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Court Grants Adverse Inference Sanction Against Target for Failing to Preserve Surveillance Video: eDiscovery Case Law

In Decker v. Target Corp., No. 1:16-cv-00171-JNP-BCW (D. Utah Oct. 10, 2018), Utah District Judge Jill N. Parrish granted in part and denied in part the plaintiffs’ for a finding of spoliation and for sanctions, granting the plaintiffs’ request for sanctions for failing to preserve more of the video surveillance footage of the plaintiff’s trip and fall accident, but denied the plaintiffs’ request for sanctions for failing to preserve training records and the store’s safety statistics and records for 2015.

Case Background

In this trip and fall dispute where the plaintiff tripped on a flatbed stocking cart and fell onto the floor (suffering serious injury that required transport from Target by ambulance) in December 2015, two defendant employees reviewed video surveillance footage of the incident and created a copy of the portions of the video that included the plaintiff in the frame. The defendant employees did not save any other portions of the video. The unsaved portions of the footage were later automatically overwritten by the defendant’s system, which only maintains video surveillance footage for approximately fifteen to twenty-five days.

Exactly one month after the incident, the plaintiffs delivered a letter to the defendant, through counsel, requesting preservation of “all pertinent records and electronic records pertaining to [the] incident or that could relate to [the] incident,” as well as “a copy of any video surveillance that shows [the] accident or the area of the accident at any time before, during, or after the event.”  The parties subsequently engaged in several rounds of discovery and document production and the plaintiffs specifically requested the defendant’s training records and safety statistics from 2015.

On June 8, 2018, the plaintiffs filed a motion for a finding of spoliation and for sanctions for the defendant’s failure to preserve more of the video surveillance footage of the accident, and failing to preserve training records and the store’s safety statistics and records for 2015.

Judge’s Ruling

Noting that “[t]o be entitled to an adverse inference instruction, the Deckers must establish that Target acted in bad faith in failing to preserve the evidence at issue”, Judge Parrish stated:

“The video footage as issue was reviewed shortly after the incident by two Target employees, Mackenzie Steele and Trevor Phillips. The employees testified that they decided not to preserve the portions of the footage where Mrs. Decker was not present because they did not believe they were relevant. In so doing, they acted in violation of Target policy requiring that employees preserve video surveillance footage showing twenty minutes before and twenty minutes after any such incident. The employees represented that they were not aware of this policy. Were the court to evaluate their actions individually, the court would not conclude they acted in bad faith. But these employees were not acting as individuals, they acted as agents of Target, and the court concludes that Target has acted in bad faith in regards to the evidence. First, Target failed to instruct its employees regarding Target policy of what footage to preserve. Second, Target employees failed to preserve all relevant footage. And third, Target’s counsel now seeks to take advantage of the evidence that Target failed to preserve by arguing that the flatbed cart was attended or worked by Target employees during the gap in the video. It is this attempt to take advantage of a situation that Target caused that leads the court to conclude Target acted in bad faith. The court will therefore instruct the jury to make the adverse inference that the flatbed cart was unattended for the twenty minutes prior to the accident.”

However, Judge Parrish also stated that “The Deckers are not entitled to an adverse inference instruction regarding the training records because the Deckers have not established that the allegedly destroyed records were ever created.”  And, she also denied the plaintiffs’ request for sanctions regarding the lack of safety statistics, stating: “General safety statistics do not indicate whether Target was negligent in leaving the flatbed cart in the aisle.”  But, she did caution the defendant that its failure to produce its safety statistics would prevent it from offering any evidence that the store had high safety scores at the time of the accident.

So, what do you think?  Should a party be held to the bad faith standard when their employees fail to adhere to company policy?  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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