Hollis v. CEVA Logistics U.S., Inc.

603 F.Supp.3d 611

Darren HOLLIS, Plaintiff,

v.CEVA LOGISTICS U.S., INC., Defendant.

No. 19 CV 50135

United States District Court, N.D. Illinois, Western Division.

Signed May 19, 2022

Edward Roy Moor, Moor Law Office, P.C., Chicago, IL, for Plaintiff.

Mark Jeffrey Levine, Weycer Kaplan Pulaski & Zuber, PC, Houston, TX, Adam B. Simon, Kathleen Margaret Kunkle, Ancel Glink Diamond Bush DiCianni & Krafthefer PC, Chicago, IL, for Defendant.

MEMORANDUM OPINION AND ORDER

Iain D. Johnston, United States District Judge

For years now, even before the advent of TikTok, video recordings have been ubiquitous. Many of these recordings evidence the bizarre fascination of recording every aspect of human existence. Some video recordings, such as cat videos, serve useful societal purposes. Jessica Gall Myrick, Emotion regulation, procrastination, and watching cat videos online: Who watches Internet cats, why, and to what effect? , 52 Computers in Human Behavior 168 (November 2015) (watching cat videos relieves stress and improves mood). But one of the most important and useful purposes of video recordings is to investigate various allegations of wrongdoing. For decades now, law enforcement has used video recordings from all manner of sources to investigate allegations, including but not limited to, dash camera video recordings, body camera recordings, CCTV recordings, cell phone recordings made by witnesses, and doorbell video recordings—just to name a few. Indeed, for decades, basic police investigative work involves obtaining and reviewing video recordings. See, e.g., Clipper v. Takoma Park , 876 F.2d 17, 19-20 (4th Cir. 1989). And pulling video is not limited to law enforcement. Indeed, it is a basic investigative tool used by human resources departments nationwide. See, e.g., Davis v. Huntington Ingalls, Inc. , No. 20 CV 18, 2021 U.S. Dist. LEXIS 241119, *10 (S.D. Miss. Dec. 17, 2021); Sinegal v. Martin Marietta Materials, Inc. , No. 3:18 CV 360, 2020 WL 2106694, *4-5, 2020 U.S. Dist. LEXIS 78534, *13 (S.D. Tex. Apr. 9, 2020) ; In re Tribune Media Co. , No. 08-13141, 2016 WL 1122865 *8-9, 2016 Bankr. LEXIS 875 *25 (D. Del. Mar. 18, 2016) ; United States EEOC v. Suntrust Bank , No. 8:12 CV 1325, 2014 U.S. Dist. LEXIS 47703 *10-11 (M.D. Fla. Apr. 7, 2014). The common, pedestrian step of determining if a video recording of an event exists, and if so, observing and preserving it to be used in an investigation, makes CEVA Logistics’ unexplained and cavalier failure to take these steps—in the face of explicit and repeated requests from a terminated employee, no less—all the more troubling and deserving of a curative measure.

For the following reasons, the Court will impose a curative measure for CEVA's failure to take reasonable steps to fulfill its duty to preserve relevant ESI that cannot be restored or replaced, resulting in prejudice to Darren Hollis. The Court will leave to the jury the decisions of whether CEVA possessed the requisite intent, and if so, whether the spoliated ESI was unfavorable to CEVA. So, the Court grants, in part, and denies, in part, Hollis’ Motion for Missing Evidence Instruction. Dkt. 65.

A. Background Facts

Based on the parties’ filings, the following facts are undisputed.

CEVA hired Mr. Hollis on November 12, 2017, to work as a material handler/operator, a non-managerial position. He worked in the receiving area of the warehouse. On November 28, 2018, an incident involving Mr. Hollis and coworker Phillip Bayer occurred, though exactly what happened is hotly disputed. According to CEVA, witnesses reported that Mr. Hollis got into an argument with Mr. Bayer, yelled at him, and initiated some form of physically threatening behavior or touching. These alleged actions resulted in Mr. Hollis’ termination on December 4, 2018. CEVA identifies three written statements from the day of the incident from witnesses, including Mr. Bayer, who all reported that Mr. Hollis was yelling and pushing or grabbing Mr. Bayer. Those three witnesses are white. CEVA also collected written statements from Mr. Hollis and one other witness describing Mr. Hollis putting his hands up to stop Mr. Bayer, but not touching Mr. Bayer. A third witness later stated in a declaration that he told Mr. Hollis’ supervisor, Anthony Berkshire, that he never saw Mr. Hollis touch Mr. Bayer. Those three witnesses are African American. As a result, CEVA faced a classic swearing contest as to whom to believe. Ultimately, Mr. Berkshire credited the three white witnesses who claimed that Mr. Hollis grabbed Mr. Bayer on November 28, 2018, rather than the African American witnesses who asserted that Mr. Hollis never touched Mr. Bayer. Based on this credibility determination, CEVA fired Mr. Hollis.

Three security cameras were aimed at the area of the incident. CEVA presented no evidence that any of its employees ever attempted to view, preserve, or recover the footage before Mr. Hollis’ termination. On December 5, 2018, the day after his termination, Mr. Hollis wrote to CEVA's human resources department about the termination in a document he labeled a "formal letter of complaint against CEVA Logistics for workplace race discrimination." Dkt. 65 at 97. Twice in the letter he refers to his request that someone review footage of the incident: "I suggested Tom pull and watch the video as the entire warehouse is being monitor[ed]," and "Finally, if I had put my hands around any person's neck, management could confirm what took place by viewing the cameras." Id. at 98. So, the evidence establishes that the very next day after the incident, Mr. Hollis verbally requested the general manager to review the video recordings, and about a week later in a document complaining about race discrimination, twice requested a review of the video recordings that he asserted would clear him of wrongdoing.

Mr. Hollis timely filed a charge of discrimination with the EEOC on March 13, 2019, and, after receiving a right-to-sue letter, filed this suit on June 6, 2019. The plaintiff served discovery requests on February 18, 2020, seeking the video recordings and the identity of the custodian of the video. CEVA responded on April 3, 2020, that no video existed and that the custodian of the video recordings was Unisight, a third-party vendor. But in a deposition, a representative of Unisight testified that it was never the custodian of footage from the CEVA plant, that Unisight merely sold the recording equipment, and that CEVA owned and operated the system and recordings. Recordings on CEVA's security camera equipment are normally retained between 30 and 90 days.

Critically, in August 2018—before Mr. Hollis’ termination—CEVA supervisor Anthony Berkshire investigated an unrelated claim of misconduct brought by a different employee. During that investigation, Mr. Berkshire pulled security camera video recordings of the alleged incident to review. During his deposition, Mr. Berkshire described the simple process he used to obtain the video: He requested it by contacting security.

B. Applicable Law

Rule 37(e) provides the sole source to address the loss of relevant ESI that was required to be preserved but was not because reasonable steps were not taken, resulting in prejudice to the opposing party. See DR Distributors v. 21 Century Smoking , 513 F. Supp. 3d 839, 956 (N.D. Ill. 2021). Rule 37(e) has five threshold requirements:¹ (1) the information must be ESI; (2) there must have been anticipated or actual litigation that triggers the duty to preserve ESI; (3) the relevant ESI should have been preserved at the time of the litigation was anticipated or ongoing; (4) the ESI must have been lost because a party failed to take reasonable steps to preserve it; and (5) the lost ESI cannot be restored or replaced through additional discovery. Fed. R. Civ. P. 37(e) ; DR Distributors , 513 F. Supp. 3d at 958. If any of these requirements are not met, then curative measures and sanctions are unavailable under Rule 37(e).

If all these threshold requirements are met, the court must then determine if the party seeking the ESI has suffered prejudice or if the party with possession, custody, or control of the ESI intended to deprive the seeking party of the ESI. See Fed. R. Civ. P. 37(e)(1), (2). If prejudice but not intent exists, then the court may impose curative measures, including but not limited to, an instruction that jurors may consider the circumstances surrounding the loss of the ESI. See DR Distributors , 513 F. Supp. 3d at 958. If intent exists, the court can impose sanctions, including presuming that the information was unfavorable, instructing the jury to presume the information was unfavorable, or entering dismissal or default. See Fed. R. Civ. P. 37(e)(2).

The Court reviews each of the relevant inquires in turn.

C. Analysis

1. Was the Information ESI?

Mr. Hollis alleges that the video recording of the incident between him and Mr. Bayer existed but was not preserved. Video is a form of ESI, see Freidig v. Target Corp. , 329 F.R.D. 199 (W.D. Wisc. 2018) ; see also Stanbro v. Westchester Cty. Health Care Corp. , No. 19 CV 10857, 2021 WL 3863396, *10, 2021 U.S. Dist. LEXIS 163849, *27 (S.D.N.Y. Aug. 27, 2021). So, the first threshold element would seem easily satisfied. But CEVA contends that this case does not involve ESI because there is no evidence that video of the incident ever existed, and that a party has no obligation to produce information that does not exist, citing Love v. City of Chicago , No. 09 CV 3631, 2017 WL 5152345 at *4-5, 2017 U.S. Dist. LEXIS 184081 at *12 (N.D. Ill. Nov. 7, 2017). It speculates, without any evidence, that "many things could cause a video camera not to work (e.g. power loss, cable disconnections, malfunctions, or recorder software errors)." Response [83] at 4. Albeit odd and begging the ultimate question, CEVA's syllogism is simple: No video; no ESI. According to CEVA, the "Plaintiff must first prove that a video camera recorded Plaintiff's encounter with...