Cross Spoliation Claims for Lost Video & Witness Statements

http://ow.ly/7VQGq

An article by Joshua Gilliland, Esq. posted on his blog the Bow Tie Law Blog.

This article discusses a specific case in which both opposing sides alleged spoliation of evidence.

The article states, "In Patel v. Havana Bar, 2011 U.S. Dist. LEXIS 139180 (E.D. Pa. Dec. 2, 2011), both parties were accused of spoliation. The underlining facts involved the Plaintiff attending an engagement party at the Defendant’s restaurant/bar and falling off a two-story balcony."

Spoliation allegations were based on the fact that the security video taken by the defendants was lost, since their security system did not allow them to copy the data to DVD or tape. Apparently the video was inadvertently recorded over after 3 weeks, and attempts to copy the data over to another media.

The article states that in regard to the spoliation of the security video, "The Court issued an adverse inference instruction for the loss of the video evidence. Patel, (footnote provided)

An adverse inference instruction is ordered under the following circumstances:

(1) The evidence in question was within the party’s control;
(2) There appears to have been actual suppression or withholding of the evidence;
(3) The evidence in question was relevant to the claims or defenses; and
(4) It was reasonably foreseeable that the evidence would be discoverable in litigation."

The spoliation alleged against the plaintiffs stemmed to two Facebook messages that were sent seeking witness statements from party attendees.  The defendant's alleged that the plaintiff's hand-picked witness testimony only from those witnesses that provided information that supported their claims.  The article states, "The Defendants claimed the Plaintiffs “spoon-fed friendly witnesses testimony that would support their case theories, and then lost or destroyed evidence that would not support their current case theory.”

The Court held that once the plaintiff had obtained the witness statements, they had a duty to preserve them, thus it was clearly spoliation.  The article states, "As the Court explained on the failure to produce the witness statements:

Put more directly, this is the type of “basic, substantive evidence” that should have been produced “without resort to the complications, inefficiency, and litigiousness of discovery practice.” [citation omitted]. Plaintiff should have known that the witness statements would eventually be discoverable under Rule 26(b)(3)(A), and that producing the statements piecemeal was not in any way designed to foster the fair and efficient exchange of information." An adverse inference instruction was also granted against the plaintiff based on the missing witness statements.

The author provides warnings against spoliation of all forms of electronically stored information (ESI), and also highlights the fact that social media evidence needs to be addressed and preserved as well. As the author states, "Social media is only expanding where there might be responsive electronically stored information in a lawsuit. In this case, two Facebook messages seeking witness statements were key exhibits into the spoliation claims. There are many other examples."