United States of America 

OCCUPATIONAL SAFETY AND HEALTH REVIEW COMMISSION 

SECRETARY OF LABOR, 

Complainant, OSHRC Docket No. 19-1579 

v. 

UHS OF CENTENNIAL PEAKS LLC, dba 

CENTENNIAL PEAKS HOSPITAL, and its 

successors, 

Respondent. 

ORDER ON COMPLAINANT’S MOTION FOR SANCTIONS AND ENTRY OF 

SANCTIONS 

On August 30, 2019, Respondent was served with a Request for Production of Documents, 

which included, amongst other things, a request for “video recordings related to each act of 

workplace violence” that had been documented or memorialized by Respondent in related reports, 

records, or logbooks for a period of roughly three years. See Compl’t Motion for Sanctions at Ex. 

2. According to Respondent, all videos during the relevant time period were deleted pursuant to 

Respondent’s electronic storage policy, which overwrites saved video after a period of roughly 30 

days. Id. at Ex. 3. To date, whether due to Respondent’s data retention policy, its reluctance to 

provide video, or due to Respondent’s newly discovered inability to extract video from the CCTV 

system, Respondent has not produced any video that is responsive to Complainant’s request. 

Even though the Court granted Complainant’s Motion to Compel as to the videos, 

Complainant contends Respondent did not produce responsive videos or satisfactory responses 

regarding the videos that were deleted. Accordingly, Complainant filed the present motion seeking 

sanctions including, but not limited to, an adverse inference the videos in question would illustrate 
 

 

Respondent failed to adequately abate the hazard of workplace violence and Complainant’s 

recommendations were, in contrast, effective at abating the hazard. See Compl’t Motion at 17-18. 

Respondent contends it did not have a duty to retain video at any point prior to receiving the 

discovery request and the content of the videos were not as vital, nor as useful, as Complainant 

claims. 

Based on what follows, the Court finds Respondent had notice of its duty to maintain the 

video evidence once it received notice of an employee complaint regarding workplace violence 

and the ensuing administrative inspection. Although it did not actively destroy evidence, 

Respondent’s failure to intervene in the regular course of data destruction to maintain a small 

subset of video clips was in bad faith. Accordingly, the Court finds it appropriate to impose 

sanctions. However, given the evidence in question is, in some ways, replicable through first-hand 

testimony and alternative documentation, the Court finds applying an adverse inference that 

ostensibly proves the entirety of Complainant’s prima facie case runs afoul of the strong preference 

for a hearing on the merits. The sanctions imposed below will reflect both Respondent’s degree of 

culpability, the importance of the evidence that was destroyed, and, consequently, the degree of 

prejudice suffered by Complainant. 

I. Background 

This case was initiated by an employee of Respondent filing with OSHA an anonymous 

complaint about workplace violence at Respondent’s facility. See Compl’t Motion for Sanctions at 

Ex. 1. Complainant reviewed the complaint and determined it had sufficient merit to warrant an 

inspection specifically targeted at the hazard of workplace violence between patients and staff. On 

December 7, 2018, Complainant initiated an inspection of Respondent’s workplace, targeting the 

specific hazard identified in the anonymous complaint. Approximately six months later, still within 

the statute of limitations, Complainant issued a Citation and Notification of Penalty, alleging a 

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violation of the general duty clause “in that employees were exposed to physical threats and 

assaults by patients.” Citation and Notification of Penalty at 6. Complainant filed a Notice of 

Contest, and the matter was ultimately assigned to this Court. 

As noted previously, Complainant sent Requests for Production to Respondent, including 

requests for videos of workplace violence between patients and staff. Respondent failed to provide 

the requested videos and responded any video data recorded more than 30 days prior had been 

overwritten. Complainant subsequently filed a motion to compel numerous documents, including 

the disputed videos. Compl’t Motion for Sanctions at Ex. 2. The Court granted Complainant’s 

motion for all video recordings documenting incidents of workplace violence and ordered 

Respondent to otherwise explain why such videos no longer exist. The parties engaged in informal 

discussions, wherein Respondent’s counsel indicated at one point Respondent had saved some 

videos and stated her belief the videos would be helpful to Respondent’s case. Compl’t Motion for 

Sanctions at Ex. 5. Ultimately, Respondent failed to provide any video of workplace violence 

incidents, notwithstanding multiple documented instances of workplace violence occurring in the 

period between the beginning of the inspection and Complainant’s request for production. 

Complainant filed the present motion, seeking sanctions for Respondent’s destruction of the 

videos, or spoliation. 

II. Analysis 

In general, “[w]here it is highly probable that a Commission decision would be appealed 

to a particular circuit, the Commission has . . . applied the precedent of that circuit in deciding the 

case—even though it may differ from the Commission’s precedent.” Kerns Bros. Tree Serv., 18 

BNA OSHC 2064, 2067 (No. 96-1719, 2000) (citation omitted). This case arises in the Tenth 

Circuit and it is likely where it would be appealed. Therefore, the Court will apply Tenth Circuit 

law, recognizing other circuit courts of appeals have also spoken on this issue and may have 

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slightly different standards. The Court could not locate any Commission case law on the issue of 

spoliation and the parties have not identified any. 

Under Tenth Circuit law, spoliation sanctions are proper when (1) a party has a duty to 

preserve evidence because it knew, or should have known, that litigation was ‘imminent,’ and (2) 

the adverse party was prejudiced by the destruction of the evidence.” Zbylski v. Douglas County 

School District, 154 F. Supp. 3d 1146, 1162 (citing Turner v. Public Service Co. of Colorado, 563 

F.3d 1136, 1149 (10th Cir. 2009)). The basic situation involving spoliation goes like this: one party 

requests specific documents or records, which the other party has destroyed. The requested 

information has evidentiary value and cannot be replaced. The party requesting the records can, 

after exhausting other avenues, seek sanctions to compensate (if possible) for the loss of the 

evidence. See Zbylski, 154 F. Supp. 3d at 1158 (“Spoliation” results from “the destruction or 

significant alteration of evidence, or the failure to preserve property for another’s use as evidence 

in pending or reasonably foreseeable litigation.”) (citations omitted). 

In order to prevail on such a motion, however, Complainant must first prove Respondent’s 

behavior warrants sanctions. Id. at 1160 (“A moving party has the burden of proving, by a 

preponderance of the evidence, the opposing party failed to preserve evidence or destroyed it.”). If 

the Court determines Respondent’s behavior is sanctionable, it must nonetheless engage in a 

complex, fact-intensive analysis to determine what level of sanctions appropriately accounts for 

both Respondent’s conduct and the value of the evidence destroyed. See Gates Rubber Co. v. 

Bando Chemical Indus., Ltd., 167 F.R.D. 90, 102 (D. Colo. 1996) (Magistrate Schlatter). The Court 

has broken up this discussion into a series of discrete sections to address the separate but related 

issues of Respondent’s culpability and the degree of harm suffered by Complainant as a result of 

the destruction. See id. at 102 (“A review of the cases reflects that the two factors of “mental state” 

and “harm” are intertwined, and one of them can hardly be discussed without a simultaneous 

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examination of the other.”). As noted above, the Court finds Respondent failed in its duty to retain 

evidence once it was on notice of future litigation. While the Court finds these actions warrant 

sanctions, the Court also finds the evidence destroyed was not so vital as to warrant an inference 

sufficient to establish Complainant’s entire prima facie case as a matter of law. The sanctions the 

Court finds are appropriate and within its discretion can be found at the conclusion of the Order. 

A. When Did Respondent Have a Duty to Preserve Video? 

The duty to preserve is broader than the duty to produce in discovery. Food Lion, Inc. v. 

United Food and Commercial Workers Int’l Union, 103 F.3d 1007, 1012 (D.C. Cir.1997). In 

determining whether a party has a duty to preserve, courts have considered factors such as: (1) the 

likelihood a certain kind of incident will result in litigation; and (2) notification received from a 

potential adversary. See Zbylski, 154 F. Supp. 3d at 1163; see also Advisory Committee Notes to 

Fed. R. Civ. P. 37(e) (eff. Dec. 1, 2015) (“In applying the rule, a court may need to decide whether 

and when a duty to preserve arose. Courts should consider the extent to which a party was on notice 

that litigation was likely and the information would be relevant.”). In other words, there is no hardand-fast rule defining when adequate notice triggers the right to preserve evidence.1 Instead, a duty 

to preserve arises when a party “has notice that the documents might be relevant to a reasonablydefined future litigation.” Id. However, it need not be the case “that a party’s obligation to preserve 

information arises only after it understands the precise nature of the specific 

1. There has been no evidence Respondent triggered any type of litigation hold for relevant discoverable evidence 

related to the cited hazard. While not in and of itself determinative, the absence of a litigation hold is relevant to 

assessing whether there was spoliation. See, e.g., Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 162 (2d Cir. 

2012). 

litigation at issue.” Id. Instead, it is sufficient the party knew or should have known evidence in 

its possession was relevant to future litigation. Id. 

There are multiple cases where courts have accepted something less than a specific request 

for documents during the pendency of an active lawsuit to qualify as adequate notice to a party of 

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its obligation to preserve evidence. See, e.g., McCargo v. Texas Roadhouse, Inc., No. 09-CV02889-

WYDKMT, 2011 WL 1638992, at *4 (D. Colo. May 2, 2011) (duty to preserve triggered by filing 

of formal internal complaint illustrating intent to pursue legal action, not the formal filing of 

discovery or even lawsuit); Zbylski, 154 F. Supp. 3d at 1163. For example, in Zbylski, supra, the 

court found the school district’s duty to preserve was triggered when it placed one of its teachers 

on administrative leave. Zbylski, 154 F. Supp. 3d at 1164. The court found, at that time, the district 

had adequate notice or should have been on notice it might be subject to future litigation “based 

on the cumulative nature of the prior incidents and reports of inappropriate conduct toward students 

(both of non-sexual and sexual nature) . . . .” Id. While administrative removal is a formal 

proceeding against the teacher, no specific, formal document was issued to the district either by 

the teacher or affected students requesting the preservation of specific notes and documentation in 

personnel files.2 Id. Nonetheless, the court found the obligation attached prior to the initiation of 

any litigation or specific request. See e.g., id. at 1162 (“This court respectfully rejects the notion 

that a party’s obligation to preserve information arises only after it understands the precise nature 

of the specific litigation at issue.”). 

Similar to Zbylski, no formal litigation had been initiated against Respondent at the time of 

the complaint-based inspection. The Zbylski court found the administrative act of removal placed 

the district on notice it could be subject to reasonably foreseeable litigation from either the teacher 

2. Many of the documents in question in Zbylski were destroyed by the former principal shortly after she had retired. 

or the students affected by the actions leading to the teacher’s removal, and therefore determined 

the duty preserve attached at that point. Likewise, this Court finds Respondent should have been 

aware of the likelihood of future litigation based on the fact that (1) Complainant was conducting 

an administrative inspection pursuant to (2) an anonymous, employee complaint alleging 

workplace violence, which (3) Respondent already had a self-imposed obligation to retain video 

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of under certain circumstances, and (4) Respondent’s affiliates, who were also represented by the 

same counsel, had been cited or were being inspected for the same or similar hazards.3 While there 

was no specific “incident” per se involving employees and patients that should have put 

Respondent on notice of its obligation to retain video recordings for future litigation, the Court 

finds the targeted nature of this particular complaint-based, administrative inspection, coupled with 

the ancillary facts involving Respondent’s counsel and affiliates, was sufficient to apprise 

Respondent of the possibility of reasonably anticipated and fairly well-defined litigation. See 

Zbylski, 154 F. Supp. 3d at 1163. The Court concludes Respondent has a duty to preserve the 

videos in question for the timeframe previously established by the Court. Complainant has 

established the first prong of Tenth Circuit law on the issue of spoliation. 

3. Respondent’s argument that litigation involving other UHS entities should not be considered because it “ha[s] no 

relationship” with those entities, with the exception of legal counsel, is both contrary to the record in this case, 

which indicates more than a passing relationship with respect to the UHS corporate office to which it and the other 

UHS affiliates report, and, to use its own words, is “patently wrong.” Respondent has provided no convincing reason 

why the Court should not consider the fact that numerous UHS-owned facilities were being pursued by OSHA for 

the same workplace hazard and being represented in those matters by the same counsel. Respondent had knowledge 

through its attorney – which attorney was the same in all these matters – by the following cases which had been 

initiated by OSHA and which were before the Commission before the current case was initiated: UHS of Westwood 

Pembrooke, Inc. dba Lowell Treatment Center, Docket No. 15-0964 (OSHRC); UHS of Doylestown LLC dba 

Foundations Behavorial Health, Docket No. 16-1909 (OSHRC); UHS of Westwood Pembroke, Inc., Docket No. 

17-0737 (OSHRC); UHS of Westwood Pembroke, Inc. dba Lowell Treatment Center, Docket No. 17-1302 

(OSHRC); UHS of Westwood Pembroke, Inc. dba Lowell Treatment Center, Docket 17-1304 (OSHRC); UHS of 

Delaware, Inc. and Premier Health Solutions of Florida, Inc. dba Suncoast, Docket No. 18-0731 (OSHRC); 

ARBOUR Hospital/UHS Delaware, Inc., Docket No. 18-1116 (OSHRC); UHS of Denver dba Highlands Behavorial 

Health System, Docket No. 19-0550 (OSHRC). Finally, in Scalia v. UHS of Fuller, Inc. and UHS of Delaware, No. 

1:19-mc-91541-FDS, Document No. 42 (D. Mass. January 6, 2020), Magistrate Judith Gail Dein entered an order 

directing Respondents to preserve “any existing video surveillance footage...” in that case. U. S. District Court 

Judge F. Dennis Saylor adopted Magistrate Dein’s order. Id., Document No. 43 (D. Mass. July 9, 2020). The counsel 

representing the Respondents in that case are the same firm representing Respondent in this case. 

B. Is Complainant Prejudiced? 

The second prong of the Tenth Circuit analysis is a determination of prejudice to 

Complainant in this case. “In weighing and determining the appropriateness and severity of 

sanctions, judges should examine the materiality and value of the suppressed evidence upon the 

ability of a victim to fully and fairly prepare for trial.” Id.; see also Anderson v. Beatrice Foods 

Co., 900 F.2d 388, 395 (1st Cir. 1990) (holding a judge confronted with the decision whether to 

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impose sanctions must “take pains neither to use an elephant gun to slay a mouse nor to wield a 

cardboard sword if a dragon looms.”). Alternatively, a court may also ask whether the suppressed 

evidence is cumulative, insignificant, or of marginal relevance and, therefore, whether it can be 

replicated or accounted for in other ways. See id. In other words, has Complainant suffered 

prejudice to the extent the sanctions it proposes are warranted? As compared to the relatively high 

degree of culpability on Respondent’s behalf, the Court finds Complainant has suffered a modest, 

yet not insubstantial, degree of prejudice. Even after consideration of Respondent’s culpability, 

however, the Court finds the prejudice suffered by Complainant does not warrant the 

casedeterminative sanctions sought in paragraphs 2 and 3 (insofar as it suggests dismissal as a 

possible remedy) of Complainant’s prayer for relief. 

The Federal Rules of Civil Procedure also provides guidance on the determination of 

prejudice which aligns closely with the Tenth Circuit. “An evaluation of prejudice from the loss 

of information necessarily includes an evaluation of the information's importance in the 

litigation.” Advisory Committee Notes to Fed. R. Civ. P. 37(e) (eff. Dec. 1, 2015). The rule 

leaves judges with discretion to determine how best to assess prejudice and what curative 

measures are necessary. Id. See also Barbera v. Pearson Educ., Inc., 906 F.3d 621, 628 (7th Cir. 

2018) (upholding magistrate judge’s sanction for destroyed email chain). The Court is tasked 

with determining the weight to give to the parties’ evidence and to evaluate its credibility. See 

DVComm, LLC v. Hotwire Comm., LLC, et al., Civ. A. No. 14-5543, 2016 WL 6246824, at *1 

(E.D. Pa. Feb. 3, 2016) (imposing sanctions after evaluating the credibility of alleged spoliators). 

According to the parties, the principal issue in this case is abatement, i.e., whether 

Respondent’s attempts to abate the hazard were sufficient, and whether Complainant proposed a 

feasible and effective means to abate the hazard. See U.S. Postal Serv., 21 BNA OSHC 1767, 

1773-1774 (No. 04-0316, 2006) (Where an employer has undertaken measures to address a hazard, 

the Secretary must establish that the employer’s measures were inadequate); Pelron Corp., 12 BNA 

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OSHC 1833, 1836 (No. 82-388, 1986) (Secretary may establish an employer’s existing safety 

procedures were inadequate by demonstrating there were “specific additional measures” required 

to abate the hazard). Thus, insofar as Complainant seeks to impose an adverse inference that “all 

now-destroyed video footage of incidents of workplace violence would have shown Respondent’s 

response to the hazard was insufficient and/or that the abatement measures described by the 

Complainant would have prevented or lessened the severity of the injuries to that employee”, such 

a sanction would, more or less, establish Complainant’s prima facie case as a matter of law. See 

Compl’t Motion at 17-18. While Respondent’s behavior certainly justifies the imposition of harsh 

sanctions, the de facto suppressed video segments (as described in more detail below) were not so 

essential as to present an unduly prejudicial obstacle to Complainant’s ability to prove its case. 

The now-deleted videos purportedly contained recordings of incidents of workplace 

violence between employees and patients at Respondent’s facility. As to the relevance and 

materiality of the videos, Complainant contends they would have: (1) resolved discrepancies 

between statements of employees and management; (2) illustrated how “Code Greens”, which are 

calls for assistance with aggressive patients, are initiated; (3) shown how many employees respond 

and how quickly to a Code Green; and (4) illustrated whether Complainant’s proposed abatement 

at the nurse’s stations was effective. In response, Respondent argues the missing videos will have 

minimal impact on Complainant’s ability to prove its case, whereas imposing the negative 

inference discussed above would deprive it of its day in court. See, e.g., Gates, 167 F.R.D. at 106 

(“Sanctions which preclude the admission of certain evidence or provide for a negative inference 

in the place of destroyed evidence operate in the same fashion as a default judgment. They intrude 

into the ‘truth-finding process’ of a trial and represent ‘grave steps’ for a trial judge to take.” 

(quoting Jackson v. Harvard University, 900 F.2d 464, 469 (1st Cir. 1990)). The Court will address 

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each of the identified purposes for the requested evidence, their importance to Complainant’s 

prima facie case, and whether other evidence can fill the gap left in the record. 

As to Complainant’s ability to resolve any putative discrepancy between the statements of 

management and employees, the Court finds the disputed video could potentially resolve basic 

discrepancies, such as: (1) how many people there were; (2) whether everyone responded at 

roughly the same time; and (3) whether employees utilized appropriate measures in response to the 

workplace violence incident. The problem for Complainant is that the quality of the evidence 

sought is, according to the sworn declaration of Sean Forster, interim CEO of Respondent, 

insufficient to prove what Complainant contends the video would have shown. See Resp’t 

Opposition at Ex. A. Respondent put forth evidence the CCTV system is incapable of recording 

sound and does not provide zoom features to allow closer review of workplace violence incidents. 

See id. Without sound, it is possible the Court would be unable to tell whether a Code Green had 

been called, which also impacts any objective assessment as to how quickly someone should have 

responded to an incident. 

Unlike McCargo, where the occurrence of the behavior complained of was itself in question 

and only the video would illustrate whether a particular act occurred. See McCargo, 2011 WL 

1638992. The concerns in this case are more granular: the fact of workplace violence is not so 

contentious as whether Respondent has implemented adequate procedures to abate it, which could 

potentially have been identified in the videos. Most of what Complainant has identified above are 

questions directed towards the veracity of putatively conflicting testimony. Without the evidence 

in question, then, this case ends up like the lion’s share of cases that come before the Court: reliant 

upon the first-hand recollections of the employees present at the worksite and, potentially, 

photographs of the condition or copies of the work policy governing the complainedof behavior. 

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The missing video clips were recordings of events involving employees, whose identities 

are known, and the details of which have been independently documented. See Compl’t Motion at 

Ex. D. Thus, in lieu of the videos, Complainant should still have access to first-hand accounts from 

the employees engaged in the documented instances of workplace violence, as well as the 

documented summaries of those incidents. Such first-hand testimony can still address Code Green 

response times, staffing, and the effectiveness of existing nurse’s stations. These employees can 

speak to the efficacy of current and proposed abatement, as well as their personal experience with 

any particular incident of workplace violence. Likewise, experts in the field can presumably review 

policies, procedures, static photos of workspaces like a nurse’s station, and first-hand testimony to 

assess whether existing and/or proposed abatement is both feasible and effective. All of that being 

the case, just because Complainant is still capable of proving its case does not mean Respondent 

should not be held responsible for the consequences of its actions. See In re: Ethicon, Inc., No. 

2:12-cv-00497, 2016 WL 5869448, at *4 (S.D.W. Va. Oct. 6, 2016) (prejudice under Rule 37(e) 

may be found when the destruction causes a party to “piece together information from other 

sources”). 

Respondent has put forth evidence to suggest the substantive purposes for which 

Complainant sought to introduce the videos would not necessarily be achieved given the 

aforementioned issues with sound and zoom. While this may be the case, there are many things 

Complainant misses out on by not being able to use the evidence, including concrete illustrations 

of a workplace hazard that exposed employees to serious injuries and which Respondent was both 

aware of and recognized as hazardous. This missing evidence prejudices Complainant even if it is 

possible to prove its case by other means. Id. 

The Court finds Complainant carried its burden that Respondent had a duty to maintain the 

videos in question, Respondent failed in that duty, and Complainant was prejudiced as a result. 

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The Court now turns its attention to what sanctions are appropriate. 

C. Source of the Duty and Basis For Sanctions – Federal Rules of Civil Procedure 

As noted earlier, the determination of whether a particular sanction is appropriate is based 

on Respondent’s conduct after it should have reasonably anticipated the present litigation and the 

value and type of evidence lost. The Court will rely on the Federal Rules of Civil Procedure, which 

have provisions that govern discovery of electronic stored information, such as the videos in 

question.1 The Federal Rules of Civil Procedure also provide the steps for the Court to engage in 

a complex, fact-intensive analysis to determine what level of sanctions appropriately accounts for 

both Respondent’s conduct and the value of the evidence destroyed. See Gates Rubber Co. v. 

Bando Chemical Indus., Ltd., 167 F.R.D. at 90. 

1. Videos: Subject to Discovery, Materiality of Videos and Preservation 

“Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s 

claim or defense. . . . Information within this scope of discovery need not be admissible in 

evidence to be discoverable.” Fed. R. Civ. Proc. 26(b)(1); 29 C.F.R. § 2200.52(b) (Commission 

rule permitting discovering of relevant, nonprivileged information). When a party does not 

preserve relevant, discoverable electronically stored information, such as the videos, before 

imposing sanctions, courts consider whether: (1) the videos “should have been preserved in the 

anticipation or conduct of the litigation,” (2) the videos were “lost because a party failed to take 

reasonable steps to preserve it,” and (3) the videos “cannot be restored or replaced through 

additional discovery.” Fed. R. Civ. Proc. 37(e). 

1 The Federal Rules of Civil Procedure are applicable to Commission proceedings absent a Commission rule on the 

subject. Commission Rules also has a similar section. See 28 U.S.C. § 661(g). See also Commission Rule 52(v). 29 

C.F.R. § 2200.52(v). See also Williams Enters., Inc., 4 BNA OSHC 1663, 1665 n.2 (No. 4533, 1976). 

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The Court finds, based on its discussion of prejudice to Complainant above, the destroyed 

video evidence was relevant and discoverable. As previously discussed, the videos would have 

illustrated many things, including the physical implementation of Respondent’s workplace 

violence policy, which includes events occurring before and after the issuance of the Citation. 

See, e.g., SeaWorld of Fla., LLC v. Perez, 748 F.3d 1202, 1215 (D.C. Cir. 2014) (finding that 

evidence of post-citation actions supports finding that the proposed means of abatement were 

feasible). Accordingly, the spoiled evidence was material, relevant and subject to being retained. 

The Court has previously found Respondent should have preserved the videos, so it will proceed 

with its discussion of factors (2) and (3) discussed in Fed. R. Civ. Proc. 37(e). See Section II, B. 

2. Failure to Take Reasonable Steps to Prevent Destruction 

The next consideration under Rule 37(e) is whether Respondent took reasonable steps to 

prevent the destruction of videos that ought to have been preserved. Fed. R. Civ. P. 37(e). The 

evidence shows Respondent was not only capable, but had a road map of how to prevent the 

destruction of relevant videos within its own video retention policy. Respondent had a process in 

place to view videos of incidents where patients or staff were injured. The video retention policy 

called for the preservation of videos related to physical altercations and liability claims: 

“Video footage ... should be maintained and copied ... (i) If such footage is related to Probable 

Claim Report (PCR) matter and/or for liability claims as warranted; ... (iv) For any allegations 

of rape, assault or other physical altercations involving patients or residents ... .” See Compl’t 

Motion at Ex. 3. Respondent, from the arguments presented in their brief, took no steps to preserve 

videos of staff assaults that occurred from November 7, 2018 to September 18, 2020 (“Production 

Period”) as previously Ordered by this Court.5 The deletion of the videos was not accidental or 

the result of circumstances beyond Respondent’s control. Respondent had the capability to 

preserve video clips involving workplace violence and had done so several times in the past for 

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training and evaluation purposes. They can, and do, record from their video feed incidents 

pertaining to workplace violence and have protocols in place to preserve such evidence. 

Respondent has an incident evaluation process and routinely preserves videos related to violence 

between patients and staff. 

Respondent claims the video system automatically overwrites any video in thirty or fewer 

days unless someone actively intervenes. But, Respondent’s policy also specifies that within 

thirty days of an incident involving a physical altercation with a patient or a liability claim, video 

of the incident should be saved. Instead, relying on precedent dealing with non-electronic 

evidence, Respondent points to the lack of affirmative action to destroy the evidence. Although 

5. However, the deposition testimony of Kara McArtor, Respondent’s former Risk Management Director, stated during 

her deposition that it was her responsibility to download video footage related to an adverse event and report and send 

it to UHS and she thought videos were retained by Respondent in a risk management folder on the shared drive after 

the request from OSHA. See Exh. 7 attached to Comp’t Br., Deposition of Kara McArtor, Nov. 12, 2020 at 173-175. 

this matter does not involve tossing something into the trash, the effect was still the same. 

Respondent let the videos get overwritten rather than saving the data on another disk. See In re 

Krause, 367 B.R. 740, 766 (Bankr. D. Kan. 2007) (sanctioning debtor who continued routine 

deletion of emails and failed to deactivate “wiping” software which routinely removed 

information), aff’d, 637 F.3d 1160 (10th Cir. 2011); Philips Elecs. N. Am. Corp. v. BC Tech., 773 

F. Supp.2d 1149, 1197 (D. Utah 2011) (sanctioning defendant who had a duty to preserve ESI by 

preventing it from getting lost, inadvertently overwritten, or wiped out). Since Respondent took 

no steps to preserve videos related to the cited hazard, there is no basis for finding that “reasonable 

steps to preserve” occurred.2 

3. The Evidence Cannot be Restored or Replaced 

2 Fed. R. Civ. P. 37(e) is limited to providing relief for electronic stored information that was destroyed and cannot 

be restored. There is no basis for finding that the destroyed evidence can be restored. 

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In the Court’s Order to Compel, dated September 18, 2020, Respondent should have 

preserved videos related to incidents of workplace violence that occurred between November 7, 

2018 and September 18, 2020. The information Complainant could have obtained from the 

destroyed video evidence cannot be replaced through other discovery. See Jenkins v. Woody, No. 

3:15-cv-355, 2017 WL 362475, at *16-17 (E.D. Va. Jan. 21, 2017) (imposing sanctions where 

video was deleted, and it could not be restored or replaced). 

The destroyed videos relate to multiple issues, particularly: (1) the existence of a hazard in 

the workplace; (2) employee exposure to that hazard; (3) whether the hazard could cause serious 

injury or death; (4) Respondents’ knowledge of the hazard; (5) adequacy of Respondents policies 

and procedures to reduce or eliminate the hazard; and (6) abatement of the hazard. The written 

records and availability of certain witnesses are not an adequate remedy for the destruction of the 

videos in this matter. See Woodward v. Wal-Mart Stores E., LP, 801 F. Supp. 2d 1363, 1373 

(M.D. Ga. 2011) (finding that employee testimony about an event “hardly works” to address the 

loss of video); Storey, 2017 WL 2623775, at *5 (discussing the “unique and irreplaceable nature” 

of video evidence); Moody v. CSX Transp., Inc., 271 F. Supp. 3d 410, 429-30 (W.D.N.Y. 2017). 

In CSX, the railroad failed to preserve ESI from the train’s event recorder. 271 F. Supp. 3d 

at 429-30. The ESI would have conclusively established whether a bell rang before the train 

began to move. Id. The court found the plaintiff was prejudiced by the destruction even though 

there was other evidence as to whether there was a sound was emitted, and the event recorder 

might not have supported the plaintiff’s claim. Id. CSX and other cases illustrate prejudice under 

Rule 37(e) may be found when the destruction causes a party to “piece together information from 

other sources.” In re: Ethicon, Inc., supra; Abdulahi v. Wal-Mart Stores E., L.P., 76 F. Supp. 3d 

1393, 1396-97 (N.D. Ga. 2014) (other evidence consisting of emails and testimony did not remove 

prejudice caused by the employer’s destruction of video footage). The destroyed videos would 

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have been favorable to Complainant’s claims in some respects, and now Complainant must piece 

together those facts through other evidence. As this Court has previously found the loss of the 

videos prejudiced Complainant. So, Rule 37(e)(1)’s threshold requirements are met. Complainant 

is entitled, at least, to the relief necessary to cure the prejudice resulting from Respondents’ 

actions. 

4. Fed. R. Civ. P. 37(e) Provides Two Avenues for Relief 

Fed. R. Civ. P. 37(e) makes it plain when a party, such as Respondent, fails to take 

reasonable steps to preserve video evidence, the Court may take action to cure the prejudice that 

results. A court may remedy the prejudice caused by a failure to act; no affirmative act of 

destruction is required. Fed. R. Civ. P. 37(e) provides in pertinent part: 

(e) Failure to Preserve Electronically Stored Information. If 

electronically stored information that should have been 

preserved in the anticipation or conduct of litigation is lost 

because a party failed to take reasonable steps to preserve it, 

and it cannot be restored or replaced through additional 

discovery, the court: 

(1) upon finding prejudice to another party from loss of 

the information, may order measures no greater than 

necessary to cure the prejudice; or 

(2) only upon finding that the party acted with the intent 

to deprive another party of the information’s use in the 

litigation may: (A) presume that the lost information was 

unfavorable to the party; (B) instruct the jury that it may or 

must presume the information was unfavorable to the party; 

or (C) dismiss the action or enter a default judgment. 

See Fed. R. Civ. P. 37(e). 

Rule 37(e)(1) allows for curative measures when lost electronic stored information causes 

prejudice to another party. In contrast, Rule 37(e)(2) provides for more severe sanctions when 

the loss of electronic stored information occurred with “intent to deprive another party of the 

information’s use in litigation.” Fed. R. Civ. P. 37(e). See also Advisory Committee Notes to 

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Fed. R. Civ. P. 37(e) (eff. Dec. 1, 2015) (“The better rule for the negligent or grossly negligent 

loss of [ESI] is to preserve a broad range of measures to cure prejudice caused by its loss, but to 

limit the most severe measures to instances of intentional loss or destruction.”). 

5. Further Relief under Fed. R. Civ. 37(e)(2) is Available. 

Beyond addressing prejudice caused by the destruction of evidence under Rule 37(e)(1), 

courts may also impose more severe sanctions if a party acted with the intent to deprive the 

opposing party of the information’s use in the litigation. Fed. R. Civ. Proc. 37(e)(2). In other 

words, assessing whether the destruction of evidence was the result of bad faith. Complainant 

has requested definitive rulings the destroyed videos would have shown Respondent’s response 

to the cited hazard was insufficient and the proposed abatement Complainant proposes would 

have prevented or lessened the severity of the injuries to employees. Compl’t Motion at 17-18. 

Complainant also requested dismissal of Respondent’s contest of the Citation as a sanction. Id. 

Complainant contends Respondent acted with the intent to deprive because Respondent 

failed to prevent the destruction of relevant and discoverable electronically stored information 

after litigation was not only anticipated but had commenced. Compl’t Motion at 12-13. 

Respondent offered no convincing explanation for why it departed from its own written video 

retention policy. See Brown v. Chertoff, 563 F. Supp. 2d 1372, 1381 (S.D. Ga. 2008) (awarding 

sanction for spoliation when Government was culpable for violating its own policies and for 

failing to take notice that litigation was likely). Nor does Respondent explain any steps it took to 

preserve videos of the hazard during the Production Period ordered by this Court. See Ottoson v. 

SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570, 582 (S.D.N.Y. 2017) (finding sanctions 

appropriate when it could be inferred that party either took no steps to preserve emails or simply 

failed to produce them). 

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Intent is rarely proved by direct evidence. See e.g., Paisley Park, 330 F.R.D. at 236-37 

(evaluating defendants' conduct before deciding to issue sanctions); BankDirect Capital Fin., LLC 

v. Capital Premium Fin., Inc., No. 15 C 10340, 2018 WL 1616725, at *2 (N.D. Ill. Apr. 4, 2018) 

(“[A] combination of events, each of which seems mundane when viewed in isolation, may 

present a very different picture when considered together.”); CSX, 271 F. Supp. at 431–32 (finding 

intent based on defendants' actions in the litigation that allowed evidence to be overwritten and 

destroyed). Respondent knew OSHA was investigating the hazard of workplace violence, it knew 

it had video evidence of the hazard, it knew Complainant sought the videos, it knew they were 

contesting the allegations in the Citation, and yet Respondent offers no sound explanation for why 

it failed to preserve relevant information after receipt of written notice of an OSHA investigation 

and the commencement of litigation. 

6. Bad Faith with Intent to Deprive 

Because the awarding of an adverse inference requires a finding of bad faith, the Court 

must determine whether Respondent acted in bad faith when it failed to prevent the destruction of 

the documents pursuant to the company’s internal video retention policy. The assessment of 

whether Respondent acted in bad faith is important in a case such as this, where Complainant has 

sought an adverse inference instruction7 that is tantamount to a dispositive determination of the 

case. See Gates Rubber, 167 F.R.D. at 102 (summarizing factors discussed in Ehrenhaus v. 

Reynolds, 965 F.2d 916 (10th Cir. 1992) for determining whether sanctions were appropriate). 

“Where no willfulness, bad faith, or fault is shown from the evidence, a dispositive sanction would 

be improper.” Id. at 103. That said, even courts presented with evidence of bad faith are not 

mandated to impose dispositive sanctions but are instead guided by their discretion and the facts 

of the case before it. See id. (citations omitted). 

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What, then, constitutes bad faith? According to one court, “After the duty to preserve 

attaches, the failure to collect either paper or electronic records from key players, the destruction 

of email, or the destruction of backup tapes is grossly negligent or willful behavior.” McCargo v. 

Texas Roadhouse, Inc., 2011 WL 1638992 at * (D. Colo. 2011) (citations omitted). Moreover, 

“[b]ad faith, or culpability, ‘may not mean evil intent, but may simply signify responsibility and 

control.’” Phillips Electronics N.A. Corp. v. B.C. Technical, 773 F. Supp. 2d 1149, 1203 (D. Utah 

2011) (quoting Phillip M. Adams & Associates, L.L. C. v. Dell, Inc., 621 F.Supp.2d 1173, 1193 

(D.Utah 2009)). 

7. Complainant is also seeking dismissal as a potential sanction. For the purposes of this Order, the Court is 

treating the adverse inference and dismissal as similar sanctions given the effect the adverse inference would have on 

this case. 

The Court previously determined Respondent had a duty to preserve videos thirty days 

prior to the date of the inspection.8 And, as the necessity of the present motion makes clear, 

Respondent failed to observe that duty. Respondent did not intervene in the regular course of data 

destruction and allowed video containing recordings of documented instances of workplace 

violence to be destroyed.9 Not only was there sufficient notice of a reasonably well-defined 

potential for litigation, but Respondent already had a system in place to address incidents of 

workplace violence captured on video. The Court has already addressed the former of these two 

issues at length in previous sections, thus it will direct its focus to Respondent’s data retention 

policy vis-à-vis incidents of workplace violence between patients and staff. 

While Respondent’s policy, of itself, does not create a legal duty to retain video, it does 

illustrate Respondent was already engaged in the habit of reviewing recordings of workplace 

violence and had procedures to address not-too-dissimilar situations where future litigation was 

imminent and evidence needed to be retained. See Compl’t Motion at Ex. 3, 6. Specifically, 

Respondent has admitted its leadership reviews video footage of workplace violence incidents as 

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part of its workplace violence program (but does not download them) and can review video with 

employees as part of its training program. Compl’t Ex. 6 at 10. Further, the policy itself has a 

comprehensive set of instructions for dealing with “an incident resulting in employee disciplinary 

action where the facility is on notice of litigation, threat of litigation, other legal action, or an 

investigation by an administrative, civil, or criminal authority, through the receipt of notification 

or other information identifying the possibility of legal action or upon service of a summons and 

8. This period also includes up to 30 days prior to the inspection, which is as far back as the Court would have 

been able to expect Respondent to be able to produce video under the strictures of its data retention policy. See Compl’t 

Motion at Ex. 3. 

9. Though the question of burden is, at this point, moot, the Court notes Respondent’s claim of undue burden is 

a bit of an overreach. Rather than retain all video and search at random for acts of workplace violence, the Court would 

expect Respondent only to extract video insofar as it could be cross-referenced against existing, documentary records 

or was otherwise contemporaneously extracted and saved consistent with an active obligation to retain. 

complaint.” Compl’t Ex. 3 at 1. Thus, while it may be true the specific situation presented by the 

employee complaint and subsequent inspection is not accounted for within Respondent’s data 

retention policy, it is clear the policy itself accounts for situations where Respondent is presented 

with less clarity and certainty than a specific request for a particular kind of document or video. 

The policy’s statement regarding the considerations made for an employee disciplinary action 

includes all manner of potential forms of notice, including, as is relevant here, administrative 

investigations. While the Court does not purport to interpret the intent of Respondent’s policy, it 

does find the policy’s focus on the numerous situations under which video should be retained in 

response to employee disciplinary action illustrates Respondent is sophisticated enough to 

understand its obligation to retain evidence extends beyond a formal request for its retention, 

regardless of the legal situation presented.10 

At bottom, Respondent had an obligation to retain evidence related to workplace violence 

that was activated by an administrative inspection which, itself, was prompted by an anonymous 

complaint. The information sought by Complainant was neither burdensome nor disproportionate 

to the needs of the case. See Zbylski, 154 F. Supp. 3d at 1164 (“Once it is established that a party’s 

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duty to preserve has been triggered, the inquiry into whether a party has honored its obligation to 

preserve evidence turns on reasonableness, which must be considered in the context of whether 

‘what was done—or not done—was proportional to that case and consistent with clearly 

established applicable standards.’” quoting Rimkus Consulting Group, Inc. v. Cammarata, 688 

F.Supp.2d 598, 613 (S.D. Tex. 2010)). Respondent not only has a policy of reviewing video of 

incidents of workplace violence, but it also has a policy of retention for analogous circumstances 

10. If Respondent was not so sophisticated, it had retained counsel to represent them in this case—the same 

counsel which represents UHS affiliate entities in various other OSHA cases initiated for workplace violence—which 

counsel should have made clear to Respondent its obligations. 

that have the potential for future litigation and does not rely on a mechanical request for documents. 

The failure to retain video evidence while under an obligation to retain that evidence, coupled with 

the sophistication to understand when your obligation begins under similar circumstances, is 

tantamount to destroying it. Even if there is no clear-cut evidence of malice, the Court finds the 

foregoing evidence is more than sufficient to find Respondent engaged in bad faith and sought to 

deprive Complainant of the videos. 

Accordingly, the Court finds Respondent’s behavior is sanctionable, but the extent of those 

sanctions must also reflect the importance of the evidence that is now lost and its impact on 

Complainant’s ability to prove his case. See Gates, 167 F.R.D. at 104. (“In order to determine the 

appropriateness of certain sanctions, whether dispositive or otherwise, judges need to balance the 

degree of misconduct evidenced by a party’s mental state against the degree of harm which flows 

from the misconduct.”). 

7. What is the Appropriate Sanction? 

Although Respondent had the requisite state of mind to permit the imposition of any of the 

remedies available under Fed. R. Civ. P. 37(e)(2) and the case law governing adverse inferences, 

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the harshest of sanctions permits are not appropriate here. The “remedy should fit the wrong.” 

Advisory Committee Notes to Fed. R. Civ. P. 37(e) (eff. Dec. 1, 2015). 

Based on the foregoing, the Court is confronted with a situation wherein Respondent’s 

failure to retain the videos constitutes bad faith with the intent to deprive and the evidence that 

was destroyed would be helpful but its absence is not determinative of the case’s outcome. As 

previously discussed, the destroyed videos allegedly had issues with zoom capabilities and sound. 

With these deficiencies, the Court finds the evidence contained therein may have been insufficient 

to support or counter a claim regarding abatement and thus finds its value equivocal as to the 

specific topic of abatement. As such, it is not proper to award an adverse inference as to the 

specific issues of whether Respondent’s policies were adequate or that Complainant’s proposed 

abatement would be reasonable and feasible to reduce or eliminate the hazard in the workplace. 

Thus, the Court finds an appropriate sanction is one that both recognizes and condemns the 

behavior of Respondent without determining the outcome of the entirety of the case as a matter 

of law. 

Complainant is not entitled to a dismissal of Respondent’s notice of contest of the Citation 

based on spoliation. Instead, the Court will enter adverse inferences: (1) rejecting Respondent’s 

argument the destroyed videos would have been favorable to it defenses; (2) finding the destroyed 

videos would have supported, by a preponderance of the evidence, Complainant’s claims 

regarding the existence of a hazard in the workplace over which Respondent has control; (3) 

finding the destroyed videos would have supported Complainant’s claims, by preponderance of 

the evidence, the hazard was recognized by Respondent; (4) finding the destroyed videos would 

have supported, by preponderance of the evidence, Complainant’s claim of employee exposure; 

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(5) finding the destroyed videos would have supported, by preponderance of the evidence, 

Complainant’s claim that the hazard could cause serious injury or death; and (6) finding the 

destroyed videos would have supported, by preponderance of the evidence, Complainant’s claim 

Respondent had actual knowledge of the hazardous condition or activity. 

ORDER 

As such, the Court issues the following ORDER: 

1. At trial, parties are prohibited from discussing, arguing, examining witnesses, or 

raising in any form or fashion: (i) any content of the destroyed videos or (ii) that the videos were 

destroyed. Parties are prohibited from eliciting any testimony about the existence of recorded 

instances of workplace violence or testimony about the contents of previously recorded instances 

of workplace violence unless such testimony is the product of first-hand knowledge of a 

participant in the incident. See Storey, 2017 WL 2623775, at *5 (issuing sanctions for spoliation 

of videos, including precluding evidence or argument that the contents of the videos corroborated 

the defendants' version of events). 

2. Video content and analysis discussed or described in records or documents 

produced during discovery shall not be referenced or testified to by either expert or lay witnesses 

since the reliability and authenticity of the narrative describing the contents of the videos cannot 

be verified. See Storey, 2017 WL 2623775, at *5 (issuing sanctions for spoliation of videos, 

including precluding evidence or argument that the contents of the videos corroborated the 

defendants' version of events). See also Fed. R. Evid. Rule 403, 807 and 901. 

3. The Court imposes an adverse inference and finds the destroyed videos would have 

shown that physical threats and assaults by patients in an inpatient psychiatric hospital are 

recognized hazardous conditions or activities. See BHC Nw. Psychiatric Hosp., LLC v, 

Secretary of Labor, 951 F. 3rd 558, 650-61 (D.C. Cir. 2020). 

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4. The Court imposes an adverse inference and finds the destroyed videos would have 

established Respondent had recognized the hazard, since video recordings are part of 

Respondent’s protocols to address the hazard. See Ed Taylor Const. Co. v. Occupational Safety 

& Health Review Comm'n, 938 F.2d 1265, 1272 (11th Cir. 1991); Georgia Electric, 595 F.2d 

at 321 (citation omitted). 

5. The Court imposes an adverse inference and finds the destroyed videos would have 

established employee exposure to the hazard. RGM Construction, Co., 17 BNA OSHC 1229, 

1234 (No. 91-2107, 1995); Gilles & Cotting, Inc., 3 OSHC 2002, 2003 (No. 504, 1976). 

6. The Court imposes an adverse inference and finds the destroyed videos would have 

established that exposure to the hazard could result in serious bodily injury or death. 29 U.S.C. 

§ 666(k). See also Phelps Dodge Corp. v. OSHRC, 725 F.2d 1237, 1240 (9th Cir. 1984); 

DecTam Corp., 15 BNA OSHC 2072, 1993 CCH OSHD ¶ 29,942 (No. 88-0523, 1993). 

7. The Court imposes an adverse inference and finds the destroyed videos would have 

led to actual employer knowledge since videos of events were reviewed by management and 

sometimes used for training. See ComTran Grp., Inc. v. U. S. Dep’t of Labor, 722 F. 3d 1304, 

1307-08 (11th Cir. 2013); Phoenix Roofing, Inc., 17 BNA OSHC 1076, 1079-1080 (No. 

902148, 1995) (citations omitted); and Secretary of Labor v. Kansas Power & Light Co., 5 

BNA OSHC 1202, at *3 (No. 11015, 1977). 

SO ORDERED. Patrick B. Augustine 

Patrick B. Augustine 

Judge, OSHRC 

Date: April 19, 2021 

Denver, Colorado 

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