Case 2:O9—cv—OOO76—RFC—RWA Document 130 Filed 01/23/13 Page 1 of 13I

IN THE UNITEDSTATESDISTRICT COURTFOR THE"DISTRICT OF MONTANA

BUTTEDIVISION

ROGER G. SEGAL,

Plaintiff,

V.

Cause No.CV 09-76-RFC-RWACITY OF BOZEMAN,CITY OFBOZEMAN POLICE DEPARTMENTSERGEANT GREGMEGARGEL, in hisindividual and officialcapacity,CITYOF O R DE RBOZEMANPOLICE DEPARTMENTOFFICERMAREKZIEGLER, in hisindividual and official capacity,FORMERCITY OF BOZEMANPOLICEDEPARTMENTCHIEF, MARKTYMRAK,in bis individual and officialcapacity,CITY OF BOZEMANPOLICEDEPARTMENT INTERIMCHIEF,MARTINKENT andJOHN DOES 1-10,

Defendants.

This matter is before the Court uponmotion of the Plaintiff requesting the

Court impose a sanction, pfimarily in the form of default judgment as to liability, against all

Defendants for spoliation of evidence. Plaintiffclaims civil damages based uponallcgations of

personal injuries resulting fromDefendants’ use of excessive force. Defendants flled a jointbrief inOpposition to Plaintiffsmotion arguing, in part:

Plaintiff has failed to even allege, let aloncprove, theprimafacieevidentiaxy elements necessary to justify the extreme sanction of defaultjudgment. Plaintitf’s request fails to produce any evidence that any of theDefendants breachcd anyduty to preserve evidence. It fails to establish any

1

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culpable state ofmind onthe pm-t ofanyof theDefendants. It even fails todemonstrate how a reeording ofevcnts afierMr. Verdi was tased has anyreievance toPlaintiff’s state and federal claims.

A hearing on the Plaintiffsmotionwas heldNovember 30, 20l2. Plaintiffwas

represented at the heaxing byThomasD. Shea and RyanK.Jackson ofBozeman, Montana;DefendantsMarkTymrak andMartinKentwere represented at the hearing byMicheleK.

Braukmann ofBillings,Montana;Defendantvs City of Bozeman and the BozemanCityPolice

Department were represented at the hearing byMichael J.Lillyof Bozcman; and DefendantsGregMegargel andMarkZiegler were represented at the hearing byBrendon J. Rohan ofButte,

Montana. MarkZiegler and RichMcLane testifiedand Exhibits2, 3, 4 and 5wen: admitted

into evidence. Allparties filedpost-heaxing briefsand thematter is ready for decisiorL

BACKGROUND

OnAugust 12, 2007, a friend ofSoheil Jesse Verdi (“Verdi”) callcd 911 because Verdi

had sent the friend a text which said “Pmdone” and because Verdi was not answering his

telephone. As a result of the 911 call, theCityofBoze-man Police Department, at

approximately 10:00p.m.‚ dispatched polioe officersGregMegargel (“Megargel”)and Mark

Ziegler (“Ziegler”) toVerdi‘s residence to check onhiswelfare. Megargel and Ziegler knocked

on Verdfs door for some time before Verdi fmally responded by opening his door. When Verdi

finally opencd his door,he appeared intoxicatedand was notwearing any clothes.’

Audio recordings fiom abodymicrophonewombyZiegler,which were presented t0 the

Court inthree parts, reveal {hat afierVerdi opened hisdoor‚ either Ziegler orMegargel told

‘Zieglefis supplemental report indicatcs that Verdfs bloodalcohol content was .29} onthe night in question. SeeExhibit4.

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Verdi t0 have a seat and that theyjust wanted tomake sure hewas okay. Whilc it isnot clear

from the audio what exactly happcned next,Ziegler contends Verdi Iunged atMegargel,

promptingZicgler to tase Verdi. Uponbeing tased, Verdi fell to the deck outside hishomc,

sustaincd injuries and was unrcsponsivc. EitherZiegler orMegargcl handcuffed Verdi and told

him to toll over. Becausc Verdi was not responsive, one of the ofiicers asked dispatch t0 “roll

medical.”i

The sccond part ofthe audio begins with one of the oificers asking iftheyWe “got

gloves” and the other responding, “gcttinthem dude.” The officers proceed t0 tell Verdi, “talk

to us,” “talk tousman,” “talk to usbro.” The officcrs them removc the tascr darts from Verdi’s

body and statt: they will “clean them up later." Ziegler then says, “heyman, hecame afier you,”towhichMegargel replies, “Ishoved himbut yougot him.” The officcrs ptoceed tocufi"Verdi

“a littlebit better” and then the Court canhear the soundof a diesel engine and one of the

ofiicers sayixig that Verdi is “breathingbut not responsive, hewas tased.” Someone then asks

the officers t0 remove Verdi’shandcuffs, atwhichpoint thc second portionof the audio ends.

The third audio rccording begins when the ambulance personne] are loadingVerdi in the

ambulance and hc Starts to come t0,mumblingand crying. The ambulancepersonne} teil Verdi

to calmdown and the ambulancc thcn pulls away. Afier the ambulanoe lcfi,Zicglefis body

microphone recorded the following exchangc between himselfandMegargel:

Megargel: Now what the fuck?

Ziegler: Yeah, what am 1going t0 clear this as? Fuck,public assistancewitha tasing?

Mcgargcl: Fuckin-a-baby, 10-8medical.

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Zicgler: 10-8what’?

Megargel: Medical.

Ziegler: Hedidn’t commit a crime.

Megargel: N0,buthe could of.

Ziegler: Wall, l was afraid for you dude.

(Inaudiblc segtnent)

Zicglcr: What an: going t0, sowe‘re going to clear i! as

Megargel: 10-8medical.

Ziegler: Medical

Mcgargel: And then we’re going toput it as amcdical call.

Based upon the events that transpired on August 12, 2007, and because of the alleged

injuries he sustained, Verdi’s counsel, on September20,2007, “contactedBozcmanconceminghisclaims.” OnAugust I1,2009, Verdi filed a complaint against the City ofBozeman, the Cityof Bozeman Police Department, Megargel and Ziegler. Verdi amended his complaint onMay

27, 2010, to add former Chiefof PoliceMarkTymrak (“Tymrak”)undDeputy Chiefof Police

MartinKent (“Kent")asdefendants.

Verdi filed a voluntary chapter 7 bankruptcy case inUtahonMay28, 2010 (BankruptcyCaseN0. 10-27281JTM), but fajled t0 list this lawsuit as an asset in his bankruptcy schedules.

Verdi reoeived a discharge ofhis debts on September 8, 2010, and his chapter 7 bankruptcy case

was closed (hat Same date. On January 3, 2011,Verdi filed amotion to reopen hisbankruptcy

proceeding t0 amend his schedulcs t0 list the claims assertcd herein and t0 claim an exemptionin this lawsuit under Utah law. Verdi’s bankruptcy case was rcopened on Februar): 2, 2011, and

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Roger Segal (“Segal”)was reappointed as trustee. Upon leaming of Verdi’s bankruptcy, the

Defendants in this case filed ajoint motion for summaryjudgment arguingVerdi was judicially

estopped fi-om pursuing this action after failing to disclose the lawsuit inhis bankruptcy

schedules.

Segal eventually filed an objection toVerdi’s claim of exemption inany award resulting

from this lawsuit. In response, Verdi withdrew hisvclaim of exemption. As a result of the

developments in the banlquptcy case, the undersigned entered Findings and Recommendations

on .Tune 18, 2012, recommending that Segal be substituted for Verdi as the plaintiff in this

action and that the Defendants’motion for summaryjudgment be denied on grounds the

Defendants’ judicial estoppel argument didnot extend to Segal. OnJuly 24, 2012, United

StatesDistrict Judge RichardF.Cebull adopted the undersigned’s recommendations and

removed Verdi from this case and denied the Defendants’motion for summaryjudgment.

Thereafier, on August 16, 2012, Segal filed the pendingmotion for sanctions for

spoliation of evidence. The Defendants do notdispute that Ziegler was wearing a body

microphone on the evening of August 12, 2007, or that he recorded portions of the incident with

Verdi. The Defendants also d0 notdispute that while audio filesDW_A0l68,DW_A0l69‚

DW_AO171,DW_AOl72 andDW_A0173 still exist,fileDW_A0170 of the audio recording is

gone. Noneof the Defendants can statewith certainty what happened to the missing’ audio

segment --whichwas recorded sometime between the time the arnbulance arrived at Verdi’s

residence and when the ambulance lefiwith Verdi --butZiegler hypothesizes he probably

2 McLane characterized the missing audio Segment as an “audio that was taken that is notthere.”

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deleted the audio file immediately afier making the recording at the scene. Ziegler, however,

has n0 recollectionof deleting anyflles (hatnight.’ Ziegler oonfinned {hat hedidnot delete the

audio recording by aocident because deletion requires a distinct thxee-step process, and there is

no dispute that file 170was first recorded prior to itserasure.

Ziegler joined the City of BozemanPoliceDepartment in late 2006 and subsequently

attended the police academy, Ziegler finished the policy academy inMarchof 2007 and was

still inhis probationary period onAugust l2, 2007. Prlor toAugust l2, 2007, Ziegler had not

used his taser. Ziegler testified that he has “apretty clear recollectionof the interaction"

between himselfand Verdi on the nightof August 12, 2007. ForExample, even though Ziegler

tased Verdi in the back,Ziegler specifically recalls looking intoVerdi's eyes.

Ziegler explained that on the evening of August 12, 2007, he waswearing a body

reoordcr that hewould tum on and off as hcsaw fit. Ziegler testified hcwould tum his body

microphone offwhen “there was nothing worthy to record." Ziegler first hegen recording the

events in question when he and Megargel wen: trying tomalce contact withVerdi byknocking

onhisdoor. Ziegler testifiedhe would tum hisbody microphone onatpoints he “thought were

relevant or needed to be recorded, relevant situations. Ifi t wasnft relevant or if nothing was

going on, Iwould stop lt, inmymind.” With respect to themissing audio segment 170, Ziegler

testified nothing had happened during that period of time, whichZiegler estimatcd lasted three

to four minutcs. Ziegler tumed his audio back onwhen the ambulance personnel werc loading

Verdi into the ambulance because, acoording toZiegler, Verdi was Starting tobecomc

3 Ziegler testified that his audio recotdingdevice has the capacity to storeabout 35 to 36hours ofrecordings. Thus, storage capacitywasnot an issuewith respect t0 the 3 or 4 minutes ofmissingaudio.

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responsive.

Following the incident,Megargel and Ziegler rctumed to the police station in separatecaxs soZiegler could use the restroom. Ziegler thcn proceeded to the hospital to plaoe Verdi in

protective custody. Zieglcr recorded various portions of his conversations at thc hospital, which

recordings wemnot provided to thc Court. Zicgler was at the hospital for approximatelyone

hour, a1whichpointZiegler took bisnext call. Ziegler does not recallwhat hcdid the

remainder of thc evening, but recalls retuming to the polioe Station sometimebetween 1:00and

3:00am.onAugust 13, 2007, to prcparc a repott of thc incidentwith Verdi. Ziegler docs not

remember whether he listened to the audio rccordings of the incident with Verdi while

preparing bis rcport,butbelieves "he downloaded the audio recording from hispersonal recorder

to the Police Departmenfs computer sometimebctwecn 1:00am. and 7:30 a.m. onAugust l3,

2007.

To download the audio, Ziegler plugged bis reoorder into a Computer at the Police

Station. Ziegler then tumed his recordcr on‚ which caused anOlympus ioon t0 pop up on thc

Computer screcn, atwhich point all the audio onZiegler‘s recordcr automatically began

downloading. Ziegler believcs four foldcm popped up on the night in qucstion, identifiedas

folders A,B,C and D,with all the audio of the incidentwith Verdi appcaring in folder A. At

that point,Ziegler created a new folder onthc PoliceDepartmenfsServer,whichwas labeled on

the Server under a case number assigned by Zicgler. Ziegler then highlighwdall the audio

recordings in folder A andmovcd them from the Olympus icononto the Police Departmenüs

scrver. Zicglcr docs not rocallwhether reconling I70wasmissing at that timc. Zieglcr is

similarlynot awarewhether the computerwould indicatewhcther an audio filc had bocn deleted

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in the field. At some point,Ziegler also transferred or copied his audio reoording t0 a CD,

which was plaoed in a “jacketfile"maintained by the Police Department.‘ When questioned by

Plaintiffs counsel, Ziegler agreed that the CDwould list thc audio files numerieally and that in

this case, the numerical listing is 168, 169, 171, I72,and 173. Ziegler believed the CDwould

indicate themissing audio filenumbered 170,butdoes not recallwhether 170wasmissing

when Ziegler prepared thejackei fxle.

The Bozeman Police Dcpartment does notprovide formal training t0 its ofiicers an the

useof bodymicrophones and it does not have anypolicy that precludes ofiiccrs from deleting

either audio orVideo recordings at the sceneofan incident. Ziegler testified it is his normal

practioe to delete audio and Video recordings at the scene of an ineident if he determines the

audio orVideo isnot relevant. Ziegler decidcswhen to tumhisbodymicrophone on based on

his expericncc. In the context of civil matten-s,Ziegler saves audio and Video recordings if they

have “cvidentiary value.” With respect to criminal cascs, Ziegler “was taught t0 preserve any

and allevidence.” Ziegler testified that the incident with Verdi was not a criminal matter“upuntil the pointwhere he attacked a fellow ofliccr. It could have been, butwedecided not t0

make it acriminal matter. Sgt. Megargel and Idecidedto make it amattercf mental health.”

Ziegler explained that he saved the survivingaudio reoordings of the incidentwithVerdi

because hc “felt itwas an unusual circumstance/incident. And [hc] felt it important tokeep that

audio that was about th[e] incident.”

Ziegler ‘testified that there was nothing on the delctcd audio reoording finm the night of

‘ Ziegler explaincd that a “jacket file is everything that pertained to a case {hat wetumedin t0 reoords, i.e., the written report; the suppletnerxted report; any audio; pictures; that kindofstu ‚”

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August l2, 2007, explaining that “what occurred is the medical staffand the fire department

unloaded the gumey. "fheycame up and loaded Mr. Verdi onthe medical gumey. And at that

point they carried himback down and loaded himup into the ambulance.” Inresponse to a

question posed by the Court,Ziegler further explained that hebelieved that during the time

frame of the deleted Segment, bothofficersprobably filled the medical personnel “inonwhat

wewere dealing with.” However, the Courtwouldnote that Ziegler did not delete the audio

where an offlcer is telling an ambulance crewmember that Verdi was “breathing but not

responsive, hewas tased.”

Ziegler testifiedbe probably reviewed the audio recordings from August 12, 2007,

shortly afler Verdi filed his complaint on August l1, 2009. However,Ziegler did not notioe

whether an audio Segment wasmissing at that time. Ziegler also reviewed the audio the nightbefore hisOctober 13, 2010, deposition. Again, Zieglcr could not recallwhether 170was

missing at that time.

PlaintifPs counsel, in a letterdatedNovember 18, 2010, asked the City of Bozeman’s

counsel to make an additional search to see if therewas indeed a missing audio Segment and to

see if there were any additional audio reoordings from the night of the incident. The Defendants

all agree the audio Segment ismissing‚ but theDefcndants have not made anymeaningfial efibrt

to ascertain why the file is missing.

Ziegler can’t recallwhen, but thinks in perhaps 2012, he spent 10to 15seconds trying to

locatemissing audio file 170to no avail. When questioned about the whereabouts of audio file

170, Ziegler did not “know how—or recall how it’s n1issing[,]” but suspected that he probably“stopped [his recording] and deleted it because therewas nothing there, nothing going on or

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happening.” Aspreviouslymentioned, Ziegler,denied any express recollectionofdeleting an

audio file that evening. In addition,Ziegler has ncvcr experienced ancothcr Situationwhere there

was a naissing segment of an audiotape.

DISCUSSION

UnitedStaatesMagistrate Judge Lynch, in Peschel v.City oflllissoula,664 F.Supp.2d

1137 (D. Mont.2009), thoroughly discusses the controllingMontana and federal law on

spoliation of evidence. As explained inPeschel, sanctions for spoliation of evidenoe arc proper

“only when a party knew, or reasonably shouldhave known, that the spoliated evidence was

potentially relevant to a claim.” 1d. at 1142. In ihiscase, Ziegler was not required t0 record the

events of August 12, 2007. However,onccZieglcrmade the dccision t0 record the events as

they occuned and having saved themajor portions of the audio, Ziegler should have savedall

the audio Segments.

Instead, the evidence ShowsZieglcr saved five audio segments and intentionaJly deleted

one. Ziegler speculatcs that pcrhaps he deleted segment 170immediately aficrhaving reoorded

that section. The Court is not persuadcd that Ziegler immediately dcleted segment 170because

Ziegler testified that h: was taught t0 prescrvc any and all evidence in criminal matters. Ziegler

did not knowwhether the incident withVerdiwas going to be a criminal or civilmatter until

afier bis discussionwithMegargel that was captured in segment 171. Thcrefore, the Couxt finds

that segment 170was likely not deleted until sometime afier segment 171was recorded. Also,

sinceZiegler believad itwas important t0 saveSegments 168, 169, 17l, 172and 173, itwas

equally important that he save segment 170.

Defcndants countcr that nothingmaterial was on Segment 170and thus, Plaintiffisnot

l0

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prejudiccdbyits disappearance. Unfortunately,Verdi was not conscious during the period in

question and cannot tell the Courtwhat in facthappcned. Under thc circumstances in this case,

Segment 170was relevant t0 this litigation, andbecause Segment 170was intcntionallyerased,

so too was the best evidence of what transpimd during the 3 t0 4 minutes in question. Afier all,

Segment 170was an integral and contemporaneous part of the very events giving rise to this

action. It came fmm the heart ofthe events, and it contained conversations by Defendant

officem themselves

InPeschel, Judge Lynchidentifies thc sanctions a courtmay impose for spoliation of

evidence: “(U exclude evidcnce, includingspoiled evidcnce; (2) admit evidence of the

circumstances of the destruction orspoliation; . . . (3) instruct thejury (hat itmay infer that thc

spoiledo: destroyed evidence would have been unfavorable to the ncsponsible parcy[;]” (4)

dismiss the action; or (5) enter defaultjudgment. Judge Lynchexplains that “[t]he imposition

of themoredrastic sanctions ofdismissal ordefaultjudgnent require a finding of ‘willflxlness,

fault m‘ bad faithf” 1d. at 114l,quotingIcon v.IDXSystemsCorp, 464 F.3d95l, 958 (9"‘Cir.

2006). As discussed fizrther inLeon,oourts “must consider ‘Iesssevere alternatives’ than

outright dismissal.” Leon,464 a19.58.

Defendants conoede in theirOpposition to Plaintifi’smotion that they had notice of

Verdfs claimsasearly as September 20,2007. While Plaintiffisnot able topinpointwhen

segmcnt 170was erased, the events in question happened anAugust l2, 2007, and the record

reflects that Plaintiff’s counsel sentDefendants’ counscl MikeLilly a lauer dated November 18,

2010, indicating that Segment was 170wasmissing and asking “that the Citymake anadditional

search t0 determine if there is a missing Segment and any other audio reoordings from the night

l1

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of the incident.” The audio Segment was thus erased sometime prior toNovember 18, 2010.

Whether itwas erased before or afier September 20, 2007, is not clear‚ nor is it important to the

claims of spoliation, which arewell founded eitherway.

Entryof default judgment, as a form of sanction, is a draconian remedy that should not

be imposed absent indisputable evidence ofwillfillness,bad faith or its equivalent. The facts

and circumstances in this case present a close call. However,while the the circumstances

surrounding the deletion of Segment 170are extremely suspicious, the Courtwill not impose the

sanction of default based on its suspicions.

Counsel for Tymrak and Kent argues in herpost-hearing brief that Verdi failed to

produce any evidence that either Tymrak orKent “had anything whatsoever to do with” the

missing audio Segment. As to them, theCourt agrees. Tymrak and Kent should be excepted

from any sanction.

Nevertheless, Verdi has shown that Ziegler recorded audio Segment 170onAugust 12,

2007, but it has since been erased. The deletion had t0 have occuned while the audio was under

the exclusive control of the Bozeman PoliceDepartment or Megargel and Ziegler. Segment 170

is the best evidence regarding what transpired during the 3 to4 minutes in question and is,

therefore, relevant and matetial. Ziegler makes the self-serving claim that nothing happened

dufing that 3 to 4 minutes‚butVerdi cannot dispute Zieglefis claimbecause he was

unconscious.

For the reasons discussed above, the undersigned finds it appropriate for the Court to

give a juty instructionstating that missing audio Segment 170, if it existed today, would be

damaging to the Defendants City of Bozeman, the Cityof Bozeman PoliceDepartment, Ziegler

12

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and Megargel, andwould be relevant and favorable to some orall ofPlaintiffs claims of

excessive force. The instruction should explain that the lawdoes not condonc thc “intentional

desüuction of evidcnce by officers of the law. Defendants should also be precluded from

oifering any explanation at trial as to howorwhy audio segnmmt 170was deleted, beyond

Ziegler’s beliefthat hemost likely crased segtnent 170at the scene, all asdescribed byhimat

the hearingholdNovember 30, 2012.Q

Plaintiffs rcquest for attomey fecs and costs is denied at this stage of the litigation.

Done and dated this 23" dayof Jan

UNTTEDSTATESMAGISTRATE IUDGE