IN THE UNITED STATES COURT OF FEDERAL CLAIMS

______________________________________ )

CINDY ALVAREZ, et al.

, )

)

Plaintiffs, ) No. 20-1533

)

v. ) Filed: April 7, 2023

)

THE UNITED STATES, ) Re

- issued: April 20, 2023 *

)

Defendant. )

______________________________________ )

OPINION AND ORDER

Plaintiffs bring this suit against the U nited S tates Department of Justice, Bureau of Prisons,

alleging violations of the Fair Labor Standards Act (“FLSA”) for uncompensated pre - and postshift work they performed at Federal Correctional Institution (“FCI”) Mendota in Mendota,

C alifornia

. Before the Court is Plaintiffs’ Motion for Sanctions Under Rule 37(e) based on the

Government’s failure to preserve and timely produce video footage requested by Plaintiffs in

discovery. Plaintiffs ask the Court to preclude the Government from introducing as evidence any

video footage , or still photographs taken from video footage, from Institution cameras and to order

an adverse inference against the Government. For the reasons discussed below , the Court

GRANTS IN PART and DENIES IN PART Plaintiffs’ motion.

I. BACKGROUND

A. Factual Background

Plaintiffs are 55 current and former correctional workers employed at FCI Mendota. Pls.’

Compl. ¶ 4, ECF No. 1. On November 5, 2020, they filed a Complaint seeking “declaratory

* The Court issued this opinion under seal on April 7 , 2023, and directed the parties to

file any proposed redactions by April 17, 2023. As the parties do not propose any redactions, the

Court reissues the opinion publicly in full.2 judgment, backpay, and other relief ” to remedy alleged willful and unlawful violations of the

FLSA. Id. ¶ 1

. Specifically, Plaintiffs contend that the Government failed to compensate them

for work performed before and after their scheduled 8

- hour shifts, beginning when they undergo a

staff security screening in the front lobby and ending when the y exit the secure d confines of FCI

Mendota. Pls.’ Redacted Mot. for Sanctions at 6, ECF No. 1 9

.

O n Ma r ch 8, 2022, the Court entered a scheduling order with fact discovery closing on

January 13, 2023

. See Schedul ing Order, ECF No. 15. The Court later extended that deadline to

February 10, 2023. See Order

, ECF No. 30. Plaintiffs served the Government with their First

Request for Production of Documents (“RFP”) on May 11, 2022

. Ex . A to Pl s .’ Redacted Mot.

for Sanctions, ECF No. 1 9

- 1 . In the request, Plaintiffs asked the Government to produce :

S ince November 5, 2017, copies of all videotape and/or photographs showing

Plaintiffs entering and exiting the Institution. Specifically, this request covers all

videotape and/or photographs of Plaintiffs entering the location where the security

scr eening site is, as well as all videotape and/or photographs of Plaintiffs entering

and exiting the secured confines of the Institution (i.e., the front lobby sally port

and Control Center).

Id

. at 11 , RFP No. 28. It further stated that Plaintiffs “ are amenable to entering into a Stipulation

to streamline the collection, production, and use of video/photographic evidence in this litigation.”

Id

. , RFP No. 28 n.1. The Government initially told Plaintiffs that the agency was receptive to a

stipulation; and c onsequently, the parties held a call in late June 2022 to discuss the collection and

production of video evidence

. Ex. B to Pl s .’ Redacted Mot. for Sanctions at 9

– 12 , ECF No. 1 9

- 2

.

Despite Plaintiff s ’ follow i ng up

, mon ths went by without any substantive response from the

Government about video retention or the proposed stipulation

. Id

. at 6

– 7

.

O n September 12, 20 22, Plaintiffs emailed the Government to inquire about the status of

its overdue document production and to follow up on the video stipulation. Id. E mphasizing the

time constraint posed by the upcoming discovery deadline , the Government’s delayed production,3 and counsel’s own schedule, Plaintiffs informed the Government that the production of video

evidence would no longer be useful as Plaintiffs would be unable to analyze it in a timely manner.

Id. They proposed to stipulat e that no video evidence w ould be produced or utilized

. Id

. at 7.

Plaintiffs further informed the Government that unless it provide d a substantive u pdate by

September 23, 2022

, or agreed to a no

- video stipulation, Plaintiffs w ould move to preclude the

Government from introducing video evidence. Id

.

T he Government responded o n September 16, 2022, advising that it had encountered

unexpected staffing challeng es and would have a response “ by the end of next week

. ” Id

. at 5

– 6

.

As before, the Government did not respond, prompting follow

- up email s from Plaintiffs on

September 21, September 26, and October 4, 2022, for information about video retention and the

proposed no

- video stipulation. Id

. at 3

– 5

. Finally, o n October 7, 2022, the Government informed

Plaintiffs that it wa s not receptive to entering a stipulation to preclude the use of video footage and

intended to proceed with preservation of four weeks of footage

. Id

. at 2. The Government further

stated

, in a different email that same day, that FCI Mendota had approximately 14 days of archived

video footage from five relevant cameras that it was prepared to start downloading

, which it

believed should be sufficient for this case

. Ex. C to Pl s .’ Mot. for Sanctions at 2, ECF No. 18

- 3.

What was not disclosed by the Government at the time

— because it came to light during

the briefing of the instant motion

— was the fact that FCI Mendota had previ ously preserved

approximately three months of video footage from a period immediately preceding the Complaint

that it now c annot locate. See Gov’t.’s Redacted Resp. to Pls.’ Mot. for Sanction s at 11

– 12

, ECF

No. 2 3

. Nor did the Government disclose that in December 2020 agency counsel directed the

warden at FCI Mendota not to preserve any additional video going forward, despite his intention

to do so. Id. at 20

– 21 (Decl. of Adam Eisenstein ¶¶ 4

– 5).4 B. P rocedural Background

On October 24, 2022, Plaintiffs filed the instant motion, argu ing that the Government failed

to comply with its obligation to prese rve, maintain, and produce relevant video evidence. ECF

No. 1 9 at 13. Plaintiffs contend that, at an absolute minimum, the Government should have started

preserving and retaining video footage as of May 11, 2022, when Plaintiffs made their discovery

requ est

. Id. at 1 6

. According to Plaintiffs, the Government’s belated production of video footage

is worthless to Plaintiffs because (a) there is not sufficient time to review even a few weeks of

video and utilize it during the current fact discovery period (which has since closed)

, and (b)

producing several weeks of footage from only one quarter will not cap ture a meaningful percentage

of Plaintiffs during their work time s due to rotating assignments at various posts. Id

. at 1 5, 17

– 19

.

Because any video not preserved has been permanently overwritten and because future

preservation of a sufficient sample of footage would substantially delay the litigation, Plaintiffs

conte nd that the Government’s failure to preserve and produce video evidence is incurable and

highly prejudicial

. Id

. at 15

– 16

, 18

. They ask the Court to impose two sanctions: (1) an order

preclud ing the Government from using or introducing any video footage or sti ll photographs taken

from video footage at any point in this litigation

, and (2) an adverse inference against the

Government that any video footage between May 2022 and the present would hav e shown that

Plaintiffs were inside the secured confines of FCI Mendota for 15

– 30 minutes beyond their paid

8

- hour shifts on a regular basis

. Id

. at 11, 24

.

In its opp osition

, t he Government confirms that on November 15, 2022, it delivered a hard

drive containing five weeks of video footage

, from October 1 through November 4, 2022

, to

Plaintiffs

. ECF No. 2 3 at 6. According to the Government, the delay in responding to Plaintiffs’

request for video wa s substantially justified due to staffing challenges faced by FCI Mendota and5 agency counsel. Id . at 6

– 7 , 15

. The Government denies that it failed to comply with its

preservation obligations. Id. at 9

– 10. In t he Government ’s view, it has adequately responded to

Plaintiffs’ request through the five weeks of footage produced , and Plaintiffs cannot demonstrate

any prejudice from receiving video downloaded in October 2022 versus May 2022 or even 2020.

Id. at 9

– 1 0, 13

– 14. Finally , t he Government argues that Plaintiffs cannot demonstrate an intent to

deprive them of video evidence as required for an adverse inference because the Government

produced and undertook early, good faith efforts to preserve video footage. Id . at 16

– 17.

Plaintiffs ’ reply emphasize s that the new information disclosed by the Government for the

first time in its response “further demonstrates the need to sanction the Government for its multiple

and inexcusable discovery failures.” Pls.’ Redacted Reply at 4

, ECF No. 2 5

. As evidence of

sanctionable conduct, they point to the Government ’s unilateral deci sion s to stop preserving video

footage in December 202 0 and not to preserve evidence upon receiving Plaintiffs’ request in May

2022, its inexplicable loss of the preserved 2020 video footage, and its failure to consult with

Plaintiffs or disclose the existence of the video footage collected in 2020 until after the filing of

the instant motion. Id . at 6

– 7, 1 0

– 11

. According to Plaintiffs, the se fac ts demonstrate the

Government’s intent to deprive Plaintiffs of relevant video evidence

. Id . at 15

– 16.

II. LEGAL STANDARD

“ Spoliation is the destruction or significant alteration of evidence, or failure to preserve

property for another ’ s use as evidence in pending or reasonably foreseeable litigation .” United

Med. Supply Co. , Inc. v. United States , 77 Fed. Cl. 257, 263 (2007) (quoting West v. Goodyear

Tire & Rubber Co. , 167 F.3d 776, 779 (2d Cir. 1999) )

. Federal courts have inherent authority to

sanction spoliation by parties before them to “ensure that [the party] does not benefit from its

misdeeds; to deter future misconduct; to remedy, or at least minimize, the evidentiary or financial6 damages caused by the spoliation; and . . . to preserve the integrity of the judicial process and its

truth

- seeking function.” Id

. at 264. The courts also are empowered to impose sanctions for

spoliation pursuant to the applicable rules of procedure. Id. The United States, like any other

litigant, is subject to spoliation sanctions. See M.A. Mortenson Co. v. United States , 996 F.2d

1177, 1 183

– 84 (Fed. Cir. 1993). The form and severity of the sanction depend on “(1) the degree

of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by

the opposing party; and (3) whether there is a lesser sanction th at will avoid substantial unfairness

to the opposing party and, where the offending party is seriously at fault, will serve to deter such

conduct by others in the future. ” Micron Tech., Inc. v. Rambus Inc. , 645 F.3d 1311, 132 9 (Fed.

Cir. 2011) (quoting Schmid v. Milwaukee Elec. Tool Corp. , 13 F.3d 76, 79 (3d Cir. 1994)).

When the evidence at issue is electronically stored information (“ESI”) , Rule 37(e) of the

Rules of the United States Court of Federal Claims (“RCFC”) sets th e framework for imposing

sanctions. Pursuant to that rule

,

I f 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 c annot be restored or replaced through additional

discovery

, t he 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 wit h 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

. . . .

RCFC 37(e)

.

III. DISCUSSION

The parties agree that the video evidence at issue is electronically stored information, and

thus RCFC 37(e)’s criteria apply. Based on an analysis of those factors, an order precluding the

Government from us ing video evidence in the litigation is appropr iate pursuant to RCFC 37(e)(1),7 but Plaintiffs have not demonstrated that an adverse inference is warranted.

A. The Government Failed to Take Reasonable Steps t o Preserve Evidence That I t

Had a Duty t o Preserve.

Parties have a duty to preserve evidence when litigation is “pending or reasonably

foreseeable.” Micron Tech.

, 645 F.3d at 1320 (quoting Silvestri v. Gen

. Motors Corp.

, 271 F.3d

583, 590 (4th Cir. 2001)). “This obligation to preserve evidence arises when the party has notice

that the evidence is relevant to litigation

. . . .” Id

. (quoting Kronisch v. United States

, 150 F.3d

112, 126 (2d Cir. 1998)). Here, there is no dispute that the videos requested are relevant to

Plaintiffs’ FLSA claim for unpaid pre

- and post

- shift work. See Oral Arg. Tr. at 30:2

– 7 , ECF No.

33. V ideo footage showing Plaintiffs clearing security and ent e r ing/exiting the secure d area at FCI

Mendota may help to determine whether and, if so, how much time Plaintiffs have allegedly

worked beyond their shift times

. A s Plaintiffs point out, because FCI Mendota has not

implemented the use of time clocks, video footage may be one of the only sources of evidence

about Plaintiffs’ entry and exit tim es other than witness testimony. See ECF No. 1 9 at 14.

Its relevance to Plaintiffs’ claim was known or should have been known to the Government

when the Complaint was fi l ed on November 5, 2020

. T hat conclusion is supported by the fact that

the warden at FCI Mendota apparently took it upon himself to start the process of “ preser v[ing]

security footage for the purposes of this litigation ” shortly before and/or after the filing of the

Complaint. ECF No. 2 3 at 20 (Eisenstein De cl. ¶ 4). Similar early preservation efforts appear to

have occurred in at least one other FLSA case pending in this court involving a different

correctional facility. See Ex. D to Pls.’ Mot. for Sanctions at 3, ECF No. 18

- 4 (attaching stipulation

in Ade gbite v. United States

, No. 20

- 1183C (Fed. Cl. Apr. 7, 2022), reflecting preservation of video

at FCI Sheridan from 2020

– 2022)

. The known relevance of video evidence also is demonstrated

by the fact that the Government instructed the warden to retain the 2020 video footage “in the8 event it was needed for purposes of discovery in this litigation” and specifically discussed the types

of employees who would need to be in volved in any video preservation efforts going forward.

ECF No. 2 3 at 21 (Eisenstein Decl. ¶¶ 6

– 7).

The Government does not dispute that it had a duty to preserve relevant video footage

, but

it disputes the timing of when that duty arose and the extent of footage that the duty requires the

Government to preserve. ECF No. 33 a t 21: 19

– 22:2 , 28:3

– 8 (arguing th at the Government did not

have a duty to preserve all video footage indefinitely from the date the action was fil ed)

. I t argues

that it took reasonable steps to preserve the archived footage availab l e in 2020 when the

Government became aware of Plaintiffs’ Complaint. ECF No. 2 3 at 11

– 12

. D ue to staffing

challenges, it was not until early October 2022 that the Government learned that the video footage

was lost

. See id. Perplexingly, the Government contends that “[t]he fact that FCI Mendota . . .

has been unable to locate the 2020 video footage[] does not mean that the United States has failed

to preserve video footage in this case.” Id. at 12. The Court disagrees

.

The record demonstrates that the Government’s duty to preserve video footage arose by no

later than November 2020, when the Government both learned of Plaintiffs ’ lawsuit and knew (or

should have known ) that video footage would be relevant to claims or defenses in the litigation

. 1

See Micron Tech.

, 645 F.3d at 1320

. As the Government correctly notes, the duty to preserve ESI

does not require “heroic or unduly burdensome” efforts. Incardone v. Royal Caribbean Cruises,

Ltd. , No. 16

- 20924

- CIV, 2019 WL 3779194, at *23 (S.D. Fla. Aug. 12, 2019) (quoting The Sedona

Principles, Third Edition: Best Practices, Recommendations & Principles for Addressing

Electronic Document Production

, Comment 5 .e. , 19 Sedona Conf. J. 1, 1 08 (2018) ). Nor must a

1 At the very latest, the Government was unquestionably on notice of the relevance of video

evidence w hen Plaintiffs served their RFPs on May 11, 2022

, as the Government concedes

. See

ECF No. 33 at 31:6

– 16.9 party’s preservation efforts be perfect. Reasonableness and proportionality are the measures. See

Sedona Principles , 19 Sedona Conf. J. at 108

– 09

. In this case

, the Government did not take

reasonable steps to preserve relevant video footage

.

First, aside from instructing the warden to retain the archived video at the time the

Complaint was filed, the Government undertook no preservation efforts. It fail s to explain why

the initial three months of archived video footage collected in 2020 was sufficient to meet its

prospective preservation duty and why it affirmatively instructed the warden not to preserve any

additional video footage during the litigation , despite his apparent intent to do so

. To be sure, t he

Court would not necessarily impose an indefinite preservation obligation on the Government or an

obligation that extends to video footage from the over 200 cameras at FCI Mendota , nor do

Plaintiffs argue for one. 2 The burdens associated with preserving years of video fr om Institution

cameras that would capture relevant footage may be disproportional to the needs of the case,

considering the time

- consuming nature of reviewing video evidence

. See ECF No. 1 9 at 17

(describing video review process)

. But simply arguing that the broadest interpretation of the

Government’s preservation dut y is unreasonable does not show that the Government’s actual

preservation efforts were reasonable.

If the Government had concerns about the costs or burdens posed by the parameters of ESI

preserv ation , it should have discussed them with Plaintiffs at the latest during the early meeting of

counsel. RCFC App’x A, § II.3(d) (requiring counsel to confer about “ any issues relating to

preserving discoverable information ”) ; see Sedona Principles

, 19 Sedona Conf. J. at 98

– 99 (noting

the ri sk of making unilateral electronic discovery decisions and recommending cooperative

2 For these reason s , the Government’s reliance on Incardone , in which the plaintiffs sought

over 14,000 hours of video footage taken from 200 cameras aboard a cruise ship documenting the

effects of a violent storm, is inapposite. See ECF No. 2 3 at 13.10 discussions between parties ) ; Fed. R. Civ. P. 37, advisory comm. notes, 2015 amend., subdiv. (e)

(noting that amendments to Fed. R. Civ. P. 16(b) and 26(f) “encourage discovery plans and orders

that address preservation” and that “promptly seeking judicial guidance about the extent of

reasonable preservation may be important”). A lthough a party also may make unilateral decisions

about their preservation obligations , they do so “at their own peril.” Hugler v. Sw. Fuel Mgmt.

,

No. 16 CV 4547 , 2017 WL 8941163, at *7 (C.D. Cal. May 2, 2017)

.

Second, even assuming the archived 2020 video footage was sufficient to satisfy its

preservation duty, the Government cannot locate the video s , nor can it explain what steps , if any,

FCI Mendota undertook to preserve it

. See ECF No. 2 3 at 12 ; see also ECF No. 33 at 25:6

– 2 6:10

.

The Government can represent at most only that it orally instructed the warden at FCI Mendota to

retain the archived video , and i t admits that the litigation holds put in place after the Complaint

was filed were not directed to video footage. See ECF No. 2 3 at 20

– 21 (Eisenstein Decl. ¶ 5);

ECF No. 33 at 24:6

– 25:5.

Third

, even after the Government received Plaintiffs RFP s on May 11, 2022, specifically

requesting video s

, it again took no steps to begin preserv ing relevant video footage going forward,

nor did it meaningfully engage with Plaintiffs regarding the issue of preservation or Plaintiffs’

offer of a stipulation streamlin ing production of video evidence . The stipulation would have both

reduced the burdens on the Government from collecting and producing video evidence and

provided Plaintiffs with a suitable sample of relevant video footage for use in the litigation

. The

Government has discussed and agreed to similar stipulations in other FLSA cases involving

different federal correction al institutions. See ECF No. 1 9 at 14 n.2 ; ECF No. 18

- 4 at 3

. Instead,

despite initially telling Plaintiffs it was receptive to a stipulation, the Government determined that

producing only the archived 2020 video footage (which presumably was lost by that point) would11 provide a n adequate response, see ECF No. 2 3 at 13, even t hough Plaintiffs’ request sought all

relevant video footage since November 5, 2017. It then did not respond to Plaintiffs’ request s for

information about video retention or begin to download relevant video footage until after Plaintiffs

advised that they would seek to preclude video evidence, and it did not produce any responsive

videos until after Plaintiffs filed the instant motion

. Even considering personnel shortages, the

Government’s approach to responding to Plaintiffs’ video request is not reasonable, let alone

substantially justified (as it contends)

.

Accordingly, the Court finds that t he Government failed to take reasonable steps to

preserve relevant video footage that it had a duty to preserve

.

B. The L ost V ideo F ootage C annot B e R estored o r R eplaced T hrough A dditional

D iscovery

.

The second factor of RCFC 37(e) analyzes whether the relevant video footage that the

Government failed to preserve is “lost” and “ cannot be restored or replaced through additional

discovery.” RCFC 37(e). There is no genuine dispute about the first issue of this factor

. As

explained by the Government’s counsel, the system at FCI Mendota ( as at all other fe deral

correctional institu tions) is programmed to “not continue storing video after 14 days.” ECF No.

33 at 22:22

– 25. So

, any relevant video footage created during this litigation that was not

downloaded by FCI Mendota is permanently lost. Moreover, t he Government represents that it

cannot locate the arc hived 2020 video footage that it instructed the warden to retain, despit e “a

thorough search of everywhere at FCI Mendota that the video could have been stored.” Id. at

26:11

– 17. The Government is thus unable to get back any video from the time Plaintiffs filed the

Complaint until October 1, 2022 , or after November 4, 2022

. See i d

. at 44:2 2

– 25.

T he primary dispute is whether the lost video footage can be restored or replaced through

additional discovery

. As explained in t he a dvisory c ommittee notes for Federal Rule of Civil12 Procedure 37(e), on which RCFC 37(e) is based

, the requirement that ESI must be “ lost ” reflects

the fact that ESI “ often exists in multiple locations ,” and as such “ loss from one source may often

be harmless when substitute information can be found elsewhere. ” Fed. R. Civ. P. 37, advisory

comm. notes, 2015 amend., subdiv. (e)

. Consistent with t hat commentary

, courts have analyzed

whether ESI can be “restored or replaced” by asking

, for example, whether the ESI exist ed on

digital backu p tapes or in multiple electronic versions

, could be retrieved from the defendant’s

computer hard drive or backup system or obtained from a third

- party to whom the defendant sent

a copy

, or could be produced by another part y to the litigation

. See Freidig v. Target Corp.

, 329

F.R.D. 199, 208 (W.D. Wis. 2018); Stovall v. Brykan Legends, LLC

, No. 17

- 2412, 2019 WL

480559, at *3 (D. Kan. Feb. 7, 2019) ; Greer v. Mehiel

, No. 15

- cv

- 6119, 2018 WL 1626345, at * 8

(S.D.N.Y. Mar. 29, 2018)

. Some courts have assessed whether other discoverable information that

was not identical to the lost ESI could nonetheless be considered comparable or equivalent

evidence

. See 4DD Holdings, LLC v. United States

, 143 Fed. Cl. 118, 132 (2019) (addressing

other types of ESI or documentary evidence which could be pieced together to allegedly show

f acts contained in the lost ESI ); Schmalz v. Vill. of N. Riverside

, No. 13 C 8012, 2018 WL 1704109

,

at * 4 (N.D. Ill. Mar. 23, 2018) ( addressing witness testimony about contents of deleted text

messages ); CAT3, LLC v. Black Lineage, Inc.

, 164 F. Supp. 3d 488

, 497 (S.D.N.Y. 2016)

( addressing near

- duplicate emails).

Here, the Government argues that production of the October 2022 video footage

sufficiently replaces any lost video

. See ECF No. 2 3 at 15. According to t he Government

, the five

weeks of video footage are representative of what correctional workers like Plaintiffs do as they

go through FCI Mendota ’s lobby and control center to get to the sally port

, and it is not aware of

any changes with respect to how employees enter and exit the premises sin c e the filing of the13 Complaint

. ECF No. 2 3 at 14 ; ECF No. 33 at 29:12

– 22

. If it is an inadequate sample, the

Government argues that pursuant to a pre

- negotiated schedule ( i.e.

, stipulation) it can make future

productions of video footage created prospectively

. ECF No. 2 3 at 10; ECF No. 33 at 47 :2

– 9.

Neither form of additional discovery, however, meets the “restored or replaced” criteria

.

To begin, the October 20 2 2 video footage or any future video footage produced will not depict the

same events as the videos that the Government failed to preserve. There are no digital backups,

no multiple versions, or copies of which the parties are aware. Nor does the October 20 2 2 video

provide comparable or equivalent evidence. Plaintiffs’ video request sought videotape and/or

photographs of Plaintiffs entering the security screening site and entering/exiting the secured

confines of the Institution over the course of the claim period to present

. ECF No. 1 9

- 1 at 11, RFP

No. 28. According to assignment sheets produced in discovery, 75 percent of Plaintiffs were

assigned to non

- custody positions or posts not at issue in this case during the period covered by

the October 2022 video footage. Pls.’ Reply at 13, ECF No. 24. T he foo tage produced would thus

likely contain few relevant examples showing Plaintiffs’ alleged pre

- and post

- work time s

. Id.

Accordingly, t he October 202 2 video footage does not provide as complete of a picture as would

have been provided had the Government complied with its preservation obligations because

footage produced from a longer period or at different periods would provide a better opportunity

to c apture Plaintiffs while working in positions relevant to this case. See 4DD Holdings

, 143 Fed.

Cl. at 132 (finding other evidence did not replace lost ESI where the evidence was incomplete and

did not “offer a comprehensive, reliable picture”).

The other additional discovery proposed involves the Government making future

productions of video footage covering periods that would provide a representative sample. That

option comes at the cost of substantially delaying the litigation to allow for bot h the creation and14 review of new footage. As Plaintiffs noted, in other cases in which the parties agreed to video

stipulations, the periods covered by the production range from about six months to one year. See

ECF No. 18

- 4 (attaching stipulation in Ade gbite for production of video from five periods between

August 23, 2020, through September 25, 2021); ECF No. 33 at 16: 11

– 17 (explaining that in

arbitrations involving similar claims video production may involve six weeks of footage selected

from a seven

- month period). Plaintiffs describe the review process that would follow as

“immensely time

- consuming.” ECF No. 1 9 at 13. M oreover, the Court would need to re

- open

discovery to the extent Plaintiff s wanted to use the video footage in conducting depositions of

agency witnesses

, a concern that motivated the instant motion. See ECF No. 1 9 at 15. And of

course, future production of new video cannot replace lost videos for any Plaintiff who has since

left FCI Mendota or permanently moved to a different position not at issue in the case.

The Government has cited no case or other authority that supports the proposition that lost

ESI can be “restored and replaced” with additional discovery of ESI that does not currently exist

but that will be created prospectively. 3 Indeed, in FLSA actions brought by the Secretary of Labor

against private employers

, court s have granted sanct ions motion s where the defendant

- employer s

failed to preserve video surveillance evidence that would have identified employees and the hours

they worked. See Hugler , 2017 WL 8941163

, at * 9 (finding that lost surveillance video showing

employees arriving at and leaving work, among other things, could not be restored or replaced);

see also Perez v. Sunshine Motel Inn, LLC , No. 1:15

- CV

- 3197

- RMP, 2016 WL 10585999, at *4

(E.D. Wash. Dec. 21, 2016)

.

3 The representative video in Incardone , the case on which the Government primarily

relies, was not newly created footage. In Incardone

, t he court held that the 91 minutes of video

preserved by defendants “was an accurate and sufficient representation of the storm conditions and

the effect on the ship” to show what happened during the discrete incident at issue in the litigation

. Incardone , 2019 WL 3779194, a t *15

.15 C. Plaintiffs Are Prejudiced by T he Loss of Video Footage

.

For largely the same reasons, the Court find s that Plaintiffs have been prejudiced by the

Government’ s loss of relevant video footage. See RCFC 37(e)(2). “ An evaluation of prejudice

from the loss of information necessarily includes an evaluation of the information’s importance in

the litigation

. ” Fed. R. Civ. P. 37, advisory comm. notes, 2015 amend., subdiv. (e) ; see Sedona

Principles

, 19 S edona Conf. J. at 195. “ Prejudice may appear in many forms, such as p laintiffs

being ‘ unable to fully respond to

. . . secondary evidence ’ [introduced a s indirect proof of the

evidence lost] or being required to go to great lengths in discovery to fill in the gaps in the

evidence. ” 4DD Holdings , 143 Fed. Cl. at 132 (quotin g Lab. Corp. v. United States , 108 Fed. Cl.

549, 562 (2012) ).

Here, the lost video is both unique and important. Other than video footage, the parties

have not identified any other source of evidence that would objectively show Plaintiffs clearing

security or enter ing/ exit ing FCI Mendota relative to their work shift s. Proof relating to the duration

of those activities is material to establishing a n essential element of Plaintiffs’ FLSA claim. In the

absence of videos, Plaintiffs are not left completely without proof and may seek to establish the

same facts via witness testimony. But the availability of testimon ial evidence does not necessarily

alleviate the prejudic e from the loss of the tangible ESI itself , as several courts hav e held. See,

e.g.

, Schmalz

, 2018 WL 1704109, at *4; Perez

, 2016 WL 10585999, at *4; CBF Industria de Gusa

S/A v. AMCI Holdings, Inc. , No. 13CV2581PKCJLC, 2021 WL 4190628, at *17 (S.D.N.Y. Aug.

18, 2021)

. Thus, although not fatal to Plaintiffs’ case, the loss of potentially corroborative

evidence is prejudicial in these circumstances

. 4

4 Although not raise d in its brief, at oral argument the Government suggested that the lost

video footage may not be “fully supportive of Plaintiffs’ claims.” ECF No. 33 at 29:25

– 30:1. Rule

37(e)(1) “does not place a burden of proving or disproving prejudice on one party or the other

, ”16 Further, as discussed above, t he Government ’s production of the October 2022 video

footage only partially responds to Pla intiffs’ request and is not sufficient to replace the lost videos

that the Government failed to preserve , given that the five weeks of footage was taken in a single

quarter that at best would capture only 25 percent of Plaintiffs in this matter. Even if it depicts

employees in general passing through security screening and in/out of the secured area , Plaintiffs’

ability to test the probative value of the footage is hampered by the fact that no other video to

which it could be compared has been properly pr eserved since the filing of the Complaint

. On the

flip side, attempting to substitute the lost video footage with an adequate sample created

prospectively will substantially delay litigation, which is unduly prejudicial to Plaintiffs. Although

the Govern ment correctly notes that the Court has not yet issued a scheduling order for dispositive

motions or trial, the efforts to create and review additional videos would take many months to a

year

. That delay would be unfairly borne by Plaintiffs when it was directly caused by the

Government’s unreasonable conduct and when Plaintiffs

— who ultimately bear the burden of

proof

— want to proceed to trial without video evidence

.

D. Remedial Measures Are Appropriate Under RCFC 3 7(e)(1).

Because the Court has made a finding of prejudice, remedial measures under RCFC

37(e)(1) are appropriate. The range of measures available are broad and subject to the Court’s

discretion; however, they may be “no greater than necessary to cure the prejudice.” RCF C

and it acknowledges that “ placing the burden of proving prejudice on the party that did not lose

the information may be unfair ” in situations where it is difficult to determine the content of the

lost information. Fed. R. Civ. P. 37

, advisory comm. notes, 2015 amend., subdiv. (e)(1). In this

case , we know generally what the footage would have depicted ( i.e.

, Plaintiffs and other employees

arriving at and leaving work), but it cannot be known now whether it is “fully supportive” of one

party or the other. Faulting Plaintiffs for not proving the exact facts shown by the lost v ideo,

however, would seem an unfairly high bar where the absence of the information is the result of the

Government’s failures.17 37(e)(1). Plaintiffs argue that precluding the Government from using video evidence in this

litigation is the proper remedy. The Court agrees.

The advisory notes to Rule 37(e) recognize that in appropriate cases a court may forbid

parties that failed t o preserve ESI from putting on certain evidence or exclud e specific items of

evidence to mitigate prejudice caused by a party’s failure to preserve other evidence that might

contradict the excluded item s

. See Fed. R. Civ. P. 37, advisory comm. notes, 2015 amend., subdiv.

(e)(1)

. A similar remedial measure was imposed in a FLSA case where the defendant

- employer

failed to preserve relevant video evidence. See Hugler , 2017 WL 8941163

, at * 11 ( ordering u nder

Rule 37(e)(1) that d efendants were precluded “ from using any

. . . videos to support any motion

(including a discovery motion), at any hearing, and at the bench trial ” )

. And the Government

agreed to the same measure in yet another FLSA case pending in thi s court involving a different

correctional facility

. See ECF No. 2 5 at 9 n.1 (citing Joint Status Report, Alexander v. United

States , No. 21

- 1143 (Fed. Cl. Apr. 1, 2 022) (stipulating that “ no footage or photographs from

internal prison security cameras will be produced, introduced, or used for any purpose in the

litigation” due t o “the Agency’s inability to capture the previously agreed

- upon video footage by

the agreed

- upon deadline”) )

. T he Government is therefore precluded from introducing as

e vidence , at any point in this case, video footage or still photographs taken from video footage

from Institution cameras

.

E. The Government’s Actions Do Not Rise to The Level of A n Intent to Deprive

Plaintiffs of The Use of Video Footage.

Although curative measures are warranted, the Government’s conduct does not rise to the

level that justifies an adverse inference. As explained in 4DD Holdings , courts have interpreted

Rule 3 7(e) “ to require a showing of anything from bad faith to irresponsible behavior that lacks

any other explanation than intent to deprive .” 4DD Holdings , 143 Fed. Cl. at 133 (collecting18 cases). Since the rule’s amendment in 2015, mere negligence or even gross negligence is no longer

sufficient. Id. ; see Fed. R. Civ. P. 37, advisory comm. notes, 2015 amend., subdiv. (e)(2)

.

According to Plaintiffs, the Government’s months

- long delay in production and

unacceptable lack of communication demonstrate “blatantly irresponsible,” not just negligent

,

behavior. ECF No. 1 9 at 23 ; see ECF No. 2 5 at 15. They point to the Government ’s deliberate

and intentional decision s to stop preserving video evidence in 2020 and not to preserve video

evidence beginning in May 2022 when it received Plaintiffs’ request

. See ECF N o. 2 5 at 1 6

. T hat

the Government produced some video footage is ir relevant to whether it acted with an intent to

deprive , Plaintiffs contend, because the footage produced by the Government is not sufficient to

respond to Plaintiffs’ RFP

. Id . at 1 7

. They argue that, in sum, the actions show “unambiguously

an ‘intentional effort’ to keep Plaintiff s from accessing relevant video evidence. ” Id. at 16.

Although grossly negligent, the Government’s actions do not demonstrate an “ intent to

deprive ” Plaintiffs of the use of video evidence in the litigation . RCFC 37(e)(2). T he Government

made some efforts at preservation, most notably by download ing and archiv ing video footage

before and shortly after the Complaint was filed and by direct ing the ward en at FCI Mendota to

preserve th at footage for purposes of the litigation. T he Government completely fails to explain

how the footage was lost, but there is no evidence that it was intentionally destroyed. The most

reasonable inference from the facts is that the downloaded footage was inadvertently lost due to

personnel turnover at FCI Mendota

. To be sure, the Government’s decisions in 2020 and 2022 not

to preserve additional footage were deliberate and intentional ; however, there is no evidence that

the underlying rationale was to deprive Plaintiffs of the use of video evidence

. Rather, t he

Government explains that it considered retaining the 2020 footage sufficient to meet its

preservation obligations and to respond to Plaintiffs’ video request. That position may have been19 legally incorrect , but it does not necessarily evince bad faith. Furthermore, t he Government

produced some video footage in r esponse to Plaintiff s’ discovery request , albeit in a very belated

and incomplete manner. Overall, t he Government certainly could have approached the issue of

video preservation more proactively and collaboratively, provided more specific guidance to FCI

Mendota for properly retaining available video footage, and been more cooperative and responsive

in the discovery process. At most, however, this rises to gross negligence, not intent to deprive

.

Therefore, the Court will not draw an adverse inference against the Government

.

IV. CONCLUSION

For the reasons set forth above

, the Court GRANTS IN PART and DENIES IN PART

Plaintiffs’ Motion for Sanctions (ECF No. 18). The Government is precluded from using or

introducing any video footage or still photographs taken from video footage from FCI Mendota

cameras at any point in this litigation.

This opinion and order will be unsealed in its entirety after April 19, 2023 , unless the parties

submit by no later than April 17, 2023 , an objection specifically identifying the protected

information subject to redaction. Any objecting party must submit a proposed redacted version of

the decision and provide the reason(s) supporting the party’s request for redaction.

SO ORDERED.

Dated: April 7, 2023 /s/ Kathryn C. Davis

KATHRYN C. DAVIS

Judge