According to a three-judge panel of the Pennsylvania Superior Court, a spoliation charge and adverse inference instruction may be warranted even when a defendant exceeds its own video preservation standards. Marshall v. Brown's IA, LLC, 2019 Pa.Super. LEXIS 279 (Pa. Super. Mar. 27, 2019). In Marshall, Plaintiff, Harriet Marshall, claimed that she was injured after she slipped and fell on water that had spilled in the produce section of a Philadelphia grocery store. Two weeks after the accident, Ms. Marshall's attorney requested that the store retain security camera footage from the area in question starting six hours before the accident until three hours afterwards. However, the store's "rule of thumb" was to preserve only twenty minutes of video footage from before and after an accident. (The store ultimately preserved and produced 57 total minutes of video from 37 minutes before the accident until twenty minutes afterwards, slightly exceeding its "rule of thumb.")
In explaining the store's failure to preserve and produce all of the video that Ms. Marshall's attorney had requested, the store's risk manager opined that it would have been 'a fool's errand' to review and produce the nine hours of requested video because the water could not be seen on the floor regardless of how much video was preserved. Despite this testimony, the Court determined that the video had other relevant purposes even if the spill itself was not visible in the video. For example, the video may have shown store employees inspecting the area in question or customers dropping or spilling items onto the floor. Such evidence could have been suggestive of the store's actual or constructive notice of the spill. The Court noted that the store did not present any evidence or testimony that such relevant evidence did not exist on the requested video before determining to preserve and produce only 57 minutes.
Since Ms. Marshall's attorney put the store on notice to preserve nine hours of video within two weeks of the accident, but the store "arbitrarily" preserved and produced only 57 minutes of that video, the Superior Court panel found that the store committed spoliation. Accordingly, the panel remanded the matter back to the trial court for a new trial and instructed the trial judge to issue an adverse inference instruction to the jury.
Comment: Many companies have video preservation policies, similar to the one at issue in Marshall, under which pre-designated amounts of video from before and after an accident are automatically preserved. Although it can be costly and time-consuming to review and preserve extended video for hours before and after an accident, such practices may be necessary to prevent spoliation of potentially relevant evidence regarding how a condition occurred, inspection practices, and notice of dangerous conditions. Therefore, even when video evidence is preserved pursuant to company policies (or in excess of company policies as in Marshall) spoliation may still occur and sanctions may be issued if relevant evidence is lost because it fell outside of a pre-designated time-period. While there is no specific amount of video that must be preserved following an accident, the more video that can be preserved and potentially produced during future litigation, the more likely that a spoliation charge and adverse inference instruction can be avoided.
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Chelsea R. Seidel