Williamson v. Heritage Preschools, LLC, No. 2:24-cv-00139-SGC (N.D. Ala. Sept. 22, 2026), full opinion (PDF)
A party that lets video evidence be overwritten, then defends itself with what its witnesses remember seeing, can lose that testimony under Rule 37(e)(1). A Northern District of Alabama magistrate judge has ruled against a preschool whose classroom surveillance video was recorded over after parents raised the prospect of legal action. In the court's words, intent was "a very close call" on this record. The court found gross negligence, not an intent to deprive. Its order still bars the preschool's witnesses from describing the lost footage.
The court found that the preschool anticipated litigation once it treated the parents' comments as a threat and contacted its lawyer. It rejected the preschool's argument that its duty depended on foreseeing the race discrimination claim. The preschool, the court noted, cited no authority requiring a party to anticipate the precise legal theory it faces.
What happened
The parents sued under 42 U.S.C. § 1981. They allege that the preschool disciplined and then expelled their toddler son for conduct white classmates engaged in without consequence. The preschool says it expelled him for his classroom behavior, though its summary judgment motion also invokes the threat of litigation. When the parents asked to see video of that behavior, the preschool refused.
According to the preschool, its surveillance system kept footage for two weeks before recording over the older video. Administrators downloaded clips only of injuries or other extraordinary events.
At the meeting where the preschool announced the expulsion, the parents said they would seek legal counsel and contact the Office of Civil Rights. The acting director took those comments as a threat of legal action. She contacted the preschool's lawyer the same afternoon, then disenrolled the family. No one saved the footage of the boy's final weeks.
The preschool's witnesses nonetheless pointed to the footage to justify the expulsion. Its summary judgment motion relied on an administrator's review of the video.
The court's analysis
The preschool argued that it could have anticipated only a disability claim, since the meeting had focused on the boy's behavior and autism diagnosis. The court reasoned that the footage plainly related to the preschool's stated reason for the expulsion. It also noted that the preschool never explained why behavior it deemed serious enough for expulsion fell outside the extraordinary events it routinely saved.
The court concluded that reports and testimony were an inadequate substitute for video that "would have been direct, unbiased evidence of what occurred" in the classroom. The footage was also critical to the parents' case, in the court's view, because the preschool relied on this evidence in its defense.
The preschool pointed out that the parents never sent a preservation letter. Such a letter is "obviously a best practice," the court acknowledged. Nothing the preschool cited, the court observed, required the parents to send a letter. Its own lawyer, the court noted, already knew of the parents' interest in legal action.
Gross negligence falls short of the intent standard, so the court limited the remedy to measures no greater than necessary to cure the prejudice. That ruled out a presumption that the footage was unfavorable, an adverse inference instruction, and default judgment.
Under the order, the preschool's witnesses may not testify about the footage's contents beyond the fact that the acting director reviewed the video in deciding on the expulsion. The preschool may not offer evidence or argue that any destroyed recording corroborated its account. Evidence that administrators checked the discipline reports against the video is excluded too. The parents may present evidence about the surveillance system and the video policies. They may also show that the preschool refused their request to see video of the conduct behind the incident reports. The court reasoned that the bars on testimony and argument keep the preschool from substituting recollection testimony for objective video evidence. The preschool must also pay the parents' reasonable costs of the motion.
Why it matters
A client that treats a parent's or customer's grievance as a threat of suit and calls counsel is building strong evidence that it anticipated litigation. Preservation instructions should go out on that call. Counsel should ask which systems hold relevant data on a short overwrite cycle, such as surveillance video.
Scope preservation by the events in dispute rather than by the claim the client expects. A party arguing it foresaw only a different claim will likely lose that argument when the lost evidence records the conduct at issue.
For a movant, the opponent's use of lost ESI in its defense supports both prejudice and a matching remedy. Collect every deposition answer and brief that invokes the missing evidence. That record can support a targeted preclusion order without proof of intent to deprive.
A responding party that lost ESI should plan to offer, at most, testimony that a decision rested on that evidence, never a description of its contents.
The full opinion is available as a PDF.
