United States District Court, D. Colorado
ORDER DENYING PLAINTIFF'S SPOLIATION MOTION [ECF.
#41]
S.
Kato Crews, United States Magistrate Judge
This
Order addresses Plaintiff Jose Ramirez's
(“Ramirez”) Motion for Default Judgment Sanctions
and Finding of Law for Spoliation of Evidence [ECF. #41] (the
“Motion”). The Court has reviewed the Motion,
Defendant Wal-Mart Stores, Inc.'s
(“Wal-Mart”) Response [ECF. #48], the entire
docket, and applicable law. Oral argument will not materially
assist the Court's ruling. For the following reasons, the
Motion is DENIED.
I.
BACKGROUND
This
lawsuit arises out of an altercation between Ramirez and
Wal-Mart's asset protection employees on the evening of
August 4, 2016. The majority of the events surrounding the
altercation are not in dispute: Ramirez was shopping at
Wal-Mart with his minor nephew. Wal-Mart employees identified
Ramirez as a potential shoplifter and began monitoring his
movements throughout the store using security cameras. When
Ramirez attempted to exit the store, he and his nephew were
allegedly concealing stolen goods as they passed through the
store's final point of sale. Thereafter, two members of
Wal-Mart's asset protection team approached Ramirez in
Wal-Mart's vestibule. As they approached, Ramirez ran
into the door frame of the vestibule's exit and fell to
the ground, and the asset protection team apprehended and
detained him. [See ECF. #41.]
How
Ramirez was apprehended and detained is in dispute. Ramirez
maintains that Wal-Mart employees accused him of shoplifting,
and that he “attempted to leave the store without
further incident.” [Id. at ¶2.] When
exiting the vestibule through a set of sliding double doors,
he ran into the door frame and “[fell] to the ground
and was already restrained by two Wal-Mart
employees/agents.” [Id.] Ramirez claims he was
compliant and lying on his stomach when a “third
employee/agent came over and stomped on his person, ”
causing him “serious injury.” [Id.]
Wal-Mart
claims that Ramirez attempted to leave the store with stolen
merchandise concealed in a cooler and in his nephew's
clothing. [ECF. #48 at ¶3.] After Ramirez passed all
points of sale with the concealed merchandise and entered the
vestibule, he saw Wal-Mart's asset protection employees
and attempted to flee. [Id. at ¶5.] When
fleeing, he ran into the vestibule's sliding exit doors
and fell. [Id. at ¶7.] At that point, two asset
protection employees picked Ramirez up and escorted him to
the asset protection office. [Id. at ¶8.]
Wal-Mart claims no employees tackled or stomped on Ramirez,
and that Ramirez “did not make any inquires as to
medical treatment. [Id. at ¶¶9-11.]
With
its Initial Disclosures under Fed.R.Civ.P. 26(a)(1), Wal-Mart
produced six-hours of video footage to Ramirez. [ECF. #41.]
This footage captures Ramirez: walking through the store;
walking past the final point of sale and entering the
vestibule; observing the asset protection employees; and
running toward the exit. [Id. at ¶13.] It also
shows two employees walking Ramirez (detained at this point)
to the asset protection office. [Id.] The video does
not show Ramirez run into the doorframe, falling to the
ground, or his what happened to him while he lay on the
ground (collectively, “Absent Footage”).
[Id. at ¶4.]
This
discovery dispute arises out of Ramirez's claim that the
Absent Footage previously existed, but Wal-Mart failed to
preserve it. [See generally ECF. #41.] Ramirez
argues this failure to preserve constitutes spoliation.
[Id. at ¶4.] He seeks sanctions in the form of
a default judgment on the issue of liability, or
alternatively, an adverse inference instruction.
[Id. at ¶24.] Wal-Mart argues Ramirez fails to
establish spoliation of evidence because its duty to preserve
the video was not triggered until February 27, 2017-months
after the surveillance tape was overwritten by Wal-Mart's
DVR system. [ECF. #48 at p.1.]
II.
DISCUSSION
As a
threshold matter, Ramirez has not convinced the Court that
Wal-Mart's cameras previously captured the apprehension.
This is an important and threshold inquiry because Wal-Mart
cannot have a duty to preserve evidence that never existed.
Cf. Fed. R. Civ. P. 37(e) advisory committee notes,
2015 amendment (preservation obligation does not apply when
information or evidence is lost before a duty to
preserve attaches). Here, Ramirez's entire spoliation
argument presupposes that when he ran into the door frame and
fell outside of the store's vestibule, an outdoor camera
recorded his apprehension. [See generally ECF. #41
at ¶21.] But Ramirez has produced no evidence that the
Absent Footage existed.
Ramirez
seems to assert the video existed by quoting an incomplete
excerpt from Ali Saraf's (a Wal-Mart asset protection
employee) deposition:
Q: So did you see - when you pulled [the video DVD], and you
actually sent it to the company, did you see all of the
footage from the time that he bought the cooler to the
apprehension? Did you actually see the apprehension?
A: Yes.
[ECF. #41 at ΒΆ26.] In its Response, however, Wal-Mart
includes Mr. Saraf's ...