Requests to preserve video surveillance may likely broaden, and will certainly require more trips to discovery court, thanks to a recent opinion by the Pennsylvania Superior Court. The court's words should also motivate those controlling cameras to re-evaluate video retention policies.

In Marshall v. Brown's IA, 2019 Pa. Super. 94 (March 27), the court addressed the scope of video preservation requests, the sufficiency of a camera owner's response and the ramifications of not doing the utmost to preserve potentially relevant evidence. The Marshall opinion will likely embolden litigants to demand preservation of more hours from more camera locations, under the threat of sanctions for not doing so. Meanwhile, the burden will be foisted onto camera owners and, ultimately, the discovery courts, to sort out the reasonableness of the requests.

The claim in Marshall involved a plaintiff named Harriet Marshall who allegedly slipped and fell after encountering a wet spot on the floor at a ShopRite grocery store. About two weeks later, her lawyer wrote to the grocery store directing it to preserve video surveillance of the incident location, for six hours before and three hours after the time of the alleged incident. The lawyer warned that failure to do so would lead to an adverse inference at trial.

Video may have existed for all, or a significant portion of, the nine-hour period. However, the store's “rule of thumb” was to preserve video for 20 minutes before and 20 minutes after an incident. After the store received Marshall's lawyer's request, the store preserved just 37 minutes before and 20 minutes after the incident. The remaining video was automatically overwritten 30 days after the incident.

At trial, Marshall's attorney sought a jury instruction for an adverse inference regarding what the unpreserved video may have shown. The trial judge denied the request indicating that no relevant evidence had been destroyed, and concluding that ShopRite did not act in bad faith by following its video retention policy. The jury returned a defense verdict and the appeal ensued.

The Superior Court ruled that ShopRite's decision to preserve a small portion of the requested video constituted spoliation. The court believed the trial judge took an unreasonably narrow view of whether relevant evidence could have existed on the unpreserved video. In the court's view, relevant evidence could have appeared on the video, including the source of the spill, the frequency (or infrequency) of store employees inspecting the area and whether someone else slipped in the same area before Marshall. This is all highly probative and relevant evidence, the court reasoned.

Further, the Superior Court ruled that the trial judge misapplied the doctrine of spoliation. When evidence is destroyed or discarded, determining whether a party acted in good or bad faith factors into the type of sanction to be imposed, not whether a sanction is warranted, the court advised.

Spoliation by ShopRite was evident here, in the Superior Court's view, because ShopRite could have preserved more of the evidence that was arguably relevant, but it chose not to. As such, the court determined the trial court abused its discretion by not providing an adverse inference jury instruction, as requested by Marshall, which the court deemed the “least severe spoliation sanction.”

In a footnote, the Superior Court agreed with the lower court that the scope of the relevant evidence is not determined by the plaintiff's request, no more than it is determined by a camera owner's video retention policy. It recognized the conflict between the unreasonable annoyance, burden and expense imposed upon a camera owner in preserving hours and hours of video, versus a plaintiff's interest in discovering relevant evidence on the video.

The court's solution was that ShopRite should have contacted Marshall's lawyer and allowed counsel to view the video before deletion. Otherwise, the parties could have gone to discovery court to have a judge decide.

So, how will the Marshall opinion change the litigation landscape?

Lawyers will be emboldened to demand preservation of even more hours of video from more camera locations, because they have nothing to lose. After all, it is now the camera owner's burden to oppose the scope of the request or face the consequences later. Why not demand more than nine hours of video? Why not demand multiple camera angles at different locations at, near, or leading to, the incident site? Arguably, any of those hours and angles may tend to show relevant evidence, which will be destroyed (i.e., spoliated) if the camera owner does not heed the demand.

Also, requests for video preservation should be specifically broad. Consider these two letters, within the context of the Marshall opinion:

Letter A: You are hereby advised to preserve all video at your facility of the incident involving my client. 

Letter B: You are hereby advised to preserve all video at your facility of the incident involving my client for the 24-hour period before, and six-hour period after, the incident, including video from all camera locations depicting images within 100 feet of the incident site.

If ShopRite had received Letter A, it may have been acceptable to preserve just 37 minutes before and 20 minutes after the incident (or, perhaps, even less video). Regarding Letter B, it is arguably an over-reaching request. However, under Marshall some or all of the requested video may contain“relevant evidence. If selected portions of the request are ignored and all the requested video is not preserved, the plaintiff's lawyer can rely on Marshall to claim spoliation and seek sanctions.

So, where should the camera owner draw the line on what to preserve and what part of the request to ignore?

In response to an over-reaching demand, a camera owner could take the court's advice and invite the opposing lawyer to come watch the video. When faced with having to watch several hours of video from multiple camera angles, a lawyer may temper his request. Another option is to calculate the time and expense of identifying, editing, reproducing and storing the video, and request compensation for the effort. This attempt at burden shifting may also temper an otherwise over-reaching request. Or, it may land the parties in discovery court.

Unfortunately, over-reaching video requests without consequences—prompted by the Marshall opinion—will likely result in many more disputes requiring resolution by a discovery court judge. Faced with an expensive, time-consuming request, it would be reasonable for a camera owner to see if a discovery court judge will rein in the request early in the litigation, rather than wait to see whether a trial court judge is going to mete out sanctions later.

Of course, seeking judicial resolution means the video should be preserved in the event the judge deems the request reasonable and requires disclosure of all the requested video. Practically, if the video is preserved, a judge may very well see no harm in its disclosure. At that point, cost-shifting may be part of an order, to account for the time and resources expended to retrieve, create and store the video.

One problem with the Superior Court's recommendation for dispute resolution is that most requests for video preservation arrive before a lawsuit is filed. So, absent a plaintiff opening a formal claim to conduct pre-suit discovery, the parties must position themselves for a court battle later. That is where a thoughtful video retention policy will come in handy.

As we have learned from the Marshall opinion, camera owners should not simply rely on “rule of thumb” parameters regarding video preservation, ignoring the scope of requests that fall outside those parameters. What seems reasonable to a camera owner may not be enough for a plaintiff or the judge. Camera owners should do the following:

• Make a video retention policy and follow it consistently. When an incident occurs, routinely preserve a specific amount of video from all relevant camera angles, even before a third party requests it. Your policy can be to preserve 20 minutes before and after the incident, or 20 hours. Have a justifiable reason for the chosen time frame and how you identify the camera locations for preservation. You will enter the courtroom in a position of strength.
• If you receive a third-party request, determine if the request can be met. Do you have the entire time period for all the camera angles requested? If so, secure the requested video before it is automatically overwritten.
• If the request is onerous, document your invitation to the requestor to view the video, or offer to identify, edit, reproduce and store the video at the requestor's expense.
• If the requestor refuses, go to discovery court. If the request is pre-suit, save the video for the inevitable court battle.

Under Marshall, if a camera owner does not take a cautious approach in addressing video preservation during the investigation phase of litigation, the consequences at trial could be devastating. As noted in the Marshall opinion, sanctions could include entry of judgment, exclusion of evidence, monetary penalties and an adverse inference.

Mark A. DiAntonio, of McCann Law, has a practice that includes civil litigation and employment law. He has focused on the defense of businesses in the health care, construction and manufacturing sectors. Contact him at [email protected].