Is There an Adequate Factual Basis to Argue Spoliation?

Everybody and their mother wants a spoliation jury instruction, but is there an adequate factual basis in the case to request one?  This is sometimes an overlooked topic before motions are followed, but a local case addressed it.

A customer at a Dollar General slipped, fell, alleged injury, and filed suit.[1]  Dollar General moved for summary judgment.  Plaintiff argued against it by arguing, in part, that Dollar General had spoliated evidence.  “Rios argues that Dollar General’s failure to maintain the footage for the full one-hour period before and after her fall was evidence spoliation that earns her the adverse inference that Dollar General caused or had notice of the puddle.”[2]  Not so.

“Discovery revealed that Dollar General’s policy in 2014 was to save video footage of the hour before and the hour after an accident in one of its stores.”  She argued “that Dollar General violated its own evidence-preservation policy by failing to keep the full hour-long margins of footage before and after the fall.” Plaintiff’s problem was that she fell in 2013 and she lacked any evidence of what policy may have existed, if any, in 2013.

But there is no evidence that Dollar General’s 2014 policy was in effect on August 3, 2013, when Rios fell.  There is also no evidence that any other video-recording policy was in effect on August 3, 2013.  And with no evidence that Dollar General had an obligation under the law or its own company policy to save video of the hour before and the hour after an incident, I cannot conclude that Dollar General breached any evidence-preservation duty by keeping only 20 minutes of the footage, which contains the fall itself.

Plaintiff’s request for an adverse inference was denied, summary judgment was granted instead.  There was no appeal.

[1] Full disclosure: I represented Dollar General.
[2] de Jesus Rios v. Dollar Gen. Mkt., No. 2:15-cv-02056, 2017 U.S. Dist. LEXIS 139444, 2017 WL 3749495 (D. Nev. Aug. 29, 2017).