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Case Blurb: Bright; Court Discusses Company’s Retention Practices of Surveillance Tapes and Spoliation

Posted by rjbiii on September 9, 2008

This appeal concerns a slip and fall accident that took place at the Plaza Extra supermarket in Estate Sion Farm, St. Croix on June 20, 2004. […]

The Superior Court granted summary judgment in favor of Plaza, holding that, because [Plaintiff] Bright failed to provide any evidence that Plaza knew or should have known about the substance on the floor, no reasonable jury could find that Plaza had breached its duty to Bright as a matter of law. The instant appeal followed. […]

Bright’s fall was captured on Plaza’s closed-circuit video surveillance system, which is comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder. The digital footage is automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder. At his June 2005 deposition, Plaza’s manager testified that he examined the footage of Bright’s fall immediately after being notified of her fall, the video failed to show anything visible on the floor at the time of the fall. Concluding that Bright “probably tripped on herself,” the manager testified that he elected not to review or copy any of the footage prior to or after the fall. He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in Bright’s particular circumstance. […]

Therefore, the record contains no video evidence indicating when or if someone spilled anything on the floor prior to Bright’s fall. The only evidence in the record which indicates length of time is Bright’s deposition testimony. When asked if anything indicated how long the substance had been there, she testified that there was a little dust on the drops which indicated to her that it had to be there “for a little while.” […]

Plaza filed a motion for summary judgment asking the trial court to find that Bright had failed to establish that Plaza had actual or constructive notice of any substance on the floor that may have caused Bright’s injuries. Bright opposed the motion arguing she was entitled to a spoliation inference because Plaza had intentionally erased the video footage depicting what had transpired prior to and after her fall. Plaza replied to the opposition by contending that Bright failed to show that the store had engaged in bad faith, malicious, or fraudulent conduct, which is a prerequisite to the application of a spoliation inference. In a Memorandum Opinion, dated June 11, 2007, the Superior Court granted summary judgment in favor of Plaza, holding that Bright failed to provide sufficient evidence that Plaza knew or should have known of the substance on the floor and failed to demonstrate fraud or deceit that would permit deliberation on the availability of the spoliation inference. Bright timely filed her Notice of Appeal… […]

On appeal, Bright contends that Plaza’s destruction of the surveillance video establishes constructive notice because it permits a jury to infer that the video would have shown that the liquid was on the floor long enough for Plaza to have discovered it prior to her fall. According to Bright, the adverse inference created by Plaza’s destruction of the tape defeats summary judgment. Plaza contends that Bright is not entitled to a spoliation inference, and that even if she was, common law precludes the use of a spoliation inference to substitute for actual evidence supporting constructive notice. According to Plaza, a spoliation inference is improper where the evidentiary destruction was a matter of routine and was devoid of any fraudulent intent, and the inference cannot be utilized to establish an essential element of a negligence claim. […]

There is no dispute in this matter that the recorded surveillance footage was at all times within the exclusive possession and control of Plaza. The parties dispute, however, whether there was an actual suppression or withholding of evidence. Bright argues that Plaza intentionally destroyed the recorded surveillance footage in order to conceal evidence which was unfavorable to Plaza. Plaza argues that as a regular course of business, the store only maintains the relevant footage of any recorded fall. Therefore, according to Plaza, the failure to retain footage of the time preceding and following the fall was neither fraudulent nor intentional. The trial court found that “Bright offer[ed] no evidence that Plaza … attempted to perpetrate a fraud or that Plaza’s conduct was anything other than a matter of routine.” (App. at 12-13.) The evidence, however, belies the trial court’s determination. […]

During his deposition, Plaza’s manager testified that he retained only the portion of the surveillance footage which captured Bright’s fall. (App.211-12.) The manager’s conscious and intentional choice not to review or retain the recorded footage prior to or after the fall resulted in the destruction of relevant evidence. […]

We find this case to be very analogous to Stevenson v. Union Pacific R.R. Co., 354 F.3d 739 (8th Cir.2004). In analyzing a routine document retention policy, the Eighth Circuit Court of Appeals applied the Gumbs test and held that the trial court did not abuse it discretion in permitting a spoliation inference as a sanction for the defendant’s pre-litigation destruction of a voice recording. Id. at 747-48. Similar to Plaza, the Stevenson defendant learned of the accident shortly after it occurred and began his investigation immediately thereafter, but failed to take the steps necessary to preserve the recorded evidence. Also like Plaza, the Stevenson defendant had previously been involved in several accidents and knew that such recorded evidence would be relevant to any potential litigation. FN1 Additionally, Bright, like the Stevenson plaintiff, was prejudiced by the destruction of the evidence because there is virtually no other evidence establishing the dispositive issue. In concluding that fraudulent intent was present, the Eighth Circuit Court of Appeals recognized that the case “tests the limits of what [the court is] able to uphold as a bad faith determination.” Id. Nevertheless, the particular circumstances present in that case, which were similar to those present in the case before this Court, warranted a spoliation inference.

FN1:Remarkably, in another case currently before this Court, Plaza’s management applied a different procedure in determining what portion of a recorded slip and fall accident to retain. In Williams v. Plaza Extra, S.Ct. Civ. No.2007/118, where the recorded surveillance footage appeared to vindicate Plaza, management retained a large portion of the footage, including footage from depicting a custodian cleaning the area twelve minutes prior to the fall and several minutes of footage after the fall. The fall in Williams occurred in the same store on April 8, 2002, nearly two years before the fall at issue in this case. […]

While this Court does not find any statutory or case law indicating precisely what portion of surveillance footage capturing a slip and fall accident should be retained, common sense dictates the retention of comprehensive surveillance footage of any accident, including a reasonable period of time preceding and following the accident.

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008).

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Posted in 3d Circuit, Adverse Inference, Case Blurbs, Data Retention Practices, Data Sources, Document Retention, Justice Edgar D. Ross, Sup. Ct. Virgin Islands, Video Files | Leave a Comment »

Case Blurb: YouTube; Court Grants Motion to Compel Videos “Removed” from Web Site

Posted by rjbiii on August 12, 2008

Removed Videos

Plaintiffs seek copies of all videos that were once available for public viewing on YouTube.com but later removed for any reason, or such subsets as plaintiffs designate. Plaintiffs claim that their direct access to the removed videos is essential to identify which (if any) infringe their alleged copyrights. Plaintiffs offer to supply the hard drives needed to receive those copies, which defendants store on computer hard drives.

Defendants concede that “Plaintiffs should have some type of access to removed videos in order to identify alleged infringements”, but propose to make plaintiffs identify and specify the videos plaintiffs select as probable infringers by use of data such as their titles and topics and a search program (which defendants have furnished) that gives plaintiffs the capacity both to run searches against that data and to view “snapshots” taken from each removed video. That would relieve defendants of producing all of the millions of removed videos, a process which would require a total of about five person-weeks of labor without unexpected glitches, as well as the dedication of expensive computer equipment and network bandwidth.

However, it appears that the burden of producing a program for production of all of the removed videos should be roughly equivalent to, or at least not significantly greater than, that of producing a program to create and copy a list of specific videos selected by plaintiffs.

While the total number of removed videos is intimidating (millions, according to defendants), the burden of inspection and selection, leading to the ultimate identification of individual “works-in-suit”, is on the plaintiffs who say they can handle it electronically.

Under the circumstances, the motion to compel production of copies of all removed videos is granted.

Viacom Int’l Inc. v. YouTube Inc., 2008 U.S. Dist. LEXIS 50614 at *13-15 (S.D.N.Y. July 1, 2008 ) (internal citations removed).

Posted in 2nd Circuit, Case Blurbs, Data Collection, Data Sources, Discovery Requests, Duty to Produce, Form of Production, Judge Louis L. Stanton, S.D.N.Y, Technology, Video Files | Tagged: , , | Leave a Comment »