Court Imposes Strict Sanctions for Loss of Video Resulting from City's Reckless Failure to Ensure Preservation

Peschel v. City of Missoula, 2009 WL 3364460 (D. Mont. Oct. 15, 2009)

In this case arising from defendant’s claims that he was wrongfully arrested and that the officers used excessive force, among other things, defendant sought sanctions for the city’s failure to preserve the video of the arrest that was recorded by a camera in one of the officer’s cars. Finding that the video was lost as a result of the city’s recklessness, the court granted defendant’s motion for sanctions and “designat[ed], for purposes of the case, that the arresting officers used unreasonable force to effect the arrest of [defendant].”

Defendant (a doctor) was arrested in April 2007 for the misdemeanor offense of obstructing a peace officer following his refusal to move away from the car of a person threatening to commit suicide. The arrest was recorded by a camera in the car of one of the responding officers. The video was eventually uploaded to the hard drive of a police department computer and viewed by several officers. At “some point” however, the video (along with numerous others) was “lost” and could not be retrieved.

The city explained that the video was lost accidentally as the result of “glitches in its newly installed digital video system.” Additionally, as the court noted, “the department failed to have any type of back-up system in place to ensure the preservation of the video recordings.”

Addressing the motion for sanctions, the court first laid out the controlling law, including the five factors identified by the Ninth Circuit to be considered when imposing dispositive sanctions:

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Source: ediscoverylaw.com