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Is an Adverse Inference Instruction Appropriate for Destroyed Video?

Posted on May 5th, 2014

EEOC v. Suntrust Bank, Case No. 8:12-cv-1325-T-33MAP(M.D.Fla. April 7, 2014) is a sexual harassment case where video surveillance is relevant to Plaintiff EEOC’s claims on behalf of multiple women. Defendant had a policy to keep video surveillance for 90 days and then delete or tape over the footage unless litigation or security issues arose (then the policy was to keep for two years.) No relevant footage remained when the EEOC sent out plaintiff electronic discovery requests.

When did the Duty to Preserve Arise?

The EEOC alleged the duty to preserve the tapes was the date the first woman complained of sexual harassment to HR and told them she hired an attorney. The HR head who spoke to the woman had notes that said “camera, computer log-in and notebook” were to be evaluated. Defendant claimed it arose months later, when it received the EEOC’s charge of discrimination. The court sided with the EEOC.

Was the Video Crucial to the EEOC’s Prima Facie Case?

The court concluded the video surveillance was crucial to Plaintiff’s claims. Although Defendant argued other witnesses could testify to support or discredit the allegations, “video surveillance would have been unbiased, directed evidence about what occurred…”

Was the Destruction Done in Bad Faith?

Defendant claimed the destruction of the video was “unfortunate.” The EEOC noted that Defendant viewed the tapes multiple times themselves, but failed to preserve them for the lawsuit. Additionally, Defendant failed to comply with its own policy of holding video for two years if there is litigation pending or after a security breach.

In the 11th Circuit, bad faith must be found for an adverse inference instruction as sanction for spoliation to be appropriate. However, the court noted that failure to maintain evidence does not necessarily amount to bad faith, and there was no evidence Defendant directed the tapes be purposefully destroyed. On the other hand, bad faith can also be met with circumstantial evidence. Although this set of facts “came close” to bad faith, the court denied the request for an adverse inference instruction (without prejudice with leave to file at a later date.) Instead, the court permitted the EEOC to introduce evidence at trial concerning the videos, the policies on preservation and the failure to preserve.

ILS – Plaintiff eDiscovery Experts

Did you know? The EEOC filed 93,727 charges alleging discrimination in 2013. The top discriminatory charges were based on race and sex.

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