Commercial Litigation and Arbitration

Spoliation of Video Reviewed under Tangible Spoliation Standard, Not Rule 37(e) (Isn’t a Video Electronically Stored?) — 2d Cir. Factors — No Abuse of Discretion to Deny Adverse Inference Where Destruction Per 90-Day Policy & Issue Argued to Jury

 Johnson v. Perry, 2019 U.S. App. LEXIS 6855 (2d Cir. Mar. 5, 2019) (unpublished):



Plaintiff-appellant Glenn Johnson, appearing pro se on appeal, sued corrections officers under 42 U.S.C. § 1983 alleging excessive force. Johnson contended that on August 20, 2014, while in the custody of the New York City Department of Correction (ʺDOCʺ) on Rikers Island, defendants-appellees Officers Saran Perry and Pedro Rodriguez used excessive force against him. After a two-day trial, at which Johnson was represented by counsel, the jury returned a verdict in favor of Officers Perry and Rodriguez (collectively, ʺDefendantsʺ).1 Johnson appeals from the district courtʹs denial of his motion for a new trial pursuant to Federal Rule of Civil Procedure 59. On appeal, Johnson argues that the district court erred [*2]  in (1) ruling that the verdict was not against the weight of the evidence, (2) denying an adverse inference instruction regarding the destruction of video surveillance, and (3) excluding evidence of officer Perryʹs disciplinary history. We assume the partiesʹ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

A trial court may not grant a motion for a new trial unless ʺit is convinced that the jury reached a seriously erroneous result or that the verdict is a miscarriage of justice.ʺ Ali v. Kipp, 891 F.3d 59, 64 (2d Cir. 2018) (alteration and internal quotation marks omitted). We generally review a district courtʹs denial of a motion for a new trial for abuse of discretion. See id. ʺIt is a deferential standard, which reflects district courtsʹ significant . . . latitude to exercise their inherent discretionary authority.ʺ Id. We ʺwill reverse a judgment only if the district court (1) based its decision on an error of law, (2) made a clearly erroneous factual finding, or (3) otherwise rendered a decision that cannot be located within the range of permissible decisions.ʺ Id. (internal quotation marks omitted).

I. Weight of the Evidence

A motion for a new trial under Rule 59(a) on the ground [*3]  that the juryʹs verdict is against the weight of the evidence must overcome the ʺhigh degree of deference . . . accorded to the juryʹs evaluation of witness credibilityʺ and the admonition that ʺjury verdicts should be disturbed with great infrequency.ʺ ING Global v. United Parcel Serv. Oasis Supply Corp., 757 F.3d 92, 97-98 (2d Cir. 2014) (alterations omitted) (quoting Raedle v. Credit Agricole Indosuez, 670 F.3d 411, 418 (2d Cir. 2012)).2

The district court did not abuse its discretion by denying Johnsonʹs motion for a new trial as against the weight of the evidence. As the district court observed, the jury was presented with competing narratives: Defendants maintained that their use of force was necessary given the escalating nature of the altercation, and Johnson asserted that Defendantsʹ use of force was entirely unprovoked. The district court further noted that the jury heard sufficient evidence to find that no excessive force was used, and that it had ample reason to question Johnsonʹs testimony given the conflicting versions of events. The jury was entitled to make credibility determinations in reaching its verdict, and the record contained more than adequate evidence to sustain its ultimate conclusion. Accordingly, in light of the evidence presented, the district court did not abuse its discretion [*4]  in upholding the juryʹs verdict.

II. Denial of Adverse Inference Instruction

Johnson challenges the district courtʹs denial of an adverse inference instruction regarding the absence of certain surveillance videos. ʺWe review a district courtʹs decision on a motion for discovery sanctions for abuse of discretion.ʺ Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir. 2002). A party seeking an adverse inference instruction based on the alleged spoliation of evidence must establish (1) ʺthat the party having control over the evidence had an obligation to preserve it at the time it was destroyed,ʺ (2) ʺthat the records were destroyed with a culpable state of mind,ʺ and (3) ʺthat the destroyed evidence was relevant to the partyʹs claim or defense such that a reasonable trier of fact could find that it would support that claim or defenseChin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 2012) (internal quotation marks omitted). Because Johnson did not establish these elements, the district court did not abuse its discretion in denying the request for the instruction.

At trial, the DOC investigator testified that no footage captured any aspect of the physical altercation between the parties. Johnson merely showed that two video cameras existed in the long corridor where the incident occurred and that [*5]  video footage, which showed Johnson walking though the metal detector the morning of the incident in question, had been purged after 90 days pursuant to DOC policy. Johnsonʹs counsel thoroughly explored whether video footage of the incident existed, and the district court found there was ʺno evidence supporting [Johnsonʹs] contention that relevant evidence had been spoliated.ʺ Dkt. No. 146 at 7. Moreover, Johnsonʹs counsel argued extensively to the jury during summation about the video footage, or lack thereof. Given these circumstances, and the lack of evidence suggesting that any evidence was destroyed with a culpable state of mind, the district court acted well within its discretion in declining to grant an adverse inference instruction.

III. Exclusion of Disciplinary History

We review a district courtʹs evidentiary rulings for abuse of discretion and will not disturb such rulings unless they are manifestly erroneous. See Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003). ʺUnless justice requires otherwise, no error in admitting or excluding evidence -- or any other error by the court or a party -- is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order.ʺ [*6]  Fed. R. Civ. P. 61.

The district court properly exercised its discretion in excluding Officer Perryʹs disciplinary history where the unrelated use-of-force incident was found to be irrelevant and substantially more prejudicial than probative. A district court has wide latitude to admit or exclude evidence under Federal Rule of Evidence 404(b) and ʺits ruling will not be overturned on appeal absent abuse of discretion.ʺ United States v. Langford, 990 F.2d 65, 70 (2d Cir. 1993).

As the district court noted, the incident involving Officer Perry, which post-dated the altercation with Johnson, was completely dissimilar from the allegations of force used against Johnson. In addition, although there was disagreement as to how the pepper spray was administered in this case, Officer Perry did not deny having used force against Johnson. Lastly, the district court rejected Johnsonʹs use of this evidence to show Officer Perryʹs ʺwrongful intent to abuse her position,ʺ observing that excessive force is determined under an objective standard of reasonableness. Dkt. No. 146 at 8. Officer Perryʹs state of mind was therefore irrelevant. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2472 (2015). Thus, the district court did not abuse its discretion by ruling that the potential for unfair prejudice substantially outweighed the probative value of Officer Perryʹs [*7]  disciplinary history. See Fed. R. Evid. 403.

Accordingly, the district court did not abuse its discretion in denying Johnsonʹs motion for a new trial. We have considered all of Johnsonʹs remaining arguments and find them to be without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.


Johnsonʹs claims against all defendants other than Officers Perry and Rodriguez were dismissed before trial, and Johnson did not appeal the dismissal of those claims.

Despite conflicting decisions in this Circuit regarding whether we can review the weight of the evidence supporting a jury verdict on a Rule 59 motion, we assume here that the district courtʹs Rule 59 decision is reviewable. See Hughes v. Town of Bethlehem, 644 F. Appʹx 49, 50 n.1 (2d Cir. 2016) (summary order) (reviewing district courtʹs denial of a Rule 59 motion for a new trial on the ground that the verdict was against the weight of the evidence for abuse of discretion, despite conflicting precedent). But see Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000) (recognizing that ʺwhere a district court denies a motion for a new trial made on the ground that the verdict was against the weight of the evidence, such a ruling is not reviewable on appealʺ) (internal quotation marks omitted)). We need not resolve any discrepancy, however, in light of the disposition of this appeal.

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