United States District Court, S.D. New York
OPINION AND ORDER
GABRIEL W. GORENSTEIN, UNITED STATES MAGISTRATE JUDGE
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.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.
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.
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.
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.
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.
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.
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).
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.
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.).
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.
LAW GOVERNING MOTIONS FOR SPOLIATION SANCTIONS
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 ...