DESARAY JOSEPH AND NELSON WINSTON INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILD v. LES ENFANTS DE LAFOURCHE LLC LAFOURCHE LEARNING ACADEMY KERSTIN CHRISTENSON (2025)

Defendant, Les Enfants De Lafourche, LLC d/b/a Lafourche Learning Academy, appeals a judgment granting plaintiffs’ motion to compel and for sanctions and ordering the trial court will provide negative inference jury instructions against Les Enfants concerning exterior surveillance video footage, the evidence at issue.

After review, we recall the rule to show cause order issued by this court and maintain the appeal. We amend the August 11, 2025 amended judgment to correct a typographical error, i.e., to identify the motion at issue as “Plaintiffs’ Motion to Compel and for Sanctions.” We reverse the portion of the August 11, 2025 amended judgment, as amended by this court, that granted plaintiffs’ motion for sanctions and the corresponding order of negative inference jury instructions against Les Enfants. We affirm the portion of the August 11, 2025 amended judgment, as amended by this court, that granted plaintiffs’ motion to compel and find the trial court erred by failing to enter an order to compel against Les Enfants. Therefore, we order Les Enfants to conduct a reasonable inquiry, in conformity with the rules of discovery, to determine whether it is still in possession of the video footage from the external camera and, if available, to produce a copy of the footage to plaintiffs. The matter is remanded for further proceedings consistent with this ruling.

FACTS AND PROCEDURAL HISTORY

Four-month-old N.W. suffered a medical emergency on December 27, 2023, shortly after being dropped off at his daycare, Lafourche Learning Academy, which is owned and operated by Les Enfants. N.W.’s doctors suspected he suffered from shaken baby syndrome.¹ N.W.’s parents, Desaray Joseph and Nelson Winston, contend an employee of Les Enfants injured their son. They filed suit against Les Enfants and its employee on February 26, 2024, seeking damages for the injuries sustained by N.W.²

This appeal involves a motion to compel and for sanctions filed by plaintiffs in October 2024 against Les Enfants. In the motion, plaintiffs asserted that Les Enfants failed to supplement its original discovery responses and failed to produce the surveillance footage from the daycare's external cameras.³ In their April 2024 discovery requests, plaintiffs asked Les Enfants to “[p]rovide a detailed description of the last video footage for viewing and inspection on or before 7:30 AM on December 27, 2023․” Les Enfants pertinently responded by stating, “The recorder for the external surveillance system was operative and video footage from that camera is produced in response to this Interrogatory.” Plaintiffs also asked Les Enfants to produce copies of any movies and/or videotapes of the plaintiffs or the incident, including security footage, from 7:30 AM to 5:00 PM on December 27, 2023. According to Les Enfants’ discovery responses, a video from the daycare's external surveillance camera was attached.

However, this video was not produced with Les Enfants’ discovery responses. Counsel for the parties participated in a Rule 10.1 discovery conference on/about July 17, 2024 and agreed that Les Enfants would produce the external video footage within two weeks.⁴ On July 24, 2024, counsel for Les Enfants sent a letter to plaintiffs’ counsel stating that someone by the name of Richie Cortez downloaded the video from the daycare's external surveillance camera to a “jump drive” and delivered it to Craig Webre, a member of Les Enfants, who also serves as Lafourche Parish Sheriff.⁵ According to the letter, the jump drive was “misplaced,” but Les Enfants was searching for it and would immediately produce it to plaintiffs if located. In his affidavit filed in opposition to plaintiffs’ motion, Sheriff Webre confirmed he “accidently misplaced” the jump drive.

Plaintiffs had previously sent an evidence preservation letter to Les Enfants on January 2, 2024, putting it on notice the video surveillance footage “would be crucial to a lawsuit[.]” In their motion, plaintiffs maintained that Sheriff Webre lost the “only copy of the external video surveillance” before transmitting it to them. (Emphasis original.) Plaintiffs stated they are entitled to full and complete discovery responses, and “[i]f it is found that the․external video surveillance footage [is] unavailable due to the actions of Les Enfants, this Honorable Court is further empowered to assess discovery sanctions against Les Enfants[.]” Thus, plaintiffs prayed for the trial court to order Les Enfants to provide responses to their requests for discovery, and in the event Les Enfants is unable to provide responses due to the destruction of the evidence, for the court to impose sanctions against Les Enfants. Plaintiffs further sought an award of costs and attorney fees incurred in connection with filing the motion to compel. See La. C.C.P. art. 1469(4).

Les Enfants opposed the motion and, in part, confirmed that supplemental discovery responses were provided to plaintiffs after the motion was filed. Although the video footage from the external camera was not produced to plaintiffs, Les Enfants asserted that sanctions for spoliation of evidence were not warranted because Sheriff Webre did not intend to destroy the evidence. Instead, he “negligently misplaced” the jump drive with the downloaded video. Les Enfants confirmed it “does possess” the recorder/hard drive for the exterior camera.

A hearing on the motion was held on January 27, 2025, during which all documents attached to the motion and opposition were admitted into evidence. In an exchange with the trial court, counsel for Les Enfants stated that he did not know if the footage from December 27, 2023 is still on the hard drive for the external camera. Les Enfants’ counsel confirmed he did not personally look at the hard drive to determine if the footage exists and did not hire an expert to “analyze any of this stuff.” The trial court questioned why another copy of the video was not made, but Les Enfants’ counsel “[did not] know the answer to that.” Finally, counsel did not know whether Les Enfants made any effort to determine whether the video exists on the hard drive.

At the conclusion of the hearing, the trial court orally granted plaintiffs’ motion for sanctions, finding Les Enfants failed to preserve evidence, i.e., the external video footage, and imposed the sanction of an adverse jury instruction. A written judgment was signed on February 19, 2025, granting “Plaintiff's “Motion to Compel and for Sanctions” as it relates to “the loss of the exterior surveillance footage.”

AMENDMENT OF JUDGMENT

After Les Enfants’ appeal was lodged, this court noted the February 19, 2025 judgment lacked decretal language and remanded the matter, inviting the trial court to sign an amended judgment. The record was supplemented with an amended judgment signed on August 11, 2025, which contains appropriate decretal language. Specifically, the amended judgment granted “Plaintiff's Motion to Compel and for Sanctions” against Les Enfants as it relates to “the loss of the exterior surveillance footage” and ordered the trial court will provide a negative inference jury instruction against Les Enfants. Consequently, the rule to show cause order is recalled, and the appeal is maintained.

We note, however, the August 11, 2025 amended judgment refers to “Plaintiffs’ Motion to Compel and for Sanctions” and “Plaintiff's Motion to Compel and for Sanctions.” The caption of the judgment identifies two plaintiffs, Desaray Joseph and Nelson Winston, individually and on behalf of their minor child, N.W. Therefore, to remedy the typographical error, we amend the August 11, 2025 amended judgment to identify the motion as “Plaintiffs’ Motion to Compel and for Sanctions.” See La. C.C.P. art. 2164; Antwine v. Winfield, 2015-1850 (La. App. 1st Cir. 9/16/16), 203 So.3d 454, 459.

LAW AND ANALYSIS

Initially, we note a discrepancy between the trial court's oral ruling and the written judgments (original and as amended). In its oral ruling, the trial court granted only plaintiffs’ motion for sanctions concerning the exterior footage. However, the amended judgment states plaintiffs’ “Motion to Compel and for Sanctions․is GRANTED.” When there is a conflict between a trial court's oral rulings and written judgment, the written judgment controls. Succession of Flake, 23-310 (La. App. 5th Cir. 4/3/24), 386 So.3d 1173, 1182 n.4, writ denied, 2024-00577 (La. 9/24/24), 392 So.3d 1139; Cryer v. Cryer, 96-2741 (La. App. 1st Cir. 12/29/97), 706 So.2d 167, 169 n. 1. Thus, examining the judgment on appeal, we consider whether the trial court properly granted plaintiffs’ motion to compel and motion for sanctions as it relates to the video footage from Les Enfants’ exterior camera.

On appeal, Les Enfants correctly points out there was no discovery order in place concerning the exterior footage; therefore, sanctions could not be awarded for the failure to comply with an order compelling discovery pursuant to La. C.C.P. art. 1471. See TruFund Financial Services, Inc. v. City of Baton Rouge/Parish of East Baton Rouge, 2024-0993 (La. App. 1st Cir. 5/8/25), 417 So.3d 703, 708. However, the trial court expressly relied on the authority granted to it by La. C.C.P. art. 191 to impose sanctions.⁶ Louisiana Code of Civil Procedure article 191 states, “A court possesses inherently all of the power necessary for the exercise of its jurisdiction even though not granted expressly by law.” Even without a discovery order, Article 191 authorizes trial courts to impose sanctions for spoliation of evidence, since the destruction of evidence clearly interferes with the court's ability to fairly administer justice. Carter v. Hi Nabor Super Market, LLC, 2013-0529 (La. App. 1st Cir. 12/30/14), 168 So.3d 698, 704.

Nevertheless, we find the trial court abused its discretion by granting the motion for sanctions, considering the unanswered questions concerning whether the video still exists on the external camera's hard drive and whether the video footage may be duplicated.⁷ Plaintiffs claim Sheriff Webre lost the only copy of the footage; however, the record does not foreclose the possibility that the video can be replicated. Instead, the record reflects that Les Enfants failed to make a reasonable inquiry into whether the video footage from the external camera is still in its possession and whether the footage may be duplicated.⁸ See La. C.C.P. arts. 1420, et seq. Therefore, it was premature to impose a spoliation sanction, particularly considering plaintiffs prayed that the trial court order “that all outstanding discovery be turned over, and if the video surveillance cannot be turned over[,] that [the court] sanction Les Enfants.” (Emphasis added.)

We conclude the trial court erred by granting plaintiffs’ motion for sanctions as it relates to the external video footage. Instead, in conjunction with granting the plaintiffs’ motion to compel, the trial court should have entered an order instructing Les Enfants to conduct a reasonable inquiry, in conformity with the rules of discovery, to determine whether it is still in possession of the video footage from the external camera and, if available, to produce a copy of the footage to plaintiffs. If, after reasonable inquiry and the exercise of due diligence, it is established that the footage from the external camera is no longer on the hard drive and/or cannot otherwise be duplicated and produced to plaintiffs, plaintiffs are not precluded from moving for sanctions for spoliation.

CONCLUSION

For the foregoing reasons, we recall the rule to show cause order and maintain the appeal. We amend the August 11, 2025 amended judgment to correct a typographical error, i.e., to identify the motion at issue as “Plaintiffs’ Motion to Compel and for Sanctions.”

We reverse the portion of the August 11, 2025 amended judgment, as amended by this court, that granted plaintiffs’ motion for sanctions concerning the exterior surveillance footage and ordered that the trial court will provide negative inference jury instructions. We affirm the portion of the August 11, 2025 amended judgment, as amended by this court, that granted plaintiffs’ motion to compel as to the exterior surveillance footage and order Les Enfants De Lafourche, LLC, d/b/a Lafourche Learning Academy, to conduct a reasonable inquiry, in conformity with the rules of discovery, to determine whether it is still in possession of the video footage from the external camera and, if available, to produce a copy of the footage to plaintiffs. We remand the matter to the trial court for further proceedings consistent with this ruling.

Cost of this appeal shall be split evenly between the parties, with plaintiffs paying 50 percent and defendant, Les Enfants, paying 50 percent.

APPEAL MAINTAINED. JUDGMENT AMENDED; AS AMENDED, AFFIRMED IN PART, REVERSED IN PART, AND RENDERED; REMANDED.

I concur with the majority that the trial court prematurely granted plaintiffs’ motion for sanctions. However, I write separately only to emphasize that if Les Enfants De Lafourche, LLC is unable to provide the external video surveillance then plaintiffs may re-urge their motion for sanctions.

FOOTNOTES

1.   According to plaintiffs’ petition, “in shaken baby syndrome, ‘irreversible damage to the brain substance from the lack of oxygen occurs if the child stops breathing during shaking’.” Citing the American Association of Neurological Surgeons (https://www.aans.org/en/Patients/NeurosurgicalConditions-and-Treatments/Shaken-Baby-Syndrome)

2.   The petition was subsequently amended to include allegations to establish Desaray Joseph's legal capacity to bring suit on behalf of her son, N.W., and to clarify that N.W.’s father, Nelson Winston, is asserting a claim in his individual capacity only.

3.   Plaintiffs also sought to compel production of the video footage from the daycare's internal camera; however, the Thibodaux Police Department took possession of the internal hard drive shortly after the incident. Therefore, the trial court deferred ruling on the motion as it relates to the internal footage.

4.   Louisiana District Court Rule 10.1 requires a discovery conference prior to filing any discovery motion. Louisiana Department of Transportation and Development v. Oilfield Heavy Haulers, LLC., 2011-0912 (La. 12/6/11), 79 So.3d 978, 986.

5.   None of the evidence offered in support of or in opposition to the motion to compel and for sanctions identifies Richie (sometimes, “Ritchie”) Cortez or his relationship to Sheriff Webre and/or Les Enfants.

6.   Louisiana Code of Civil Procedure article 1915(A)(6) pertinently provides that a final judgment may be rendered, even though it may not grant the successful party all of the relief prayed for or may not adjudicate all of the issues in the case, when the court imposes sanctions or disciplinary action pursuant to La. C.C.P. art. 191, among others. Therefore, this court has jurisdiction over this appeal. See 4 C's Land Corp. v. Columbia Gulf Transmission Co., 2021-0121 (La. App. 1st Cir. 10/21/21), 332 So.3d 123, 126, writ denied, 2021-01735 (La. 1/19/22), 331 So.3d 322 (This court's appellate jurisdiction extends only to final judgments).

7.   We review the trial court's exercise of its inherent authority under La. C.C.P. art. 191 under the abuse of discretion standard. See Roussell v. Circle K Store, Inc., 2021-05 82 (La. App. 1st Cir. 12/22/21), 340 So.3d 52,58.

8.   In Horton v. McCary, 63 5 So.2d 199, 203 (La. 1994), the Louisiana Supreme Court articulated a four-factor test to be applied by the court before taking the drastic action of dismissal for a discovery violation, including whether the client participated in the violation or innocently hired a derelict attorney. Although we have not found a case applying the Horton factors to an adverse presumption spoliation sanction, nor do we apply them here, we are mindful that it is not apparent from the record whether Les Enfants participated in the violation or the failure to conduct a reasonable inquiry consistent with the rules of discovery. See La. C.C.P. art. 1420.

PENZATO, J.

Balfour, J. concurs with reasons.