Preserving Camera Footage In Anticipation Of Litigation

In Chepilko v. Henry, the Southern District of New York denied plaintiff's motion for spoliation sanctions, finding that a public records request and a civilian complaint did not trigger defendants' duty to preserve electronic evidence. In the ruling, Magistrate Judge Stewart D. Aaron analyzed when one's obligation to preserve camera footage "in anticipation of litigation" arises for purposes of Rule 37(e) spoliation.

Chepilko v. Henry Background

Plaintiff alleged one defendant — a lieutenant with the New York City Police Department (NYPD) — used excessive force during a street encounter.¹ One year later, plaintiff brought claims against the defendant and the NYPD, including for excessive force, failure to intervene, and malicious prosecution.During discovery, a dispute arose regarding preservation (or lack thereof) of NYPD camera footage that may have captured the incident. Although the footage at issue was destroyed pursuant to the NYPD's 30-day retention