Spoliation for Not Creating Evidence? Part 4

There is no duty to create evidence.  There is no spoliation if a party does not create evidence.  Three prior posts have discussed this,[1] now a local decision has confirmed as much.



Fowler v. Wal-Mart Stores, Inc. is a slip and fall case.[2]  The customer argued “Wal-Mart had notice of plaintiff’s accident and failed to take photographs of the foreign substance in the main cross aisle, thereby failing to preserve potentially relevant evidence.”  Magistrate Judge Foley agreed, ruling Wal-Mart breached “its duty to inspect and photograph the substances that the employee was shown cleaning up in the main cross-aisle as Plaintiff was departing the store.”  Wal-Mart objected to the ruling.

District Judge Mahan reversed.  “[T]he court finds that Wal-Mart’s failure to inspect and take photographs of the spill in the main cross aisle does not constitute spoliation of evidence. The law does not impose a duty on Wal-Mart to preserve the spill in the main cross aisle, nor does the law require Wal-Mart to create photographic evidence thereof.”

[1] January 25, 2015, August 17, 2015, and July 7, 2016.
[2] No. 2:16-cv-450, 2017 U.S. Dist. LEXIS 117245 (D. Nev. July 26, 2017).