[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
In Felder v. MGM National Harbor, LLC, 2024 WL 3690779 (D. Md. Aug. 7, 2024)(Simms, J.), an employment discrimination defendant avoided sanctions for overwriting of video footage. Defendant’s information governance policy was to overwrite surveillance video in 14 days unless management reported an incident to the security department. Plaintiff did not notify defendant of her claim for 60 days. By then, the video had been overwritten.
This is the third of a four-part blog on Felder, an employment discrimination case. See Felder Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session and Felder Part 2 of 4: Defendant Sanctioned for Late Cancellation of Depositions. In a forthcoming blog, I suggest that a more probing inquiry into that seemingly reasonable and neutral information-governance policy may have been appropriate.
Ms. Felder alleged that she was called a racial slur by defendant’s employee, shortly before she was terminated and that the video was relevant.
DEFENDANT’S 14-DAY DELETION POLICY
Plaintiff was terminated on September 21, 2017. She claimed that the alleged slur occurred on September 20, 2017. Plaintiff sought discovery of video footage “of an interaction” with her former manager and security personnel who had allegedly forcibly removed her from defendant’s premises.
After initially objecting on other grounds, and agreeing to conduct a “reasonable search of any responsive ,” the defendant told plaintiff that “there is no security footage for the incident that occurred on September 20th or 21st because—well, because MGM National Harbor has a policy with regard to its security footage, it’s regularly recycled. Meaning that documents are only retained for a short number of days before they are recorded over. It’s just what they do as a matter of course. They have a policy or procedure about that.” Id. at *5-6.
Defendant MGM’s policy was described in a declaration by its chief of security, Mr. Taylor. The Court wrote:
I find that: (a) according to Marcus Taylor, no video footage from September 2017 exists; (b) Defendant’s policy is to preserve video footage of all areas of its premises for 14 days, after which time such footage is recorded over; (c) one exception to this policy exists if there is an incident reported by management to security, in which case the materials are held indefinitely; (d) when MGM Security is called to escort someone from the premises, and the incident is recorded, such incident is not considered to be significant enough to trigger a duty in Defendant’s Security to merit indefinitely; (e) Defendant’s document retention policy is triggered upon notice of threatened litigation or active litigation, and requires that materials are kept for five years.
Felder v. MGM National Harbor, LLC, 2024 WL 3690779, at *7 (D. Md. Aug. 7, 2024) (Simms, J.) (emphasis added).
WHEN IS THE DUTY TO PRESERVE TRIGGERED?
Plaintiff alleged spoliation. The Court applied Fed.R.Civ.P. 37(e) and rejected the spoliation claim.
Giving the pro se plaintiff the benefit of the doubt, the Court “generously construe[d]” the allegations to support a conclusion that the missing video would have supported plaintiff’s claim.
It then determined whether the duty to preserve had been triggered when the video was overwritten. It wrote:
As a preliminary matter, it is worth stating that “there is no general duty to preserve documents, things or information, whether electronically stored or otherwise.” Victor Stanley, supra, 269 F.R.D. at 520. Rather, a party seeking spoliation sanctions must establish that the party with the evidence had an obligation to preserve it. Charter Oak Fire Ins. Co., supra, at 678. [emphasis added].
Id.
In an employment case the duty may be triggered by a preservation demand, when an employer receives notice of an EEOC Charge, or by a lawsuit. Id. at *8; see Triggering the Duty to Preserve ESI (Dec. 27, 2020); Documenting When the Duty to Preserve Potentially Responsive Information Was Triggered (Jan. 17, 2021); Duty to Preserve Triggered in Administrative Appeal of Employment Decision (Jul. 4, 2023); Discovery About Discovery – When Was Duty to Preserve Triggered? (Jul. 23, 2024).
Ms. FELDER WAITED TOO LONG
On the facts presented in Felder, “the Court first finds that Plaintiff first notified Defendant of her intent to sue on or about November 20, 2017, roughly sixty days after she was terminated. Thus, on or about November 20, 2017 is the first date that Defendant had an obligation to preserve evidence.” Id. at *8.
The Court wrote that “the reasonable inference drawn from Mr. Taylor’s declaration is that the September 20 video footage was likely recorded over, per Defendant’s customary practice, 14 days after it was created; i.e., on or about October 4, 2017. Thus, the reasonable inference drawn from the evidence put before me is that video footage of September 20, 2017 no longer existed by the time that Plaintiff sent her November 2017 letter to the Defendant.” Id. at *8.
In short, the video was overwritten by the routine, good faith operation of an information technology policy. The Court explained that: “In sum, Plaintiff has not met her burden of demonstrating that Defendant had an obligation to preserve the September 2017 video when it was recorded over on or about October 4, 2017.… Nor can the Court find that Plaintiff has met her burden under Fed. R. Civ. P. 37(e), i.e., in demonstrating that the video footage constituted ‘ESI [that] should have been preserved’ but was ‘lost’ due to Defendant’s ‘failure to take reasonable steps to preserve’ the video.” Id. at *9.
In sum, Plaintiff has not met her burden of demonstrating that Defendant had an obligation to preserve the September 2017 video when it was recorded over on or about October 4, 2017.
Felder v. MGM National Harbor, LLC, 2024 WL 3690779 at *9 (D. Md. Aug. 7, 2024).
Similarly, the Court found that defendant did not have a culpable state of mind. As such, the spoliation motion was denied.
LESSON LEARNED: PROMPT PRESERVATION DEMANDS ARE PRUDENT
Issues around surveillance and security video footage have generated a cottage industry of cases. See, e.g., No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case (Jan. 16, 2022); Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence (Jan. 9, 2021); Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence (Jan. 8 2021); cf. Procedural Failures in Request to Preserve Video Evidence (Feb. 22, 2023); Negligent Loss of Video Supports “Missing Evidence” Instruction in Criminal Case (Apr. 9, 2023); Webb v. Giant of Maryland, LLC, 477 Md. 121 (2021)(“Petitioner asked the circuit court to give a spoliation instruction in light of the fact that Giant did not produce a video of the incident. Giant objected….”); Steamfitters Loc. Union No. 602 v. Erie Ins. Exch., 469 Md. 704, 744 (2020)(“As the Court of Special Appeals correctly observed, the evidence was subject to different interpretations as to why Steamfitters did not preserve the video recording.”); Van Croft v. Louis, 2023 WL 4421571, at *4 (D. Md. July 10, 2023)(“Although perhaps Mi Rancho’s failure to preserve video footage may give rise to a spoliation of evidence argument as the case progresses, that question cannot be answered at this juncture.”); Little v. Pohanka, 2021, 2022 WL 17412861, at *3 (Apl Ct. Md. Dec. 5, 2022)(unreported)(“Ultimately, spoliation did not occur because Mr. Pohanka did not own the video and thus could not destroy it….”).
As I pointed out in several blogs, the lesson learned is that companies rapidly overwrite video and if a party anticipates relying on a prospective opponent’s security or surveillance video, it is prudent to immediately send a specific preservation letter to that prospective party. See, e.g., Doe v. Charlotte Mecklenburg Bd. of Educ., 2024 WL 3565522, at *9 (4th Cir. July 29, 2024)(“The record shows that as part of MPHS’s routine operations, the system erased video recordings after about two weeks. Jane Doe had not yet filed this lawsuit during the relevant two-week period, but as investigations into the incident began, Perkins successfully preserved one of the videos before it would have been automatically erased.”).
Other Blog Posts in this Series
Felder Part 1 of 4: Court-Ordered Transcription of “Meet and Confer” Session
Felder Part 2 of 4: Defendant Sanctioned for Late Cancellation of Depositions
Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible?
Takeaways From Felder v. MGM National Harbor – EDRM
