The opinion of the court was delivered by: Paul L. Friedman United States District Court
This matter is before the Court on the plaintiff's motion for discovery sanctions against defendant Red Roof Inn ("Red Roof"). The plaintiff contends that Red Roof willfully, recklessly, or negligently failed to preserve relevant evidence. She seeks sanctions in the form of an adverse inference instruction at trial and attorneys' fees and costs. Upon consideration of the parties' arguments, the relevant legal authorities, and the evidentiary record in this case, the Court concludes that Red Roof has committed serious misconduct and should be sanctioned, although the Court will not issue the precise adverse inference instruction sought by the plaintiff. The plaintiff's motion therefore will be granted in part and denied in part.
The events giving rise to plaintiff's claims against Red Roof occurred on April 21, 2007, and are detailed in the Court's Opinion, issued this same day, granting in part and denying in part the motion for summary judgment filed by defendants Nicole Ha and the District of Columbia ("MSJ Opinion"). In brief, the plaintiff, Zhi Chen, alleges that a police officer moonlighting as a security guard for a Red Roof Inn located in the Chinatown neighborhood of Washington, D.C., unlawfully detained, searched, and took $60 from her after mistaking her for a woman who had left the hotel without paying her room bill. See MSJ Opinion at 2-4. Most of the relevant events that are said by one party or another to have occurred on April 21, 2007 - including the hurried departure of a woman suspected of not paying her hotel bill and the subsequent search of Ms. Chen and confiscation of $60 from her - took place in or around the lobby of the Chinatown Red Roof Inn. See id.
On April 23, 2007, just two days after the events in question, plaintiff's counsel, B. Marian Chou, Esq., faxed a letter to Heidi Cordes, the general manager of the Chinatown Red Roof Inn. See Plaintiff's Motion for Sanctions Against Red Roof Inn ("Mot."), Ex. 6. In the letter Ms. Chou, purporting to "confirm [a prior] phone conversation" between herself and Ms. Cordes, asserted that her client, Ms. Chen, had been wrongly detained by a police officer working on behalf of the Red Roof Inn on April 21, 2007, and warned Ms. Cordes that her client was "very distraught and [has] instruct[ed] me to sue for one million and half." Id. Ms. Chou "demand[ed] [Ms. Cordes'] investigation and monetary damages." Id.
In another letter, dated April 27, 2007, and sent to Red Roof's legal counsel, Alan Rabinowitz, Esq., Ms. Chou stated first that she wished to "confirm that I called you this afternoon and [that] I have sent [you] at least two letters" by fax. Mot., Ex. 1. She continued, "I . . . want to confirm that your Red Roof Inn has at least four security cameras. . . . I would like to have a copy of your tape/disc of the relevant incident that I referred [to] in [a prior] letter." Id. Noting that she did not expect to receive copies of the security footage at that time, Ms. Chou asserted, "This is a notice to your company not to destroy any evidence." Id. At the bottom of the letter is a notation indicating that a copy of the letter was sent to Ms. Cordes. See id. Ms. Cordes denies having received a copy of the April 27, 2007 letter, but does not dispute that she received the faxed letter dated April 23, 2007. See Affidavit of Heidi Cordes (attached to Opposition to Plaintiff's Motion for Sanctions Against Red Roof Inn) ("Cordes Affid.") ¶ 17.
According to Ms. Cordes, images from the security cameras at the Chinatown Red Roof Inn were recorded on a digital video recorder (DVR). See Mot., Ex. 2 (email from Heidi Cordes to Alan Siciliano dated Jan. 11, 2010). The Inn's DVR could only hold two weeks' worth of footage. See id. After two weeks, the DVR overwrote any stored images with new recordings. See id. Ms. Cordes says that after she "was contacted by Ms. Chou" in April 2007, she personally reviewed the video from the three lobby cameras several times to get the correct times to start and end the recordings. I then gave that information to my maintenance engineer along with which cameras (only two of the cameras in [the] lobby showed the image of the woman leaving the hotel) that I wanted the video [sic]. He did as he was instructed, gave me the disc, and I put it in my desk. I did not check the disc once it was given to me. . . .
Once I was requested [sic] several weeks later to make a copy of my disc to send to the corporate office, I discovered the video had not recorded.
Mot., Ex. 2; see also Cordes Affid. ¶¶ 4, 6, 7. Of course, by that point in time the original security footage of the events in question had been destroyed when the DVR, operating on its usual two-week schedule, overwrote it. Mot., Ex. 2. Ms. Cordes claims that, upon discovering that the disc that was supposed to contain the only copy of the destroyed footage was apparently blank, she "disposed of it," reasoning that "[t]here were no images, so I did not think I needed to keep it." Id.
Ms. Cordes' account of her failed attempt to preserve the security footage conflicts in some material respects with other evidence in the record. The District of Columbia's Office of Police Complaints investigated the April 21, 2007 incident at the Inn and memorialized its investigation in written reports and memoranda. See Mot., Ex. 3. One of those memoranda summarizes an interview with James Hicks, the engineer at the Chinatown Red Roof Inn who was asked by Ms. Cordes to make a copy of the relevant security footage. See id. According to Mr. Hicks, he had recorded the copy onto two discs, not one as Ms. Cordes would have it, and both discs contained viewable footage when he had checked them after making the copy. See id. He theorized that "the DVDs must have been erased in his attempts or General Manager Cordes' attempts to view them." Id.
The plaintiff apparently learned of the loss of the potentially relevant security footage after she served a request for production of documents that sought "[a]ny and all video tapes of the subject occurrence recorded by the Defendant's video camera . . . from 4/20/2007 to 4/22/2007." See Mot., Ex. 4 (defendant's answers to interrogatories).
II. SPOLIATION AND ADVERSE INFERENCE
A party has a duty "to preserve potentially relevant evidence . . . 'once [that party] anticipates litigation.'" D'Onofrio v. SFX Sports Group, Inc., Civil Action No. 06-0687, 2010 WL 3324964, at *5 (D.D.C. Aug. 24, 2010) (quoting Smith v. Cafe Asia, 246 F.R.D. 19, 21 n.2 (D.D.C. 2007)); see Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 218 (S.D.N.Y. 2003) ("Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation hold' to ensure the preservation of relevant documents."). That obligation "runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction." Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 437 (S.D.N.Y. 2010) (internal quotation marks and citation omitted). The duty also extends to the managers of a corporate party, who "are responsible for conveying to their employees the requirements for preserving evidence." Id.
A party that fails to preserve evidence "runs the risk of being justly accused of spoliation" -- defined as "the destruction or material alteration of evidence or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation" -- and find itself the subject of sanctions. D'Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 at *5 & n. 5. The sanctions available for the destruction of documents or evidence with notice of their potential usefulness in litigation may include the assessment of fines or attorneys' fees and costs, the preclusion of certain lines of argument that might have been advanced by the culpable party, and/or the issuance of an instruction informing jurors that they may draw an adverse inference from the spoliator's actions. See JAMIE S. GORELICK, STEPHEN MARZEN & LAWRENCE SOLUM, DESTRUCTION OF EVIDENCE § 3.16, at 117-22 (1989 & 2010 Supp.); see also Shepherd v. American Broadcasting Corp., 62 F.3d 1469, 1478-79 (D.C. Cir. 1995); D'Onofrio v. SFX Sports Group, Inc., 2010 WL 3324964 *5. A court generally imposes such sanctions in the exercise of its inherent authority "'to manage [its] own affairs so as to achieve the ...