A Capehart Scatchard Blog

No Spoliation Found Due to Failure to Preserve Surveillance Video

By on December 31, 2015 in Uncategorized with 0 Comments

A failure to preserve relevant evidence could lead to a claim for spoliation of evidence with potentially dire sanctions against a party such as an adverse inference against that party, barring the use of an expert, or the dismissal of a claim. In the federal court case, Van De Wiele v. Acme Supermarkets, 2015 U.S. Dist. LEXIS 96711 (D.Ct. N.J. July 24, 2015), the District Court was asked to permit an amendment of a complaint against Acme Supermarkets for the intentional spoliation of evidence for failing to preserve the video of the plaintiff’s accident. The plaintiff claims that she tripped and fell while shopping at the Acme.

The accident allegedly happened on July 9, 2012. The plaintiff reported the accident to the Acme on that date. The assistant store manager thoroughly reviewed the surveillance video for the date and time of the plaintiff’s alleged fall and was unable to locate plaintiff in the video.

The Acme tapes are routinely taped over within 30 to 60 days in accordance with the store’s retention policy. The plaintiff did not send a letter to the Acme asking for the video and indicating that a lawsuit would be forthcoming until April 16, 2013. Thus, the store was not on notice that litigation was probable until the receipt of the April 16th letter, well after the time the video had been deleted per the store’s retention policy.

The court applied the Third Circuit test for determining whether a party has engaged in spoliation: spoliation occurs where: (1) the evidence was in the party’s control; (2) the evidence is relevant to the claims or defenses in the case; (3) there has been actual suppression or withholding of evidence and (4) the duty to preserve the evidence was reasonably foreseeable to the party. The court must also consider whether the destruction of evidence was done in bad faith.

The court noted that litigants are under no duty to keep or retain all documents in their possession. But, in the face of reasonably foreseeable litigation, they are under a duty to preserve evidence that they know, or reasonably should know, will likely be requested.

Of these four factors, the court found that the first factor was met because Acme conceded that the videotapes cannot be produced as they were taped over. However, the court found that the plaintiff failed to meet her burden in establishing that there was a reasonably foreseeable duty to preserve evidence. Because the assistant store manager did not locate plaintiff in the video, there was nothing on the tape which would have alerted her that the litigation might be forthcoming. Further, until the store received the letter from the plaintiff’s counsel, notifying it of potential litigation, it had no duty to preserve the video up to that point.

Also, the court found that the destruction of evidence by an automated system, such as recording over videotapes in the usual course of business, does not constitute bad faith for the purposes of a spoliation claim. Plaintiff made no showing that the Acme received constructive notice of this litigation such that a duty to preserve arose while the Acme was still in possession of the video. Hence, the court found that the plaintiff’s allegation of spoliation would fail and, accordingly, denied the request to amend the complaint to assert a spoliation claim.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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