Herbert v. Lynch
- Nelson Roman
- 7:22-cv-06303
- U.S. District Court · Southern District of New York
- 3
In Herbert v. Lynch, Judge Reznik required evidence about an allegedly missing jail video before deciding Herbert’s sanctions motion.
The order affected Jeremiah F. Herbert and the defendants by requiring both sides to submit evidence concerning whether a purported jail video existed and whether it should have been preserved.
What happened
In Herbert v. Lynch, Jeremiah F. Herbert, who was representing himself, asked the court to sanction the defendants over a purported hallway video from Sullivan County Jail that might show a July 6, 2022 incident. The court treated his filing as a request for sanctions for failure to preserve evidence.
The defendants said that no such video existed because the jail never recorded Herbert walking in a hallway that day. The court said neither side had submitted evidence proving whether the video existed or whether the defendants had a duty to preserve it.
Judge Victoria Reznik did not decide the sanctions request. She directed Herbert to submit supporting evidence by October 3, 2023; the defendants to respond with evidence by October 10; and Herbert to reply, if desired, by October 17.
The detailed version
- Herbert v. Lynch · No. 7:22-cv-06303
- Nelson Roman
- Sept. 19, 2023
Background
Jeremiah F. Herbert filed a motion citing Federal Rule of Civil Procedure 37. The court liberally construed the motion as seeking spoliation sanctions under Rule 37(e). Spoliation generally means destroying, significantly altering, or failing to preserve evidence for use in litigation. Herbert asserted that a hallway video from Sullivan County Jail might contain relevant footage of the July 6, 2022 incident at issue in the case.
Defendants submitted a September 12, 2023 letter stating that their counsel asked the Sullivan County Jail administration whether it possessed hallway video from July 6, 2022. According to the letter, counsel determined that no footage of any kind existed because there had never been a recording of Herbert walking in a hallway on that date.
Court’s analysis
The court explained that Rule 37(e) applies when electronically stored information that should have been preserved for anticipated or ongoing litigation is lost, cannot be restored or replaced through additional discovery, and the loss resulted from a failure to take reasonable preservation steps. Depending on the circumstances, the court may order measures to cure prejudice. More severe measures—such as an instruction or presumption that the information was unfavorable, dismissal, or default judgment—require a finding that the party acted with the intent to deprive another party of the information’s use.
The court also stated that the evidence must have existed and that the party seeking sanctions bears the burden of proving the elements of spoliation by a preponderance of the evidence. Before evaluating the sanctions request, the court needed to determine whether the purported video ever existed and, if it did, whether defendants had a duty to preserve it. The court found that neither side had submitted evidence supporting its position about the video’s existence or nonexistence.
Order
The court did not grant or deny the sanctions request. It directed Herbert to submit a letter by October 3, 2023, attaching any evidence showing by a preponderance of the evidence that the video existed at a time when defendants had a duty to preserve it. Defendants’ response was due October 10, 2023, and had to include evidentiary support for their assertion that the video never existed. Herbert’s reply, if any, was due October 17, 2023.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.