Video surveillance is ubiquitous today and often sought in connection with injuries or litigation. As a result, courts are increasingly presented with disputes relating to the preservation and production of surveillance video. Recently, in Charoff v. MarMaxx Operating Corp., ¹ the U.S. District Court for the Eastern District of Pennsylvania — without reference to Federal Rule of Civil Procedure 37(e), which governs the imposition of sanctions for the loss of electronically stored information, or ESI — held that MarMaxx's failure to produce the requested video, or articulate a reason why there was none, warranted a negative inference instruction.

Other recent decisions, however, have reached different results, only some of which relied on Rule 37. Below we examine Charoff and other recent cases and focus on the decisive factors cited by courts in reaching their decisions. We conclude with practice pointers to increase the chance that the court rules in your clients' favor.

Applicable Federal and State Law

Effective Dec. 1, 2015, Federal Rule of Civil Procedure 37(e) authorizes and specifies the measures a court may employ if ESI that should have been preserved has been lost, and details the findings necessary to justify those measures. If a court finds that the loss of relevant ESI has prejudiced a party, Rule 37(e)(1) authorizes measures no greater than necessary to cure that prejudice.

A court may only employ more severe sanctions upon finding that a party acted with intent to deprive another of the use of ESI in the litigation. These severe sanctions could include a presumption that the information lost was unfavorable, instructing the jury that it may or must presume the information was unfavorable, dismissing the action, or entering a default judgment.

The committee note to Rule 37 warns that care "must be taken, however, to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent to deprive another party of the lost information's use in the litigation." States each have their own legal framework but, as discussed below, generally require evidence of bad faith or an intent to deprive to justify the imposition of sanctions.

Decisions Ordering a Negative Inference Instruction

Charoff arose from a slip-and-fall accident in the defendants' store. Immediately after the fall, Charoff spoke with the store manager and, six days later, notified the store's insurer that any video recording taken on the day of her fall should be preserved. The defendants, however, produced no video footage. The store manager testified that the procedure after a slip-and-fall was to report to the insurer via email and, if requested by the insurer, send the video surveillance. Because the store manager no longer had access to his emails from that time, however, he could not say if he provided the insurer with the video or notified it that none existed.

Charoff argued that she was entitled to an evidentiary negative inference. The defendants' loss prevention manager testified that video of the store was maintained between eight and 30 days.

Because Charoff requested video preservation after only six days and the defendants failed to produce video without any explanation, Charoff argued that this supported the belief that the tapes were destroyed in anticipation of litigation. Relying on Pace v. Wal-Mart, ² the defendants argued that an adverse inference could not be drawn because the accident occurred in a "blind spot" for surveillance cameras and Charoff could not show that relevant video ever existed. ³

Although the video footage was almost certainly in electronic form, the court did not rely on Rule 37(e) when assessing the claim of spoliation, but rather on older case law to the effect that:

When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document's nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him. This rule applies only if the evidence in question is relevant, within the party's control, and the party appears to have actually suppressed or withheld it. Courts will not make an unfavorable inference if the evidence "has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for." Evidence is considered relevant if "it has any tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence in determining the action." ⁴

After reviewing the store manager's testimony regarding the general procedure after a slip-and-fall case and the lack of emails or video, the court held an adverse inference was appropriate because standard procedure would have been for the insurer to reach out to the store after receiving a preservation letter. ⁵

In Pelino v. Gilmore, ⁶ the U.S. District Court for the Western District of Pennsylvania held that the defendants' failure to preserve video in direct contradiction to a court order to preserve warranted a permissible negative inference instruction as well as other sanctions.

Pelino, a state prisoner, filed a civil rights claim arising from the defendants' policy of video-recording strip searches. During the litigation, Pelino was subjected to four such strip searches and promptly filed motions for orders to preserve those videos, which were granted.

When the defendants refused to make the videos available to Pelino, the court ordered the defendants to make them available for viewing and to notify the court that the videos had been made available. After an additional five-month delay, the defendants made three videos available for Pelino's viewing and informed the court that the remaining video no longer existed "due to undersigned counsel's inadvertence or oversight." ⁷

The court first noted that, during the five months between Pelino's filing of the motion to preserve and the defendants' informing the court that the video had not been preserved, the defendants represented repeatedly that the videos would be made available. The court rejected the defendants' argument that Pelino was at fault for filing multiple motions for multiple videos. ⁸ The court found sanctions were appropriate under Rule 37(e)(1) because while there was no evidence of intentional destruction, the failure to preserve was due to the defendants' negligence or gross negligence.

The court ordered that the jury would be given a permissive adverse inference instruction with regard to the missing video of the involved strip search. In addition, the court ordered that defendants would be prevented from introducing any evidence at trial supporting any defense as to their conduct during the strip search that was the subject of the deleted video or introducing evidence in support of a motion for summary judgment as to their conduct during that search. ⁹

Cases Denying Adverse Inferences or Other Sanctions

Other courts, however, have declined to enter adverse inferences when surveillance video is alleged to have been lost.

The plaintiff in Pena v. Bi-Lo Holdings LLC ¹⁰ alleged she suffered injuries as a result of a slip-and-fall in a Bi-Lo store. The plaintiff argued that because the store failed to produce surveillance video of her fall despite her service of a preservation letter mere days after the incident, an adverse inference was appropriate.

While the court agreed with the principle that the plaintiff's presuit notice would obligate the store to preserve the video, the store had produced all footage available, and the fact that the area of the fall was not under surveillance could not serve as the basis for relief. The court reasoned that "existing spoliation jurisprudence does not sanction punishment for the failure to create evidence." ¹¹

In Martinez v. Regent Insurance, ¹² the plaintiff alleged he suffered injuries after he slipped and fell at the Country Kitchen restaurant. The plaintiff moved for sanctions before trial because of the defendants' destruction of videotape evidence of the fall. The trial court denied the motion, finding that the destruction was not intentional.

The plaintiff was found 80% negligent at trial and appealed. In his argument for a new trial, the plaintiff contended the destruction of the video was intentional. He argued that, despite being aware that the surveillance video was relevant evidence, the defendants threw away the computer and hard drive on which the video was located and deleted the surveillance video subfiles. Additionally, the defendants could not explain the disappearance of the remaining copy of the video on one of the defendant's laptops.

The appellate court found that the trial court did not err in the exercise of its discretion when it found that the deletion of the surveillance video was not intentional. Rather, it found that the restaurant's owner was untrained in the new surveillance system and made errors in his attempts to capture and save the footage.

Practice Pointers

As demonstrated above, failure to preserve or produce surveillance video does not automatically result in a negative inference or other sanction, but there are best practices that can be distilled.

First, if you anticipate relying on a surveillance video, send a preservation letter as soon as possible. Retention times vary, so the sooner the letter is sent, the less likely the video will have been overridden or stored in an inaccessible manner.

The preservation letter or notice should be detailed enough to identify the incident or action that the potential litigation arises from, but also broad enough in scope to include any possibly relevant areas. Anticipate the possibility that, as your case evolves, the video might be relevant to establish a condition or activity, or lack thereof, beyond the immediate area involved in the incident.

Second, once litigation has commenced, send the discovery request as soon as permitted. If an entity refuses to produce or denies the existence of surveillance video, you will need sufficient time to conduct discovery to attempt to establish the video's existence and probable relevance. When presenting the issue to the court, be prepared to demonstrate why the video most likely existed, either with evidence of its actual existence or customary practice or procedure, and, equally important, why the requested video contains information that is relevant to your case.

Conversely, if faced with a claim of spoliation of video that did not exist, or has since been deleted, be prepared with evidence to establish those facts. As the foregoing cases demonstrate, a candid and full explanation that any failure to preserve resulted from negligence, inexperience or simple oversight may prevent a finding of intentional spoliation and the most severe potential sanctions. ¹³

Finally, if you are in federal court, make sure that you advocate for the application of Rule 37(e), which governs the consideration of sanctions for the loss of ESI. Rule 37(e)(1) requires a finding that a loss of ESI resulted in prejudice to a party before any sanction may be imposed, and then requires that any sanction be limited to just that necessary to address that prejudice.

Rule 37(e)(2) requires a finding that a party acted with intent to deprive before any of the more serious sanctions, like an adverse inference instruction or termination of the action, can be imposed. Had the court applied Rule 37(e)(2) in Charoff for example, it may not have ordered an adverse inference because it made no finding of intent to deprive.

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