October 30, 2018 Practice Points

How to Deal with the Destruction of Surveillance Video: Same Defendant, Different Results

In two contrasting but reconcilable recent rulings, Wal-Mart was sanctioned in one case and awarded summary judgment in another.

By Ashley J. Heilprin

Spoliation refers to the destruction or material alteration of evidence, or the failure to preserve evidence, for another person’s use during pending or reasonably foreseeable litigation. Spoliation of evidence may also result in Rule 37 sanctions. In two contrasting but reconcilable recent rulings, Wal-Mart was sanctioned in one case and awarded summary judgment in another.

In Ballard v. Wal-Mart Stores East, LP, Civ. A. No. 17-cv-03057, 2018 WL 4964361 (S.D. W. Va. Oct. 15, 2018), the district court addressed whether Rule 37 sanctions were appropriate where Wal-Mart failed to preserve surveillance video footage and digital photos of a slip-and-fall incident on June 6, 2016. On the date of the accident, photographs were taken and surveillance video of the incident was captured. Subsequently, on July 25, 2016, the plaintiff informed the defendant that she engaged counsel to pursue her claim against the defendant.

Wal-Mart argued that its duty to preserve evidence did not arise until July 25, 2016, when it became aware that the plaintiff engaged counsel. Wal-Mart retained its video footage of the fall in accordance with company policy, but did not preserve other footage of the store on that day, nor did Wal-Mart preserve the photographs in native format. Wal-Mart argued that by the time that the duty to preserve was triggered on July 25, 2016, the native format of the photographs and the video footage of the rest of the store no longer existed.

The court strongly disagreed. The court held that the duty to preserve evidence that the defendant reviewed in its investigation was triggered at the time of the investigation. The court reasoned that the fact that the defendant conducted an investigation was evidence of the fact that the defendant anticipated a claim or litigation. Thus, Wal-Mart could not cherry-pick what to preserve and what not to preserve.

In contrast, Pace v. Wal-Mart, 2018 WL 4468100, (E.D. Penn. Sept. 18, 2018), holds that mere alleged spoliation, without actual evidence of destruction or suppression, is insufficient to defeat summary judgment. The plaintiff defended a motion for summary judgment by alleging thatWal-Mart failed to preserve relevant video. But Wal-Mart submitted evidence that there were no video cameras that would have captured the plaintiff’s fall, and introduced deposition testimony regarding its efforts to preserve the evidence. The court found persuasive the affiant’s statement that he reviewed the available footage for the incident, captured the existing footage, and determined that none of the footage covered the fall. The court held that the case was not about whether the footage existed, but rather, whether the fall occurred and caused the plaintiff harm. Given that the plaintiff was unable to introduce actual evidence supporting a genuine issue of material fact, the court granted the defendant’s motion for summary judgment, despite the plaintiff’s (unsupported) spoliation claim.

These cases illustrate two contrasting points. Under Ballard,litigators must be vigilant in instructing their clients to preserve all information obtained during an investigation, regardless of whether a claim or lawsuit has been threatened. Parties may not hide behind the veil of not knowing of a specific claim and therefore fail to preserve evidence obtained and/or reviewed during an investigation. Failure to do so could lead to a spoliation claim or negative inference before a jury. Under Pace, parties moving for summary judgment and defending against a spoliation allegation contained in the other party’s response should prevail if they submit competent evidence to rebut the allegation.

Ashley J. Heilprin is an associate with Phelps Dunbar, LLP, in New Orleans, Louisiana.


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