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Does Wal-Mart Have to Preserve All of Its Surveillance Video?

On May 17, 2018, Judge Elizabeth Erny Foote issued a decision Washington v. Wal-Mart Louisiana, LLC, No. 16-1403, 2018 U.S. Dist. LEXIS 84288 (W.D. La. May 17, 2018) ruled on the plaintiff's motion for summary judgment. The plaintiff argued that an adverse inference should be made because of Wal-Mart's deletion of a surveillance video that showed how Washington suffered an injury. Judge Foote found that the plaintiff did not show a genuine issue of material fact regarding bad faith by the defendant, and instead granted Wal-Mart's motion for summary judgment, because the lack of a video of the clear liquid in which she allegedly fell meant there was no factual dispute regarding Wal-Mart's constructive notice of the liquid.

Wal-Mart received a letter from Washington's attorney a few days after the incident requesting the name of its liability insurer, and making reference to a slip and fall accident. The letter did not provide further details, such as the time of the accident or its location in the store. The relevant video was erased before Washington actually filed suit. The Wal-Mart store has 300 cameras in operation 24 hours per day. Wal-Mart records over surveillance footage on a regular basis unless specific footage has been marked for retention.

Judge Foote cited the In re Actos Prod. Liab. Litig. spoliation test:

1. Duty to preserve as the result of reasonably anticipated litigation.

2. Destruction of the evidence

3. Intentional destruction

4. Relevance of the destroyed evidence

5. Prejudice from the unavailability of the evidence.

. . and found that the last four elements of the test had been made. "Since the deletion was pursuant to Wal-Mart's policy, the destruction was intentional rather than inadvertent." Id. at 8. The lack of the evidence was prejudicial because Washington had no other evidence regarding the liquid that was allegedly on the floor.

The key issue was whether or not Wal-Mart had a duty to preserve the surveillance video. Preservation duty is proportional to the facts of the case. Judge Foote found that, "While it would not be unreasonable in a slip-and-fall case of this magnitude to require Wal-Mart to preserve video from a specific set of cameras based on a reasonably precise location and time of an accident, it is likely unreasonable to demand the preservation of an uncertain amount of footage over an uncertain area based on a phone call and a letter that neither reference nor threaten litigation." Id. at 12.

Even assuming that there was a duty to preserve video, bad faith is still required for an adverse inference finding. Destroying evidence because of routine policy doesn't support a bad faith finding. "This is particularly true when a plaintiff offers no evidence that any person associated with the defendant viewed the footage before it was destroyed." Id. at 13. Washington presented no other evidence of bad faith by Wal-Mart and so the court denied the request for adverse inference.

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