                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA


 AARON BALL,

                Plaintiff,

        v.                                                 Civil Action No. 17-cv-0507 (DLF)

 GEORGE WASHINGTON UNIVERSITY,

                Defendant.


                             MEMORANDUM OPINION & ORDER

       Aaron Ball sued his former employer, George Washington University (GW), for

wrongful termination, negligence, and violations of the Americans with Disabilities Act, the

D.C. Human Rights Act, and the Family and Medical Leave Act. Before the Court is Ball’s

motion for sanctions against GW for allegedly destroying two surveillance videos. For the

following reasons, the Court will deny the motion.

I. BACKGROUND

       In the investigation preceding the termination of Ball’s employment, GW considered

surveillance footage from two days (July 13 and 14, 2015) that showed Ball entering and exiting

buildings on campus. Def.’s Opp’n at 1, 3, Dkt. 26. GW produced a July 13 video of Ball in one

building, Guthridge Hall, and that video is not at issue here. Def.’s Opp’n at 4, Dkt. 26; Pl.’s

Mot. at 3, Dkt. 24. GW also produced screenshots of the July 14 surveillance footage from

another building, Lafayette Hall, but it did not produce videos of Lafayette Hall for either July 13

or July 14, which reportedly showed Ball entering and exiting at different times than he had

indicated on his time sheet. Robinson Decl. ¶ 9, Dkt. 26-2; Def.’s Ex. 9, Dkt. 26-9; Def.’s Ex. 3

at Ball_001305–07, Dkt. 26-3.

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       The surveillance footage was recorded on network video recorders that automatically

delete old footage as the recorders become full. Paradis Decl. ¶¶ 3–5, Dkt. 26-1; Robinson Decl.

¶¶ 2–4, Dkt. 26-2. The video recorders that stored the July 13 and 14 Lafayette Hall footage at

issue here typically delete footage every 30 days (and sometimes as early as 14 days) after

recording. Paradis Decl. ¶ 6, Dkt. 26-1; Robinson Decl. ¶ 5, Dkt. 26-2. GW police officers

routinely permanently download surveillance footage for use in criminal investigations;

however, they download surveillance footage for Human Resources (HR) investigations only

upon an HR investigator’s request. Robinson Decl. ¶¶ 7–8, Dkt. 26-2.

       In this case, the parties dispute whether the footage at issue was downloaded. Ball

contends that the surveillance footage was permanently stored on CDs and given to Claude

Owens, a member of GW’s HR department, and ultimately to GW’s in-house counsel. Pl.’s Mot.

at 2–4, 6, Dkt. 24. Ball further argues that the videos’ alleged non-existence shows that GW’s

in-house counsel destroyed or lost the videos. Id. at 3, 6. GW counters that the surveillance

footage was not permanently stored but instead was automatically overwritten within 30 days

(and possibly 14 days) of recording. Def.’s Opp’n. at 1–12, Dkt. 26.

II. LEGAL STANDARD

       Rule 37(e) of the Federal Rules of Civil Procedure sets forth the inquiry that courts must

conduct in deciding whether to impose sanctions for the failure to preserve electronically stored

information (ESI). Courts consider whether (1) the ESI “should have been preserved in the

anticipation or conduct of litigation”; (2) the ESI “is lost because a party failed to take reasonable

steps to preserve it”; and (3) the ESI “cannot be restored or replaced through additional

discovery.” Fed. R. Civ. P. 37(e). The burden of proof is on the party alleging spoliation. See,

e.g., Vasser v. Shulkin, No. 14-0185, 2017 WL 5634860, at *3 (D.D.C. Nov. 22, 2017) (“A



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movant seeking sanctions for spoliation must demonstrate that the subject documents actually

existed.”). 1

III. ANALYSIS

        The parties do not dispute that the July 13 and 14 surveillance footage of Ball once

existed. The question is whether the surveillance footage existed on the date on which GW had a

legal obligation to preserve the footage. But the Court need not determine precisely when that

legal obligation arose, because Ball concedes that if the videos were automatically overwritten

within 14–30 days, as GW claims, this “would likely be enough to end this Court’s inquiry.” 2

Pl.’s Reply at 8, Dkt. 27; see also id. at 2–3 (“Plaintiff’s request for spoliation is based entirely

on the fact that the footage of the Lafayette Basement, Lafayette Sixth Floor, and Guthridge Hall

was copied onto CDs . . . . [I]t is irrelevant that Defendant’s video surveillance system

overwrites video footage every fourteen (14) to thirty (30) days, as Plaintiff is not arguing that

type of destruction constitutes spoliation.”). The Court therefore first addresses whether GW

permanently stored the July 13 and 14 surveillance footage at issue.




1
 Recent decisions have noted that it is unsettled whether a preponderance-of-the-evidence or
higher standard applies in this context. See Yoe v. Crescent Sock Co., No. 1:15-cv-3-SKL, 2017
WL 5479932, at *9 n.7 (E.D. Tenn. Nov. 14, 2017); Jenkins v. Woody, No. 3:15-cv-355, 2017
WL 362475, at *12 (E.D. Va. Jan. 21, 2017). The Court need not resolve whether a higher
evidentiary standard applies because Ball cannot prevail even under a preponderance-of-the-
evidence standard.
2
 Although Ball argues that Wells and Owens should have known that they had a duty to preserve
all three videos because Owens stated during his deposition that he sought to retain the videos,
Pl.’s Reply at 6–7, Dkt. 27, Owens testified that he was concerned with viewing, not preserving,
the surveillance footage, see Owens Dep. 52:20–21, Dkt. 26-8 (“I just asked them to -- to get it
so we could view it.”). Moreover, in his motion, Ball does not argue that GW had a duty to copy
the surveillance footage before it was overwritten; instead, he asserts that the videos “were
clearly copied” but not produced during discovery. See Pl.’s Mot. at 4, Dkt. 24.

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       Relying on the depositions of Wells and Owens, Ball argues that GW permanently stored

the relevant surveillance footage before it was overwritten. As Ball notes, Wells testified that

“[t]here were copies” of the surveillance videos, which “were given to Claude Owens.” Wells

Dep. 71:6–12, Dkt. 24-2. Wells stated that he “never had a copy” of the tapes, 3 and he was never

asked to obtain them. Id. at 74:1–6. And on January 29, 2018, the date of his deposition, Wells

testified that he thought Owens had the tapes. Id. at 74:9–11. Wells explained that when Owens

asked Wells whether he had the tape, Wells told him that he never had it and that Owens had the

original. Id. at 76:5–8. According to Wells, Owens thought he might have given the tape to “the

lawyers.” Id. at 76:10–20.

       During his deposition, Owens answered affirmatively when asked a question about

providing the tapes to GW’s general counsel’s office. Owens Dep. 14:1–11, Dkt. 27-5.

Specifically, Owens stated that he had provided the general counsel’s office with a tape of the

6th floor of Lafayette Hall, but not the basement of Lafayette. 4 Id. at 14:12–17. Owens

acknowledged that he had last seen the surveillance footage of the Lafayette basement in 2015.

Id. at 15:1–6.

       GW counters that the surveillance footage was overwritten in the normal course of

business. And GW offers an alternative explanation for the testimony of Wells and Owens: there




3
  Wells is not clear about the number of tapes that existed; he stated “tape” and “tapes” at
different times in reference to the videos. Compare Wells Dep. 71:12, Dkt. 24-2, with id. at
74:6. Although Ball argues that Owens “knew there were ‘CDs’ plural in the envelope because
he felt the envelope,” Pl.’s Reply at 2, Dkt. 27 (citing Owens Dep. 142:16–20, Dkt. 27-5), it is
unclear whether Owens’s use of the plural “CDs” was intended to affirmatively represent that
there was more than one CD in the envelope.
4
 Owens also said that he could not remember if he had provided the general counsel’s office
with the first video of Guthridge Hall, Owens Dep. 14:18–22, Dkt. 27-5; that video, however,
was clearly copied and is not contested by the plaintiff here.
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was a misunderstanding. Def.’s Opp’n. at 8, Dkt. 26. GW argues that Owens was confused

about the contents of the envelope he received because, as he admitted, he never opened the

sealed envelope. Owens Dep. 141:11–143:1, Dkt. 27-5. Wells initially said Owens had

commented that he “thought maybe he had given [the second, Lafayette Hall basement video]

possibly to I guess the lawyers. I don’t know.” Wells Dep. 76:10–11, Dkt. 24-2. But Wells

later commented, “You are talking to the wrong guy about that. All I did was visually looked at

it. Who had it after that, I have no idea.” Id. at 130:17–21, Dkt. 26-6.

       Detective Robinson, who testified that he showed Owens and Wells the surveillance

footage at separate times, stated that he never downloaded the Lafayette Hall sixth floor footage.

Robinson Decl. ¶¶ 9–10, Dkt. 26-2. Rather, Robinson took a couple screenshots when showing

Owens the footage in August 2015, which he later sent to Owens. Id. ¶ 9. And, in April 2017,

Owens delivered the still-sealed envelope to Richard Weitzner, Senior Counsel in GW’s Office

of General Counsel. Weitzner Decl. ¶ 2, Dkt. 26-12. Weitzner, in turn, sent the package to

Alexandra Romero, an associate at Arent Fox LLP, who opened the sealed envelope and viewed

the single video file on the CD; there was no video of Lafayette Hall. Id. ¶ 3; Romero Decl. ¶ 2,

Dkt. 26-13.

       Although the evidence before the Court is unclear, the weight of the evidence tilts in

favor of GW’s explanation. Robinson’s declaration, coupled with evidence that the envelope

remained sealed until Romero opened it, supports a finding that the surveillance footage of

Lafayette Hall was never downloaded from the video recorders. Robinson stated that he never

downloaded the Lafayette Hall sixth floor footage. Robinson Decl. ¶¶ 9–10, Dkt. 26-2. And

Owens testified that neither he nor Wells ever opened the sealed envelope. Owens Dep. 140:7–

142:15, Dkt. 26-8. To the extent that the deposition testimony of Wells and Owens provides any



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support for Ball’s theory, the evidence is speculative and inconclusive. Cf. Putscher v. Smith’s

Food & Drug Ctrs., Inc., No. 2:13-cv-1509, 2014 WL 2835315 (D. Nev. June 20, 2014)

(denying spoliation sanctions where no evidence that surveillance footage existed other than a

witness’s speculative comments); Mahaffey v. Marriott Int’l., Inc., 898 F. Supp. 2d 54, 59

(D.D.C. 2012) (concluding defendants had no duty to preserve surveillance video when “the

record [was] muddled concerning whether the requested video images were still in existence at

the time that the duty to preserve attached”). Because Ball has not proven—even by a

preponderance of the evidence—that GW permanently stored the Lafayette Hall surveillance

footage, the Court need not conduct further inquiry under Rule 37(e).



                                        CONCLUSION

       For the foregoing reasons, the Court denies Ball’s Motion for Sanctions Pursuant to Fed.

R. Civ. P. 37(e). Accordingly, it is

       ORDERED that the plaintiff’s Motion for Sanctions, Dkt. 24, is DENIED.

       SO ORDERED.


                                                            ________________________
                                                            DABNEY L. FRIEDRICH
                                                            United States District Judge

Date: September 27, 2018




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