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Lasalvia v. City of Evanston et al

November 21, 2011

LASALVIA
v.
CITY OF EVANSTON ET AL



Name of Assigned Judge Sitting Judge if Other or Magistrate Judge Amy J. St. Eve than Assigned Judge

CASE TITLE

DOCKET ENTRY TEXT

The Court grants Defendants' motion in limine [49]( Mot. No. 6) regarding adverse inferences.

O[ For further details see text below.] Notices mailed by Judicial staff.

STATEMENT

Presently before the Court is Defendants' motion in limine for an "order barring [] Plaintiff, his representatives, or his witnesses[,] from giving any testimony or argument regarding adverse inferences from the missing recording of the main [City of Evanston ("City")] police station sally port on April 5, 2010." (R. 49, Defs.' Mot. No. 6.) Plaintiff objects on the basis that he is entitled to a spoliation of evidence jury instruction at trial, which would permit the jury to draw an adverse inference from the missing recordings if it finds that Defendants intentionally destroyed the recordings in bad faith. See, e.g., Seventh Circuit Pattern Civil Jury Instruction 1.20 (2008) (hereinafter, "missing evidence instruction").

For the reasons explained below, the Court grants Defendants' motion in limine.*fn1

Courtroom Deputy KF

Initials:

BACKGROUND*fn2

Following Plaintiff's arrest on April 5, 2010, Defendants Thomas Giese and Joseph Panek, both police officers employed by the City, transported Plaintiff to the Evanston Police Department ("Police Department") for booking. It is undisputed that on the day of Plaintiff's arrest, the "sally port"*fn3 of the Police Department had a properly functioning security camera that would have recorded audio and video of Plaintiff. (R. 65, Pl.'s Br., Ex. 12, Defs.' Ans. to Pl.'s Requests to Admit ¶¶ 1-5.) Any of the individual Defendants "could have" requested that the recordings "be preserved," but none of them did so. (Id. ¶¶ 7-16, 20-21.) Defendants explain that the "footage from the camera was not requested in any Request to Produce or the subject of a preservation order prior to it being destroyed." (Id. ¶¶ 20-21.) According to Defendants, "the footage was not reviewed prior to its destruction." (Id. ¶¶ 4-5.)

On April 30, 2010, before Plaintiff commenced this action, Plaintiff filed a state Freedom of Information Act ("FOIA") request with the City for "any and all documents, photographs, audiotapes, videotapes, reports, memoranda, notes, and/or statements" relating to Plaintiff's arrest. (Pl.'s Br., Ex. 1.) Defendants' response, if any, is not contained in the record. Following the commencement of this action on May 18, 2010, Plaintiff took certain discovery regarding the video recordings.

On July 29, 2010, Plaintiff propounded the following interrogatories on Defendants, to which Defendants responded on October 1, 2010:

Plaintiff's Interrogatory No. 12: Were there any cameras that recorded, or that might have recorded, the Plaintiff's interaction with any City of Evanston police officer on the date of his arrest? If the answer is in the affirmative, please identify the location of any such camera (whether at the police station, in a squad car, or elsewhere), whether the recording(s) from the camera(s) have been preserved, ...


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