Injured plaintiffs typically request video surveillance footage from the commercial location where he or she is injured and such videos must be turned over during discovery.  When footage that previously existed is no longer available, a claim for spoliation of evidence – or the intentional, bad faith destruction of relevant evidence – may be made under certain circumstances.  If successful, such a claim can warrant  sanctions like exclusion of an expert report or dismissal of a claim. But a recent case, Van De Wiele v. Acme Supermarkets, shows that not every case of missing footage will be considered spoliated.

Immediately following the plaintiff’s fall in a supermarket, she reported the accident to the assistant store manager who promptly reviewed the surveillance footage; neither the plaintiff nor her accident was captured by the store’s cameras. Fast forward eight months: the plaintiff notifies Acme of a lawsuit and demands the video, which had been recycled within 30 to 60 days from the date of the accident in accordance with the store’s retention policy.

In response to the plaintiff’s claim for spoliation of evidence, the District Court looked at five factors: whether the evidence was in the party’s control; whether the evidence is relevant to the claims or defenses in the case; whether there had been actual suppression or withholding of the evidence; whether the duty to preserve the evidence was reasonably foreseeable to the party in possession of it; and whether or not the destruction was done in bad faith.

When put to the test, plaintiff’s claim survived only the first element. The Court found that the failure of the cameras to capture the plaintiff or her accident rendered the video irrelevant, and an eight month delay in the first notice of a lawsuit relieved Acme of reasonable foreseeability of potential litigation.  Although the Court did not directly address the third element, it found that automated destruction of video footage pursuant to an established policy does not sound in bad faith.

Thanks to Emily Kidder for her contribution to this post and please write to Mike Bono for more information.