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Tchatat v. O'Hara

United States District Court, S.D. New York

April 14, 2017

LIAM O'HARA, et al., Defendants.



         Josias Tchatat sued two police officers, Liam O'Hara and Harry Arocho, as well as other defendants, making claims arising out of Tchatat's arrest in 2011 at a Best Buy store and his prosecution following that arrest. All defendants other than Officers O'Hara and Arocho have settled or been dismissed. Now before the Court is Tchatat's motion for spoliation sanctions.[1]Tchatat seeks sanctions against Officers O'Hara and Arocho based on their alleged failure to preserve evidence relating to Tchatat's arrest, such as video surveillance from the Best Buy store and the merchandise Tchatat allegedly stole. Among other things, Tchatat argues that the police are on notice that any arrest may lead to a lawsuit, and thus have a duty to preserve evidence relating to any arrest. For the reasons stated below, we reject this argument and note additional barriers to Tchatat's motion. Accordingly, the motion is denied.

         I. BACKGROUND

         According to the complaint, Tchatat was shopping at a Best Buy store in Manhattan on September 20, 2011, when he was detained by Best Buy personnel - either Best Buy employees or employees of a security firm working for Best Buy - under suspicion of shoplifting. Am. Compl. ¶¶ 23, 27-28. Best Buy personnel brought Tchatat to an in-store security office because they claimed Tchatat took an item for which he had not paid into the store's restroom. Id. ¶¶ 29-34. The Best Buy personnel suspected Tchatat of stealing the item, which they later determined was a memory card. Id. ¶¶ 28-29, 72.

         Tchatat alleges that one Best Buy agent, Shwon Edmonds, attempted to handcuff him in the security office. See id. ¶¶ 36-37. After declining to be handcuffed, Tchatat claims that he “was attacked” by Best Buy personnel who “punched and kicked [him] repeatedly in the head, face, and body.” Id. ¶¶ 37-39. The Best Buy personnel then “forcibly handcuffed [Tchatat], ” and continued to kick Tchatat while accusing him of being a thief and shouting racial slurs against him. Id. ¶¶ 39-41.

         The part of the complaint relating to the two remaining defendants, Officers O'Hara and Arocho, alleges that the officers arrived at the Best Buy after Tchatat was detained and beaten by the Best Buy personnel. See id. ¶¶ 55-57. These officers then spoke to the Best Buy personnel about what occurred, but ignored or dismissed any statements Tchatat put forth about what happened to him. Id. ¶¶ 56-57, 60-61. O'Hara took photos of injuries sustained by Edmonds, but not of any injuries sustained by Tchatat. Id. ¶¶ 58-59. The officers did not arrest any of the Best Buy personnel for the assault against Tchatat and did not review any in-store video surveillance related to the incident. Id. ¶¶ 62-65. In fact, Tchatat states that the officers never saw any video of the incident. See id. ¶ 63. The officers then arrested Tchatat, took him to a hospital, and later processed his arrest at their precinct. See id. ¶¶ 66-70.

         Tchatat was initially charged with petit larceny, criminal mischief, and attempted assault. Id. ¶ 71. The complaint in this case recounts the allegations in the criminal court complaint against Tchatat, which was attested to by O'Hara. Id. ¶ 72. The criminal court complaint stated that the memory card Tchatat allegedly stole was “recovered” and that Tchatat broke Edmonds' eyeglasses when Tchatat struck Edmonds. Id. Tchatat was later indicted for robbery in the second and third degrees. See id. ¶ 81. On April 5, 2013, after a jury trial, Tchatat was acquitted on all counts. Id. ¶ 86.

         Edmonds gave a different account of what occurred in the security office. According to Edmonds, while the Best Buy personnel and Tchatat were in the security office, a Best Buy person left to call the police. See Deposition of Shwon Edmonds, dated Nov. 24, 2015 (attached as Ex. C to Kuruvilla Decl.) (“Edmonds Dep.”), 191:5-8; accord Am. Compl. ¶ 35. After that person left, Edmonds asked if he could search Tchatat's pockets. Edmonds Dep. 191:5-8. Edmonds testified that at this point Tchatat “started head-butting” him. Id. 191:7-12. The Best Buy personnel then tried to restrain Tchatat to stop him from “coming at [Edmonds] with his head, ” and pulled Tchatat to the floor to defend Edmonds. See id. 191:13-25.

         It is undisputed that defendants O'Hara and Arocho arrived after Tchatat was detained and did not witness the alleged theft or what occurred between Tchatat and the Best Buy personnel before Tchatat was handcuffed. See Deposition of Josias Tchatat, dated Oct. 21, 2015 (attached as Revised Ex. B to Kuruvilla Letter), 203:8-9, 204:3-22; Deposition of Liam O'Hara (attached as Ex. 3 to 1st Rothman Decl.) (“O'Hara Dep.”), 77:9-78:2; see also Am. Compl. ¶¶ 55-57; Pl. Mem. at 2. Officer O'Hara testified that when he arrived at the Best Buy, security personnel told him that Tchatat “attempted to take property from the store without paying for it, ” and that when security attempted to stop Tchatat, “an assault took place and [Tchatat] assaulted one or more” of the Best Buy personnel. See O'Hara Dep. 71:24-72:14, 73:5-27, 77:9-78:2; see also Edmonds Dep. 254:5-18 (stating that Edmonds told the police about Tchatat's assault on him).

         Officer O'Hara used his personal cell phone to photograph the injuries to Edmonds' face, O'Hara Dep. 85:10-16, 127:14-20, but later lost the phone sometime before Tchatat's criminal trial, see Trial Testimony (attached as Ex. 2 to 1st Rothman Decl.) (“Tr.”), 78:8-79:11, 83:12-24; accord Defs. Opp'n at 18. Edmonds' glasses were allegedly damaged in the incident with Tchatat, but O'Hara did not take them as evidence. O'Hara Dep. 99:17-100:22. The prisoner pedigree card related to Tchatat's arrest indicated that there was an “inj. photo, ” see Prisoner Pedigree Card, dated Sept. 22, 2011 (attached as Ex. 11 to 1st Rothman Decl.), but O'Hara could not remember if “inj.” meant injury or if there was ever a copy of the photo of Edmonds' injuries other than the one on O'Hara's phone, see O'Hara Dep. 159:20-160:20. O'Hara was uncertain whether he ever attempted to forward the photo on the phone to the prosecuting Assistant District Attorney handling the case and could not remember if he spoke to anybody at the District Attorney's office before giving testimony at Tchatat's criminal trial. O'Hara Dep. 23:8-25.

         In detaining Tchatat, the Best Buy personnel apparently recovered the memory card packaging Tchatat allegedly stole and gave it to O'Hara as evidence. See Tr. 97:11-18; O'Hara Dep. 103:6-22. It is unclear whether O'Hara received merely packaging that at one time contained a memory card or packaging that still contained a memory card. See generally Tr. 80:20-25, 81:16-82:17; O'Hara Dep. 103:23-104:7, 106:13-107:6, 107:18-108:13. O'Hara took a photo of the packaging at his precinct, see Tr. 79:12-80:25, and then returned the package to the Best Buy, O'Hara Dep. 105:12-108:13. O'Hara gave the original photograph of the packaging to the Assistant District Attorney handling Tchatat's criminal prosecution. Tr. 81:16-20. All that now remains is a photocopy of the photograph. See O'Hara Dep. 15:16-21, 104:12-25; Photograph, undated (attached as Ex. 4 to 1st Rothman Decl.).

         The Best Buy store at one time had a video surveillance system. See Trial Testimony (attached as Ex. 8 to 1st Rothman Decl.) (“2d Tr.”), 295:4-296:3, 311:4-312:21; see also Incident Report, undated (attached as Ex. 13 to 1st Rothman Decl.). However, there were no cameras in the security office where Tchatat alleges Best Buy personnel beat him, see Deposition of Brian Farrell, dated Oct. 28, 2015 (attached as Ex. E to Kuruvilla Decl.), 41:8-23, nor in the bathroom where Best Buy employees accused Tchatat of secreting the memory card, see 2d Tr. 311:4-17. Officer O'Hara did not ask to see any other video surveillance footage (such as video of the shopping area of the store) and could not recall any conversations about preserving video evidence at the Best Buy store on the date of the incident. O'Hara Dep. 86:7-16. At the time of his deposition, Officer O'Hara did not know where any of the video evidence might be, if it existed at all. Id. 230:2-6.


         “Spoliation is the destruction or significant alteration of evidence, or failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” In re Terrorist Bombings of U.S. Embassies in E. Afr., 552 F.3d 93, 148 (2d Cir. 2008) (internal quotation marks omitted) (quoting Allstate Ins. Co. v. Hamilton Beach/Proctor Silex, Inc., 473 F.3d 450, 457 (2d Cir. 2007)). A party seeking sanctions for spoliation has the burden of establishing the elements of a spoliation claim. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002) (citation omitted); accord John Wiley & Sons v. Book Dog Books, LLC, 2015 WL 5769943, at *6 (S.D.N.Y. Oct. 2, 2015) (citations omitted). These elements are “(1) that the party having control over the evidence had an obligation to preserve it at the time it was destroyed; (2) that the [evidence was] destroyed with a culpable state of mind; and (3) that the destroyed evidence was relevant to the party's claim or ...

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