No 37(e) Spoliation Sanctions Where Video Destroyed in Ordinary Course Before Litigation Reasonably Foreseeable (Thus, Video = ESI, Not Tangible Evidence)

 Ball v. George Wash. Univ., 2020 U.S. App. LEXIS 3241 (D.C. Cir. Feb. 3, 2020) (unpublished):

This appeal was considered on the record from the United States District Court for the District of Columbia and the briefs filed by the parties. See FED. R. APP. P. 34(a)(2); D.C. CIR. R. 34(j). The Court has accorded the issues full consideration and determined that they do not warrant a published opinion. See D.C. CIR. R. 36(d). For the reasons stated below, it is

ORDERED and ADJUDGED that the District Court order be affirmed.

From 2008 until 2015, Aaron Ball was a plumber at George Washington University (GW). Starting in 2013, Ball frequently asked for, and was granted, leave under the Family Medical Leave Act (FMLA), 29 U.S.C. §§ 2601 et seq., the District of Columbia Family Medical Leave Act (DCFMLA), D.C. Code §§ 32-501 et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§ 12101 et seq. After returning to work following one leave period, Ball's supervisors confronted him with evidence that he was "loafing" during work hours and had falsified work records to cover it up. The evidence of misconduct allegedly included video footage showing that Ball was not working when and where he claimed to [*2]  have been doing so. Ball was subsequently suspended and then discharged. He filed suit, asserting ADA claims of discrimination and retaliation, see 42 U.S.C. § 12112(a), discrimination and retaliation claims under the District of Columbia Human Rights Act (DCHRA), see D.C. Code § 2-1402.11(a), and retaliation and wrongful -interference-with-leave claims under the FMLA, see 29 U.S.C. § 2615(a). In addition, because, during discovery, GW failed to produce some of the video footage on which it relied, Ball moved for sanctions under Rule 37(e) of the Federal Rules of Civil Procedure. See FED. R. CIV. P. 37(e). In two thorough and well-reasoned orders, the district court denied Ball's sanctions motion and granted GW's summary judgment motion. Ball now appeals.

Under Rule 37(e) of the Federal Rules of Civil Procedure, the district court may sanction a party "[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery." FED. R. CIV. P. 37(e). Ball had the burden to establish that GW lost or destroyed the video footage at issue once a duty to preserve it attached. See Shepherd v. Am. Broad. Cos., 62 F.3d 1469, 1478 (D.C. Cir. 1995). We review the district court's factual findings underlying its denial for clear error. Id. at 1475-76. The district court reviewed the evidence [*3]  and concluded that the footage was automatically deleted before Ball filed his EEOC complaint, the only event Ball suggested created a duty to preserve the footage. Ball has not demonstrated that the district court clearly erred in making this finding. Nor was the district court obliged to wait until it decided the already fully briefed summary judgment motion to rule on the sanctions motion, as Ball now suggests. Consequently, we find no error in the district court's denial of Ball's sanctions motion.

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