Sanctions Upheld by New Jersey Appellate Division for Failure to Withdraw Complaint Re: Open Public

On May 2, 2018, Judge George Leone of the Appellate Division of the Superior Court of New Jersey issued a decision, Valentin v. Borough of Penns Grove, No. A-0834-15T2, 2018 N.J. Super. Unpub. LEXIS 1033 (N.J. Super. Ct. App. Div. May 2, 2018), affirming an order denying reconsideration of an order awarding sanctions.

The defendant in the case compiled all documents responsive to the plaintiff's Open Public Records Act request, and sent an email to the plaintiff's counsel stating that since they were too voluminous to scan or email, they could be picked up at any time from the Penns Grove Clerk's Office. The plaintiff did not see the email and filed a complaint citing a failure to respond to its OPRA request. Defense counsel then sent a letter to the plaintiff noting that the documents were available. The plaintiff immediately picked up the documents, but refused to withdraw its complaint. The plaintiff contended that the response was inadequate. Plaintiff's counsel failed to appear in person at court hearing (asking to appear 5 minutes beforehand via telephone) and also submitted a reply brief shortly before the hearing that had been due three days prior.

The trial court dismissed the complaint and granted the defendants' motion for sanctions, in the amount of $1725, because the plaintiff should have realized that he no longer had a claim. Judge Leone found that plaintiff violated Civil Court Rule 1:48(b)(1) (which concerns frivolous litigations) because the complaint was submitted for an improper purpose and the factual allegations did not have evidentiary support.

The court noted that OPRA only requires the release of existing records, not the creation of new records. It distinguished this case from Pfaff v. Galloway, 229 N.J. 340 (2017), in which the Supreme Court of New Jersey held, that, ""By OPRA's [plain] language, information in electronic form, even if part of a larger document, is itself a government record. Thus, electronically stored information extracted from an email is not the creation of a new record or new information; it is a government record." Id. 353, 356. The documents responsive to the plaintiff's OPRA request where either in hard copy or image processed.

The requests failed to state with specificity and particularity the requested government records because, "plaintiff's requests 1 and 2 asked for 'open ended searches' in which the Borough's files would be 'analyzed' to calculate a rate, and 'compiled' into a list." Valentin, 2018 N.J. Super. Unpub. LEXIS 1033 at *26.

Judge Leone also concluded that the plaintiff did not show an objective, reasonable belief that despite a certification by a records custodian, documents existed for requests for which no response was received.

D.D.C. on TSA FOIA Productions, Database Searches and More!

Yesterday on May 24, 2018, Judge Randolph Moss of the United States District Court for the District of Columbia, issued a decision, Sai v. Transp. Sec. Admin., 14-403 (RDM), 2018 U.S. Dist. LEXIS 87237 (D.D.C. May 24, 2018), granting in part, and denying in part th defendant's motion for summary judgment. The TSA's motion was based on the fact that it had reasonably construed the plaintiff's record requests. Sai contended that the search was inadequate because the TSA, "failed to produce segregable portions of records; withheld metadata and failed to release records in their 'native,' electronic format or in 'fully digital, non-rasterized' PDFs; improperly designated records as Sensitive Security Information ("SSI")" Id. at *3.

The court's decision includes rulings on two arguments made in opposition to the summary judgment motion.

1. The Format of the Records

Sai argued that the TSA erred by failing to produce records in native format, with the associated metadata, and by failing to provide a Vaughan index in spreadsheet format. [a Vaughn index is a document that lists reasons for withholding documents on the basis of FOIA exemptions.] The court rejected the contention that under the Rehabilitation Act, the plaintiff, who is disabled, has a basis to request the native files and metadata because they would be more accessible to him. Judge Moss found that Sai offered nothing more than 'labels and conclusions' to support his conclusion that the records where in a format that violated his rights under section 508 of the Rehabilitation Act which requires federal agencies to make ESI accessible for disabled persons.

The court looked more favorably on Sai's contention that the TSA had to produce native files under the Electronic Freedom of Information Act which requires the government to produce records in any requested format if it is 'readily reproducible' in that format. The TSA argued that records were not available in their native format because it used a processing software called FOIAXpress to process records, removing SSI. The resulting output was only in PDF format. Judge Moss rejected the TSA's position that, "releasing records under FOIA in their original format would be unduly burdensome because its FOIA processing software, and its SSI review process, require re-formatting the records as PDF files, and because it lacked the technical sophistication to redact files in their original formats." Id. at 33. He also held that it did not demonstrate that it could not produce records in fully digital "text PDFs'.

2. Adequacy of Searches

The court found that the TSA failed to meet its burden to show that its searches covered the relevant time frame, and that its database searches were not reasonably calculated to recover responsive records. It faulted the TSA for not identifying the search terms it used in some offices. "Without knowing the search terms the TSA used, the Court cannot determine whether its efforts were 'reasonably calculated' to locate responsive records in those offices." Id. at 55.

The court rejected the plaintiff's position on its request for all TSA policy and procedures documents, which it found to be "vastly overboard", stating that, "[h]aving failed to frame his request with sufficient specificity, he cannot now fault the TSA for conducting an onerous, but not exhaustive, search based on its best assessment of what records were most important to Sai." Id. at 58, 62.

Does Wal-Mart Have to Preserve All of Its Surveillance Video?

On May 17, 2018, Judge Elizabeth Erny Foote issued a decision Washington v. Wal-Mart Louisiana, LLC, No. 16-1403, 2018 U.S. Dist. LEXIS 84288 (W.D. La. May 17, 2018) ruled on the plaintiff's motion for summary judgment. The plaintiff argued that an adverse inference should be made because of Wal-Mart's deletion of a surveillance video that showed how Washington suffered an injury. Judge Foote found that the plaintiff did not show a genuine issue of material fact regarding bad faith by the defendant, and instead granted Wal-Mart's motion for summary judgment, because the lack of a video of the clear liquid in which she allegedly fell meant there was no factual dispute regarding Wal-Mart's constructive notice of the liquid.

Wal-Mart received a letter from Washington's attorney a few days after the incident requesting the name of its liability insurer, and making reference to a slip and fall accident. The letter did not provide further details, such as the time of the accident or its location in the store. The relevant video was erased before Washington actually filed suit. The Wal-Mart store has 300 cameras in operation 24 hours per day. Wal-Mart records over surveillance footage on a regular basis unless specific footage has been marked for retention.

Judge Foote cited the In re Actos Prod. Liab. Litig. spoliation test:

1. Duty to preserve as the result of reasonably anticipated litigation.

2. Destruction of the evidence

3. Intentional destruction

4. Relevance of the destroyed evidence

5. Prejudice from the unavailability of the evidence.

. . and found that the last four elements of the test had been made. "Since the deletion was pursuant to Wal-Mart's policy, the destruction was intentional rather than inadvertent." Id. at 8. The lack of the evidence was prejudicial because Washington had no other evidence regarding the liquid that was allegedly on the floor.

The key issue was whether or not Wal-Mart had a duty to preserve the surveillance video. Preservation duty is proportional to the facts of the case. Judge Foote found that, "While it would not be unreasonable in a slip-and-fall case of this magnitude to require Wal-Mart to preserve video from a specific set of cameras based on a reasonably precise location and time of an accident, it is likely unreasonable to demand the preservation of an uncertain amount of footage over an uncertain area based on a phone call and a letter that neither reference nor threaten litigation." Id. at 12.

Even assuming that there was a duty to preserve video, bad faith is still required for an adverse inference finding. Destroying evidence because of routine policy doesn't support a bad faith finding. "This is particularly true when a plaintiff offers no evidence that any person associated with the defendant viewed the footage before it was destroyed." Id. at 13. Washington presented no other evidence of bad faith by Wal-Mart and so the court denied the request for adverse inference.