Spoliation — Failure to Prove Evidence Ever Existed Precludes Sanction - Corporate “Best Practices” Do Not Represent Policy That, If Violated, Might Be Deemed Spoliative

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An article posted on the Gregory P. Joseph Law firm website.

This article discusses the case of Gomez v. Stop & Shop Supermarket Co.., 670 F.3d 395 (1st Cir. 2012).  The plaintiff in a slip and fall claim sought spoliation sanctions against the defendant supermarket, due to the fact that the supermarket had a security camera system but no videotape of the plaintiff's fall was ever produced by the defendant.

The article states, "...the party urging that spoliation has occurred must show that there is evidence that has been spoiled (i.e., destroyed or not preserved). Tri-County Motors, Inc. v. Am. Suzuki Motor Corp., 494 F. Supp. 2d 161, 177 (E.D.N.Y. 2007).

The plaintiff falls woefully short of meeting these requirements. He relies on three facts to support his contention that the defendant destroyed a videotape of the accident: the defendant had a store security system that employed a series of cameras; the defendant had exclusive control over that system; and no videotape was produced during discovery. These facts are true but, without more, they are inadequate to show spoliation."  The article goes on to provide other case law which held that there is no reasonable inference created that a security system in a store must have captured an incident that occurred within the store.