United States District Court, District of Columbia
MEMORANDUM OPINION & ORDER
L. FRIEDRICH, UNITED STATES DISTRICT JUDGE.
Ball sued his former employer, George Washington University
(GW), for wrongful termination, negligence, and violations of
the Americans with Disabilities Act, the D.C. Human Rights
Act, and the Family and Medical Leave Act. Before the Court
is Ball's motion for sanctions against GW for allegedly
destroying two surveillance videos. For the following
reasons, the Court will deny the motion.
investigation preceding the termination of Ball's
employment, GW considered surveillance footage from two days
(July 13 and 14, 2015) that showed Ball entering and exiting
buildings on campus. Def.'s Opp'n at 1, 3, Dkt. 26.
GW produced a July 13 video of Ball in one building,
Guthridge Hall, and that video is not at issue here.
Def.'s Opp'n at 4, Dkt. 26; Pl.'s Mot. at 3, Dkt.
24. GW also produced screenshots of the July 14 surveillance
footage from another building, Lafayette Hall, but it did not
produce videos of Lafayette Hall for either July 13 or July
14, which reportedly showed Ball entering and exiting at
different times than he had indicated on his time sheet.
Robinson Decl. ¶ 9, Dkt. 26-2; Def.'s Ex. 9, Dkt.
26-9; Def.'s Ex. 3 at Ball001305-07, Dkt. 26-3.
surveillance footage was recorded on network video recorders
that automatically delete old footage as the recorders become
full. Paradis Decl. ¶¶ 3-5, Dkt. 26-1; Robinson
Decl. ¶¶ 2-4, Dkt. 26-2. The video recorders that
stored the July 13 and 14 Lafayette Hall footage at issue
here typically delete footage every 30 days (and sometimes as
early as 14 days) after recording. Paradis Decl. ¶ 6,
Dkt. 26-1; Robinson Decl. ¶ 5, Dkt. 26-2. GW police
officers routinely permanently download surveillance footage
for use in criminal investigations; however, they download
surveillance footage for Human Resources (HR) investigations
only upon an HR investigator's request. Robinson Decl.
¶¶ 7-8, Dkt. 26-2.
case, the parties dispute whether the footage at issue was
downloaded. Ball contends that the surveillance footage was
permanently stored on CDs and given to Claude Owens, a member
of GW's HR department, and ultimately to GW's
in-house counsel. Pl.'s Mot. at 2-4, 6, Dkt. 24. Ball
further argues that the videos' alleged non-existence
shows that GW's in-house counsel destroyed or lost the
videos. Id. at 3, 6. GW counters that the
surveillance footage was not permanently stored but instead
was automatically overwritten within 30 days (and possibly 14
days) of recording. Def.'s Opp'n. at 1-12, Dkt. 26.
37(e) of the Federal Rules of Civil Procedure sets forth the
inquiry that courts must conduct in deciding whether to
impose sanctions for the failure to preserve electronically
stored information (ESI). Courts consider whether (1) the ESI
“should have been preserved in the anticipation or
conduct of litigation”; (2) the ESI “is lost
because a party failed to take reasonable steps to preserve
it”; and (3) the ESI “cannot be restored or
replaced through additional discovery.” Fed.R.Civ.P.
37(e). The burden of proof is on the party alleging
spoliation. See, e.g., Vasser v. Shulkin,
No. 14-0185, 2017 WL 5634860, at *3 (D.D.C. Nov. 22, 2017)
(“A movant seeking sanctions for spoliation must
demonstrate that the subject documents actually
parties do not dispute that the July 13 and 14 surveillance
footage of Ball once existed. The question is whether the
surveillance footage existed on the date on which GW had a
legal obligation to preserve the footage. But the Court need
not determine precisely when that legal obligation arose,
because Ball concedes that if the videos were automatically
overwritten within 14-30 days, as GW claims, this
“would likely be enough to end this Court's
inquiry.”Pl.'s Reply at 8, Dkt. 27; see also
Id. at 2-3 (“Plaintiff's request for
spoliation is based entirely on the fact that the footage of
the Lafayette Basement, Lafayette Sixth Floor, and Guthridge
Hall was copied onto CDs . . . . [I]t is irrelevant that
Defendant's video surveillance system overwrites video
footage every fourteen (14) to thirty (30) days, as Plaintiff
is not arguing that type of destruction constitutes
spoliation.”). The Court therefore first addresses
whether GW permanently stored the July 13 and 14 surveillance
footage at issue.
on the depositions of Wells and Owens, Ball argues that GW
permanently stored the relevant surveillance footage before
it was overwritten. As Ball notes, Wells testified that
“[t]here were copies” of the surveillance videos,
which “were given to Claude Owens.” Wells Dep.
71:6-12, Dkt. 24-2. Wells stated that he “never had a
copy” of the tapes,  and he was never asked to obtain them.
Id. at 74:1-6. And on January 29, 2018, the date of
his deposition, Wells testified that he thought Owens had the
tapes. Id. at 74:9-11. Wells explained that when
Owens asked Wells whether he had the tape, Wells told him
that he never had it and that Owens had the original.
Id. at 76:5-8. According to Wells, Owens thought he
might have given the tape to “the lawyers.”
Id. at 76:10-20.
his deposition, Owens answered affirmatively when asked a
question about providing the tapes to GW's general
counsel's office. Owens Dep. 14:1-11, Dkt. 27-5.
Specifically, Owens stated that he had provided the general
counsel's office with a tape of the 6th floor of
Lafayette Hall, but not the basement of
Lafayette. Id. at 14:12-17. Owens
acknowledged that he had last seen the surveillance footage
of the Lafayette basement in 2015. Id. at 15:1-6.
counters that the surveillance footage was overwritten in the
normal course of business. And GW offers an alternative
explanation for the testimony of Wells and Owens: there was a
misunderstanding. Def.'s Opp'n. at 8, Dkt. 26. GW
argues that Owens was confused about the contents of the
envelope he received because, as he admitted, he never opened
the sealed envelope. Owens Dep. 141:11-143:1, Dkt. 27-5.
Wells initially said Owens had commented that he
“thought maybe he had given [the second, Lafayette Hall
basement video] possibly to I guess the lawyers. I don't
know.” Wells Dep. 76:10-11, Dkt. 24-2. But Wells later
commented, “You are talking to the wrong guy about
that. All I did was visually looked at it. Who had it after
that, I have no idea.” Id. at 130:17-21, Dkt.
Robinson, who testified that he showed Owens and Wells the
surveillance footage at separate times, stated that he never
downloaded the Lafayette Hall sixth floor footage. Robinson
Decl. ¶¶ 9-10, Dkt. 26-2. Rather, Robinson took a
couple screenshots when showing Owens the footage in August
2015, which he later sent to Owens. Id. ¶ 9.
And, in April 2017, Owens delivered the still-sealed envelope
to Richard Weitzner, Senior Counsel in GW's Office of
General Counsel. Weitzner Decl. ¶ 2, Dkt. 26-12.
Weitzner, in turn, sent the package to Alexandra Romero, an
associate at Arent Fox ...