govinfo:USCOURTS-mnd-0_24-cv-01736-0

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UNITED STATES DISTRICT COURT 
DISTRICT OF MINNESOTA  
 
 
 
Yolanda Mays in her individual capacity 
and as Trustee for the heirs and next of 
kin of Tommy Holmes, 
 
 
   Plaintiff, 
 
v. 
 
 
Andrew William Schroeder acting in his 
individual capacity, Mark Joseph Suchta 
acting in his individual capacity, Alan 
Douglas Salvosa acting in his individual 
capacity, and City of Minneapolis, 
 
 
   Defendants. 
 
 
Case No. 24-cv-01736 (LMP/ECW) 
 
 
 
 
 
 
ORDER 
 
 
 This matter is before the Court on Plaintiff’s Motion for Discovery Sanctions 
against Defendant Salvosa (Dkt. 34).  For the reasons stated below, the Court grants the 
motion insofar as Plaintiff seeks attorneys’ fees as a sanction pursuant to Federal Rule of 
Civil Procedure 37(e)(1) and otherwise denies the Motion. 
I. BACKGROUND 
 Plaintiff Yolanda Mays filed a Complaint in this matter on May 14, 2024.  (Dkt. 
1.)  The original Complaint also named Tommy Holmes as a Plaintiff.  (Id.)  On March 8, 
2025, Plaintiffs filed an Amended Complaint (Dkt. 27) pursuant to the parties’ stipulation 
(Dkt. 24.)  The parties stipulated to amend the Amended Complaint after Mr. Holmes 
passed away on May 18, 2025.  (Dkt. 51 at 1.)  The Second Amended Complaint 
substituted Yolanda Mays as trustee for the heirs and next of kin of Tommy Holmes for 
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Plaintiff Tommy Holmes and is the operative complaint in this matter.  (Dkt. 54.)  As of 
the date of this Order, Mays is named as the sole Plaintiff in her capacities as an 
individual and trustee.  (See id.) 
The operative Second Amended Complaint contains the following allegations.  On 
March 21, 2023, officers of the Minneapolis Police Department (“MPD”) approached 
Plaintiff’s home.  (Id. ¶ 11.)  After knocking on the door and receiving no response, the 
MPD officers looked through Plaintiff’s mail and peered into a window.  (Id. ¶¶ 15-21.)  
The officers observed a baby doll on the couch.  (Id. ¶ 22.)  “Any reasonable observer 
would have been able to understand that it was a baby doll on the couch, not an actual 
infant.  Such distinguishing features included that the doll was made of plastic, that the 
doll had a seam on its chest, that its body was made of fabric, and that its hand was 
curved and rigid in an unnatural manner.”  (Id. ¶ 25.)  The MPD officers then called for 
assistance from the Brooklyn Center Police Department (“BCPD”).  (Id. ¶ 28.)  Several 
BCPD officers, including Defendant Douglas Salvosa, responded to the call.  (Id. ¶ 32.)  
The MPD officers informed the BCPD officers that they had been looking for ten minutes 
but were uncertain whether it was a baby doll or a dead infant on the couch, and Salvosa 
heard those comments.  (Id. ¶¶ 29-30, 34.)  After looking through the window, Salvosa 
“disregarded further efforts to investigate the situation from the exterior” and “forcibly 
kicked the door of the Residence in.”  (Id. ¶ 35.)  “Salvosa knew that officers could enter 
the home without damage to the property by using the garage code and access key.”  (Id. 
¶ 41.)  “Officers immediately acknowledged that the figure on the couch was a doll when 
they made entry.  It was obvious to officers that it was a baby doll and not an actual 
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infant.”  (Id. ¶ 47.)  However, the officers proceeded to search the entire home.  (Id. 
¶ 49.)  Tommy Holmes had been resting in his bedroom at the time.  (Id. ¶ 53.)  “The 
officers’ forced entry scared Holmes at the time.  He thought that attackers or intruders 
were making entry into the home.”  (Id. ¶ 55.)  The Second Amended Complaint alleges 
that Defendants’ actions violated Plaintiff and Holmes’ Fourth and Fourteenth 
Amendment rights.  (Id. ¶ 76.) 
 On March 22, 2023, the day after the incident, Plaintiff submitted a complaint 
about the officers’ conduct, reporting that the officers kicked in her door and searched her 
home and garage without a warrant.  (Dkt. 44-4 at 2-3.)1  Sergeant Brandon Zabel, who 
was Salvosa’s direct supervisor and had also been present for the incident, was asked to 
investigate Plaintiff’s complaint.  (Dkt. 44-5; Dkt. 65-1 at 41:18.)2  As a part of his 
investigation, Zabel reviewed the footage from Salvosa’s body worn camera (“BWC”).  
(Dkt. 44-5.)  Salvosa had categorized his BWC footage as “Assist Other Agency,” which 
resulted in a 90-day retention period.  (Dkt. 58 ¶ 4.)  Zabel did not recategorize the 
footage from Salvosa or any other responding BCPD officer’s BWCs.  (Id. ¶ 6.)  
However, Zabel categorized his own BWC footage in a manner which resulted in a 
longer retention period.  (Dkt. 65-1 at 14:20-16:19.)  Zabel had muted his body camera 
during the incident, such that his BWC stopped recording audio and only recorded video 
once it was muted.  (Id. at 37:13-39:10.) 
 
1 Unless otherwise indicated, page number citations are to the CM/ECF pagination. 
 
2 Transcripts are cited in page:line format. 
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Following his investigation, Zabel concluded that “there was no evidence of a 
policy violation or misconduct on the part of either Brooklyn Center or Minneapolis 
Officers.”  (Dkt. 58 ¶ 6.)  Zabel stated in his report that he had reached out to Plaintiff, 
who had “clarified that she was only upset that officers broke down her door” and “made 
no other indication of officer misconduct.”  (Dkt. 44-5 at 3.)  Plaintiff contests this claim 
and asserts that she “brought the complaint due to the violation of [her] rights and 
invasion of privacy, in addition to the damage to [her] door” and that she “never limited 
[her] complaint or told any officers that [she] no longer wanted to pursue any part of it.”  
(Dkt. 64 ¶¶ 4, 6.) 
Zabel informed Plaintiff of the results of his investigation in a letter dated April 8, 
2023.  (Dkt. 37-1 at 1.)  The City of Brooklyn Center (“the City”) subsequently 
reimbursed Plaintiff for the cost of repairing her door.  (Dkt. 44-7.) 
On April 13, 2023, Plaintiff’s prior counsel submitted a data request3 to the City 
for “all incident reports and supplements, body-worn camera data, Visi-net logs, and 
other mobile data terminal traffic” regarding the incident.  (Dkt. 37-2 at 1.)  The City did 
not respond to this request.  (Id.) 
On June 19, 2023, the 90-day retention period resulting from Salvosa’s 
categorization of his BWC footage as “Assist Other Agency” would have elapsed, and 
the footage would have been automatically deleted.  (Dkt. 44 ¶ 3.)  Because the BCPD “is 
 
3 The April 13, 2023 data request itself has not been filed with the Court.  However, 
Plaintiff’s September 28, 2023 demand letter, which was filed with the court, references 
the April 13, 2023 request.  (Dkt. 37-2 at 1.)  Salvosa has not disputed the fact that this 
request was made or that the City did not respond to the request. 
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no longer using the same bodyworn camera platform to store its videos that was utilized 
on March 21, 2023,” no audit log is available to confirm whether the footage was in fact 
automatically deleted on that date.  (Id. ¶ 8.) 
On September 28, 2023, Plaintiff’s prior counsel sent a letter to the Brooklyn 
Center City Attorney’s Office demanding damages and retraining of the involved 
officers.  (Dkt. 37-2 at 2.) 
On May 14, 2024, Plaintiff filed this lawsuit.  (Dkt. 1.)  During Salvosa’s 
deposition on February 6, 2025, Plaintiff learned that Salvosa’s BWC had been activated 
during the incident.  (Dkt. 45-1 at 23:7-24:3; Dkt. 65-3 at 1.)  In an email following the 
deposition, Plaintiff’s counsel asked counsel for Salvosa why Salvosa’s BWC footage 
had not been produced.  (Dkt. 65-3 at 1.)  Counsel for Salvosa responded that, given the 
retention schedule and the categorization of Salvosa’s footage, the footage would have 
already “dropped off” the server by the time Plaintiff’s counsel sent the demand letter on 
September 28, 2023.  (Id. at 2.)  Plaintiff’s counsel responded by asking whether a 
“disciplinary complaint was filed and whether that would have caused the videos to be 
retained.”  (Id.)  It is not clear from the record whether Plaintiff’s counsel received a 
response to this email. 
Plaintiff subsequently issued a subpoena to the City seeking documents related to 
the incident.  (Dkt. 37-3 at 1.)  The City’s subpoena responses are signed by counsel of 
record for Salvosa.  (See Dkt. 37-3 at 3.)  The City did not produce any BWC footage 
from Salvosa.  However, in its subpoena responses dated September 23, 2025, it stated 
that “[t]he Brooklyn Center Police Department retains and preserves audio or video 
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recordings of a police incident in accordance with Minn. Stat. § 13.825.”  (Dkt. 37-3 at 
2.)  The City also stated that there were no “documents related to or referencing any 
allegations of improper conduct or investigation of law enforcement officers’ conduct 
during the Incident.”  (Id. at 1-2.) 
On October 2, 2025, Plaintiff’s counsel emailed Salvosa’s counsel to meet and 
confer regarding Plaintiff’s anticipated motion for sanctions.  (Dkt. 65-4 at 1.)  In 
response, Salvosa’s counsel maintained that “we do not have documentation that Ms. 
Mays made a formal Complaint against Officer Salvosa and didn’t formally demand the 
videos until September 28, 2023 which would be outside of the 90 days retention period.” 
(Dkt. 65-5 at 1.)    
On October 3, 2025, Plaintiff brought the present Motion for Discovery Sanctions 
against Defendant Salvosa.  (Dkt. 34.)  On October 8, 2025, the City supplemented its 
subpoena response to the request for “documents related to or referencing any allegations 
of improper conduct or investigation of law enforcement officers’ conduct during the 
Incident” by producing records of Plaintiff’s March 22, 2023 complaint and the resulting 
investigation.  (Dkt. 65-6 at 1-2; Dkt. 44-4 at 2-3; Dkt. 44-5 at 2-10.)  This supplemental 
subpoena response was also signed by counsel of record for Salvosa.  (Dkt. 65-6 at 3.) 
Salvosa filed his opposition to the Motion on October 10, 2025.  (Dkt. 42.)  The 
Court held a hearing on the Motion on November 5, 2025.  (Dkt. 55.)  At the hearing, the 
Court ordered Salvosa to file a declaration by Zabel explaining his role in reviewing body 
camera footage, why he did not reclassify Salvosa’s body camera footage, and why 
Zabel’s body camera footage was preserved but the footage from the other Brooklyn 
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Center Officers on the scene was not.  (Id.)  The Court also directed the parties to meet 
and confer as to what, if any, additional discovery would be conducted as a result of 
Zabel’s declaration.  (Id.) 
Salvosa filed the Declaration of Branden Zabel on November 17, 2025, and 
Plaintiff deposed Zabel on December 8, 2025.  (Dkts. 58, 65-1.)  On January 16, 2026, 
Plaintiff submitted a supplemental memorandum in support of her Motion for Discovery 
Sanctions.  (Dkt. 63.)  On January 23, 2026, Salvosa submitted a supplemental 
memorandum in opposition to the Motion.  (Dkt. 66.)  The Motion is now ripe for 
decision. 
II. LEGAL STANDARDS 
 Rule 37(e) 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. 
Fed. R. Civ. P. 37(e).   
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Rule 37(e) “‘does not apply when information is lost before a duty to preserve 
arises’ ‘in the anticipation or conduct of litigation.’”  N. Am. Sci. Assocs., LLC v. 
Conforti, No. 24-CV-287 (JWB/ECW), 2024 WL 4903753, at *15 (D. Minn. Nov. 27, 
2024) (quoting Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment).  
Courts in this District have held that “the obligation to preserve evidence begins when a 
party knows or should have known that the evidence is relevant to future or current 
litigation.”  Id. at *16 (quoting The Valspar Corp. v. Millennium Inorganic Chems., Inc., 
No. 13-CV-3214(ADM/LIB), 2016 WL 6902459, at *4 (D. Minn. Jan. 20, 2016)).  The 
“duty to preserve relevant evidence must be viewed from the perspective of the party 
with control of the evidence.”  Great Am. Ins. Co. v. Twin Cities Dance & Ent. Co., LLC, 
No. 23-CV-767 (NEB/SGE), 2025 WL 1754485, at *3 (D. Minn. Mar. 5, 2025) (quoting 
Rao v. St. Jude Med. S.C., Inc., 631 F. Supp. 3d 678, 711 (D. Minn. 2022)), R. & R. 
adopted sub nom. Great Am. Ins. Co. v. Twin Cities Dance & Ent., LLC, No. 23-CV-767 
(NEB/SGE), 2025 WL 1772802 (D. Minn. June 27, 2025). 
A defendant’s duty to preserve evidence is often triggered at the time that a case is 
filed, but the duty may be triggered prior to litigation if the defendant “becomes aware of 
facts from which it should reasonably know that evidence is to be preserved as relevant to 
future litigation.”  Valspar, 2016 WL 6902459, at *4 (collecting cases).  “A variety of 
events may alert a party to the prospect of litigation.”  Fed. R. Civ. P. 37(e), advisory 
committee’s note to 2015 amendment.  In some cases, the incident giving rise to litigation 
itself can trigger the duty to preserve evidence.  Vogt v. MEnD Corr. Care, PLLC, No. 
21-CV-1055 (WMW/TNL), 2023 WL 2414551, at *8 (D. Minn. Jan. 30, 2023) (“The 
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Court concludes that the County had a duty to preserve the footage from Camera 18 
immediately following Joshua Vogt’s death.”), R. & R. adopted sub nom. 2023 WL 
2414531 (D. Minn. Mar. 8, 2023).   
In considering whether a party had a duty to preserve ESI under Rule 37(e), courts 
may consider “whether there was an independent requirement that the lost information be 
preserved” such as “statutes, administrative regulations, an order in another case, or a 
party’s own information-retention protocols.”  Fed. R. Civ. P. 37(e), advisory 
committee’s note to 2015 amendment.  However, “the fact that the party failed to observe 
some other preservation obligation does not itself prove that its efforts to preserve were 
not reasonable with respect to a particular case.”  Id. 
 Under Rule 37(e)(1), “Prejudice likely exists from lost or destroyed ESI if the lost 
or missing evidence would be different or more helpful to the party claiming spoliation 
than the evidence already in existence, but prejudice does not exist when there is no 
support for the speculation that the lost evidence would have affected the litigation.”  
Sandoval v. Dustar Express, Inc., No. 24-CV-02601 (SRN/SGE), 2026 WL 880396, at 
*11 (D. Minn. Mar. 31, 2026) (citation modified).  Destroyed evidence need not 
constitute a “smoking-gun” for prejudice to exist.  See Stevenson v. Union Pac. R.R. Co., 
354 F.3d 739, 748 (8th Cir. 2004).  In some cases, prejudice can be satisfied by the nature 
of the evidence itself.  Id. 
 “[U]pon finding prejudice to another party from loss of the information,” the 
Court “may order measures no greater than necessary to cure the prejudice.”  Fed. R. Civ. 
P. 37(e)(1).  Such measures may include: 
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forbidding the party that failed to preserve information from putting on 
certain evidence, permitting the parties to present evidence and argument to 
the jury regarding the loss of information, or giving the jury instructions to 
assist in its evaluation of such evidence or argument, other than instructions 
to which subdivision (e)(2) applies. Care must be taken, however, to ensure 
that curative measures under subdivision (e)(1) do not have the effect of 
measures that are permitted under subdivision (e)(2). 
Id. 
Rule 37(e)(2), on the other hand, “does not include a requirement that the court 
find prejudice to the party deprived of the information” “because the finding of intent 
required by the subdivision can support not only an inference that the lost information 
was unfavorable to the party that intentionally destroyed it, but also an inference that the 
opposing party was prejudiced by the loss of information that would have favored its 
position.”  Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015 amendment. 
 A spoliation sanction pursuant to Rule 37(e)(2) requires a “finding that the party 
acted with the intent to deprive another party of the information’s use in the litigation.”  
Fed. R. Civ. P. 37(e)(2).  Because this intent “rarely is proved by direct evidence, . . . a 
district court has substantial leeway to determine intent through consideration of 
circumstantial evidence, witness credibility, motives of the witnesses in a particular case, 
and other factors.”  Vogt, 2023 WL 2414551, at *9 (quoting Morris v. Union Pac. 
R.R., 373 F.3d 896, 901 (8th Cir. 2004)). 
 Sanctions in the form of an adverse inference instruction or entry of default 
judgment are extreme and should not be given lightly.  Rao v. St. Jude Med. S.C., Inc., 
631 F. Supp. 3d 678, 712 (D. Minn. 2022) (quoting Zubulake v. UBS Warburg LLC, 220 
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F.R.D. 212, 219-20 (S.D.N.Y. 2003)).  The advisory committee’s note to the 2015 
amendment to Rule 37(e)(2) states:  
Courts should exercise caution, however, in using the measures specified in 
(e)(2). Finding an intent to deprive another party of the lost information’s use 
in the litigation does not require a court to adopt any of the measures listed 
in subdivision (e)(2). The remedy should fit the wrong, and the severe 
measures authorized by this subdivision should not be used when the 
information lost was relatively unimportant or lesser measures such as those 
specified in subdivision (e)(1) would be sufficient to redress the loss. 
Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 2015 amendment. 
III. ANALYSIS 
 Before the Court can analyze whether sanctions are warranted in this case, it must 
first determine whose conduct is at issue in this motion.  Plaintiff brought this motion 
against Salvosa.  (Dkt. 34.)  Neither Zabel, the City, nor the BCPD are parties to this 
lawsuit.  The Court begins its analysis by considering whether the actions of these 
nonparties can be imputed to Salvosa for purposes of this motion. 
A. Imputation 
 Plaintiff cites Vogt v. MEnD Correctional Care for the proposition that the special 
relationship between law enforcement employees and a municipality in Section 1983 
lawsuits permits imputation of discovery violations to individual defendants even when 
the municipality itself is primarily responsible for the lost evidence.  (Dkt. 36 at 4).  In 
Vogt, the court concluded that a county’s failure to preserve video footage related to an 
inmate’s death could be imputed to the correctional officers who were employees of the 
county and defendants in the suit.  2023 WL 2414551, at *11-14. 
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In reaching this conclusion, the court considered Burris v. Gulf Underwriters 
Insurance Co., in which the Eighth Circuit commented that an adverse inference would 
not be warranted against an insurer based on spoliation by its insured.4  Id. at *12 (citing 
Burris v. Gulf Underwriters Ins. Co., 787 F.3d 875 (8th Cir. 2015)).  The court in Vogt 
noted that Burris was distinguishable because “the relationship between the alleged 
spoliator and the recipient of the sanctions was different.”  Id. at *13 (citing Taylor v. 
Null, No. 4:17-CV-0231-SPM, 2019 WL 4673426, at *5 (E.D. Mo. Sept. 25, 2019)).  The 
Vogt court noted that courts around the country have imputed spoliation by the state or its 
agencies to named officer defendants in § 1983 actions.  Id. at *13 (collecting cases).  In 
those cases, “[t]he defense of the defendant officer-employees was also funded by the 
state and they would be indemnified from liability based on acts and omissions occurring 
within the scope of their employment.”  Id.  Therefore, “any sanction against the 
defendant corrections officer will be in many important respects a sanction felt most 
acutely by the [state agency].”  Id. (citation modified). 
Further, the Vogt court reasoned that declining to impute an agency’s spoliation to 
an individual defendant “would present a dilemma in the context of prison litigation . . . 
where the responsibility for preserving evidence may be spread out among multiple 
officials within an institution.”  Id. at *14 (quoting Muhammad v. Mathena, No. 
 
4 As another court commenting on Burris noted, this conclusion may be dicta, as the 
Eighth Circuit had already concluded that the evidence was insufficient to establish that 
the insured had the required intent.  See Taylor v. Null, No. 4:17-CV-0231-SPM, 2019 
WL 4673426, at *5 (E.D. Mo. Sept. 25, 2019). 
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7:14CV00529, 2016 WL 8116155, at *7 (W.D. Va. Dec. 12, 2016), R. & R. adopted sub 
nom., 2017 WL 395225 (W.D. Va. Jan. 27, 2017)).  Likewise,  
“refusal to recognize a special relationship would lead to the absurd result 
that a state-run correctional facility could wrongly destroy any piece of 
evidence in its control with near-zero risk of consequence in prisoner suits,” 
and “would encourage barriers to accountability for failure to preserve 
material evidence and undermine the integrity of the judicial process that 
depends on the adversarial presentation of evidence in order to uncover the 
truth.” 
Id. (quoting Johns v. Gwinn, 503 F. Supp. 3d 452, 464-65 (W.D. Va. 2020)). 
 The Vogt court, however, did not endorse a bright line rule that an agency’s 
spoliation should always be imputed to its officers, and concluded that “[t]he more 
prudent path is to consider instances raising spoliation questions on a case-by-case basis.”  
Id. (quoting Stanbro v. Westchester Cnty. Health Care Corp., No. 19CIV10857 
KMKJCM, 2021 WL 3863396, at *7 (S.D.N.Y. Aug. 27, 2021)). 
 Salvosa did not respond to Plaintiff’s imputation argument in his brief.  At the 
hearing, the Court inquired as to Salvosa’s position on imputation.  Counsel responded 
that this case is different from Vogt because BCPD did not have any reason to foresee 
litigation in this matter.  The Court understands this argument to go to whether BCPD 
committed spoliation, not whether any spoliation on BCPD’s part can be imputed to 
Salvosa. 
 The Court concludes that imputation is appropriate in this case.  While there is no 
bright line rule that requires the Court to impute the City or the BCPD’s conduct to 
Salvosa, the Court finds that Vogt’s reasoning is persuasive and its facts are apposite to 
this case.  Like in Vogt, Salvosa has a special relationship with the city and BCPD as its 
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employee.  Salvosa’s counsel represented at the hearing that she is paid by the City, and 
that “absent some miraculous circumstances,” Salvosa would be indemnified if he were 
found individually liable.  Salvosa’s counsel also signed the City’s subpoena responses in 
this matter.  (See Dkt. 37-3 at 3; Dkt. 65-6 at 3.)  The Court also finds that the concerns 
that Vogt raised regarding the diffusion of responsibility for preserving evidence within 
correctional agencies and the function of imputation to incentivize those agencies 
preserve evidence are applicable in the context of a police department.  See Stanbro v. 
Westchester Cnty. Health Care Corp., No. 19CIV10857KMKJCM, 2021 WL 3863396, at 
*6 (S.D.N.Y. Aug. 27, 2021) (considering imputation of spoliation in the police context).  
Accordingly, the Court does not limit its inquiry to Salvosa’s actions alone and instead 
considers the conduct of the City and BCPD as a whole, including the conduct of its 
employee Zabel. 
B.  When the Duty to Preserve Arose 
 The Court now turns to the question of when the duty to preserve Salvosa’s BWC 
footage arose.  The duty to preserve arises when a party knows or should have known 
that the evidence in question is relevant to future or current litigation.  N. Am. Sci. 
Assocs., 2024 WL 4903753, at *16.  Plaintiff argues that the duty to preserve Salvosa’s 
BWC footage arose at the time of the incident, because the “nature of the incident, 
property damage, and questionable justification for the intrusion should have alerted 
Brooklyn Center that litigation was likely due to the harm.”  (Dkt. 36 at 6.)  Plaintiff 
argues that the complaint she submitted the following day also should have put the City 
on notice that litigation was likely.  (Id.)  Further, Plaintiff notes that both state law and 
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internal BCPD policies required footage to be preserved for at least one year when a 
complaint is filed about an officer.  (Id. at 7.)  Specifically, the Minnesota Government 
Data Practices Act (“MGDPA”) requires that BWC footage be retained for at least one 
year if “a formal complaint is made against a peace officer related to the incident.”  Minn. 
Stat. § 13.825, subd. 3(b)(2).  (Id.)  The BCPD’s internal policy sets an even longer 
retention period for this category of BWC footage, requiring a seven-year retention 
period when a formal complaint is filed against an officer.  (Dkt. 37-4 at 4.)  Finally, 
Plaintiff argues that her April 13, 2023 request for records “should have alerted Brooklyn 
Center that a potential claim was being investigated, which should have caused the 
materials to be preserved.  (Dkt. 36 at 7.) 
 Salvosa first argues that the duty to preserve did not arise until Plaintiff initiated 
litigation on May 14, 2024.  (Dkt. 42 at 13.)  Salvosa also argues that “[w]hen a formal 
complaint is made against an individual officer, it would be the supervisor’s 
responsibility to recategorize any body-worn camera footage as necessary, not the 
individual officer.”  (Id. at 5.)  These arguments are unavailing given the Court’s 
conclusion that the City and BCPD’s conduct is imputed to Salvosa for purposes of this 
motion. 
However, Salvosa later argued in his supplemental brief that even with respect to 
the City, the duty to preserve Salvosa’s BWC footage “did not arise until it was formally 
requested by Plaintiff’s attorney, Paul Bosman, which was after the 90-day retention 
period.”  (Dkt. 66 at 4.)  Salvosa argues that the incident itself did not trigger a duty to 
preserve because it did not involve serious injury or death.  (Dkt. 42 at 13.)  The Court 
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agrees that the nature of the harm alleged in this case is different than in cases where 
courts have found the duty to preserve evidence to be immediately triggered by an event 
itself.  See Vogt, 2023 WL 2414551, at *8 (“The Court concludes that the County had a 
duty to preserve the footage from Camera 18 immediately following Joshua Vogt’s 
death.”). 
Salvosa also argues that the retention periods required by the MGDPA are 
irrelevant to BCPD’s duty to preserve because a violation of the MGPDA “is 
fundamentally different than spoliation of evidence under federal law.”  (Dkt. 42 at 7-8.)  
It is true that the violation of a law or policy regarding document preservation does not by 
itself establish spoliation under Rule 37(e).  Fed. R. Civ. P. 37(e), advisory committee’s 
note to 2015 amendment.  However, courts may consider “whether there was an 
independent requirement that the lost information be preserved” such as “statutes” or “a 
party’s own information-retention protocols” in considering whether a party had a duty to 
preserve ESI under Rule 37(e).  Id.  Accordingly, the Court takes the MGPDA and 
BCPD’s internal retention policy into account in analyzing whether the BCPD knew or 
should have known that litigation was likely as a result of Plaintiff’s complaint. 
The Court concludes that the duty to preserve arose no later than April 13, 2023, 
when Plaintiff’s counsel submitted a data request to the City seeking, among other things, 
all BWC footage from the incident from the City.  (See Dkt. 37-2 at 1.)  This request, in 
combination with Plaintiff’s March 22, 2023 formal complaint, should have put the City 
on notice that the footage was relevant to future litigation.  This formal complaint alleged 
that officers kicked down her door and searched her home and garage without a warrant 
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(see Dkt. 44-4 at 2-3), which BCPD knew to be factually true, and BCPD and the City 
should have known that this conduct could give rise to a constitutional claim, even if it 
disagreed with the legal merits of that potential claim.  See Taylor, 2019 WL 4673426, at 
*6 (concluding that litigation was reasonably foreseeable despite defendants’ contention 
that “no one at PCC or the MDOC could have foreseen that litigation was reasonably 
anticipated because, from their perspective after reviewing the video footage, there was 
no excessive use of force”). 
The fact that BCPD reimbursed Plaintiff for the cost of repairing her door did not 
eliminate the likelihood of litigation, as the formal complaint also raised the warrantless 
search of Plaintiff’s home and garage.  (See Dkt. 44-4 at 2-3.)  The Court notes that in 
Zabel’s memorandum documenting his investigation into Plaintiff’s complaint, he stated 
that “I spoke with [Plaintiff] over the phone and she clarified that she was only upset that 
officers broke down her door.”  (Dkt. 44-5 at 3.)  However, at his deposition, Zabel 
described this call somewhat differently, testifying that Plaintiff “was primarily 
concerned about the officers damaging her door” but when asked whether Plaintiff ever 
told him not to investigate or take further action regarding the warrantless searches, Zabel 
responded that “I don’t recall her saying anything to that effect, no.”  (Dkt. 65-1 at 42:23-
43:14.)  Plaintiff has submitted an affidavit stating that “I never limited my complaint or 
told any officers that I no longer wanted to pursue any part of it.”  (Dkt. 64 ¶ 4.)  The fact 
that Zabel may have understood Plaintiff to be more concerned about her door, when 
BCPD had not yet reimbursed Plaintiff for the door at the time, does not support a 
conclusion that Plaintiff withdrew her complaint regarding the warrantless searches. 
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 But even assuming that Plaintiff’s March 22, 2023 complaint was insufficient to 
trigger a duty to preserve BWC footage, the Court concludes that the April 13, 2023 data 
request that Plaintiff’s counsel sent to the City for all BWC footage related to the incident 
should have alerted the City that the footage was relevant to future litigation.  (See Dkt. 
37-2 at 1.)  This request was made by an attorney and concerned an incident about which 
Plaintiff had already filed a complaint.  Courts have frequently found that “preservation 
letters” from attorneys trigger defendants’ duty to preserve.  See Sandoval, 2026 WL 
880396, at *6 (collecting cases).  The Court concludes that the same is true of Plaintiff’s 
data request, which sought not only the preservation of the relevant footage, but its 
production to Plaintiff.  The City is a sophisticated party and should have known that 
litigation was reasonably foreseeable when it learned that Plaintiff had retained an 
attorney to collect evidence regarding her complaint.  See Fed. R. Civ. P. 37(e) advisory 
committee’s note to 2015 amendment (“The court should be sensitive to the party’s 
sophistication with regard to litigation in evaluating preservation efforts”).  The April 13, 
2023 data request was made more than two months prior to the footage’s automatic 
deletion date of June 19, 2023.  (See Dkt. 44 ¶ 3.)  Salvosa did not address this request in 
his argument regarding when the duty to preserve was triggered.  For all these reasons, 
the Court concludes that the duty to preserve was triggered before Salvosa’s BWC 
footage was lost. 
C. Reasonable Steps to Preserve the Evidence 
 The Court next considers whether reasonable steps were taken to preserve 
Salvosa’s BWC footage.  In doing so, the Court is “sensitive to the party’s sophistication 
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with regard to litigation.”  See Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 
amendment.  Here, the City and the BCPD are sophisticated entities, and the Court 
expects that these entities are familiar with the preservation obligations associated with 
litigation.  Salvosa has not identified any steps that he, the BCPD, or the City took to 
prevent his BWC footage from being deleted when the 90-day retention period expired.  
Accordingly, the Court finds that the footage was lost because the relevant parties failed 
to take reasonable steps to preserve it. 
D. Whether the ESI can be Restored or Replaced through Additional Discovery 
Salvosa does not assert that his BWC footage can be restored, but he does argue 
that it has been replaced by additional discovery.  (Dkt. 42 at 15.)  Specifically, Salvosa 
notes that his actions prior to kicking down Plaintiff’s door were captured on the BWC 
footage provided by the Minneapolis police officers on the scene, and that Plaintiff has 
had the opportunity to depose Salvosa.  (Id.)  Plaintiff responds that this other discovery 
does not replace what she may have learned from Salvosa’s BWC footage.  (Dkt. 36 at 8, 
Dkt. 63 at 6-7.)  Plaintiff argues that the available BWC footage does not show Salvosa 
“at crucial moments” and that Salvosa’s testimony is not a substitute for objective 
evidence of what happened.  (Dkt. 36 at 8, Dkt. 63 at 6-7.) 
The Court concludes that Salvosa’s BWC footage cannot be restored or replaced 
through additional discovery.  It is not just Salvosa’s actions prior to kicking down the 
door that are at issue in this matter.  The ensuing warrantless search of Plaintiff’s home is 
at issue in this case, and the extent of Salvosa’s participation in that search is not clear 
from the Minneapolis officers’ footage.  Further, after Salvosa’s entry, his BWC footage 
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would have recorded any statements that he made about what had just occurred, which 
could be relevant to this case.  Salvosa’s BWC footage may also have captured relevant 
information before Salvosa came into view of the Minneapolis officers, including 
information that Salvosa may have received from dispatch. 
Even to the extent that Salvosa did appear in the footage from other officers’ 
BWCs, that footage does not replace the perspective from his BWC, because (as 
discussed below) what Salvosa personally heard and saw is at issue in this case.  See infra 
Section III.F. 
Finally, the Court agrees with Plaintiff that Salvosa’s testimony is not a 
replacement for his BWC footage.  Salvosa’s deposition took place on February 6, 2025, 
nearly two years after the events giving rise to this lawsuit.  (Dkt. 45-1 at 2.)  Salvosa 
testified that he did not recall certain information which his BWC footage may have 
recorded, including what the Minneapolis officers told him when he arrived on the scene 
and whether he went into any other rooms in Plaintiff’s home after finding the doll.  (Id. 
at 21:16-20; 91:17-20.)  Even if Salvosa did remember the answer to every question, the 
Court is not persuaded that a defendant’s testimony is an adequate replacement for 
objective evidence that could either verify or impeach such testimony.  Accordingly, the 
Court concludes that Salvosa’s BWC footage cannot be replaced by additional discovery. 
Having concluded that Salvosa’s BWC footage should have been preserved in 
anticipation of litigation, the footage was lost because the responsible parties did not take 
reasonable steps to preserve it, and the footage cannot be restored or replaced through 
additional discovery, sanctions may be warranted if the criteria of Rule 37(e)(1) or 
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37(e)(2) are met.  The Court begins by considering the more extreme sanctions available 
under Rule 37(e)(2). 
E. Rule 37(e)(2) Sanctions 
The Court next considers whether the footage was destroyed with the intent 
required to impose a sanction under Rule 37(e)(2).  A spoliation sanction pursuant to 
Rule 37(e)(2) requires a “finding that the party acted with the intent to deprive another 
party of the information’s use in the litigation.”  Fed. R. Civ. P. 37(e)(2).  Because this 
intent “rarely is proved by direct evidence, . . . a district court has substantial leeway to 
determine intent through consideration of circumstantial evidence, witness credibility, 
motives of the witnesses in a particular case, and other factors.”  Vogt, 2023 WL 
2414551, at *9 (quoting Morris, 373 F.3d at 902). 
In some cases, courts have found the selective preservation of evidence to support 
this finding of intentional destruction.  See Vogt, 2023 WL 2414551, at *9; Stevenson, 
354 F.3d at 748.  In Vogt, the court found the intent required to impose a spoliation 
sanction under Rule 37(e)(2) where jail officials preserved footage from several cameras 
in an area where a prisoner died, but did not preserve footage from a third camera, which 
may have included more information about the events leading up to the prisoner’s death.  
Vogt, 2023 WL 2414551, at *9.  The fact that the missing footage was overwritten by 
automatic procedures, rather than being affirmatively deleted, did not prevent a finding of 
intentional destruction.  Id.  Rather, the court found the required intent because the 
responsible parties knew that the footage “would be relevant to the ensuing investigation 
and any potential litigation arising therefrom”; because there was no explanation, 
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“credible or otherwise,” for why the missing footage was not retained and other footage 
was; and because the responsible parties were aware of the footage at a time when it 
could have been saved.  Id. 
The Vogt court relied in part on Stevenson, in which the Eighth Circuit affirmed 
the district court’s adverse inference instruction arising out of the destruction of evidence.  
354 F.3d at 748.  In that case, the defendant railroad had failed to preserve an audio 
recording related to a train accident.  Id. at 746-48.  The Eighth Circuit noted that the 
railroad should have known that the recording was relevant to future litigation, and that 
“the record indicates that Union Pacific made an immediate effort to preserve other types 
of evidence but not the voice tape, and the district court noted that Union Pacific was 
careful to preserve a voice tape in other cases where the tape proved to be beneficial to 
Union Pacific.”  Id. at 748.  The Eighth Circuit concluded that: 
The prelitigation destruction of the voice tape in this combination of 
circumstances, though done pursuant to a routine retention policy, creates a 
sufficiently strong inference of an intent to destroy it for the purpose of 
suppressing evidence of the facts surrounding the operation of the train at the 
time of the accident. 
Id.  While Stevenson predates the adoption of Rule 37(e), the Court concludes that this 
holding remains applicable in this context because the standard it applied to the question 
of intent is consistent with the standard later set in Rule 37(e).  Compare id. at 746 
(“there must be a finding of intentional destruction indicating a desire to suppress the 
truth”), with Fed. R. Civ. P. 37(e)(2) (requiring a “finding that the party acted with the 
intent to deprive another party of the information’s use in the litigation”); see also Paisley 
Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 235 (D. Minn. 2019) (“In fact, in cases that 
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predate Rule 37(e) in its current form, courts had concluded that the failure to preserve 
some types of ESI while destroying others is a reasonable basis to infer that the 
destroying party acted with bad faith.” (citing Stevenson)). 
Courts in other jurisdictions have reached the same conclusion based on the 
selective preservation of evidence.  See Culhane v. Wal-Mart Supercenter, 364 F. Supp. 
3d 768, 774 (E.D. Mich. 2019) (inferring intent to deprive when a party “selectively 
preserved” some video footage while allowing other footage to be overwritten); Est. of 
Hill by & through Grube v. NaphCare, Inc., No. 2:20-CV-00410-MKD, 2022 WL 
1464830, at *13 (E.D. Wash. May 9, 2022) (inferring intent when “an intentional 
decision was made to preserve some portions of the relevant jail video but not others” 
without “a credible explanation for why the most relevant video was the portion to be 
permanently destroyed”). 
Here, there is no dispute that some but not all of the BCPD BWC footage from 
this incident was preserved.  The Court thus considers whether there is a credible 
explanation for this inconsistency.  Salvosa asserts that it was Zabel’s responsibility to 
ensure that both Salvosa and his own BWC footage were categorized correctly following 
Plaintiff’s complaint.  (See Dkt. 42 at 5.)  At the November 5, 2025 hearing, the Court 
ordered Salvosa to file a declaration from Zabel explaining “Zabel’s role in reviewing 
body camera footage, why he did not reclassify Salvosa’s body camera footage, and why 
Zabel’s body camera footage was preserved but the footage from the other [] Brooklyn 
Center Officers on the scene was not.”  (Dkt. 55 at 1.)  On November 17, 2025, Salvosa 
filed a Declaration of Brandon Zabel.  (Dkt. 58.)  Zabel stated in his declaration that “I 
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categorized my body-worn camera footage from March 21, 2023, as Arrest or Report[5] 
because I was called to the scene to review and report on the damage to property.”  (Id. 
¶ 3.)  Zabel also stated that “It was appropriate for Officer Salvosa to categorize his body-
worn camera video as [Assist Other Agency] because he was originally called to the 
scene to assist Minneapolis Police Officers.”  (Id. ¶ 5.)  Zabel stated that he “investigated 
a complaint regarding an incident that occurred on March 21, 2023, submitted by 
Yolanda Mays” and that he “did not recategorize Officer Salvosa or other responding 
Brooklyn Center officers’ body-worn camera footage.”  (Id. ¶ 6.)  Although the Court 
ordered Zabel to explain “why he did not reclassify Salvosa’s body camera footage, and 
why Zabel’s body camera footage was preserved but the footage from the other [] 
Brooklyn Center Officers on the scene was not” (Dkt. 55 at 1), Zabel’s declaration 
offered no explanation as to why he did not reclassify Salvosa’s footage following 
Plaintiff’s complaint.  He also did not state whether the categorization of Salvosa’s 
footage remained appropriate following Plaintiff’s complaint. 
Plaintiff deposed Zabel on December 8, 2025.  (Dkt. 65-1 at 1.)  When asked why 
he did not categorize his own BWC footage as Assist Other Agency, Zabel testified that: 
My assessment of the way the call was resolved. Like I said, I knew it was 
go- -- I knew it was going to be resulting in a report because we went on 
scene and it was more than just a “we showed up and left.”  We actually took 
action and caused damage.  So I knew there was going to be a report.  We 
pulled the case number for it. So my assessment of the way I needed to 
 
5 Zabel later testified at his deposition that “Arrest or Report” is the terminology 
used in the current recording system, not the recording system that was in use at the time 
of the incident.  (Dkt. 65-1 at 15:1-12.)  He testified that, as far as he could recall, “Arrest 
or Report” was the closest categorization to the categorization he would have used under 
the prior system.  (Id.) 
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categorize my video was as an Arrest or Report, at -- at least using the -- the 
current tech- --terminology.  It may have been something similar, like I said, 
back then. 
(Id. at 16:8-19.)  However, when asked whether it would have been appropriate to 
categorize his footage as “Assist Other Agency,” Zabel responded: 
It could have been.  But it -- it -- at the time, it -- it almost seemed like a 
distinction without a difference because we were actually called there 
initially for an assist to another agency. In this case we also did, you know, 
resolve the case -- or, sorry, the call with a report. So it -- honestly, I could’ve 
-- it would -- I could have just as easily assigned it as Assist Other Agency, 
given my specific involvement. 
(Id. at 16:23-17:6.)  When asked about the different retention periods associated with each 
category, Zabel responded: 
Honestly, I wouldn’t have assumed that there would have been a significant 
departure from Assist Other Agency to Arrest or Report. I think, obviously, 
having looked at the retention schedule for each item, you would go, “Oh, 
that’s” – “there’s a” – “there’s a significant difference.” But when -- at the 
time -- and, again, this is in hindsight. I -- I would not have assumed that 
there would have been a significant difference in retention period between 
Arrest or Report and Assist Other Agency. 
(Id. at 17:18-18:5.)  However, when asked to clarify whether he personally knew “about 
any difference in retention or treatment between Assist Other Agency and Arrest or 
Report at the time of the Mays incident,” Zabel responded: 
I -- I didn’t make my decision based off of how long I thought the video 
would be retained.  I made my decision based off of what was more closely 
how I perceived the call to be resolved.  In this case, with a report. 
(Id. at 18:12-16.)  When asked whether he was expected to reclassify videos associated 
with a complaint that he reviewed, Zabel responded: 
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Only if it was obviously incorrectly categorized. But given the nature of why 
we were there and the fact that I had resolved the complaint, at least as I 
perceived it, I saw no need to change a -- the classification for the video. 
(Id. at 44:4-8.)  When asked whether it had been his understanding that he had a 
responsibility to reclassify Salvosa’s footage in response to Plaintiff’s complaint, Zabel 
responded, “No.  Because as I said, the classification of Assist Other Agency would have 
been considered appropriate given the fact that we were there to assist another agency.”  
(Dkt. 65-1 at 45:2-5.)  Zabel testified that he did not recall the City ever providing any 
training, policies, or guidance about record retention related to complaint investigation.  
(Id. at 44: 9-12.) 
 Plaintiff argues that “Sgt. Zabel’s testimony contradicts Brooklyn Center’s claim 
that its policies complied with Minnesota data laws and preserved recordings associated 
with a complaint for at least a year” and that “because Brooklyn Center has failed to 
provide a credible and consistent explanation that would justify the deletion, this Court 
should find that the recordings were deleted with intent to deprive Plaintiff of the 
opportunity to use them in litigation.”  (Dkt. 63 at 6, 10.) 
  As an initial matter, the Court is troubled by Zabel’s apparent lack of knowledge 
regarding the BCPD’s obligations under the MGDPA.  See Minn. Stat. § 13.825, subd. 
3(b)(2) (requiring BWC footage to be retained for at least one year if a formal complaint 
is made against an officer related to the incident).  To the extent that the City and the 
BCPD have endorsed Zabel’s conduct in not reclassifying the footage to meet the 
minimum requirements of state law, the Court is equally concerned.  Zabel testified that 
he did not recall whether “Brooklyn Center ever provide[d] any training, policies, or 
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guidance about record retention related to complaint investigation.”  (Dkt. 65-1 at 44:9-
12.)  If it is the case that the City never actually provided any such training, policies, or 
guidance to officers like Zabel, the absence of such training, policies, or guidance would 
be very concerning.  It would also be concerning that a supervisor in the BCPD is 
apparently unaware of or does not recall any such training, policies, or guidance.  
However, the question before the Court is not whether the deletion of the BWC footage 
was justified or violated state law, City policies, or BCPD policies.6  At this point in its 
analysis, the Court must consider whether there is a credible explanation for the selective 
retention of evidence other than an intent to deprive another party of the information’s 
use in the litigation.  See Fed. R. Civ. P. 37(e)(2). 
The Court concludes that it cannot infer the requisite intent to deprive under these 
circumstances.  This case is distinguishable from the selective preservation cases 
discussed above because the record does not support an inference that Zabel intended for 
his own footage to be preserved for litigation purposes.  He did not preserve his footage 
in an indefinite litigation hold or send his footage to an attorney.  While he categorized 
his footage in a way that resulted in a longer retention period than Salvosa’s, his footage 
 
6 The Court is also concerned that City initially claimed on September 23, 2025 in 
response to Plaintiff’s subpoena that there were no “documents related to or referencing 
any allegations of improper conduct or investigation of law enforcement officers’ 
conduct during the Incident” (Dkt. 37-3 at 1-2) and only supplemented its response on 
October 8, 2025, after Plaintiff filed this Motion, to produce records of Plaintiff’s March 
22, 2023 complaint and the resulting investigation (Dkt. 65-6 at 1-2; Dkt. 44-4 at 2-3; 
Dkt. 44-5 at 2-10). 
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was also set to be automatically deleted at the end of that period.7  In contrast, the footage 
that was selectively preserved in Vogt was forwarded to the County Attorney, presumably 
for use in litigation.  2023 WL 2414551, at *6.  Similarly in Stevenson, “the district court 
found that Union Pacific had been involved in many grade crossing collisions and knew 
that the taped conversations would be relevant in any potential litigation regarding an 
accident that resulted in death and serious injury” and “the record indicate[d] that Union 
Pacific made an immediate effort to preserve other types of evidence but not the voice 
tape, and the district court noted that Union Pacific was careful to preserve a voice tape in 
other cases where the tape proved to be beneficial to Union Pacific.”  354 F.3d at 747-48.  
Here, there is no evidence that Zabel anticipated litigation at the time when he 
investigated the complaint and could have recategorized the relevant footage. 
Zabel testified that, at the time, the categorization of his footage as “Arrest or 
Report” and Salvosa’s as “Assist Other Agency” seemed like “a distinction without a 
difference” and that either could have been correct.  (Dkt. 65-1 at 16:20-17:6.)  He 
testified that he “would not have assumed that there would have been a significant 
difference in retention period between Arrest or Report and Assist Other Agency” and 
that he “didn’t make [his] decision based off of how long I thought the video would be 
retained.”  (Id. at 18:2-13.)  While Zabel’s reasoning that both categorizations could be 
correct may not be entirely sound, and his testimony regarding retention requirements 
 
7 It is not clear from the record exactly when Zabel’s footage would have been 
deleted because he did not remember the specific categorization he applied, and because 
there is no audit log available.  (Dkt. 65-1 at 15:1-12; Dkt. 44 ¶ 8.) 
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and related training (or lack thereof) is concerning, the Court does not find that his 
explanation lacks credibility.  The Court may have reached a different conclusion had 
Plaintiff put forward evidence that Zabel had been trained as to retention policies and the 
requirements of the MGDPA or had applied the retention policy correctly in other cases.  
But on the record before it, the Court cannot rule out the possibility that the inconsistent 
retention in this case was ignorance, confusion, or misunderstanding of the applicable 
policies rather than the intentional destruction of evidence for the purpose of depriving 
another party of the information’s use in this litigation.
8 
Plaintiff argues that even if we accept Zabel’s explanation, it would mean that 
“Brooklyn Center intentionally condoned a system that allowed the improper premature 
deletion of recordings associated with a disciplinary investigation.  These circumstances 
are also sufficient to find intentional destruction of the recordings.”  (Dkt. 63 at 9.)  
However, negligence or even gross negligence is insufficient to support an award of 
sanctions under Rule 37(e)(2).  Fed. R. Civ. P. 37(e)(2) advisory committee’s note to 
2015 amendment (“[Rule 37(e)(2)]
 rejects cases such as Residential Funding Corp. v. 
DeGeorge Financial Corp., 306 F.3d 99 (2d Cir. 2002), that authorize the giving of 
adverse-inference instructions on a finding of negligence or gross negligence.”).  While 
the facts of this case give the Court serious concerns about the City’s retention systems, 
polices, and training, the record does not support a finding that the City’s actions or 
inaction rose above the level of gross negligence to establish the specific intent to deprive 
 
8 To be clear, the Court does not condone any such ignorance, confusion, or 
misunderstanding of the applicable policies. 
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another party of the use of Salvosa’s BWC footage in this litigation.  Accordingly, the 
Court concludes that sanctions under Rule 37(e)(2) are not warranted in this case.    
F. Rule 37(e)(1) Sanctions 
 The Court next considers whether any sanction is warranted under Rule 37(e)(1).  
Under this rule, “upon finding prejudice to another party from loss of the information, 
[the Court] may order measures no greater than necessary to cure the prejudice.”  Fed. R. 
Civ. P. 37(e)(1).  “Prejudice likely exists from lost or destroyed ESI if the lost or missing 
evidence would be different or more helpful to the party claiming spoliation than the 
evidence already in existence, but prejudice does not exist when there is no support for 
the speculation that the lost evidence would have affected the litigation.”  Sandoval, 2026 
WL 880396, at *11 (citation modified).   
Plaintiff argues that the loss of Salvosa’s BWC footage prejudiced her.  (Dkt. 36 at 
10-11).  Specifically, Plaintiff argues that there are disputes about what Salvosa knew 
before forcing entry, including whether he knew the Minneapolis officers had been on 
site for ten minutes before he arrived and whether he knew about a garage code and key 
available to law enforcement that would have provided a means to enter Plaintiff’s home 
without damaging her door.  (Id.)  Plaintiff argues that “[w]ithout the recording, Salvosa 
can make claims that support his position without being rebutted by an objective 
recording of what he saw, heard, and did” and that “[b]ecause the Plaintiffs have lost 
evidence that could have rebutted Salvosa’s claims, they are effectively unable to 
challenge Salvosa’s contentions that are not captured on other officers’ recordings.”  (Id. 
at 11.)  Plaintiff cites Vogt for the proposition that “[l]ost evidence that would have 
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helped evaluate credibility of conflicting statements or would have provided a different 
perspective of an incident can cause prejudice.”  (Id. at 10 (citing Vogt, 2023 WL 
2414551, at *11).) 
 Salvosa responds that “[b]ody-worn camera footage of the Brooklyn Center Police 
officers on the day of the incident would be relevant, but it is purely speculative that 
video would have materially benefitted Plaintiffs’ case and frankly would likely be more 
helpful for Defendants in pursuing dismissal of Plaintiffs’ claims.”  (Dkt. 42 at 17-18.)  
While Salvosa maintains that he did not have knowledge of the garage code, he also 
argues that such knowledge would not affect Plaintiff’s claims, because Plaintiff had only 
given the City permission to use the code as necessary to enter her home to render 
medical aid to her uncle, Mr. Holmes, and because this lawsuit encompasses more than 
the damage to Plaintiff’s door, for which the city has already compensated Plaintiff.  
(Dkt. 66 at 6.)  This argument is compelling.  It is unclear to the Court how Salvosa’s 
knowledge of the door code would impact Plaintiff’s case. 
However, the Court finds Salvosa’s knowledge of the length of time that had 
passed since the Minneapolis officers first observed what turned out to be a doll to be 
highly relevant to this case.  Salvosa has taken the position that he “had not known how 
long the Minneapolis officers had been on the scene at this time nor had he known how 
long it had been since they had first observed the doll on the couch.”  (Dkt. 71 at 4.)  At 
his deposition, Salvosa was asked: “Would it have mattered to your conduct if the 
Minneapolis officers had observed this figure for more than ten minutes at this point?”  
(Dkt. 45-1 at 46:8-10.)  Salvosa responded that it would, and explained that: 
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There probably would have been less of an emergency, an exigent 
emergency.  If they had been there for ten minutes, I mean, at some point 
statistically the need to do any life saving goes down and the hesitation kind 
of makes it less of an emergency in my mind.  It’s not an immediate 
emergency anymore if we’re kind of debating.  
(Id. at 46:13-19.)  However, there is reason to doubt Salvosa’s assertion that he did not 
know how long the Minneapolis officers had been observing what turned out to be a doll. 
A video from a Minneapolis officer shows another Minneapolis officer stating that 
they had been looking at the doll for ten minutes.  (Dkt. 45-4 at 11:03-06.)  Salvosa 
asserts that he did not hear this statement, and that his own BWC footage would not 
benefit Plaintiff’s case on this point because “[i]n the bodyworn camera footage provided 
by the City of Minneapolis, one can hear what the Minneapolis officers relayed to Officer 
Salvosa when he arrived, whether he heard it or not would not be captured by his own 
body-worn camera footage.”  (Dkt. 42 at 17.)  It is true that the fact that a statement was 
picked up on Salvosa’s BWC would not definitively prove that he heard the statement.  
However, the Court finds that Salvosa’s footage would have been more helpful than the 
existing footage in assessing his claim that he did not hear the statement, as the 
Minneapolis officer’s view of Salvosa is obstructed at the time the statement was made, 
and it is unclear how, if at all, Salvosa reacted to the statement.   (See Dkt. 45-4 at 11:03-
06.)  Further, the relative volume of the statement in question compared to statements that 
Salvosa did hear could be helpful in assessing Salvosa’s claim about what he heard. 
Moreover, Salvosa’s conduct and statements following his entry into Plaintiff’s 
house may have been probative as to his state of mind at the time of entry.  The available 
video footage shows that after Salvosa kicked down Plaintiff’s door, the officers on site 
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continued to discuss what had just transpired.  (See generally Dkts. 45-3, 45-4, & 50-3.)  
Salvosa is recorded in some but not all of this footage.  The Court finds that it is 
reasonably likely that Salvosa may have debriefed what he knew at the time of entry with 
his colleagues in conversations that took place at the scene of the incident but were not 
recorded.  Such footage would have been “different or more helpful” than the evidence 
already in existence.  See Sandoval, 2026 WL 880396, at *11.  Accordingly, the Court 
concludes that Plaintiff is prejudiced by the loss of Salvosa’s BWC footage. 
G. The Appropriate Sanction 
 Upon a finding of prejudice pursuant to Rule 37(e)(1), the Court “may order 
measures no greater than necessary to cure the prejudice.”  Fed. R. Civ. P. 37(e)(1).  “The 
range of such measures is quite broad if they are necessary for this purpose. . . . But 
authority to order measures no greater than necessary to cure prejudice does not require 
the court to adopt measures to cure every possible prejudicial effect.”  Fed. R. Civ. P. 
37(e)(1), advisory committee’s note to 2015 amendment. 
In an appropriate case, it may be that serious measures are necessary to cure 
prejudice found by the court, such as forbidding the party that failed to 
preserve information from putting on certain evidence, permitting the parties 
to present evidence and argument to the jury regarding the loss of 
information, or giving the jury instructions to assist in its evaluation of such 
evidence or argument, other than instructions to which subdivision (e)(2) 
applies. Care must be taken, however, to ensure that curative measures 
under subdivision (e)(1) do not have the effect of measures that are 
permitted under subdivision (e)(2) only on a finding of intent to deprive 
another party of the lost information’s use in the litigation.  
Id. (emphasis added).  Further, “[m]any courts have imposed monetary sanctions under 
Rule 37(e)(1).  Sandoval, 2026 WL 880396, at *12; see also Vogt, 2023 WL 2414551, at 
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*17 (“In addition to any other sanctions expressly contemplated by Rule 37(e), as 
amended, a court has discretion to award attorneys’ fees and costs to the moving party, to 
the extent reasonable to address any prejudice caused by the spoliation.”). 
 Here, Plaintiff has not sought any evidentiary sanction that would be permissible 
under Rule 37(e)(1).  However, Plaintiff has sought her attorney’s fees associated with 
investigating and responding to the spoliation of Salvosa’s BWC footage.  (Dkt. 36 at 
12.)  Salvosa relies on Stevenson to argue that fees are not appropriate in this case.  (Dkt. 
42 at 21.)  In Stevenson, the Eighth Circuit explained that  
Federal courts sitting in diversity can use their inherent power to assess 
attorney fees as a sanction for bad faith conduct even if the applicable state 
law does not recognize the bad faith exception to the general rule against fee 
shifting. This inherent power reaches conduct both before and during 
litigation as long as that conduct abuses the judicial process in some manner. 
A bad faith finding is specifically required in order to assess attorneys’ fees. 
554 F.3d at 751 (citation modified).   
Stevenson is inapposite for several reasons.  First, the Court is not sitting in 
diversity in this case and is not relying on its inherent authority.  Rather, the Court is 
considering attorneys’ fees as a sanction pursuant to Rule 37(e)(1).  As discussed in 
Section III.E of this order, Stevenson predates the adoption of Rule 37(e)(1).  While the 
Court found that Stevenson’s holding with respect to intent remained apposite to this case 
because it is consistent with the intent required by Rule 37(e)(2), the same cannot be said 
about Stevenson’s holding with respect to fees.  Rule 37(e)(1) authorizes courts to impose 
a broad range of sanctions to the extent they are necessary to cure the prejudice caused by 
spoliation.  See Fed. R. Civ. P. 37(e)(1), advisory committee’s note to 2015 amendment.  
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Courts interpreting this rule have found that attorneys fees can be one such sanction 
under 37(e)(1), which does not require any finding of bad faith or intent to deprive.  E.g., 
Sandoval, 2026 WL 880396, at *12; Spencer v. Lunada Bay Boys, No. 16-CV-2129, 
2018 WL 839862, *1 (C.D. Calif. Feb. 12, 2018) (noting that “[t]here is no requirement 
in Rule 37(e) or the Committee Notes that a court must make a finding of bad faith before 
imposing monetary sanctions, and district courts have imposed monetary sanctions” and 
collecting cases).  The Court concludes that no showing of bad faith is required to award 
attorneys’ fees under Rule 37(e)(1). 
 Here, the Court concludes that an award of Plaintiff’s attorneys’ fees is an 
appropriate measure that is no greater than necessary to cure the prejudice resulting from 
the loss of Salvosa’s BWC footage.  See Fed. R. Civ. P. 37(e)(1).  Plaintiff has engaged 
in substantial discovery and motion practice regarding the loss of Salvosa’s BWC 
footage, which Plaintiff would not have needed to do had Salvosa’s footage been 
appropriately preserved.  In these circumstances, the Court concludes that an award of 
Plaintiff’s attorneys’ fees is a necessary measure to cure this prejudice.  See Sandoval, 
2026 WL 880396, at *12
 (“Because Plaintiffs have been prejudiced the Court will order 
Dustar, pursuant to Rule 37(e)(1), to pay Plaintiffs the attorney’s fees and costs that 
Plaintiffs incurred as a result of investigating the spoliation and bringing this Motion for 
Sanctions before the Court.”); Vogt, 2023 WL 2414551, at *17 (“the Court recommends 
that Plaintiff be awarded her reasonable attorney fees and costs that she would not have 
incurred but for the County’s failure to preserve the footage from Camera 18, including 
those she incurred in connection with the instant motion”). 
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IV. ORDER 
For all these reasons, and based on the files, records, and proceedings herein, IT 
IS ORDERED that:  
1. Plaintiff’s Motion for Discovery Sanctions against Defendant Salvosa (Dkt. 34) is 
GRANTED insofar as Plaintiff is awarded her attorneys’ fees and costs incurred as a 
result of the discovery and motion practice she conducted regarding the loss of Salvosa’s 
BWC footage, and is otherwise DENIED. 
2. Within fourteen (14) days of the date of this Order, Plaintiff must serve on 
Salvosa a statement of the reasonable expenses (including attorneys’ fees and costs) she 
incurred in connection with the discovery and motion practice she conducted regarding 
the loss of Salvosa’s BWC footage.  If Salvosa does not agree to the amount, he must file 
his objections on CM/ECF (along with Plaintiff’s statement) within seven (7) days after 
receiving the amount from Plaintiff.  Plaintiff may respond to Salvosa’s filing within 
seven (7) days after the filing.  The Court will decide the amount of fees and costs based 
on the papers, unless the Court determines that a hearing is necessary.  Nothing in this 
Order precludes the City from indemnifying Salvosa for those reasonable expenses. 
 
Dated: May 13, 2026 s/Elizabeth Cowan Wright              
ELIZABETH COWAN WRIGHT 
United States Magistrate Judge 
 
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