Spoliation for Not Creating Evidence?

Spoliation of evidence has become an increasingly litigated issue over time. I often find in personal injury matters that a plaintiff’s discovery to my client is not designed to find facts, but to create a basis for a spoliation motion.

A-12-656365-C appeared to be a more or less standard slip and fall case against a Strip casino. Plaintiff filed a discovery motion seeking a spoliation instruction, among a plethora of other issues. The motion was heard on June 12, 2013 and, as to spoliation the minutes stated:

Colloquy re: an assumption can be made there was video surveillance tape of the area, but through inadvertence (no willful intent), the video was not maintained, and an inexperienced Maintenance person cleaned the spill without taking photographs. Ms. Maynard confirmed the wrong video was preserved. Commissioner advised counsel an Evidentiary Hearing is not needed for these facts. Colloquy re: language for an appropriate Bass-Davis instruction (adverse inference). … Bass-Davis instruction is GRANTED for failure to improperly preserve videotape, and failure to document the spill prior to cleaning it up; adverse inference is DEFERRED to the District Court Judge.

The casino objected to at least this aspect of the Discovery Commissioner’s ruling. The objection was heard on August 27, 2013 and the minutes noted:

Arguments by Ms. Maynard in regards to not having photographs, stating photos weren’t lost or destroyed, just not taken. Colloquy regarding visibility of the spill had there been photographs taken, and findings from the Discovery Commissioner. Arguments by Mr. Simon regarding Discovery Commissioner’s findings and requested findings be adopted and photos to be addressed at a later date. Court advised, the recommendation will be accepted, it will be adopting Discovery Commissioner s adverse inference instructions, and the photos will be addressed at a later date and ORDERED, Motion DENIED WITHOUT PREJUDICE.

I offer two observations. First, as an outside observer who only briefly glanced through the motions and hearing transcript, I do not understand the basis for awarding a spoliation instruction as to the video tape. For instance, if the casino had a policy that required its employees to preserve video of this event and that policy was breached, then a plaintiff might be able to argue the casino was on notice and should have preserved. The case file was unclear to me whether the casino had such a policy, but perhaps that issue was addressed. Absent policies, how could the plaintiff otherwise show the casino was on notice of the real potential for litigation that would impose a duty to preserve? The mere fact that someone claims injury should not, alone, be sufficient.

Second, I have strong concerns about issuing a spoliation instruction based upon a failure to create evidence. Here there was a material dispute between the parties as to whether the casino’s accident response procedures required photographs of the scene. Even if that policy existed and was breached, spoliation concerns a failure to preserve evidence that once existed. Here the instruction was issued for a failure to create evidence. I see this as Pandora’s Box and it came up at least once before in a case others in my firm successfully handled. The Supreme Court’s unpublished order addressing it is unfortunately unavailable on Lexis as it predated the creation of Lexis’ Nevada unpublished order database.

The case was Callara v. the (former) Las Vegas Hilton, docket 51645, and concerned a slip/trip and fall event in the valet parking area. The plaintiff sought records akin to sweep logs that would document when the valet parking area was cleaned before the fall. The Hilton’s normal business operations at the time did not create such records. Plaintiff asserted this was a basis for spoliation. The Supreme Court summarized her point. “Callara argues that this court must extend Nevada caselaw concerning the preservation of evidence to require defendants to create records regarding their cleaning practices.” The panel acknowledged “[p]arties in Nevada must preserve evidence after an injury or accident if there is a potential for litigation.” The panel then refused to impose a duty to create evidence.

Unlike Fire Insurance Exchange and Bass-Davis, the Hilton did not negligently or willfully destroy evidence. The Hilton failed to produce records about when its staff cleaned the valet parking area because it never created such records. Because the Hilton failed to produce maintenance records, Callara argues that the Hilton circumvented the spoliation of evidence rules by implementing a company-wide policy prohibiting the creation of certain records. Callara also argues that this court should extend its previous rulings so that corporate defendants are required to create maintenance records.

We disagree with Callara’s arguments and decline to extend Nevada caselaw for two reasons. First, Callara failed to cite any legal authority that suggested the Hilton had a duty to create maintenance records. Second, any reliance by Callara on Nevada caselaw for her argument is misplaced. Both Fire Insurance Exchange and Bass-Davis address factual situations where evidence had existed at some point but a party lost or destroyed it. Unlike these cases, Callara is asking the court to require defendants to create evidence, which we decline to do.

(citations omitted). As there was no duty to create evidence, the district court appropriately declined a spoliation instruction. “Callara argues that the district court abused its discretion by refusing to include a spoliation jury instruction. We disagree. Since the Hilton had no duty to create maintenance records, there was no abuse of discretion by the district court refusing to give the spoliation instruction.”

The distinction between Callara and this case might be whether the casino’s internal policies required taking photographs. Otherwise how can a party spoliate evidence that never existed?