When Must Video Surveillance Be Preserved to Avoid eDiscovery Spoliation?
In an unpublished decision, the Eleventh Circuit decided an appeal by a plaintiff in McLeod v. Wal-Mart, No. 12-13919, slip op. (11th Cir. April 3, 2013). Plaintiff had been charged with theft, but the criminal case was dismissed and plaintiff sued Wal-Mart in a civil case. The court considered the appeal on the question of whether Wal-Mart engaged in spoliation when it taped over a surveillance video in the normal course of business.
The facts of this case can be summarized as such: Plaintiff McLeod was an employee at Wal-Mart when $2,000 cash and a “loan bag” went missing on her shift. One videotape showed plaintiff with the bag, but it was not clear what happened, as her back was to the camera. It did show plaintiff subsequently moving boxes to the recycling area.
In the search for the missing bag, Wal-Mart used a second videotape to narrow down the groups of recycling that were brought out after plaintiff left the room. By using the second video, Wal-Mart found the empty bag in the recycled boxes.
After the criminal case was dismissed, plaintiff sued in civil court. One of plaintiff’s arguments on appeal was that Wal-Mart engaged in discovery spoliation by taping over the second recording that showed the boxes being moved to recycling.
However, her criminal attorney only asked for production of evidence regarding certain parts of the store, which did not include the area where the second tape was recorded. As the tape itself that did not have the plaintiff in it, the court held the destruction of the tape in the usual course of business did not prejudice the plaintiff. The court also found that Wal-Mart did not act in bad faith in failing to preserve the video.
Although in this case, the court found no spoliation, it would have likely been a good idea for Wal-Mart to preserve the tape nonetheless. It is always better to err on the side of caution when the duty to preserve evidence is imposed.