Trust Me: Nothing in the Missing Video Would Have Helped You!

[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Klock v. Wal-Mart Stores East, LP, 2024 WL 4041536 (D. Md. Sept. 4, 2024), is another in a long line of missing surveillance video decisions. 

Defendants’ employee – – the store’s asset manager – – testified that “he reviewed video footage after Plaintiff’s fall, but the Store’s video cameras did not capture the area where the incident occurred.”  Id. at n. 11. 

The Court denied an implied request for spoliation sanctions, writing: “Without evidence before it that there was a video, the Court declines to speculate that one existed.”  Id.

In this blog, I suggest a different analysis.

Plaintiff was in defendants’ store, where she slipped and fell.  “After she fell, Plaintiff observed a liquid on the floor, which she described as ‘dirty colored’ and [it] looked ‘like discolored water.’”  She said that: “The ‘puddle’ of liquid was round and larger than ‘dinner plate size.’” Id. at *1. 

The store’s asset manager arrived on the scene shortly thereafter, having been notified of a medical incident.  He observed a drop of liquid the size of nickel or quarter, with a smear.  A store employee then cleaned the area with a mop.  A witness gave a written “statement,” using a “witness statement form.” Id. at *2.  Presumably, that was at the behest of the defendant, although that is not stated in the Court’s opinion.

The roof had been damaged and repaired and there was conflicting testimony about whether the store was aware of an alleged ceiling leak in the pertinent area.  The Court determined that there was a mere scintilla of evidence supporting causation due to a roof leak.  Id. at *7. There were also indications of a spilled drink.

Plaintiff was escorted to the store pharmacy with a cut, scrapes, and bruises. The manager obtained an incident report and photographed the area, after it had been cleaned.  Id. at *1.

The store asset manager, Mr. Leslie, “testified that after the incident he reviewed the Store’s surveillance footage. However, the video cameras do not capture the area where the incident occurred; thus, there is no surveillance footage of the incident or anyone coming into the area.”  Id. at *3.

Defendants’ motion for summary judgment was granted.  Under Maryland law, the plaintiff was a business invitee and, while the store owed a duty of reasonable care, it was not an insurer of customer safety. Id. at *5.  A slip and fall plaintiff must show that the proprietor had actual or constructive knowledge of a dangerous condition. Id.

In this blog, I skip over the evidence regarding the alleged ceiling leak or spilled drink and, instead, focus on the limited discussion of spoliation of alleged video evidence. 

Plaintiff alleged “that video evidence existed that has been spoliated.”  Id. at *6.  Defendant argued that the issue was untimely raised at this procedural juncture.  That issue was not addressed in Klock.^[1]

The Court set out the standard for spoliation and determined that plaintiff failed to demonstrate either relevance or notice/trigger:

A movant who contends that spoliation has occurred and seeks a sanction must demonstrate that: (1) the party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a culpable state of mind; and (3) the evidence that was destroyed or altered was relevant to the claims or defenses of the party that sought the discovery, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.

Charter Oak Fire Ins. Co. v. Marlow Liquors, LLC, 908 F.Supp. 2d 673, 678 (D. Md. 2012)(internal citations and quotation marks omitted).

Klock is consistent with Maryland cases, e.g., Goin v. Shoppers Food Warehouse Corp., 166 Md. App. 611, 618 n. 2 (2006)(employee cleaned floor after slip and fall, but no evidence they were told to “get rid of” materials); see Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence (Jan. 9, 2021), citing Benson v. ALDI, Inc., 2019 WL 5704532 (Apl. Ct. Md. Nov. 5, 2019)(unreported); Bare Allegation of Refusal to Preserve Evidence Does Not State a Claim (Jul. 16, 2023).  Additionally, in Maans v. Giant of Maryland, LLC, 161 Md. App. 620, 635 (2005), the Court wrote that “[u]nder Maryland law, the owner/operator of a store has no duty to an invitee to keep records in order to lighten the invitee’s burden of proving negligence.”

Here, the defendants actually reviewed the video in question.  However, that has not been held to be dispositive.  For example, in Little v. Pohanka, 2022 WL 17412861 (Apl. Ct. Md. Dec. 5, 2022)(unreported), defendant reviewed video of the vehicular accident, did not preserve it, and testified that it exculpated him.  Sanctions were denied.  See also Should Carl Little, Jr., Have Won His Appeal Challenging Denial of a Spoliation Instruction? (Dec. 26, 2022). 

In two blogs, I have suggested my disagreement with the outcome.  Id.; see Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence (Jan. 9, 2021).

WAS THE DUTY TO PRESERVE TRIGGERED IN KLOCK?

It is not necessary to send a preservation demand to trigger the duty to preserve: “While a litigant certainly may request that an adversary agree to preserve electronic records during the pendency of a case, … it is not required, and a failure to do so does not vitiate the independent obligation of an adverse party to preserve such information.”  Thompson v. U.S. Dep’t of Hous. & Urban Dev., 219 F.R.D. 93, 100 (D. Md. 2003).

I disagree with the Klock Court on the issue of trigger.  A business invitee slipped and fell.  Liquid – – and a smear – – was observed on the floor in the immediate area.  The area was mopped.  Then, photos of the scene were taken.  After the incident, the manager reviewed the store’s surveillance video.  A witness statement was taken and an incident report prepared.  There was notice to the manager of a medical incident. Plaintiff was escorted to the pharmacy for treatment of visible injuries.

Under Fed.R.Civ.P. 37(e), Maryland Rule 2-433, and federal common law, the duty to preserve is triggered when litigation is reasonably anticipated.  Triggering the Duty to Preserve ESI (Dec. 27, 2020).  Discovery of when the duty to preserve was triggered has been permitted.  Discovery About Discovery – When Was Duty to Preserve Triggered? (Jul. 23, 2024).

In my opinion, if defendants had not: (1) reviewed the surveillance video; (2) taken photos after clean-up of the liquid; (3) seen the injuries; and, (4) documented the event with a witness statement, the duty to preserve likely would not have been triggered.  However, in my opinion – – and it is not free from reasonable debate – – these facts constitute circling the proverbial wagons in anticipation of reasonably anticipated litigation.

Further, I have suggested that short retention intervals with rapid overwriting of surveillance video may be subject to challenge.  Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024); but cf. Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation (Aug. 21, 2024).

WAS THE TESTIMONY SUFFICIENT TO DEFEAT SANCTIONS?

Defendants’ employee reviewed the video and determined that it did not show the area at issue.  Thereafter, it was not preserved.  The reviewing employee was the store asset manager.

In Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 469 Md. 704 (2020), a premises fire damaged several properties.  One issue was whether the fire was started by careless smoking on defendant’s property. 

A video was not preserved.  Defendant Steamfitters argued that the video had been reviewed and it was “useless” and “didn’t show anything….”  Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence (Jan. 8, 2021). Steamfitters – – the party that had possessed the video – – argued that the camera was not focused on the area at issue, stating that “this video might have showed people congregating here, it might have also been completely irrelevant, which is what Mr. Sclater [plaintiff’s insurer] told my folks. So why preserve it anyway? They haven’t made a showing that there would be any reasons to ever preserve this video.”  Id. at 743-44.

That argument is similar, albeit not identical, to Klock.  However, the Maryland Supreme Court wrote that: “There was evidence in the record that the camera was pointed in a direction that would have captured persons present on Steamfitters’ property prior to and at the time of the fire, as well as a portion of the property close to the origin of the fire. Video of that area may have captured other evidence similar to the evidence captured by the other video cameras, which were shown to the jury, such as the color of the smoke, wind direction, and speed.”  Id. at 744.

That dispute properly went to the jury.  An instruction on both negligent and intentional spoliation was deemed proper.

The opposite result was reached in Webb v. Giant of Maryland, LLC, 477 Md. 121 (2021).  There the store had more than 30 cameras. A legal hold had been imposed, but the video was not preserved.

On appeal, it was held to be error to instruct on spoliation.  There was “no direct evidence that a video of the incident actually existed or that it was destroyed or otherwise not preserved.”  Nor was there sufficient circumstantial evidence. 

As in Klock, the Maryland Supreme Court wrote that: “Here, there was no testimony or other evidence to show that the video ever existed. To the contrary, the only evidence on that issue was the testimony of Giant’s corporate representative, Kevin Corradini, who stated conclusively that the video never existed. It was, therefore, improper for the circuit court to instruct the jury that it could draw an inference as to Giant’s destruction of the video, where there was no evidence that such a video existed previously. Giving such an instruction under the circumstances was legally erroneous and an abuse of discretion.” See No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case.  The intermediate appellate court wrote that “the [more than 30] cameras are, at most, deer tracks in the snow, but they are not necessarily tracks of a particular deer – in this case, a video of the incident.”  Webb, 2021 WL 733828 at *12. 

Instead of a spoliation instruction, the Webb Court wrote that plaintiff could have argued spoliation in closing to the jury.

Maryland courts have held that the absence of records does not equate to failure to preserve, absent more evidence.  E.g., M. Berman and A. Shelton, “The Common-Law Duty to Preserve,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 159, discussing Solesky v. Tracey, 2009 WL 8606518 (Md. Cir. Ct. Balt. Co. May 29, 2009) (Fader, J.).

There has been no reported Maryland decision since Rule 2-433(b) (sanctions) was amended. Maryland Rules Order Amends Sanctions Rule (Nov. 28, 2023).

MY CONCERN WITH KLOCK

Klock certainly finds support in Maryland cases.  But, assuming, arguendo, that the duty to preserve was triggered, what are the outer limits of a Klock-type analysis?  The duty to preserve encompasses only potentially responsive information.  If information is irrelevant, it need not be preserved.  It is clearly correct to conclude that irrelevant video is not within the scope of the duty to preserve.

But, how should that decision be made and how does the damaged party prove spoliation where the defendant’s response is “trust me, I looked at it and it wouldn’t have helped you?”  And, what happens when that testimony comes from a lay witness who may have been involved in the events at issue and, perhaps, even personally liable as an alleged tortfeasor?  In the words of McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021):  “What is clear is that Plaintiffs will never know what information was contained on the Whitley cell phone. The Plaintiffs need not prove the content of the information or reconstruct the lost information in order to prove its relevance. That proposition is absurd.” See Defendant Unsuccessfully Argued that Plaintiff Could Not Show That Data on Cell Phone That Defendant Destroyed Was Relevant (Aug. 18, 2021).

Taking Klock to its extreme – – which is always a risky analytical tool – – could a defendant destroy incident reports and claim that they were all exculpatory?  Can a potential litigant wipe a key custodian’s text messages or emails and testify “trust me, I looked at them and they would not have helped the adverse party?” 

Would the missing video have made it possible to identify other potential witnesses?  Could a lay manager properly analyze that potential? Did the lay manager do so?

Fed. R. Civ. P. 37(e) was not cited in Klock.  My thoughts under that Rule follow:

Notes

[1] Untimely filing of a motion for sanctions may be dispositive.  See When Should a Spoliation Motion Be Filed and Decided? (Dec. 26, 2020); M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 229 (collecting cases); Spoliation Motions Denied as Untimely – Another Wake-Up Call (Sept. 8, 2023); Another Spoliation Motion Denied as Untimely (Mar. 14, 2024).

[2] Some courts find prejudice if the unavailable ESI went to the merits, even if it would not have assisted the party claiming spoliation.  Under that view, the loss of any probative evidence is prejudicial.  Court Holds That Federal Spoliation Rules Are Both Independent and Interrelated in Cell Phone Sanctions Case (Aug. 26, 2023). That is not the standard in the District of Maryland.  Id. (citing cases); Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e) (Apr. 17, 2023).  The issue was not presented in Klock.

[3] Failure to Show “Intent to Deprive” Leads to Denial of Rule 37(e)(2) Sanctions (Mar.  5, 2024).  The failure to take reasonable steps does not equate to intent to deprive the opponent.  Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e) (Apr. 17, 2023).