SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN VELMA SAMUEL, ) Plaintiff, v. CASE NO. ST-12-CV-457 UNITED CORPORATION d/b/a PLAZA EXTRA, Defendant. ) MEMORANDUM OPINION Pending before the Court is Plaintiff's March 7, 2014, Motion For a Spoliation Inference at Trial.! For the following reasons, Plaintiff's Motion will be denied. FACTUAL AND PROCEDURAL HISTORY On August 16, 2012, Plaintiff Velma Samuel filed a Complaint alleging that on September 9, 201 1, she slipped on some spilt milk and fell while shopping at Plaza Extra on St. Thomas, resulting in physical and psychological injuries. Pursuant to Plaintiffs discovery demands, Defendant produced segments of video footage from several video surveillance cameras located around the store. The segments range from approximately five minutes ta sixteen minutes in length, showing Samuel on the premises approximately one minute and thirty seconds prior to her fall, the fall itself, and several minutes of Samuel on the|premises after the fall. Plaintiff alleges that Defendant destroyed critical footage that preceded her fall tending to demonstrate that Defendant had actual or constructive notice of the substance on the floor. As a result of Defendant’s alleged intentional destruction of relevant evidence, Plaintiff contends that the jury should be ' Defendant responded to the Motion on April 11, 2014. Samuel v. United Corp. Case No. ST-14-CV-457 Memorandum Qpinion, May 19, 2014 Page 2 of 8 instructed that|it is allowed to infer that the destroyed footage was adverse to Defendant’s case. STANDARD It is well established that “[t]o provide redress to the party harmed by spoliation, as well as to phnish the spoliator, a court may impose appropriate sanctions [including an adverse spoliation inference] pursuant to the Federal Rules of Civil Procedure and the court's inherent powers.”” But, before a court may consider applying a spoliation inference,? Plaintiff has the burden of demonstrating all of the following: (1) |... that the evidence in question be within the party's control;* (2) |... that there has been actual suppression or withholding of the evidence;> (3) |the evidence destroyed or withheld was relevant to claims or defenses;° and (4) jit was reasonably foreseeable that the evidence would later be discoverable.’ In Bright v. United Corporation, the Supreme Court of the Virgin Islands elaborated on two of these four elements. Specifically, the Bright Court explained that in order to show “actual suppression or withholding of evidence,” the Plaintiff must demonstrate that the 2 Kounelis v. Sherrer, 529 F. Supp. 2d 503, 519 (D.N.J. 2008) (citing Mosaid Tech. Inc. v. Samsung Elec. Co., 348 F.Supp.4d 332, 335 (D.N.J.2004)). 3} When considering whether a spoliation inference is appropriate, courts consider the following three considerations: diy the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.” Bright v. United Corp., 50 V.I. 215, 225-26 (V.I. 2008) (citing Schmid v. Milwaukee Electric Tool Corp., 13 F.3d 76 (3d Cir. 1994)). 4 Mosaid, 348 F. Supp. 2d at 336 (quoting Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995) (citing Gumbs v. Int'l Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983))). > Id.; see also Bright, 50 V.1. at 226. 6 Mosaid, 348 F. Supp. 2d at 336 (quoting Scott v. IBM Corp., 196 F.R.D. 233, 248 (D.N.J. 2000) and Veloso v. Western| Bedding Supply Co., 281 F.Supp.2d 743, 746 (D.N.J.2003)). 7 Mosaid, 348 F. Supp. 2d at 336 (citing Scott, 196 F.R.D. at 248; Veloso, 281 F.Supp.2d at 746). Samuel v. Unitad Corp. Case No. ST-12-CV-457 Memorandum ¢ Page 3 of 8 pinion, May 19, 2014 destruction of evidence was intentional or fraudulent rather than as a matter of routine.® Further, the Br ight Court also adopted the Second Circuit Court of Appeals’ “reasonably foreseeable” standard, stating that an obligation [to preserve evidence] . . . arises when a party has notice that the evidence is relevant to litigation . . . but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation.” In other words, while notice clearly occurs when a party is formally served with notice of litigation, other actions, such as an email or an individual’s conduct that indicates a reasonable potential for litigation, may constitute adequate notification. While f ANALYSIS his case appears to be closely analogous to Bright v. United Corporation, the Court finds that the Defendant’s conduct was far less egregious in this instance and does not give evidence. In Brigl intentionally pj rise to a presumption of intentional or fraudulent destruction of relevant ht, the Court found a presumption of fraud because (1) United Corporation reserved only the video footage of the victim’s actual fall and failed to review or preserve any footage prior to and after the fall;!° (2) it appeared that United Corporation ei her (A) had no routine procedure for retaining video footage of slip and fall accidents jat the time of the accident or (B) had failed to follow their routine procedures, thereby permitting the store managers “unbridled discretion to determine ® Bright, 50 V.I. 226. Compare Bright, 50 V.1. at 226, n. 7 with Kounelis, 529 F. Supp. 2d at 519 (“Spoliation occuls when a party has intentionally or negligently breached its duty to preserve potentially discoverable evidence. “’) (emphasis added). > Bright, 50 V.L. 227. Samuel v. Unitad Corp. Case No. ST-12 Memorandum ¢ Page 4 of 8 what footage -CV-457 pinion, May 19, 2014 © retain;?!! and (3) although United Corporation should have known that the evidence would be relevant to future litigation and should have retained it because the victim immediately filed a formal incident report after the accident and had also previously been involved in several accidents,'? United Corporation’s permitted their video recordet system to automatically record over the saved video surveillance every few weeks. ? As a result, the Supreme Court of the Virgin Islands provided United Corporation, the same Defendant in this case, a clear instruction to adopt adequate routine procedures that must be |consistently followed whenever an accident occurs on their premises. Specifically, th e Court instructed: Store managers should retain recorded footage of the area in which an accident occurred both prior to and following the accident. Obviously, such footage is likely to provide relevant and valuable evidence regarding the cause or timing of a spill resulting in a slip and fall accident. It is certainly not within the discretion of a store manager to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation. . .. While this Court does not find any statutory or case law indicating precisely what portion of surveillance footage capturing a slip and fall accident should be retained, common sense dictates the retention of comprehensive surveillance footage of any accident, including a reasonable period of time preceding and following the accident.'* Thus, it is equally clear to this Court that a failure to implement and follow the Supreme Court’s specific instructions after the date of the issuance of the Bright opinion, July 22, 2008, could give rise to a presumption of intentional or fraudulent destruction of relevant evidence. "Tg. at 230. 2 Td.at 220, 227-28. '3 Td at 220. The|footage saved had to be manually copied to a digital hard drive in order to prevent it from being automatically recorded over. Jd. '4 Td at 229-30 (emphasis added) (internal citations omitted). Samuel v. Unita Case No. ST-12 Memorandum ¢ Page 5 of 8 While procedures, th amount to frat should apply ¢ corporate desi: developed in 'd Corp. -CV-457 pinion, May 19, 2014 the Court is not fully satisfied with Defendant’s current routine retention e Court finds that Defendant’s specific conduct in this case does not hdulent or intentional destruction of relevant evidence such that the Court a spoliation inference. Specifically, the testimony of Waheed Hamid, the pnee, indicates that Defendant follows a video retention policy which was 999 or 2000 that requires Defendant to review and preserve portions of surveillance tapes when an accident occurs. While the specific provisions of Defendant’s video retentio policy, Hamid accident]... | Court’s requif preceding and In this approximately to the fall front burning the for Defendant foll n policy are unclear since neither Plaintiff nor Defendant provided the noted that usually the reviewer “takes . . . a few minutes before [the happened and a few minutes after it happened,” which is within the Bright ement that Defendant retain footage for a reasonable period of time following the accident.’ | specific instance, the Court recognizes that Defendant only preserved one minute and twenty-one seconds of video surveillance footage’® prior h Camera 9, the camera pointed directly at the area of the fall, by manually btage data to a jump drive.'? However, unlike Bright, here it appears that owed its retention policy and saved some video surveillance of the area prior to the ac¢ident. Considering the Supreme Court’s standard of “a reasonable period of time preceding and following the accident” is subject to interpretation, the Court does 'S plaintiff's Motion for a Spoliation Inference at Trial, Mar. 7, 2014 (Deposition of Waheed Hamid, Exhibit 1, pp. 53-55); see also id. (Deposition of Nejeh Yusuf, Exhibit 3, p. 19), Defendant’s Response to Plaintiff's Motion, Apr. 11, 2014 (Deposition of Carina Brathwaite, Exhibit D, pp. 18-19); '6 Plaintiff's Motion for a Spoliation Inference at Trial, Mar. 7, 2014 (Exhibit 2, Camera 9, UC-VS 00033). '7 Defendant’s Response to Plaintiff's Motion, Apr. 11, 2014 (Deposition of Carina Brathwaite, Exhibit D, p. 24). Samuel vy. Unita Case No. ST-12 Memorandum ¢ Page 6 of 8 id Corp. -CV-457 pinion, May 19, 2014 not find that the failure to preserve more than one minute and twenty-one seconds prior to the accident — Rather, accordance wi every three to without more — gives rise to a presumption of fraud in this instance. the Court finds that the relevant footage was ultimately recorded over in th Defendant’s routine practice of recycling video surveillance data space four months.'® In fact, Carina Brathwaite, one of Defendant’s security personnel familiar with the surveillance system, stated that the surveillance system program does is not manuall recorded over not permit anyone using the program to erase footage. '? Thus, footage that ly saved by burning it to a jump drive is lost only after it is automatically by the system. Considering the Court has found that Defendant did not intentionally or fraudulently withhold evidence, the Court need not address the others essential factors when considering applying a spoliation interference. But, while the Court makes no finding on the degree of prejudice to Plaintiff, the Court finds it necessary to briefly address Defendant’s flawed argument that the footage destroyed was not at all relevant to Plaintiff's claims or defenses because the video footage at the time of the fall does not clearly show Bright, video bay substance on the floor. As Defendant was previously instructed in footage capturing images of the area where an accident occurs prior to the accident actually occurring is often relevant for the purposes of proving constructive 8 Unlike Bright case, it appears While the Court that the evidence} more reasonable '? Defendant’s Ri pp. 16-18). where United Corporation recorded over previous video after only a few weeks, in this befendant upgraded to a system that records over previous video after three to four months. ‘oes not make any findings regarding whether it was reasonably foreseeable to Defendant would later be discoverable, this increased length of time provides a potential plaintiff a amount of time to place the defendant on notice of possible litigation. psponse to Plaintiff's Motion, Apr. 11, 2014 (Deposition of Carina Brathwaite, Exhibit D, Samuel vy. Unite Case No. ST-12} Memorandum Q Page 7 of 8 notice for som defendant had Thus, even wh customers pria on the floor ff because, for in d Corp. LCV-457 pinion, May 19, 2014 1e “minimum amount of time before the accident.”?? A jury can find a constructive notice of a dangerous condition by circumstantial evidence.”! here no visible substance is on the floor in the video, conduct of other ir to the accident may allow a reasonable juror to infer that a substance was pr a certain period of time. Where no substance is visible on the floor stance, the substance is alleged to be the same color as the floor, “video evidence “ that someone spilled anything on the floor prior to the fall” may be relevant to Pl The Ca foreseeable no the discretion available recon surveillance vi the Court did 4 of footage prid Court urges IJ ntiff’s burden of proving constructive notice.”* urt also finds it necessary to reiterate to Defendant that upon reasonably tice that evidence may be relevant to discovery, “it is certainly not within of a store manager [or security officer] to determine what portion of the ded surveillance footage is relevant to anticipated litigation” even where a eo does not clearly show the cause of an accident .”? Additionally, while ot find it to be the case here, routinely preserving only a minute and a half ir to an accident teeters on the edge of being unreasonable. As a result, the befendant to ensure its retention policy is consistent with Bright, and recommends that when future accidents are reported, Defendant should preserve at least a minimum of| five (5) minutes of surveillance footage of the area prior to the accident. Each case must be interpreted on its own facts, however, and the reasonableness of © Bright, 50 V.L. at 224. 21 Id; see Williams v. United Corp., 50 VI. 191 (V.1. 2008). Bright, 50 V.L. pt 221. 3 Id. 50 V.L. at 229. Samuel v. Unite: Case No. ST-12) Memorandum Q Page 8 of 8 Defendant’s c length of the ré Accord consistent with dd Corp. tCV-457 pinion, May 19, 2014 pnduct will depend on the totality of the circumstances, of which, the cording is but one factor. ingly, Plaintiff's Motion to for a Spoliation Inference is denied. An Order this Opinion shall follow. Dated: Mayol 2014 — a > HON. MICHAEL C. DUNSTON ATTEST: Estrella George JUDGE OF THE SUPERIOR COURT Acting Clerk of Court. /-/ OF THE VIRGIN ISLANDS tlle Cayton Lori Boynes-Tyson Court Clerk Su lpervisor 4 1388, / 014 SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN VELMA SAMUEL ) ) Plaintiff. ) Vv ) CASE NO. ST-12-CV-457 UNITED CORPORATION d/b/a PLAZA EXTRA ) Defendant ORDER The Court haying issued a Memorandum Opinion on this date, it is ORDERED that Plaintiff's March 7, 2014, Motion For a Spoliation Inference at Trial is DENIED; and it is ORDERED that copies of this Order and Memorandum Opinion shall be directed to counsel of record oS > Dated: Mayel/ , 2014 HON. MICHAEL C. DUNSTON ATTEST: Estrella George JUDGE OF THE SUPERIOR COURT OF THE VIRGIN ISLANDS Actin Clerk of Court by: TOV adn Lori Boynes-Tyson Court Clerk Supervisor 417213804