Thomas v. Pamunkey Regional Jail Authority, No. 3:24-cv-00486 (E.D. Va. Oct. 23, 2026), full opinion (PDF)
A preservation letter asked a regional jail authority to keep evidence of a detainee's entire incarceration, including surveillance video. The jail authority preserved a seven-hour segment from one camera location. On October 23, a federal district court in Virginia sanctioned the jail authority under Rule 37(e)(1).
The court concluded that the detainee's estate had not proven the intent that Rule 37(e)(2) requires for an adverse inference. The measures it ordered instead bar the jail authority and its co-defendants from arguing that the missing footage supports their account.
What happened
The detainee died three days after entering the jail. About a month later, the estate's counsel sent the jail authority a preservation letter covering his entire incarceration, including video footage.
The jail's system overwrote footage after about forty to forty-five days unless someone saved it manually. Counsel's letter arrived within that window. Apart from the preserved segment, the court described more than fifty missing hours of footage from several areas of the jail.
The court's analysis
The court concluded that the letter triggered the jail authority's duty to preserve the footage. It rejected the jail authority's argument that witness depositions could substitute for the missing video. In the court's view, testimony covering a small portion of the missing hours was unlikely to replace the video.
The court found that the loss prejudiced the estate. Disputed questions included whether the detainee requested medical assistance, whether officers used force to move him, and whether written logs accurately described his condition. The court agreed with the estate that the missing footage would be the best evidence on some, if not all, of those questions.
On intent, the jail authority argued that failing to appreciate the full scope of its preservation obligation was negligence beyond the reach of Rule 37(e)(2). The court found the explanation troubling, noting that the letter explicitly requested evidence of the entire incarceration. Even so, the court explained that Rule 37(e)(2) requires an intent to deprive the other party of the evidence. An intent to perform the act that destroys ESI falls short of that standard. Applying that standard, the court concluded that the estate had not shown by clear and convincing evidence that the jail authority acted to hide evidence.
The court framed its remedies around its obligation to avoid Rule 37(e)(1) measures that verge on the more severe sanctions of Rule 37(e)(2). Under the order, the estate may present evidence and argument about the failure to preserve footage of the entire detention.
The jail authority may not argue that the absence of footage supports its version of events. That bar extends to arguments that the footage would have favored the defense on force, medical requests, or the accuracy of the logs. Nor may the jail authority argue that keeping limited footage implies the rest was consistent with its account, or that the footage was otherwise unimportant. It must also pay the estate's reasonable fees and costs for the motion.
Only the jail authority was the target of the motion, yet the court extended the argument bars to the other defendants. In the court's view, the extension was needed to address the estate's prejudice adequately.
The instruction the court adopted differs from the estate's proposal, which would have let jurors weigh the loss in assessing witness credibility. It tells jurors that some video was not preserved although the jail authority had a duty to preserve the footage. It then directs: "You should not speculate as to what that video footage might have shown, or which party or parties it might have supported."
Why it matters
A recipient that preserves less than a letter requests should make that decision deliberately and record its reasons at the time. The scope the recipient chooses must be defensible under Rule 37(e) for the claims it anticipates, even when the letter asks for more. A reasoned decision recorded when the letter arrives answers a sanctions motion better than a later account of having misjudged the obligation's scope.
A movant without proof of intent should build its Rule 37(e)(1) request around the disputed facts the lost evidence bore on. Tying each argument bar or instruction to a specific factual dispute gives the court a basis to grant it without crossing into an adverse inference. The movant should also expect the court to write the instruction itself and keep it neutral about what the lost evidence showed.
A party resisting sanctions should expect a court to discount testimony that covers a fraction of the lost recordings. Because co-defendants outside the motion may face the same argument bars, their trial themes should rest on the preserved evidence.
The full opinion is available as a PDF.
