Judge Mae D’Agostino
Harvey’s civil rights action centered on actions against him while held in a county jail. Defendant corrections officers are county sheriff’s department employees. On March 6, 2013, the court held that defendants’ failure to produce defendant Reese’s report concerning a March 29, 2006, pepper spray incident warranted an adverse inference instruction. Defendants sought reconsideration, arguing that the subject report preservation was the responsibility of the non-party county. District court denied reconsideration, finding Harvey entitled to the adverse inference charge. Informed by Thomas v. Kelly, the district court found that the jury could reasonably infer that the information in Reese’s report, drafted closer in time to the underlying incident, contained a more accurate, unbiased account of what had occurredsubstantially different from, and contradicting Reese’s testimony at trial. Further, because defendants were working in their capacity as sheriff’s department employees, the county was required to indemnify them for any award of compensatory damages assessed. Therefore, the adverse inference charge as given, referring to "[d]efendants" generally, was appropriate.
