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Spoliation Instruction for Missing Video

In a slip-and-fall negligence action against a grocery store, the Norfolk U.S. District Court held that the 85-year old victim should have the benefit of a jury instruction that the video the store erased would have been adverse.

Plaintiff slipped and fell while shopping at defendant grocery store in June 2010.  That same month, victim’s attorney hand delivered letters to the store manager and insurance adjuster requesting preservation of the surveillance video on the day of the fall.  Despite receiving these requests, the store destroyed the videos.

Victim’s state court suit filed in November 2010 was removed.  In August 2011, victim moved for sanctions for defendant’s alleged spoliation of the videotape.  Following Buckley v. Mukasey, 538 F.3d 306 (4th Cir. 2008), the district court granted victim’s request for an adverse inference instruction at trial permitting the jury to find that the evidence made unavailable would have been unfavorable.  Victim filed a motion in limine to prevent defendant store from presenting evidence to rebut the adverse inference.

The district court granted victim’s motion, holding defendant store may not relitigate the spoliation issue and allow the jury to substitute its judgment for the court’s on this issue.  The court held it was not bound by Nucor Corp. v. Bell, 251 F.R.D. 191 (D.S.C. 2008), cited by defendant, where the court allowed the jury to decide an unresolved spoliation issue.  Here the court has already found willful destruction consistent with recent district precedent in E.I. du Pont de Nemours and Co. v. Kolon Indus., Inc., No. 3:09cv58 (E.D.Va. Jul. 21, 2011).  As in Kolon, the jury is permitted but not required to find the wrongfully destroyed evidence would have been harmful.

Aaron v. Kroger LP I (Doumar)  No. 2:10cv606, Jan. 6, 2012; USDC at Norfolk, Va. VLW 012-3-030, 6 pp.

VLW 012-3-030

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