was the newspaper article, and we kind of already poo-pooed that at the beginning of my discussion. What the Court found is that the exhibit did not name the plaintiff and could not be reasonably construed to provide notice to  defendants regarding litigation that the plaintiff’s August 2014 detention was reasonably foreseeable.

The fact that the plaintiffs failed to specify dates, topics of discussion, and potential follow up communication between the two did not trigger the duty to preserve. Because there was no duty to preserve, the Court denied the sanctions and found that the complaint that was filed in January of 2017 was the first notice to the County of this potential litigation.

Okay, so denial of sanctions, insufficient notice from the plaintiff on the duty to preserve. What are our takeaways from today’s case?

Video is becoming more and more of an issue in litigation. We have it in almost every case. It’s the notion of video as a source of ESI. I don’t want you so much to think about video from where it comes from, because there are multiple sources. You can have video that’s captured from a facility. You can have video that’s captured, like here in a jail. Also a facility. You can have video that is on social media that you need to capture. You can have video from Teams meetings or from Zoom.

We’re creating a video right now, so this information is potentially evidence at some point that might need to be preserved. You need to understand for your client what are the ways in which they are creating video and where is it being stored.

Video with regard to Microsoft Teams is a separate issue. Video with regard to Zoom is a completely separate issue. You need to know where that information is being stored.

For the majority of clients using Teams, the ability to record video for a meeting is on by default. Whoever the person is that set up that meeting and is administering it can record that meeting. Now, where does that get stored? Usually at Microsoft. How long is it available? Where does it live for you to be able to find it? What is the title of the meeting such that you could be able to search for it if you were trying to find ESI?

You’re going to need to make sure that you include all of those pieces in your custodian interviews relative to video. Look at what you’re doing on custodian interviews. Think about what the sources of video are and just flat out, ask that question, “do you create video? Do you do it in Teams meetings? Do you do it in Zoom? Do you create video for social media?”

Then you’re going to need to come up with a preservation strategy for each place where video is created and needs to be preserved for purposes of litigation, and you need to do it fast. This is yet another reason why sitting down and assessing ESI risks needs to happen before you even really get started in litigation.

Otherwise, you’re going to have spoliation problems that are going to change the course of your discovery strategy. You want to avoid that if you can.

Now, if you’re on the side seeking video evidence, you need to make sure that you’re asking the right questions. You need to ask, and you may have to even conduct a 30(b)(6) deposition to understand what the sources of creating video evidence are for a particular party. Then you need to send a preservation letter that specifically includes video as a source of ESI. (We have sample preservation letters in eDiscovery Assistant for our users that are available and include that information.)

You need to make sure that you ask about the policies that are in place and that you’re moving expeditiously for video evidence. If you’re dealing with slip and fall cases, if you’re dealing with video from facilities, that information is largely overwritten within seven to 14 days, and that’s very fast.

As far as video goes, you’ve got to ask the right questions. You’ve got to move for preservation very quickly.

Second basis here is really what’s happening with regard to the preservation letter. If you are sending a preservation letter, you’ve got to make sure that you’re including sufficient information to put a party on notice of a duty to preserve.

If my client manufactures widgets, and I simply receive a letter as general counsel from an attorney saying that my client was injured using the widget, I don’t have any information on which to preserve data. I don’t know what kind of widget your client bought. I don’t know how they were injured. I don’t know when they bought it. I don’t know anything about it.

You’ve got to provide specific information in order to put me on a duty to preserve, and that would include the claims, the relevant time period, what it is that you’re looking for so that we can make an accurate determination of what information needs to be preserved. The Court is only imposing duties of preservation on parties where the duty is foreseeable and considered in terms of what that duty would encompass. Right? I mean, you have to have that information.

If we go back to Judge [Shira] Scheindlin‘s rulings in Zubalake all the way back to the early 2000s, perfection in discovery is not the goal. You’ve got to provide the right level of preservation information in your letters in order to establish that duty to preserve.

All right, that’s our Case of the Week for this week. Thanks so much for joining me.

If you’re an ACEDS member and interested in using eDiscovery Assistant, there is a discount available to current as members and a trial for folks who are studying for the ACEDS exam. If you’re interested in either of those, you can drop us a line aceds@ediscoveryassistant.com and one of our team will be in touch with you to set that up.

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From all of us at eDiscovery Assistant and at ESI attorneys and if I could be so bold as to say from ACEDS as well, we wish you a safe and very happy, wonderful Thanksgiving holiday. For all the challenges of the last two years, we still have an enormous amount for which to be grateful.

Happy Thanksgiving, everyone. I’ll see you soon.

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