eDiscovery Daily Blog

Appeals Court Reverses Jury Decision Based on Failure of Court to Issue Spoliation Sanction: eDiscovery Case Law

In Marshall v. Brown’s IA, LLC, No. 2588 EDA 2017 (Pa. Super. Mar. 27, 2019), the Superior Court of Pennsylvania, ruling that the trial court “abused its discretion in refusing the charge” of an adverse inference sanction against the defendant for failing to preserve several hours of video related to a slip and fall accident, vacated the judgment issued by the jury within the trial court for the defendant and remanded the case for a new trial.

Case Background

In this case where the plaintiff slipped and fell in one of the defendant’s ShopRite stores in August 2014, the plaintiff’s counsel sent a letter two weeks after the incident requesting that the defendant retain surveillance video of the accident and area in question for six hours prior to the accident and three hours after the accident. Additionally, the letter cautioned:

“If any of the above evidence exists, and you fail to maintain same until the disposition of this claim, it will be assumed that you have intentionally destroyed and/or disposed of evidence. Please be advised that you are not permitted, and are in no position, to decide what evidence plaintiff would like to review for this case. Accordingly, discarding any of the above evidence will lead to an Adverse Inference against you in this matter.”

Nonetheless, the defendant decided to preserve only thirty-seven minutes of video prior to the plaintiff’s fall and approximately twenty minutes after, and permitted the remainder to be automatically overwritten after thirty days.  The defendant’s Risk Manager (Matthew McCaffrey) testified that it was the store’s “rule of thumb” to preserve video surveillance from twenty minutes before and twenty minutes after a fall.  The plaintiff contended that the defendant’s conscious decision not to retain the video evidence constituted spoliation, and she asked the trial court to give an adverse inference charge to the jury.  But, the trial court concluded that there was no bad faith by the defendant and refused to give the requested adverse inference charge, but did agree, that the plaintiff’s counsel could argue to the jury that it should infer from the defendant’s decision not to retain more of the video prior to her fall that the video was damaging to the defendant.  Despite that, the jury returned a verdict in favor of the defendant, finding no negligence.

The plaintiff filed timely post-trial motions alleging that she was entitled to a new trial because the trial court erred in refusing to give the requested spoliation instruction to the jury, but the trial court did not rule on the motion, so she appealed, asking if the trial court abused its discretion by declining to read a spoliation of evidence instruction to the jury at trial.

Appellate Court’s Ruling

The opinion by J. Bowes noted that “[t]he duty to retain evidence is established where a party ‘knows that litigation is pending or likely’ and “it is foreseeable that discarding the evidence would be prejudicial” to the other party.”  The court also observed: “Although Mr. McCaffery testified that ShopRite’s rule of thumb was to retain only twenty minutes of tape prior to the fall and twenty minutes after the fall, it actually preserved thirty-seven minutes of footage prior to Ms. Marshall’s fall, and twenty minutes after the fall. He offered no explanation why ShopRite deviated from its typical practice herein.”  The court also observed that “conspicuously absent was testimony from anyone at ShopRite that he or she watched the video for the six-hour-period prior to the fall before determining that it did not contain any relevant evidence.”

Finding that “counsel’s letter placed ShopRite on notice to preserve the video surveillance prior to and after the fall as it was arguably relevant to impending litigation”, the court stated “we find that the trial court took an unreasonably narrow view of ‘relevant evidence’ in concluding that no spoliation occurred in this premises liability case. Relevant evidence is any evidence that ‘has any tendency to make a fact more or less probable.’…Furthermore, its finding of no bad faith on ShopRite’s part was relevant in determining the severity of the sanction to impose for spoliation, but it did not negate or excuse the spoliation that occurred.”

As a result, the court – in vacating the judgment and remanding the case for a new trial – ruled that “Ms. Marshall asked the court for the least severe spoliation sanction, an adverse inference instruction. On the facts herein, it was warranted, and the court abused its discretion in refusing the charge.”

So, what do you think?  Should the judgment have been thrown out over the defendant’s failure to preserve the rest of the video?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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