In Gregory v. State of Montana, published September 27, 2024, the 9th Circuit Court of Appeals reversed a judgment against the defendant probation officer and state. There was an altercation between the plaintiff and the officer in the probation office parking lot that ended with the plaintiff’s arrest. The incident was captured on an external surveillance camera that monitored the parking lot and that was operated by the probation office.Four days after the incident, the plaintiff’s criminal defense attorney contacted the department of corrections to request the parking lot footage. The person who attempted to provide the footage did not realize that the surveillance footage would be automatically deleted in 17 days. His various attempts to capture the footage ran into technical difficulties. He took a cellphone video of the footage and provided that, but it was too poor to make out what it depicted. The original footage was eventually deleted. The plaintiff sued the probation officer under 42 U.S.C. Section 1983 for use of excessive force and a state law claim for assault and battery, and sued the state for negligent infliction of emotional distress. The plaintiff brought a motion for sanctions against the state based on the loss of the parking lot footage. The court granted the motion in part. It rejected the plaintiff’s claim for a default judgment, and instead, invoking its inherent authority, the court instructed the jury that the probation officer used unreasonable force in the seizure of the plaintiff; and submit to the jury the issues of causation, damages, and punitive damages. The cellphone video was played to the jury, but instructed the jury that because the state had failed to preserve the video, the jury was permitted to infer that the lost footage would have been favorable to the plaintiff. The court instructed the jury that it had been established as a matter of law that the probation officer used excessive force against the plaintiff in violation of the 4th Amendment. The jury awarded the plaintiff $75,000 in damages, and plaintiff obtained attorney fees.
The 9th Circuit ruled that the district court had erred in giving the instruction. Although district courts have inherent authority to fashion their own sanctions for conduct that abuses the judicial process, that authority can be limited by statute and rule. FRCP 37(e) has prescribed sanctions for loss of electronically-stored information due to failure to take reasonable steps to preserve it. The court may order measures no greater than necessary to cure the prejudice. Only upon finding that the party acted with intent to deprive another party of the information may the district court instruct the jury that it may or must presume the information was unfavorable to the party, dismiss the action, or enter a default judgment. The sanction here fell within the category of sanctions that may be entered only for intentional conduct. The rule precludes a district court from resorting to inherent authority to evade its strictures. The case was remanded for a new trial.
Comments