Today, the Court of Appeal of California in Dao v. Bicycle Casino, No. B293679, 2019 Cal. App. Unpub. LEXIS 7307 (Cal. Ct. App. Oct. 31, 2019) unanimously affirmed the exclusion by the Superior Court of Los Angeles County of an evidence preservation letter sent by the Plaintiff to the Defendant. After the letter was received, but pursuant to preexisting plans, the Defendant destroyed a bathroom where the Plaintiff's injuries occurred during a building renovation. The Court concluded that even if the letter had been entered into evidence, the Defendant still would have prevailed, and so there was no reversible error. The preservation letter did not actually request that the bathroom be kept intact. The Plainitiff's expert testified that the type of tile used in the bathroom becomes as slippery as ice when it's wet. Dao was wearing flip flops with one and half inch heels . . .
The Plaintiff's motion to compel the digital negatives of photos that showed Dao on the floor after her accident was denied without prejudice. Photos that were produced were said to be of poor quality. The motion was not renewed. At a hearing on motions in limine, the trial court declined to issue an adverse inference instruction for spoliation for the destruction of digital negatives of security photos. The trial court did not allow testimony about the preservation letter or the Bicycle Casino's (TBC) general evidence protocols. However, Plaintiff's counsel was allowed to state in its closing that the failure to produce tiles from the bathroom or allow testing in it could give the jury a basis on which to view the evidence with distrust. The jury found that Bicycle Casino had not been negligent.
The decision states that, "the preservation letter showed TBC was on notice that Dao might sue TBC, and thus that the tile in the subject restroom would be very important evidence of liability. Thus, without the context the preservation letter provides, it was far less likely that the jury would 'distrust' the 'weaker evidence' TBC offered instead. Evidence regarding TBC's evidence preservation procedures might likewise have helped establish TBC had a reason to preserve tiles from the subject restroom after Dao's accident, even though she had not yet filed suit." Id. at *17. However, the Court concluded that there was already a basis for the jury to not trust sample tile provided by the Defendants and the testing by its expert which did not use the same type of footwear Dao wore.
The Court declined to rule on whether or not the failure to instruct on spoliation of the digital negatives was reversible error, since the Plaintiffs only raised this issue at the oral argument and not in their briefing.