the next case is stern v city of new york that there was at one time a videotape the entirety or at the very least a very large portion of the incident that gave rise to mr stern's arrest that was maintained pursuant to the video camera procedure policy of the department of finance just to give a little bit of background the department of finance through its sheriff's department set out to tell mr stern's vehicle the morning of december sixteenth two thousand and nine as part of the policy when ever they are again engaged in what is called they scoffed there is a video camera operator who is an employee of the contracted towing company who is there to videotape the entire encounter between the person whose vehicle is being towed the sheriff's department and the responding officers and there are fairly detailed instructions about what is supposed to be captured on that videotape and how that tape is supposed to be maintained in this case there she did not videotape the portion of the case that went to the excessive force claims that actually could be good that's correct she testified that she videotaped at least up until the point that the police arrived but she never actually looked at the videotape no recollection of receiving the tape ever seeing the tape having anything to do with the tape that day but he did admit it was his handwriting on the tape so the question obviously and ultimately at the end of the day the quote original videotape which was admitted the court's question about the chain of custody you know for lack of a better record a lack of a better description the issue on that point was the quote original videotape this is eight millimeter tape exhibit two hundred was not obtained bar the defendants  despite the fact that in the quest of numerous times by plaintiffs until july second two thousand and fifteen which was eleven days before jury trial began so there was a for lack of a better word a scramble to try to determine went apparently to another city agency before ultimately ending up in the awful wasn't there something in the record about the fact that there was a belief it ended up in the department of investigation because of the complaint that your client had made to guess you know there was  that it ended up there because of your clients i believe that's the case but again the question is how how did it end up there in terms of what it where the records of the main maintenance of the so the legal point i want to make with regards to the satisfied two of the three elements required under this court's standard for spoliation specifically found that there was a duty to maintain the videotape because there was a specific is pacific directive by the department of finance that it be so maintained and furthermore the district court found that there was at least a negligence standard and he found the back would be proven by the simple absence of the recording what he did what he did not find and why he found an adverse inference was not warranted was he did not find that there was corroboration that the evidence would have been in the court standard helpful to the party seeking the instruction that is to say helpful to mr stern and in reaching the conclusion i believe you have a large incorrect standard of law this court has required only the the there be sufficient evidence from which a reasonable trier of fact could infer that the destroyed or unavailable evidence would have been of the nature of alleged by the party affected by its destruction meaning that there simply has to be a prime aphasia showing that that evidence would have been helpful for the person asking for the instruction and in fact in the burnie versus town a crime or case which is not in the briefs this court this court has described this requirement as quote any likelihood that the destroyed evidence would have been of the nature by the party affected by  to give an instruction ultimately a discretionary matter for the court yes it is and weren't there a number of factors here that would have suggested that it was appropriate to exercise that discretion not to give that instruction it wasn't clear how the tape was raised it wasn't clear if it was a racist though the individual's all right leave or name who took the photographs hadn't looked at it to ensure that it had been recorded why didn't all of these factors suggest that it was a sound actual size of discretion not to give the instruction and originally the court had a larger expert to testify about it and had said in effect well i'm not going to give the instruction but i'll let you make arguments i know here you have a claim later about being undermined in that regard it's why isn't that initially an appropriate this operation present that's a post trial decision i'm talking about the decision during the trial the discretionary decision not to give that instruction there were a number of factors that supported it seems to this court the discretion of the judge not to give an adverse inference instruction and then later what happened was the during their son nation i don't know this year but it was a statement made for which there was certainly no direct evidence which is what the judge said a very very little circumstantial evidence in which you said it was the tape was a racist by the decisions in terms of the actual size of the discretion having found that an adverse instruction was appropriate under the law which is i think the question that you're asking me judge and the purposes of now adverse instruction as the court this court s that is again the responsibility of the defendants in the terms of the way that this tape was disclosed the timing of the disclosure of this tape and the impossibility it of of establishing a chain of custody again this is i'm sorry i'm i'm well over my time should i can please answer the question yes under those types of circumstances the all of these purposes outlined in shannon would militate in favor of an adverse instruction because the party with the complete access to the documents information and personnel which is this corporation counsel the city of new york then has the onus of going through its records identifying responsible personnel and putting for the jury given with respect to the two place officers correct that it should have been given only with respect to deputy sharp academy that is correct which would have been very confusing to a jury correct your honor i would have i would have taken the opportunity to explain the issues were in fact vetted plaintiff has never disputed that there was evidence a deuce to trial that to support a jury conclusion that there was probable cause to arrest for obstructing governmental administration which was the charge for which he was originally arrest or to reject the excessive force finding there was no miscarriage of justice here of course i'd like to turn straight to the video i first want to address this chain of custody issue and put this back i think into context about the the regional recording that was in fact revealed later absolutely but this is this was not a case where plaintiff was unaware of a video prior to that disclosure plaintiff knew very soon after this incident when his criminal defense attorney subpoenaed the video that there was a video and in fact that it showed substantially the same as what the the original video was he knew this back in two thousand and ten there was absolutely whom original video and he didn't have the original but he knew there was a video so there was absolutely no reason why he couldn't have requested the chain of discovery issues and defendants comply with that looked again for a chain of custody it simply didn't exist talks to a new individual as requested by plaintiff to determine if they remember what happened to the video it is mall post finding the original that's that's correct  all after the original video all of these issues were vetted and i strenuously object to the idea that it is still it is it is somehow that shifts the burden on the adverse inference instruction to two defendants  cited a single case for that proposition and adverse inference instruction is a very extreme sanction and plaintiff bears the burden of proof of showing that the three that the three requirements are met and of course there are additional discretionary factors you requirements were absolutely not your honor and i actually did not read the district court the post trial district court decision which actually is a little bit different than the one that the district court reached for prior to trial following the district court cited several cases including a lock a and also residential finding which was a sect which is a decision of this court i wish which both discuss that when you actually when you only have negligence you do actually there is a there is more proof that is needed in the read of relevance in the sense of the evidence is of the nature that you claim it's going to be and the reason why is because if you have been i wasn't playing of stern's testimony  who the jury was going to be able to determine and make a credibility determination so really it was fully within the court's discretion to say to look at that and say you know i have two differing versions and i'm not going to put the we were there were to be a finding that it's on the other side of speculation which i don't think it is but even even if there were it's so scanty that was fully within the court's discretion not to give the adverse inference  instruction i would also i would like to talk about the this the instruction that was given at the end of trial at langley and i would like to point out that the language of that instruction was agreed to by the parties  the language of the instructional always objected to be it being given i want to put that back into context you in plaintiff's interpretation that instruction wiped out everything with the video and i think that's draw an adverse inference to say and the videotape magically disappeared when it got into the canyons hands allow the plaintiff to argue that the video would have supported his version of events and they should infer that it supports his version of events there were all that the district court judge here was one of the reasons among many that we defer to district court judges in these situations the district court was there and knew in context how that statement would sound which or which we don't adverse inference instruction but i think that even if this were found to be some sort of heiress and this is not substantially prejudicial this really is a harmless error because again plaintiff was allowed to put on all of the evidence that he had about the videotape throughout trial certainly plaintiff's counsel was allowed to make many other arguments was allowed to walk right up to the line on some nation the just this one statement that she that placed counsel was not allowed to directly set a and that there was a curative instruction there's there is no direct evidence i don't see how that would be a miscarriage of justice and warrant a new trial although i don't think it's an abuse of discretion as an initial matter i of this case would be the objections to the jury instructions and insufficiency of the evidence but i think that more and more says is very clear that if a plaintiff has an objection to a portion of  what is being sent to the jury on a claim which will produce an ambiguity you know a general over it will produce an ambiguity the plaintiff has the has the obligation to also preserve the ability to show that's prejudicial you can preserve the objection i just i'm just want to make sure i understand your argument so the argument is that objecting to the jury instructions was not adequate you also in the circumstances of this case knowing that there were two theories that were going to be submitted to the jury have to ask the defendants didn't do in that case was preserved any sort of objection to the general verdict and the plaintiff's argument here i see my time is up but if i may finish this point appears to be that if you've any part of the jury instructions that preserves he is recourse to the general verdict rule and i think that as a that's contrary to morrison i think that it's generally it's not an accepted principle of law that objecting for example if you know objected to the obstructing structures here that wouldn't have preserved an objection to the you can't transfer an objection just because there's that one phrase in morse and to otherwise object to the jury instructions read in cont the court was saying is you didn't ask for a special verdict sheet you didn't official it raga toys or otherwise objects the jury and structures i think read in context you know as the jury was instructed to deliberate so this was prevented from being  ambiguous and i saw nothing in plaintiff's reply roof that would drop any legally significant distinction between morse and this case or so it would have been helpful if the defense had asked for that special burning as well knowing that there were issues correct it would have been helpful but considering the plaintiff is the one who is trying to now take advantage of it it was plaintiff's to preserve the objection obviously you could imagine a situation in which defendants would be in the same situation as they were  much just to respond to a few points awfully quickly the defense counsel is repeated it's not clear at the video ever existed that it is clear the evidence from the calls all in was subject to cross examination she testified consistently throughout that she knew what she was doing she was this defense counsels pointed out the reason it was an abuse of discretion not to give an adverse inference instruction here is because of the central lety of this videotape to this case have that videotape been preserved such that  were defendants much less the judge and the jury could have seen it it may well have avoided the need for a trial altogether news in the for the because as i think you can see the very beginning of your line the tape would not have shown anything  i'm relying on her testimony to write it it would have shown at the very least this circumstances under which mr stern entered his vehicle which is not in dispute and the circumstances that when he left the vehicle there obstruction of justice of or mental illness straight there was based on their allegation their testimony that he entered the vehicle without permission remained in the vehicle without permission at least until the police officers arrived at the scene it would have shown that and in the absence of that the absence of probable cause for arrest for a obstruction governmental administration there is no defense and that's why i think this tape would have been central to any decision by any fact finder and sunny case like chan my time if there's not no further questions i'll do you agree that the couple state of mind here was negligence i don't i think we i think the the adverse inference could have been drawn on a willful or intentional standard as well and i believe