Rule of Thumb vs. Rule of Law: Preservation of Video Surveillance and Spoliation

It was once said that “surveillance breeds conformity.” In the legal context, Marshall v. Brown’s IA, LLC, 2019 Pa. Super. LEXIS 279 (Pa.Super. Mar. 27, 2019), a recent Superior Court decision, creates unsettling law on the preservation of video surveillance evidence and spoliation. In Pennsylvania, spoliation of evidence is defined as “the non-preservation or significant alteration of evidence for pending or future litigation.” Pyeritz v. Pennsylvania, 32 A.3d 687, 692 (Pa. 2011). The spoliation doctrine is broadly applicable to cases where “relevant evidence” has been lost or destroyed. Mt. Olivet Tabernacle v. Edwin L. Wiegand Div., 781 A.2d 1263, 1269 (Pa.Super. 2001). Where a party loses or destroys evidence relevant to a lawsuit, the court may permit an adverse inference instruction to the jury, or “spoliation inference,” that the lost or destroyed evidence would have been unfavorable to the offending party.

According to the Superior Court, the scope of relevant evidence is neither defined by the plaintiff’s request nor is it defined by the “rule of thumb” of a property owner. In March 2019, the Superior Court in Marshall vacated a defense verdict and ordered a new trial, finding that the trial court took an “unreasonably narrow view of relevant evidence in concluding that no spoliation occurred in a premises liability case.”

The plaintiff in Marshall slipped and fell on water in the produce aisle of a grocery store and sustained injuries. Approximately two weeks after the incident, the store received a preservation letter from the plaintiff’s attorney requesting that the store retain video surveillance of the accident and the area in question for six hours prior to the accident and three hours after the accident, for a total of nine hours of video footage. The letter also cautioned that failure to preserve the evidence may result in an adverse inference against the store. Based on the store’s “rule of thumb” to preserve video surveillance from twenty minutes before and twenty minutes after a fall, the store preserved 37 minutes of the video capturing the fall. The remainder of the video was automatically overwritten after 30 days. The video retained did not capture the time between the last store inspection and the plaintiff’s fall, almost 50 minutes later.

The Marshall court found the store’s conscious and unilateral decision to preserve only a fraction of the requested video because of a “rule of thumb” constituted spoliation. The court reasoned that the video of the area for a more extended period prior to the plaintiff’s fall may have yielded evidence highly probative of whether the property owner had notice or exercised reasonable care for the safety of its customers. The store offered evidence of its reasonable care in keeping the premises safe for its customers, such as employee safety training, financial incentives for employees who locate and clean up spills, and the inspection log. In addition, there was testimony that preserving nine hours of video was time-consuming and expensive. However, the court made it a point to note that the store inexplicably did not adhere to its own policy of preserving 40 minutes of video and “conspicuously absent was testimony that anyone watched the six-hour period prior to plaintiff’s fall to determine that it did not contain any relevant evidence.”

Ultimately, the court held that the video surveillance from the hours prior to the plaintiff’s fall was relevant for showing far more than the water on the floor. The court concluded that probative value lay in demonstrating what steps, if any, the store took to make the premises reasonably safe for visitors in the hours leading up to the plaintiff’s fall. Though arguable, such evidence was relevant to showing knowledge, constructive notice and a lack of care for the safety of business customers. While the scope of the duty to preserve relevant evidence is not boundless, it is not “unreasonably narrow” either. Without more, property owners cannot rely solely on their own video surveillance preservation policies, procedures or “rules of thumb” to justify a unilateral decision to retain only a fraction of video surveillance.

Marshall acknowledges that plaintiffs bear the burden of proving knowledge or notice of the dangerous condition and how video surveillance may be useful in meeting that burden. As a result, businesses and property owners will likely receive broad video surveillance preservation letters requesting extended amounts of video and cautioning an adverse inference for failing to retain the requested video surveillance evidence. Plaintiffs will likely challenge minimal portions of video retained and contend the property owner failed to preserve relevant video, even where the video surveillance fails to capture the incident. Consequently, plaintiffs will argue that lost or destroyed footage may have shown when the spill occurred or, at the very least, would have been probative of showing constructive notice and whether safety precautions were being followed.

In essence, the Marshall decision places an affirmative duty on the recipient of a preservation request that may result in significant consequences for failing to comply. In light of the recent ruling, business and property owners should pay particular and immediate attention to video surveillance preservation letters received within an adequate timeframe to review and preserve the requested video. To avoid a spoliation inference in cases where minimal video of the requested amount is preserved, property owners should employ a combination of the following:

1. Promptly notify the requesting party of its retention policy or that it does not intend to preserve the requested video evidence;
2. Reach a reasonable agreement regarding the scope of the request;
3. Offer to make the video available for viewing prior to its destruction and/or overwriting; and/or
4. Seek a judicial ruling on the reasonableness of the preservation demand prior deleting the requested footage in light of the time and expense required to preserve it.

Video surveillance preservation requests received outside the timeframe to preserve the video—typically 30 days—are likely not subject to the Marshall decision. However, in such cases, business and property owners are encouraged to promptly notify the requesting party of their retention policy. The major implication of the Marshall decision is that a business or property owner cannot rely solely on its own video preservation policy or “rule of thumb” to preserve a fraction of the requested video. Without more, such evidence constitutes spoliation and warrants an adverse inference.

*Daniella is an associate in our Philadelphia, Pennsylvania office. She can be reached at 215.575.2586 or drprice@mdwcg.com.

^{Defense Digest, Vol. 25, No. 2, June 2019. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2019 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}