No Spoliation Sanctions for “Missing” Porn on Police Computers

Image of alleged porn on police computersJust a few weeks before trial, the District Court in Orlando considered an “Emergency Motion” for spoliation sanctions against the defendant, City of Orlando, for alleged destruction of pornographic emails on  police department computers.  Floeter v. City of Orlando,2007 WL 486633 (M.D. F. Feb. 9. 2007). This is a sexual harassment and retaliation case where the plaintiff, a male undercover drug agent for the Orlando Police Department, complained about his female supervisor’s sexual advances, including viewing of x-rated emails on police department computers. Plaintiff complained, and was then, in his words, “disciplined and stripped of his job responsibilities.”

 

Plaintiff filed suit in state court on March 2, 2005, and defendant removed. As part of plaintiff’s initial disclosures, he produced sexually explicit emails that he claimed were sent to him by his supervisors at the police department.  Plaintiff was deposed on December 15, 2005, and described the pornographic emails and alleged harassment.  The next day plaintiff served his first request to produce documents, including copies of all  “sexually explicit or pornographic materials” emailed by one of his supervisors on police department computers.  Four months later, the Court ordered the City to produce these materials.

 

The City of Orlando’s “Internet Security Administrator” (who knew?) then completed a search of the ESI of the key players to the litigation in the Orlando police department. His search included the officer’s computers, the email server, and the backup tapes.  (The type or accessibility of the backup tapes involved is not described, but they were not identified as disaster recovery type backup tapes, and it is inferred that they were readily searchable.) The search by the Internet Security Administrator even included a “remote search” of the computers of some of the key players, which I presume means it was done surreptitiously.  The Administrator reported, however, that key hard drives could not be searched for various reasons, including an alleged hard drive crash and a re-imaging of another key hard drive after an upgrade to a new laptop.  The re-imaging of the old drive made it forensically impossible to search for deleted or slack files.  The re-imaging was standard procedure for a new computer replacement. The Magistrate who heard the testimony concerning these facts found the timing of the request for a new computer, resulting as it did in the complete destruction of all deleted data on the old computer, to be “certainly suspicious.”  

 

The backup tapes the Administrator searched were also porn free as to these individuals.  However, by the time of the search these tapes only went back to October 2005, seven months after suit was filed.  This is because the City recycles its tapes every three months.  Remarkably, the Court reports that:

 

There is no evidence that in-house nor outside counsel for the City ever issued a directive requiring that information which might be relevant to the issues in the case be preserved.

 

Id.at Fn.3.

  

The City reported that it had made an exhaustive search of its computers and had none of the sexually explicit or pornographic materials requested.  Next, mediation took place on August 15, 2006, which under governing rules is supposed to be completely secret. Not so here, however, as the opinion reports that plaintiff at mediation told the City he had possession of more emails that he had not shown them yet, and they were clearly sent from the police computers.  The mediation impassed, and the City promptly made its own request for emails within plaintiff’s custody supporting his claim of a hostile work environment.  The plaintiff objected arguing that since the emails requested were disclosed at mediation they were confidential and privileged as work product.

 

The City then moved to compel, and plaintiff responded cutely that the emails were already in the City’s possession.   The City replied that it had looked and had not been able to find them.  Based on this representation, on October 6, 2006, the Court ordered the plaintiff to produce the emails and the sexually explicit materials attached thereto, and moreover, taxed the plaintiff with part of the City’s costs to make the motion.  (The award was, however, a mere $150.00.)  Next the parties filed cross motions for summary judgment, and motions in limine related to the pornographic materials, and motions to seal these x-rated documents, and other final pretrial related motions then due under the scheduling order.  After these motions were completed, the plaintiff filed the mentioned “emergency motion” related to spoliation, which led to a evidentiary hearing on January 11th and 18th, 2007.

 

The District Court Magistrate Judge after hearing (and presumably also “seeing”) the evidence at the spoliation hearing, including the sexually explicit emails once located on the Police Department computers, noted that under Eleventh Circuit jurisdiction, it is necessary to show bad faith, that:

 

‘Mere negligence’ in losing or destroying the records is not enough for an adverse inference, as it does not sustain an inference of consciousness of a weak case. Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (quoting Vick v. Tex. Emp. Comm’n, 514 F.2d 734, 737 (5th Cir. 1975).

 

Id. at *5.

 

The Magistrate reviewed the evidence summarized above and concluded that the first element for a prima facie case for sanctions from spoliation, namely “that the missing evidence existed at one time,” had been met. Id.  The plaintiff proved that the pornographic emails had once been on the police officer’s work computers.

 

The next element of spoliation is proof that “the alleged spoliator had a duty to preserve the evidence.”  The Magistrate stated her opinion that it is still an open question in the Eleventh Circuit as to whether the “mere filing of litigation” raises a duty to preserve evidence. Id. fn. 6.  In this case, evidence was destroyed when the backup tapes were recycled and the hard drive wiped. The hard drive was cleaned when the new computer was issued, which occurred after the plaintiff’s internal complaint of harassment, but before suit was filed.  The backup tapes were recycled, and thus potentially relevant pornographic emails erased, well after the complaint was served, but before a request to produce was made. The Magistrate declined to determine whether a duty to preserve the backup tapes existed after the suit was filed, but inferred that there was no duty to preserve the old computer hard drive before the suit was filed.  The Magistrate stated she did not have to reach the duty to preserve issues because she found that the third element of spoliation was clearly not met, namely that the “evidence is crucial to the movant being able to prove its prima facie case.” Also, as mentioned, she found no bad faith, a precondition to the adverse inference sanction requested for the alleged spoliation. 

 

Although the Magistrate agreed that the pornographic emails were relevant, she did not agree that they were crucial to plaintiff’s case.  The plaintiff himself had kept “eleven sexually explicit emails” and had deposition testimony as to others.  The court held that the missing emails were cumulative, and “the trier of fact does not need to actually see these emails to understand their contents.” Id. at 6.

 

The Magistrate also noted that she found no bad faith in the post-litigation erasure of backup tapes because this was done “as part of a long-standing City practice.”  Although the Court found the timing of the supervisor’s request for a new computer “certainly suspicious,” the wiping of the hard drive of the old computer that followed was also “performed consistently with City practice,” so again no bad faith.  Id. at 7. 

 

The Court denied the motion for sanctions, including the request for an adverse inference instruction to the jury, and would not even grant plaintiff’s request for refund of the $150.00 sanction he had previously paid.  Still, the Court noted that the evidence surrounding the alleged spoliation may be admissible at trial, and the plaintiff’s counsel might be able to argue adverse inference to the jury in closing.  Note a news story appeared in local Orlando television  in December 2006 about this law suit, how it led to discovery of porn on police computers, and how five police officers faced suspension because of it.

 

 

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