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Case shelved under Reasonableness

Court Declines to Grant Default Judgment for Deleted Video in Prisoner Assault Case

Cretacci v. Hare
E.D. Tenn. January 20, 2021
Why This Case Is Important

When seeking spoliation sanctions, it’s imperative that the moving party thoroughly think through the remedies that a party requests of the court. In this case, the plaintiff only requested the most severe remedy—a default judgment—which was denied even though lesser sanctions were warranted.


In this prisoner civil rights action suit, the plaintiff filed a motion for spoliation sanctions against the defendants for not producing video evidence of the alleged assault on the plaintiff.

The plaintiff accused the defendant of using excessive force against him and alleged that the incident was caught on videotape. About a month after the incident the plaintiff asked the defendants to save the video of the assault. The defendants allege that the letter was not seen until nearly 2 years after the incident.

The video was never produced and the defendant admits the video “was never preserved, and it does not exist today.” The defendant usually will retain video footage for 30 to 45 days. Subsequently the plaintiff moved for spoliation sanctions.

  • Court Denies Spoliation Motion. Since the plaintiff only requested a default judgment against the defendants for the spoliation, the court denied the plaintiff’s motion. In spite of this, the court acknowledged that the plaintiff deserved some remedy based on the plaintiff being prejudiced by the loss of the video.
  • Duty to Preserve Video. The defendant had a duty upon receiving the letter from the plaintiff’s counsel “indicating he was investigating potential causes of action from the alleged assault,” which was received 30 days after the incident, within the usual timeframe when videos would still be preserved.
  • No Reasonable Steps, No Restoration. The court found the defendants took no reasonable steps to preserve the video and the video could not replaced. Additionally the plaintiff was prejudiced by this spoliation since a video of an assault is at the heart of the plaintiff’s claim. But the court ruled that the plaintiff never proved that the defendant has an intent to deprive the video evidence from the plaintiff.
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Legal Analysis
On Cretacci v. Hare
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

Defendants’ spoliation of critical videotape evidence, after three county officials were asked to preserve it, might have led another judge to conclude that defendants intentionally deprived plaintiff of the evidence—especially given the county’s failure to produce requested video evidence in past inmate cases. After failing to find that intent, Magistrate Judge Lee opted not to grant any remedy at all.

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