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Boudreau v. Shaw's Supermarkets Inc.

United States District Court, D. Maine

July 18, 2019

JEFFREY BOUDREAU, as Personal Representative of the Estate of Wendy Boudreau, Plaintiff


          D. Brock Hornby United States District Judge

         A violent grocery store murder in 2015 generated this civil lawsuit. Without provocation, one customer murdered another customer in the store's ice cream aisle on a summer afternoon. Later that year, the murderer was sentenced to life in prison.[1] In 2017, the personal representative of the victim's estate (her husband) brought this wrongful death lawsuit against the grocery store for negligence, arguing that the store should have foreseen the danger and taken preventive action.[2] The defendant moved for summary judgment, and the plaintiff opposed the motion and moved for sanctions because most of the store video for the days and weeks preceding the murder is missing. After oral argument on June 6, 2019, I deny the motion for sanctions and grant the motion for summary judgment.

         Background Undisputed Facts

         Shaw's operates a grocery store in Saco, Maine. The deceased victim, Wendy Boudreau, was a regular customer. So was the murderer, Connor MacCalister. On August 19, 2015, MacCalister brutally murdered Boudreau by slitting her throat with a knife in the store's ice cream aisle. MacCalister has said that she selected Boudreau partly because she was an older woman who would be less able to resist. Pl.'s Add'l Statement of Mat. Facts (PASMF) at ¶¶ 66-67 (ECF No. 84). Despite the efforts of store personnel and customers, including two EMTs shopping in the store at the time, Boudreau did not survive.

         Motion for Sanctions for Spoliation

          During discovery, the plaintiff requested all the Saco store video showing MacCalister's appearance and behavior in Shaw's in the days and weeks preceding the murder. The store had 48 motion-activated video cameras that produced recordings that could be viewed contemporaneously or at a later date. McCourt Dep. 52-53 (ECF No. 56-10). If video from a particular day was not saved, that data was overridden as the hard drive became full. According to Senior Asset Protection Specialist Warren McCourt, that occurred about every 3-4 weeks, such that there were generally 3-4 weeks of data available at any given time. See McCourt Aff. II (ECF No. 96-3). In this case, however, Shaw's has provided video only for the day of the murder and for some of MacCalister's transactions two days earlier, [3] but not for other days and weeks preceding the incident. That missing video is the subject of the spoliation dispute.

         Although earlier cases articulate a federal court's inherent authority to grant relief for spoliation of evidence, in 2015 the Federal Rules of Civil Procedure adopted a major amendment of the spoliation rules for electronically stored information. Fed.R.Civ.P. 37(e) now occupies the field, to the exclusion of a federal court's inherent authority and, for the most part, state law:[4] “New Rule 37(e) . . . forecloses reliance on inherent authority or state law to determine when certain measures should be used.” Adv. Comm. Note to 2015 Amendment; Gonzalez-Bermudez v. Abbott Lab PR Inc., 214 F.Supp.3d 130, 161 (D.P.R. 2016) (quoting the Advisory Committee Note).

         Rule 37(e) now provides:

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.

         According to Rule 34(a)(1)(A), “electronically stored information” includes “photographs [and] . . . images . . . stored in any medium from which information can be obtained either directly or, if necessary, after translation . . . into a reasonably usable form.” The 2006 Advisory Committee Note to that Rule subsection says that the definition “is expansive and includes any type of information that is stored electronically, ” and that “[r]eferences elsewhere in the rules to ‘electronically stored information' should be understood to invoke this expansive approach.” Id. Thus, under the amended Rule, Shaw's store video is electronically stored information.

         At oral argument, I asked the lawyers what I should treat as the record for purposes of resolving the spoliation motion. What follows reflects what they told me.

         Immediately following the murder, Shaw's preserved for the police that day's video of the Saco store showing the victim and MacCalister (but not the actual murder because no camera covers the ice cream aisle, see McCourt Dep. 15:18-21), as well as MacCalister's transactions two days earlier. That video has been made available to the plaintiff. At the outset of the lawsuit and the beginning of discovery, both parties' lawyers believed there was no other video. As a result of the 2018 deposition of the store's Senior Asset Protection Specialist, however, the parties learned that on the day of the murder Shaw's not only transferred the day's relevant video onto a disk for the police, but also “physically removed the two hard drives and a black Intellex box on which the video for the last 30 days or so was stored and set them aside in the server room[5] at the store.” McCourt Aff. II ¶ 12. McCourt “taped a sign to the Intellex box, which stated ‘DO NOT TOUCH THIS HARD DRIVE-YOU NEED TO CONTACT WARREN OR RICK[6] FIRST.'” Id. When asked after his 2018 deposition “to retrieve the three hard drives that were set aside, ” he reported that “two were nowhere to be found. Although we found the Intellex box, it only contained images from 2016 and none from 2015, when the murder occurred.” Id. ¶ 13. The lawyers for both parties confirmed this information.[7] The record does not reveal how this state of affairs came to be, nor what happened to the hard drives that McCourt originally preserved. The plaintiff did not pursue further discovery on the topic of the missing video.[8]

         At oral argument, I asked the plaintiff's lawyer what the plaintiff wanted by way of remedy if I found a Rule violation (her legal memorandum had made varying requests). The lawyer responded that because at summary judgment I must view the evidence in the light most favorable to the plaintiff, and because she had proffered direct witness testimony about how MacCalister behaved in the store, there was no need at summary judgment to compensate for any prejudice caused by the missing video. But at trial, where there will be cross-examination and presentation of conflicting evidence, she wants an instruction about “a permissive inference that essentially whatever's shown on that video may contradict what Shaw's is going to introduce as evidence, minimizing the fact that her behavior was anything that put them on notice. We would want the jury to infer that.”

         I now address the requirements of Rule 37(e).

         Duty to Preserve.

         At oral argument, Shaw's' lawyer argued that Shaw's had no duty to preserve any video of events before the day of the murder because a civil lawsuit was not reasonably anticipated after the murder.[9] But in fact Shaw's did initially preserve the video, and the record does not disclose when the relevant hard drive disappeared or was overwritten. For all I know, it could have occurred after the plaintiff filed this lawsuit. For purposes of the motion I assume that Shaw's had a common law duty to preserve the video at the undetermined time it was destroyed.[10]

         Under Rule 37(e), if electronically stored information should have been preserved in anticipation of litigation, but was lost because of the failure to take reasonable steps to preserve it, and if it cannot be restored or replaced through additional discovery, the Rule specifies the available relief.

         Failure to Take Reasonable Steps to Preserve.

         Shaw's initially took reasonable steps to preserve the video when McCourt set aside the hard drives in the tower net room with a sign not to touch them. Was their disappearance thereafter due to the failure to take reasonable steps to preserve them? I cannot answer that question on the record the parties presented, but for purposes of the motion I will assume the answer is yes, because the video was at all times under Shaw's' control.

         Restore or Replace through Additional Discovery.

         Can additional discovery restore or replace the missing video? No, there is no way to restore or replace the lost electronic data, i.e., the video itself.


         Has the plaintiff been prejudiced by the loss of this information? The Advisory Committee Note specifies that the Rule does not determine whose burden it is to prove or disprove prejudice, but leaves that decision to the court's discretion. Even if I place the burden here on Shaw's, I am doubtful there is any prejudice to this plaintiff. Witnesses (staff and customers) can be and were deposed (here, over twenty, Pl.'s Opp'n to Def.'s Mot. for Summ. J. (Pl.'s Opp'n) at 1 (ECF No. 85)) about what they observed of MacCalister in Shaw's before the murder. No. limits were placed on such depositions. At most, the missing video might provide images of what certain customers say they observed about MacCalister at Shaw's before the day of the murder. At oral argument I asked the plaintiff's lawyer what her best-case scenario would be of what the missing video might reveal, and she said that she wished she could show the jury MacCalister's behavior at the checkout lines to rebut any argument Shaw's might make that MacCalister was “shy, quiet, childlike, innocent” rather than “a disturbance or harmful or scary.” For summary judgment purposes, however, I will assume that MacCalister was in the store virtually every day, and that she always dressed the same way and exhibited the same mien. I will also assume that she had encounters with customers as they describe the encounters. I believe that, under Rule 37(e)(1), that is a measure that cures any prejudice at summary judgment, and the plaintiff's lawyer agreed as much at oral argument.

         Inference Instruction.

         Below, I conclude that there will be no trial. But because the spoliation issue has been fully argued and because this District has not previously dealt with the amended Rule, I will complete the analysis. If the case were to go to trial, could the plaintiff obtain the extra curative relief he requests? Any inference-permissive or mandatory-that there is unfavorable information on the missing video is available “only upon finding that [Shaw's] acted with the intent to deprive [the plaintiff] of the information's use in the litigation.” Fed.R.Civ.P. 37(e)(2).[11] The plaintiff's lawyer urged at oral argument that I should infer intent because someone ignored the sign that McCourt had placed on the hard drives in the net tower room, thereby making them unavailable. But what the Rule requires is “intent to deprive another party of the information's use in the litigation, ” which is not just intentional action but a specific kind of intent.[12] There has been no such showing here. For all this record shows, some employee might have needed the hard drives for another purpose and intentionally removed them, but with no intent to prevent this plaintiff from using the video in this lawsuit. Unlike prejudice, the Advisory Committee Note does not discuss whose burden it is to prove or disprove this specific kind of intent. But the cases generally treat it as the moving party's burden. Postle v. Silkroad Tech., Inc., 2019 WL 692944, at **1, 7 (D.N.H. Feb. 19, 2019) (applying the clear and convincing evidence standard); Jones v. District of Columbia, 314 F.Supp.3d 36, 52 n.11 (D.D.C. 2018) (burden on the moving party); Alabama Aircraft Ind., Inc. v. Boeing Co., 319 F.R.D. 730, 744 (N.D. Ala. 2017) (finding intent as to some ESI, but not as to other ESI because “[a]lthough their loss is inexplicable, there is insufficient evidence for the court to conclude that there was any nefarious intent involved”); Marshall v. Dentfirst, P.C., 313 F.R.D. 691, 701 (N.D.Ga. 2016) (burden on the moving party). I recognize the downside in assigning the burden to the moving party, because all information about what happened is in the hands of the nonmoving party. But here, the only intent evidence is evidence of good faith (McCourt's attempt to preserve the video), and the plaintiff did not pursue discovery about what happened to the hard drives thereafter.

         I conclude, therefore, that without evidence of Shaw's' intent to deprive the plaintiff of his ability to use the video in this lawsuit, the plaintiff is not entitled to a jury instruction on inference, mandatory or permissive. If there were a trial, perhaps I would let the jury hear about what happened to the video, [13] but there would be no inference instruction.

         Motion for Summary Judgment

         On the motion for summary judgment, Maine's substantive law of premises liability applies. In broad terms, a grocery store has a duty to guard its customers against both known dangers and those it should reasonably anticipate, including third-party violence. I will elaborate further on Maine law after I describe, in the light most favorable to the plaintiff, the facts as contained in the record.[14]

         The summary judgment record is huge, consisting of documents, depositions, affidavits, health care and police records, photographs and video. The record describes MacCalister's interactions with her family, health care providers, the police, and the community, including affidavits and depositions about her observed conduct on public streets.[15]

         Through these materials, the plaintiff presents extensive disturbing evidence of MacCalister's severe mental health issues and bizarre behavior starting in her teenage years. Her history includes severe psychosis, hallucinations, homicidal rage, involuntary commitments, alcohol and drug abuse, multiple drug overdoses, threatening and violent interactions between MacCalister and other members of the Saco community (even her own family), carrying and brandishing a knife, delusions, periodic catatonia, severe paranoia, and repeated involvement with Saco law enforcement.

         The plaintiff argues:

Plaintiff's Statement of Material Facts provide sufficient evidence from which a reasonable fact finder could conclude that [MacCalister]'s attack on Ms. Boudreau was foreseeable given evidence of anti-social behavior, unusual shopping habits and frightening appearance, loitering, history of scaring customers, previously being banned from the store, management's knowledge of her criminal history and mental health issues, the public and Shaw's employees' general knowledge of her bizarre behavior on North Street and [the] surrounding area, not to mention Shaw's employees' own inferred fear of [MacCalister] given their lack of interaction with her in violation of their own policies.

Pl.'s Opp'n at 20. That statement encompasses a large collection of information, not all of it possessed by or available to Shaw's. There is no evidence that, before the murder, Shaw's had access to MacCalister's medical or police records[16] or family interactions; no evidence that other individuals in the community (including the victim's family members who observed MacCalister's behavior in public spaces and streets outside Shaw's even on the day of the murder) told Shaw's what they observed outside Shaw's;[17] no evidence that Shaw's personnel themselves made any of those off-premises observations; and no direct evidence that Shaw's' employees were actually frightened of MacCalister.[18] I consider only the information that the plaintiff can establish that Shaw's personnel knew or should have known before the murder and reasonable inferences that can be drawn from it.[19] I state that evidence in the light most favorable to the plaintiff.

         What Shaw's Personnel Knew

         I turn first to what the record establishes that Shaw's knew. In 2011, store director DeRoche learned that customers had complained that MacCalister took cigarettes out of the ashtray outside the store entrance, smoked them, and looked scary. See POSMF ¶ 2; PASMF ¶ 238; DeRoche Dep. at 45:8-46:1. When DeRoche went to observe her, she had a hoodie “kind of cover[ing] her face, ” he could see smoke rings coming out from under the hood and it “looked like something out of a scary movie.” Id. ¶¶ 116, 117, 238, 239. DeRoche called the Saco police, learned that the police had previous unspecified interactions with MacCalister, and banned MacCalister from the store. PASMF ¶ 27.[20] After a year, she was given permission to return. Id. ¶ 241.[21] DeRoche asked loss prevention personnel to watch her, and they did so until 2014. POSMF ¶¶ 16, 28; PASMF ¶¶ 110-11. He did not believe that MacCalister was violent. DeRoche Dep. 84:15-85:15 (ECF No. 56-1). Bryan Goodrich succeeded DeRoche as store director in 2014. Def.'s Statement of Material Facts (DSMF) ¶ 32 (ECF No. 56); POSMF ¶ 32; Goodrich Dep. at 19:15-22 (ECF No. 56-9). He heard no complaints about MacCalister before the murder. DSMF ¶¶ 33-34; POSMF ¶ 33-34, Goodrich Dep. 35:3-38:5. Adam Veno became the Assistant Store Director about six weeks before the murder. PASMF ¶ 253. He does not remember seeing MacCalister in the store. Id. ¶ 259; Veno Dep. at 34:17-19 (ECF No. 84-18).

         MacCalister visited Shaw's virtually daily, sometimes more than once a day. DSMF ¶ 37; POSMF ¶ 37; see also PASMF ¶ 218 (describing how MacCalister would walk by a Saco resident's house on a “daily basis on her way to Shaw's”); Wood Dep. at 16:15-16 (ECF No. 56-4). She wore baggy men's clothing, either black or camouflage, with a chain on one side, and men's military boots. Her head was shaved; her jaw was clenched; she had bulging eyes, an angry-looking face, and offensive Nazi tattoos on the underside of her arms just above her wrists.[22] POSMF ¶¶ 2, 6; PASMF ¶ 219. She spoke little and sometimes not at all, even when spoken to directly. PASMF ¶ 225. She often had a backpack and did not always use a shopping cart or basket. See POSMF ¶¶ 4, 71; PASMF ¶ 145. When she bought anything, she usually purchased a small number of items. POSMF ¶ 7. There were unverified rumors that she sometimes shoplifted. Id.

         A customer who saw her once at Shaw's in the year before the murder described her: “She did not have a basket, but was walking up and down the aisles with the same scary/angry look she always had on her face and in her eyes, dressed in military fatigues.” PASMF ¶ 161; Thomas Wright Aff. ¶ 8 (using the adjective “same” to describe her appearance on the bus that both MacCalister and the affiant rode[23]) (ECF No. 84-16).

         One cashier, Brittani Leigh Wood, testified that she saw MacCalister in Shaw's quite frequently, sometimes more than once a day. Wood Dep. at 16:15-16; see DSMF ¶ 37; POSMF ¶ 37. Wood described MacCalister as a strange dresser, with a shaved head, Wood Dep. at 17, but Wood saw no weapon on MacCalister in Shaw's, id. at 18. She also did not see MacCalister on North Street, id. at 20, as some members of the public did. She testified that after MacCalister had gone through the cashier's line, customers would say “she's a little strange or what's with her, sly remarks, ” id. at 21:19-20, or “she seems weird, ” id. at 22:14-15. See also POSMF ¶¶ 38-39.

         Customer Service Representative Michelle Schaffer testified that MacCalister sometimes behaved strangely, PASMF ¶ 229; Schaffer Dep. 9:7 (ECF No. 56-5):

Her eyes would be kind of, like, big from time to time, just look at you. Just look, you know, almost like she was on- not necessarily unaware of her surroundings; but I think she was just-she gave me the impression that she might have been on something. And a couple times she would come in shaking. So- . . .
I just felt awkward sometimes, I guess, around her. But I think it was general consensus, maybe a little bit, if somebody saw the same thing that I saw, that they might have been like, okay, she's-something is up with her. But ...

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