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From the Desk of Brian Schiewe:
In Washington, the harshest discovery sanctions are reserved for the most egregious conduct. In an attempt to balance the need to deter violations with a preference of deciding cases on their merits, our Courts are required to explicitly consider (and often select) less severe sanctions before ruling.But what violations and acts can justify the harshest sanction of all: a default judgment on liability? This is the question that the Washington Court of Appeals analyzed in a recent decision.
A default judgment on liability is an appropriate discovery sanction whenspoliation – combined with multiple discovery violations – makes it difficult for the opposing party to uncover the spoliation. While Washington courts traditionally do not grant default judgment in spoliation cases, the Court, found on the facts of this case that spoliation coupled with the multiple discovery violations warranted this harsh sanction.
J.K. v. Bellevue Sch. Dist. No. 405, No. 81234-3-I, 2021 Wash. App. LEXIS 2882 (Ct. App. Dec. 6, 2021)
This case stems from a series of May 2017 incidents involving J.K., a first-grader at Eastgate Elementary (“Eastgate”) who was allegedly sexually abused by a schoolmate B.V. at school and on the school bus. Eastgate had surveillance cameras in the school and on the bus that may have captured footage of J.K. and B.V. Like most surveillance videos, the cameras preserved video for 30 days before they automatically overwrote old footage if no action was taken to preserve the footage.
The abuse was immediately reported to the school. After reviewing the school footage, the principal prepared a notice of disciplinary action that stated B.V. inappropriately touched another student. At that time, the school district (“BSD”) did not preserve any video footage.
In June 2017, BSD received a tort claim form and a litigation hold letter from J.K. requesting that BSD preserve surveillance footage from the school and the buses. In October 2017, the school district was served with a complaint. In November 2017, the school district was served with discovery requests seeking videos related to J.K. and B.V. This first request instructed “[i]f any video was, but is no longer, in [BSD’s] possession…, please state what disposition was made of the document.”
The day before responses were due, BSD, for the first time, acted to preserve surveillance footage from the school cameras. The recovered footage only covered dates after the children had stopped attending school together. In its responses to the first set of discovery, BSD said that there was no responsive bus video and that the school video dated back to May 27. It failed to mention whether it previously possessed any responsive video footage.
J.K. and the trial court attempted many times to compel complete answers and BSD repeatedly failed to comply with the court’s orders. When BSD produced late responses, it failed to answer the questions completely by leaving out important evidence like who had knowledge of the footage destruction, and the principal’s emails regarding reviewing the footage. After continuous inadequate responses from BSD, J.K. moved for a discovery sanction of default judgment on liability against BSD.
The trial court granted J.K.’s motion and held that BSD had committed spoliation, and repeatedly violated the court’s discovery orders. In its appeal BSD contended that it did not commit sanctionable spoliation because the footage that was destroyed was irrelevant and that it lacked the requisite culpability. BSD also argued that Washington case law does not allow default judgments for spoliation.
Spoliation occurs when one intentionally destructs evidence and “encompass[es] a broad range of acts”. Henderson v. Tyrrell, 80 Wn. App. 592, 605, 910 P.2d 522 (1996). When deciding whether sanctionable spoliation occurred, courts weigh: “(1) the potential importance or relevance of the missing evidence and (2) the culpability or fault of the adverse [and spoliating] party.” Tavai v. Walmart Stores, Inc., 176 Wn. App. 122, 135, 307 P.3d 811 (2013). Courts look to the circumstances around the case to determine if missing evidence is potentially important or relevant like “whether the [non-spoliating] party was given an adequate opportunity to examine [the missing evidence]”. Id. at 135. When determining the culpability of the spoliating party courts can consider “the party’s bad faith, whether that party had a duty to preserve the evidence, and whether the party knew that the evidence was important to the pending litigation.” Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892, 900, 138 P.3d 654 (2006).
B. Discovery Violations
“Discovery sanctions are generally within the sound discretion of the trial court.” Teter v. Deck, 174 Wn. 2d 207, 216, 274 P. 3d 336 (2012). For all sanctions, the Court must conduct a Burnet analysis on record. Id. Under Burnet, the Court must determine on the record if “(1) the discovery violation was willful or deliberate; (2) the violation substantially prejudice the opponent’s ability to prepare for trial; and (3) the Court explicitly considered less severe sanctions. Id. The purpose of sanction orders is to deter, to punish, to compensate, and to educate.
To determine if BSD committed sanctionable spoliation, the Court discussed if the video footage was potentially important or relevant and if BSD had the requisite culpability. BSD argued that the destroyed video footage was not relevant because the cameras did not capture the areas where the two children interacted. When the Court considered the school video footage, they acknowledged that while some cameras did not capture the spaces that J.K. and B.V. occupied, it was still possible that they could have captured relevant information in the background like the playground where the children had recess together. Thus, there was potential that the footage, even from a distance, could show J.K. and B.V. interacting or give some idea about the supervision on the playground. The bus footage was even more likely to have been important and relevant as the two children rode the bus together and would have appeared on the footage. Additionally, the Court felt that J.K. had not had a chance to examine the destroyed evidence, which further supported the trial court’s opinion.
Next the Court addressed BSD’s argument that it lacked the requisite culpability and merely acted negligently. Considering the facts that the principal sent an “urgent” request for footage viewing software to be installed in his computer, and BSD receiving a litigation hold from J.K., the trial court found that BSD reasonably anticipated litigation and knew that the video footage was potentially important evidence. The Court agreed with the trial court’s holdings that BSD was not merely negligent but acted with sufficient culpability to justify sanctions.
After finding that BSD’s spoliation warranted sanctions, the Court addressed if default judgment was a permissible sanction under the Burnet factors. Acknowledging that Washington courts usually treat spoliation as an evidentiary matter remedied through adverse-inference instruction, the Court considered the severity of BSD’s violations. Additionally, the Court pointed out that in this case the default judgment was entered not only for the spoliation but also for the discovery violations. After determining that BSD’s actions were willful, that it was substantially prejudicial, and that no lesser sanction would suffice, the Court affirmed that the Burnet factors supported the harsh sanction of a default judgment.
The Big Picture:
The big take-away from this case is to know when your duty to preserve arises, whether it arises from being told in a hold letter or through an applicable preservation policy. If surveillance video footage is lost or overwritten, be forthcoming and do not provide evasive or incomplete discovery answers. While it is not uncommon for video footage to be lost due to automatic overwriting policies, every effort should be made to preserve evidence. But if there is spoliation and later discovery violations that make it difficult to uncover the spoliation, be prepared for a harsher punishment.