United States Court of Appeals For the Seventh Circuit
Civil Procedure — spoliation
Even though a prison’s recording of an incident between a prisoner and staff was not preserved, the prisoner is not entitled to an adverse inference instruction in his excessive force claim.
“We recognize that a number of district courts have issued adverse inference instructions in situations similar to Bracey’s. See Kounelis v. Sherrer, 529 F. Supp. 2d 503, 519-21 (D.N.J. 2008); LaJocies v. City of N. Las Vegas, No. 2:08-cv-606-GMN-GWF, 2011 WL 1630331, at *3-5 (D. Nev. Apr. 28, 2011); Peschel v. City of Missoula, 664 F. Supp. 2d 1137, 1143-44 (D. Mont. 2009). That other trial courts have reached different conclusions on similar facts, however, does not amount to an abuse of discretion by the district court in this case. Indeed, discretion by its very nature permits different judges to reach different—but reasonable—conclusions on the same set of facts. Some circuits have adopted less stringent standards than we require for issuing an adverse inference instruction. Compare Park, 297 F.3d at 615 (requiring intentional destruction in bad faith), with Adkins v. Wolever, 692 F.3d 499, 504-05 (6th Cir. 2012) (requiring only negligent destruction and a duty to preserve), and Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (bad faith not required for adverse inference instruction). Simply establishing a duty to preserve evidence or even the negligent destruction of evidence does not automatically entitle a litigant to an adverse inference instruction in this circuit. Bracey has not made the requisite showing of bad faith, and we cannot conclude that the district court abused its discretion in declining to issue an adverse inference instruction.”
Appeal from the United States District Court for the Western District of Wisconsin, Crabb, J., Flaum, J.