Discovery: What happens when key evidence is destroyed?

The April 11, 2012 New York Times has a powerful article that, in its essence, involves discovery, i.e., the stage of a lawsuit when both sides — but primarily the plaintiff’s side — demand documents and other things from the opposition, documents that the plaintiff’s lawyers believe will assist in proving their case.

In the case cited by Benjamin Weiser in the Times, an inmate at Rikers Island was beaten badly by another prisoner, but the attack had been

captured by a digital surveillance camera, correction officials have said.

But when Mr. [Kadeem] John’s lawyers sued New York City and sought to review evidence in the case, they were unable to view the recording, they say, because it had been destroyed.

The city’s failure to preserve the recording has sparked an intense legal dispute, with a federal judge in Manhattan, Robert P. Patterson, Jr., agreeing recently to impose sanctions on the city that could complicate its ability to defend against the lawsuit.

I read the piece with dual interest. Many years ago, I worked on a case in which a Rikers inmate had been badly beaten by correction officials, not by another prisoner. There was no video and the case was therefore difficult to prove. But eventually, our client did win and received a settlement from the city.

I am interested in the remedy the plaintiff’s legal team has when key evidence has been destroyed or has been made to disappear: court-ordered sanctions against the city.

Judge Patterson granted the plaintiff’s requests that the city be barred from offering testimony about what was on the recording, and that it be made clear to the jury that a recording had existed and would have supported the plaintiff’s version of events.

In the hearing, a lawyer for the city, Diep Nguyen, argued that a sanction was inappropriate.

“Even though you destroyed the tape after notice of the assault?” the judge asked.

“Unfortunately, the order to preserve the tape did not trickle down,” Ms. Nguyen said.


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