UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

CHRISTINE M. JONES, individually

and as SPECIAL ADMINISTRATOR

OF THE ESTATE OF TIMOTHY

JONES,

Plaintiff,

 v.

UNION PACIFIC RAILROAD

COMPANY and STEVEN PIGNATO,

Defendants.

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 Case No. 12 C 771

 District Judge Joan H. Lefkow

Magistrate Judge Geraldine Soat Brown

MEMORANDUM OPINION AND ORDER

Geraldine Soat Brown, United States Magistrate Judge

Timothy Jones was killed on the morning of August 4, 2010, when his car collided with a

train owned by Union Pacific Railroad Company (“Union Pacific”) and operated at the time of the

accident by engineer Steven Pignato. (Defs.’ Ans.) [Dkt 11.] Mr. Jones’s widow, Christine Jones,

sues on behalf of herself and as special administrator of her late husband’s estate. (Id.) Before the

court is Jones’s motion to bar a video purportedly downloaded from a video recording system on the

locomotive involved in the collision. (Pl.’s Mot.) [Dkt 63.] Jones filed a memorandum in support

of her motion [dkt 70], Union Pacific filed an opposition to the motion [dkt 72], and Jones filed a

reply [dkt 76]. The motion is within the scope of the District Judge’s referral to this court. [Dkt 60.] 

For the reasons below, the motion is denied.

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Background

In her complaint, Jones alleges, among other things, that her husband’s collision occurred

because Union Pacific negligently failed to maintain its railroad warning system and crossing gates. 

(Compl. ¶¶ 37-38.) [Dkt 4.] Union Pacific denies any fault on its part, contending that the warning

lights were flashing and the crossing gates were down at the time of the collision. (Defs.’ Ans. ¶¶

37-38.) Union Pacific has produced the video in question as a representation of the crossing on the

day of incident. (Defs.’ Opp’n at 1.) The video shows the lights activated and gates down but does 1

not show Mr. Jones’s car or the collision itself, although there is a sound of a crash near the end of

the video. Union Pacific says that the car and collision are not visible because the camera “records

events taking place well ahead of the train” rather than “immediately in front of the train.” (Id. at

16.) Engineer Pignato asserts that the video accurately reflects his memory of the incident and that

the loud noise near the end of the video is the sound of the collision. (Id., Ex. 1, Aff. Steven Pignato

at ¶¶ 10(f)-10(g), 11.) 

After Union Pacific produced the video, Jones suspected that the video had been altered.

Central to Jones’s suspicion is her contention that “one should conclude that the subject vehicle must

have appeared sometime in the train’s camera prior to the collision and that the image was captured

on the Hard Drive . . . .” (Pl.’s Mem. at 11.) Jones moved to compel production of “the original

electronic video data from the subject train’s hard drive.” (Pl.’s Mem. Supp. Mot. Compel at 1.) 

[Dkt 30.] Union Pacific opposed Jones’s request, explaining that the video data captured by its

system is preserved in the form of the file it had already produced. (Defs.’ Opp’n Pl.’s Mot. Compel

 A copy of the subject video was provided to the court. 1

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at 4.) [Dkt 42.] The hard drives themselves, Union Pacific added, are overwritten continuouslywith

new data. (Id. at 5.) Moreover, because the hard drives are removable and interchangeable, Union

Pacific could not determine whether this particular drive had been replaced during routine

maintenance. (Id., Ex. 8, Defs.’ Am. Resp. Fifth Request for Prod., No. 7.) This court denied the

motion to compel production of the hard drive, concluding that “the hard drive itself cannot, in fact,

be produced because Union Pacific cannot locate the particular hard drive that recorded the video

at issue.” (Order, June 25, 2013, at 3.) [Dkt 57.] 

Jones now moves to bar the video as inadmissible, arguing that she cannot test the video’s

authenticity without the original hard drive. (Pl.’s Mem. at 1.) Jones challenges the video’s

admissibility on two grounds: (1) that it is not an admissible “original” or “duplicate” under Fed. R.

Evid. 1001, 1002, and 1003; and (2) that it cannot be properly authenticated under Fed. R. Evid.

901(a). (Id. at 4-20.) She also contends that the video should be barred as a discovery sanction

under Fed. R. Civ. P. 37(c) because Union Pacific failed to preserve the hard drive. (Id. at 20-23.)

Discussion

I. Admissibility under Fed. R. Evid. 1001, 1002, 1003, and 1004.

Jones’s primaryargument is that the hard drive is the “original” required bythe best evidence

rule: “An original writing, recording, or photograph is required in order to prove its content unless

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these rules or a federal statute provides otherwise.” Fed. R. Evid. 1002. The rules define an 2

“original” as follows:

An “original” of a writing or recording means the writing or recording itself or any

counterpart intended to have the same effect by the person who executed or issued

it. For electronically stored information, “original” means any printout– or other

output readable by sight – if it accurately reflects the information. An original of a

photograph includes the negative or a print from it.

Fed. R. Evid. 1001(d). 

A “duplicate” is “a counterpart produced by a mechanical, photographic, chemical,

electronic, or other equivalent process or technique that accurately reproduces the original.” Fed.

R. Evid. 1001(e). “A duplicate is admissible to the same extent as the original unless a genuine

question is raised about the original’s authenticity or the circumstances make it unfair to admit the

duplicate.” Fed. R. Evid. 1003.

There is a question about whether the best evidence rule applies to the video. Union Pacific

argues that it does not and contends that the only question in admitting video evidence is whether

the video is relevant and properly authenticated. (Defs.’ Resp. at 3-4.) The best evidence rule,

Union Pacific argues, does not apply when a witness adopts video evidence as part of his testimony

by identifying it, as Pignato has here, “as a correct representation of events which he saw or of a

scene with which he is familiar.” See Fed. R. Evid. 1002 advisory comm. n. (1972); see also United

States v. Bennett, 363 F.3d 947, 953 (9th Cir. 2004) (best evidence rule is not applicable to witness’s

identification of a video as correct representation of scene, but is applicable to witness’s description

Prior to the 2011 restyling of the Federal Rules of Evidence, video recordings were

2

expressly included in the definition of “photograph” along with X-ray films and motion pictures. 

See Fed. R. Evid. 1001(c) advisory comm. n. (1972). Currently, “photograph” means “a

photographic image or its equivalent stored in any form.” Fed. R. Evid. 1001(c). 

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of content of GPS device where device itself and its output are not put into evidence); Snyder v.

Tiller, No. 3:08-CV-00470 JD, 2010 WL 3522580 at *5-6 (N.D. Ind. Aug. 30, 2010) (admitting

video as adopted by witness’s testimony). Pignato avers that the video accurately reflects the scene

of the railroad crossing at the time of the accident. (Pignato Aff. at ¶ 11.) 

The advisory committee notes to Evidence Rule 1002 distinguish between a situation in

which a witness like Pignato illustrates his testimony by way of a video depicting the scene and a

“situation in which the picture is offered as having independent probative value, e.g., automatic

photograph of bank robber.” Fed. R. Evid. 1002 advisory comm. n. (1972). It appears that Union

Pacific may seek to introduce the video for the latter purpose, that is, as independent evidence that

the gates were down and signals were working.

Assuming, arguendo, that the best evidence rule applies in this situation, the video, which

is a readable output of the electronically stored information on the hard drive, is an original as long

as it accurately reflects the information. Fed. R. Evid. 1001(d). Alternatively, even if the video were

considered a duplicate of the information in the hard drive, it is admissible under Rule 1003 unless

there is a genuine question about its authenticity. Jones insists that access to the missing hard drive

is necessary to determine whether the video accurately reflects the information captured by the

train’s camera. (Pl.’s Mem. at 3.) Courts, however, have recognized other methods of establishing

the accuracy of recorded evidence, including eyewitness testimony and evidence of the chain of

custody. United States v. Emerson, 501 F.3d 804, 813-14 (7th Cir. 2007) (discussing audiotape’s

accuracy); Smith v. City of Chicago, 242 F.3d 737, 742 (7th Cir. 2001). The Seventh Circuit has

“‘eschewed any formalistic approach to the admission of tape recordings or copies thereof.’” Smith,

242 F.3d at 741 (quoting Stringel v. Methodist Hosp. of Indiana, 89 F.3d 415, 420 (7th Cir. 1996)). 

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Here, as described below, Union Pacific has submitted both eyewitness testimony and chainof-custody evidence in defense of the video, but Jones argues that none of this evidence is sufficient

to allow the video’s admission. (Pl.’s Mem. at 6-8, 13-20; Defs.’ Resp. at 5-11.) Although Jones

frames this argument in terms of the best evidence rule, she is raising questions of authenticity,

which are determined under Fed. R. Evid 901(a). See Smith, 242 F.3d at 741.

II. Authenticity under Fed. R. Evid. 901(a)

To show the authenticity of an item of evidence, “the proponent must produce evidence

sufficient to support a finding that the item is what the proponent claims it is.” Fed. R. Evid. 901(a). 

The analysis is not formalistic and permits authentication in multiple ways. See Fed. R. Evid. 

901(b) (listing examples of evidence satisfying authentication requirement); Smith, 242 F.3d at 741-

42 (discussing authentication of audiotape). Once the proponent of an item of evidence has laid a

proper foundation for its admission, the burden shifts to the opponent to rebut this foundation by

showing that the evidence is not authentic. Smith, 242 F.3d at 742.3

A. Eyewitness testimony

Union Pacific first contends that Pignato’s testimony authenticates the video. (Defs.’ Resp.

at 5.) Pignato states that the camera that recorded the video – the “TIR,” Track Image Recording

– was situated in front of him and slightly to the left on the dashboard of the locomotive. The

In a criminal case, the government must establish a recording’s authenticity “by clear and 3

convincing evidence.” Smith, 242 F.3d at 741. The Seventh Circuit has “assumed, but not decided,

that the proponent in a civil case for admission of a tape bears the same burden.” Id. It is

unnecessary to resolve this issue for purposes of deciding this motion.

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recording shows the crossing as he approached it, clear of pedestrians and vehicles, with gates down

and lights flashing. (Pignato Aff. ¶¶ 6, 10.) Jones responds by trying to cast doubt on Pignato’s

credibility and on his version of events. (Pl.’s Mem. at 6.) For example, Jones says that “Pignato’s

credibility is highly questionable” because he lied in his deposition about graduating high school. 

(Pl.’s Reply at 3.) She also claims that Pignato has contradicted himself by saying that he did not

notice the car until “a second or less” before impact even though he saw the crossing approaching

for “20 to 30 seconds.” (Pl.’s Mem. at 6, citing Ex. G, Dep. of Steven Pignato at 61, 69.) She argues

that his testimony is further undermined by that of three bystanders, all of whom say that the car was

in the crossing for several seconds before the collision, and one of whom maintains that the gates

did not come completely down. (Id. at 7-8.) Jones also contends that the car should be visible in

the video because Pignato and the bystanders say that it flipped upward after impact. (Id. at 7.)

Although Jones’s arguments on this point might help her undermine the weight of Pignato’s

testimony, they do not bar the video’s admission. The authentication requirement is satisfied when

a witness with knowledge testifies “that an item is what it is claimed to be.” Fed. R. Evid. 901(b)(1). 

Unlike the plaintiff in Griffin v. Bell, 694 F.3d 817, 826-27 (7th Cir. 2012), Pignato is such a witness

with knowledge, because is able to testify about how the video was made. Jones herself concedes

that he was “[t]he onlywitness with the almost identical vantage point as the subject train’s camera.”

(Pl.’s Mem. at 6.) Moreover, as Union Pacific points out, Pignato’s account is bolstered by

deposition testimony from bystander Signe Hovde, who agrees that the crossing gates were down

at the time of the accident. (Id., Ex. 10, Dep. Signe Hovde at 19-20.) 

Jones is entitled to dispute the weight to be assigned to the video. See Fed. R. Evid. 104(a),

(e) (court must decide any preliminary question about whether evidence is admissible, but a party

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may introduce evidence that is relevant to the weight or credibility of other evidence.) Pignato’s

affidavit confirming the video’s accuracy is, however, enough to warrant the denial of Jones’s

motion in limine to bar the video. See Asociacion De Periodistas De Puerto Rico v. Mueller, 680

F.3d 70, 80 (1st Cir. 2012) (challenge to authenticity of clips from news show failed where FBI

agent testified that media footage of incident accuratelyreflectedwhat occurred and plaintiffs offered

no reason to suspect fraud); Lang v. City of Round Lake Park, 87 F. Supp. 2d 836, 841 n. 4 (N.D.

Ill. 2000) (denying motion to strike video made by camera mounted on police car because

defendant’s affidavit established foundation).

B. Chain of custody

Union Pacific’s evidence of how the video was downloaded and preserved further supports

its admission. Union Pacific summarizes its process for securing video footage from train cameras

as involving six steps: (1) a request is made for a video download, (2) an electrician downloads a

“digitally encrypted and watermarked video to CD,” (3) the maintenance-shop foreman puts this CD

in a sealed envelope and signs it, (4) the envelope is delivered to and signed by the maintenance

director, (5) the envelope is retrieved and signed by a claims-department employee, and (6) that

employee gives the envelope to the assigned claims representative. (Defs.’ Resp. at 7-8.) Union

Pacific maintains that this process was followed here and backs up its assertion with citations to

deposition testimony from the employees involved. (Id. at 8-9.) 

According to Union Pacific’s witnesses, the system includes a “chained fingerprint

watermarking to prevent any modification of the original video data recorded by the DVR.” (Id. at

17.) The watermark appears as a green check mark on the bottom corner of the video frame. (Id.) 

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If one attempted to modify the video data in any way, the watermark would turn into a red “X.” (Id.) 

Union Pacific’s witnesses testified that process was followed here. (Defs.’ Resp., Ex. 13, Dep. of

Joseph Donnan at 17-20.) 

Jones argues that, although these steps may generally have been followed, potential

discrepancies call the video’s authenticity into question. In particular, she targets the credibility of

two Union Pacific employees: electrician Aurelio Baez, who says that he downloaded the video, and

claims director John Gabel, who admits that he showed a copy of the video to outside investigators

before the claims department received the official version. (Pl.’s Reply at 9-12.) Jones contends that

both employees submitted improper affidavits containing statements that conflict with their earlier

deposition testimony. See Velez v. City of Chicago, 442 F.3d 1043, 1049 (7th Cir. 2006) (affirming

exclusion of affidavit statements conflicting with deposition testimony). Without these affidavits,

Jones argues, the chain of custodyis fatally impaired because it is unclear who downloaded the video

or how Mr. Gabel obtained an extra copy of it. Union Pacific, on the other hand, argues that the

purported discrepancies Jones points out are explained by the witnesses in their depositions. (Defs.’

Resp. at 9-10.)

It is not necessary to resolve the purported discrepancies because they do not cast a serious

doubt on the video in light of totality of evidence before the court on the motion. “The chain of

custody need not be perfect.” United States v. Prieto, 549 F.3d 513, 524-25 (7th Cir. 2008). 

“Merely raising the possibility of tampering is not sufficient to render evidence inadmissible; the

possibility of a break in the chain of custody of evidence goes to the weight of the evidence, not its

admissibility.” United States v. Kelly, 14 F.3d 1169, 1175 (7th Cir. 1994) (emphasis in original);

see United States v. Collins, 715 F.3d 1032, 1036 (7th Cir. 2013); Smith, 242 F.3d at 742. 

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Jones’s other attacks on the chain of custody fare no better. She observes that the spot on the

chain-of-custody form for the name of a witness to the video recovery is blank, and that Mark

Layton, the maintenance-shop foreman, could not tell from the envelope when the video was

downloaded or what it contained. (Pl.’s Mem. at 15-16, citing Layton Dep.) Further, she notes that

the next person in the chain of custody, maintenance director Rick Laue, could not remember when

and where he picked up the envelope or who he gave it to in the claims department. (Id. at 16-17.) 

Mr. Laue also mistakenly dated the chain-of-custody form a month and a day before the accident

occurred. (Id. at 16.) These alleged problems do not bar the video’s admission, however, because

they support nothing more than the possibility of a break in the chain, not a serious question of

tampering.

Finally, this court has viewed the video. There is nothing about the video that appears to be

suspicious, such as a break in the sequence. It bears a time/date marker that also appears to be

continuous from several minutes before and up to the sound of the crash, as well as the “check mark”

described by Union Pacific’s witness as a guard against tampering.

C. Other evidence 

Although Jones points to witnesses’ testimony that it is possible to program the TIR with a

different date and time (Pl.’s Mem. at 4-5), the only argument that she raises to suggest that the

subject video was actually altered is that the video does not show what she believes it should show.

She believes it should show Mr. Jones’ car on the track some point ahead of the train, should show

the gate is not completely down, and should show Mr. Jones’ car being flipped up in the air after the

collision. (Pl.’s Mem. at 6-7.)

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Jones claims that the video is contrary to the bystanders’ testimony, but, as described above,

the bystanders’ testimony does not consistently support Jones’ version of the event in such a way as

to support a conclusion that the video is not authentic. While one witness says the gate was not

completely down when Mr. Jones drove on to the crossing, another says that it was down and that

Mr Jones drove around it. (Id.). Notably, Jones does not contend that any of the bystanders testified

that the video was not accurate. There is no indication in the record that the bystanders were shown

the video.

Jones points to three other videos that, in her view, show that Mr. Jones’s car “must have

appeared sometime in the train’s camera prior to the collision and that image was captured on the

Hard Drive that has now been destroyed.” (Pl.’s Mem. at 11.) The first video was purportedly

recorded from the back of the train. According to Jones, if this “back video” were not “almost

unviewable”—which Union Pacific says is the result of the video being a “bad copy”—the video

would show that the gates were up. (Id. at 10.) The second video is of a different collision at the

same intersection in which the vehicle can allegedly be seen before impact, even though the “video

was taken at night in a blizzard.” (Id. at 10-11.) Third, Jones cites news coverage of a video that

Metra publically released showing the final moments before a train collided with a pedestrian in a

different incident. (Id. at 11.)

Jones’s arguments are merely speculation. Those videos do not show that the camera on the

locomotive that hit Mr. Jones “must have” recorded his vehicle. Union Pacific explains that the

camera records events taking place well ahead of the train, not events immediately in front of the

train. (Defs.’ Resp. at 16.) Jones’s car may have entered the intersection after it was out of camera

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range. Jones’s arguments do not undermine the foundation laid by Pignato’s affidavit and the

evidence establishing the chain of custody.

III. Other requested relief

Jones next argues that the video should be barred as a discovery sanction under Fed. R. Civ.

P. 37(c) because of Union Pacific’s alleged spoilation of evidence. (Pl.’s Mem. at 20-21.) Factors

to consider in deciding whether sanctions are appropriate under Rule 37(c) include whether (1) the

party had a duty to preserve the evidence, (2) that duty was breached, (3) the breach exhibited

willfulness, bad faith, or fault, (4) the nonmoving party was prejudiced, and (5) a sanction would

alleviate that prejudice. MacNeil Automotive Prods., Ltd. v. Cannon Automotive Ltd., 715 F. Supp.

2d 786, 800 (N.D. Ill. 2010). In this circuit, severe sanctions are reserved for situations when a party

intentionally destroys evidence in bad faith. See Bracey v. Grondin, 712 F.3d 1012, 1019 (7th Cir.

2013) (affirming denial of request for adverse inference instruction when there was no evidence

prison officials had destroyed videotapes for purposes of hiding adverse information).

Jones has not established that there was an obligation to preserve the hard drive, as opposed

to the video itself. UnderRule 1001(d), the output of electronically stored information is an original,

and Union Pacific has presented evidence that it preserved and produced that. Jones has not shown

that Union Pacific acted in bad faith. The evidence before this court shows that the reuse of the hard

drive after the data relating to the incident has been preserved was a routine practice for Union

Pacific. “Absent exceptional circumstances, a court may not impose sanctions under these rules on

a party for filing to provide electronically stored information lost as a result of routine, good faith

operation of an electronic information system.” Fed. R. Civ. P. 37(e). Moreover, because Jones has

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not shown any basis to believe that the video file inaccurately portrays the hard drive data – other

than her belief that the video should show something different – she cannot show that she has been

prejudiced by Union Pacific’s actions. The fact that Jones would have liked to examine the hard

drive does not mean demonstrate that the video is inaccurate, inauthentic or inadmissible. See United

States v. Ladoucer, 573 F.3d 628, 637 (8th Cir. 2009) (affirming decision not to provide an expert

witness to examine a videotape to ensure it had not been altered).

Notably, Jones supports her claim that the hard drive should have been preserved by

inaccurately representing the testimony of a Union Pacific witness. Jones argues that “to determine

the validity of the video is that [sic], ‘[y]ou’d want to be able to look at the hard drive[.]’” (Pl.’s

Mem. at 5, purportedly quoting Dep. Rodell Notbohm, Ex. E at 48.) In fact, Mr. Notbohm does not

so testify. Jones’s counsel asked the question, “So the only way to determine whether or not a video

clip is actually real is to be able to compare it to the hard drive?” Mr. Notbohm did not agree; rather,

he asked for clarification: “Say it again. Compare it to the hard drive as in be able to determine what

from the hard drive? You’d want to be able to look at the hard drive?” Jones’s counsel asked the

question again:

Q. You would have to be able to determine from the hard drive whether this video

clip actually came from this hard drive?

A. I think in general you are referring to chain of custody, which Ithink I can’t cover

chain of custody on this clip.

There is no basis in the record for a claim that the hard drive is critical to determining the

authenticity of the video.

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Finally, Jones asks that, as alternative relief, this court enter an order instructing that “the

question of authenticity and the weight of the subject video is submitted to the jury as a question of

fact.” (Pl.’s Mem. at 20-23.) Jones says that this step is necessary to avoid the video being treated

as “absolute truth” in an “anticipated motion for summary judgment.” (Pl.’s Reply at 14.) The

question of whether the proponent of a piece of evidence has laid a sufficient foundation, however,

is for the judge to decide, not the jury, because it relates to the video’s admissibility. See United

States v. Stotts, 323 F.3d 520, 521 (7th Cir. 2003). In regard to the weight of the video, the Federal

Rules of Evidence establish the role of the judge and jury. Any decision regarding summary

judgment and instructions to the jury are reserved for the District Judge.

Conclusion

For the reasons stated above, Jones’s motion to bar the video evidence recorded from the

locomotive at the time of the accident is denied. 

________________________________

Geraldine Soat Brown

United States Magistrate Judge

DATE: January 6, 2014

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