In Harrell v. Pathmark et al., Civil Action No. 14-5260 (E.D.Penn. Feb. 26, 2015), the Eastern District of Pennsylvania sua sponte considered whether to order an adverse inverse instruction due to Defendant’s possible spoliation of video evidence.
Plaintiff filed suit against Defendant alleging negligence related to a slip and fall accident that occurred in Defendant’s store. Defendant moved for summary judgment. In opposition, Plaintiff did not allege spoliation but did impliedly suggest that the court should draw an adverse spoliation inference because Defendant had not preserved security video footage from the time and date of the accident. At the hearing on Defendant’s motion for summary judgment, the court decided sua sponte to hold a hearing to determine whether spoliation occurred.
In the Third Circuit, a plaintiff must prove bad faith for a court to find spoliation. Ordinary negligence does not suffice. The court considered the facts before it to determine whether spoliation had occurred. Although Defendant initially had possession and control of the video and had failed to properly preserve it, Plaintiff did not put forth evidence that Defendant had acted in bad faith or that the cameras had even captured the fall in the store. The court also considered that litigation was not necessarily reasonably foreseeable when Defendant re-recorded over the video as per its usual business practices, especially given that Plaintiff had been able to walk out of the store after the accident. Further, Plaintiff put forth no evidence that she had ever asked Defendant to preserve the video.
Based on these facts, the court concluded that Defendant had acted only inadvertently negligent when it failed to preserve the video footage. Without a finding of bad faith, Plaintiff had not put forth sufficient evidence under Third Circuit law to support a finding of spoliation or a sanction.