The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
KIZZIE SIMS, individually and as )
Special Administrator of the Estate of )
Gregory Neil Davis, )
)
Plaintiff, )
)
v. ) Case No. CIV-23-780-R
)
BOARD OF COUNTY )
COMMISSIONERS FOR OKLAHOMA )
COUNTY, et al., )
)
Defendants. )
ORDER
Before the Court is Plaintiff’s Motion for Sanctions [Doc. No. 125] seeking an
adverse inference instruction or other appropriate sanctions against Defendants Oklahoma
County Criminal Justice Authority and the Jail Administrator (in his official capacity)
based on their failure to preserve surveillance video. The matter is fully briefed [Doc. Nos.
136, 138] and at issue.
Relevant Background
This action arises from the death of Gregory Davis while he was incarcerated at the
Oklahoma County Detention Center. Plaintiff, the administrator of Mr. Davis’s estate,
alleges that Mr. Davis’s death from a perforated duodenal ulcer resulted from deficient
medical care and observation by the jail medical and detention staff. Among other things,
she faults the jail for not performing proper welfare checks on inmates and for not
responding to obvious medical needs. She asserts claims against numerous defendants
under 42 U.S.C. § 1983 for deliberate indifference to serious medical needs and negligence
under state law.
In the present motion, Plaintiff seeks sanctions against Defendant Oklahoma County
Criminal Justice Authority, the entity responsible for the operation of the jail, and
Administrator of the jail in his official capacity, for failing to preserve surveillance video
depicting the nine days Mr. Davis was incarcerated. The only video that was preserved
depicts the jail and medical staff responding to Mr. Davis’s cell after he was found
unresponsive. Plaintiff argues that the additional video surveillance would have been the
most direct evidence of Mr. Davis’s condition and the jail staff’s actions, including whether
they performed welfare checks, in the days preceding the death.
Standard
Federal Rule of Civil Procedure 37(e) governs the preservation of electronically
stored information, including video surveillance. See Hayes v. Owen, No. 22-CV-00230-
CVE-SH, 2023 WL 8543509, at *2 (N.D. Okla. Dec. 11, 2023). The Rule states:
If 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 cannot be restored or replaced through
additional discovery, the 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 with 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;
(B) instruct the jury that it may or must presume the information was
unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e). “As the party seeking relief, plaintiff bears the burden of
demonstrating that the requirements of Fed. R. Civ. P. 37(e) are met.” Bush v. Bowling,
No. 19-CV-00098-GKF-FHM, 2020 WL 5423986, at *2 (N.D. Okla. Sept. 10, 2020).
Discussion
The first step in the Rule 37(e) analysis is to determine whether the ESI “should
have been preserved in the anticipation or conduct of litigation.” This requirement is based
on the common-law “duty to preserve relevant information when litigation is reasonably
foreseeable.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. In
deciding “whether and when a duty to preserve arose[,] [c]ourts should consider the extent
to which a party was on notice that litigation was likely and that the information would be
relevant.” Id. Notably, several district courts have concluded “that government defendants
should reasonably anticipate litigation when a person dies while in the government’s
custody.” Bush, 2020 WL 5423986, at *3 (citing Bistrian v. Levi, — F. Supp. 3d —, 2020
WL 1443735, at *6 (E.D. Pa. Mar. 24, 2020) (collecting cases)). But ultimately, “the court's
decision as to when a party was on notice must be guided by the particular facts of each
case.” Zbylski v. Douglas Cnty. Sch. Dist., 154 F. Supp. 3d 1146, 1164 (D. Colo. 2015).
Plaintiff has met her burden of showing that Defendants should have preserved
additional video surveillance in the anticipation of litigation. Deposition testimony from
the jail employees that investigated Mr. Davis’s death shows they appreciated the need to
preserve evidence related to Mr. Davis for potential future litigation or criminal action.
Doc. No. 125-1, 50:1-51:10; Doc. No. 125-3, 22:21-23:18, 30:9-31:21; Doc. NO. 136:1,
14-17; Doc. No. 138-1, 48:11-25. The deposition testimony further establishes that the
investigators recognized the need to preserve evidence showing what transpired in the
hours before Mr. Davis was found unresponsive, including for the purpose of showing
whether the welfare checks were performed. Id. Thus, the OCCJA was on notice that Mr.
Davis’s in custody death was likely to result in litigation and that surveillance video of the
hours preceding his death, not just the moments where he was found unresponsive, would
be relevant.
The next step in the Rule 37(e) analysis is to determine whether the information was
“lost because a party failed to take reasonable steps to preserve it” and if so, whether “it
cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). Plaintiff
has established, and Defendants do not genuinely dispute, that the video surveillance could
have been easily preserved but Defendants instead allowed the video to be deleted or
written over.
Because these foundational requirements are satisfied, the Court next considers
whether sanctions under Rule 37(e)(1), providing for curative measures upon a finding of
prejudice, or Rule 37(e)(2), providing for more severe sanctions upon a showing of intent,
are warranted. Taking the latter provision first, the sanctions outlined in Rule 37(e)(2) are
not appropriate because Plaintiff has not established that Defendants acted with an intent
to deprive the other party of the information. The investigator responsible for preserving
the surveillance video testified that the video was not properly protected in the computer
system, that it was a mistake, and that he simply forgot to complete the protection process.
Doc. No 125-3 23:19-24:9, 26:21-26:24. Although this might suggest that Defendants were
negligent in failing to preserve additional video evidence, “[n]egligent or even grossly
negligent behavior does not logically support” sanctions under Rule 37(e)(2).
Whether curative measures under Rule 37(e)(1) are warranted is another matter.
Such measures are only appropriate “upon finding prejudice to another party from loss of
the information.” “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(e) advisory committee’s note to 2015 amendment. Defendants argues that the lack of
surveillance video is not prejudicial because the cameras do not see inside the prison cells
or record audio.1 The lack of audio and video inside the cell, which Plaintiff does not
dispute, undercuts Plaintiff’s argument that the missing video would provide compelling
evidence of Mr. Davis’s medical condition leading up to this death. However, the
surveillance video would undoubtedly provide objective evidence of whether and when
welfare checks occurred, which is a significant component of Plaintiff’s claims. Although
there are log books and witness testimony describing the welfare checks, Plaintiff has
introduced evidence indicating that the log books are sometimes forged and the welfare
checks are not always performed properly. The surveillance video would have lent
credibility to Plaintiff’s theory. However, the prejudice to Plaintiff is somewhat reduced
1 Actually, the bulk of Defendants argument is directed at chastising Plaintiff for failing to
obtain body camera footage from the police officers that initially arrested Mr. Davis, nine
days before he died at the jail. This argument is misplaced. The issue here is whether
Defendants satisfied their obligation to preserve surveillance video of the jail. Although
the body camera footage may be relevant to the claims and defenses in this action, that
footage is hardly the same as the jail surveillance video which, as explained above, is
relevant to Plaintiff’s claim that jail staff failed to perform welfare checks in the hours
preceding Mr. Davis’s death.
given that the missing footage did not record audio or video footage of Mr. Davis while he
was confined to his cell.
Having concluded that the requirements of Rule 37(e)(1) have been established, the
Court “may order measures no greater than necessary to cure the prejudice.” Permitting
limited evidence and argument to the jury explaining that there was additional video
surveillance but Defendants did not preserve the video is an appropriate measure to cure
the prejudice to Plaintiff. The parties may present their positions as to the scope of evidence
and argument that should be permitted on the subject at the pre-trial conference.
Accordingly, Plaintiff's Motion for Sanctions [Doc. No. 125] is GRANTED, as set
out above.
IT IS SO ORDERED this 34 day of February, 2026.
UNITED STATES DISTRICT JUDGE