Patton v. Wal-Mart Stores, Inc.

Filing 51

ORDER Granting 26 Plaintiff's Motion for Sanctions for the Spoliation of Evidence. IT IS FURTHER ORDERED that an adverse inference jury instruction against Walmart is appropriate sanction in these circumstances. Signed by Magistrate Judge Cam Ferenbach on 11/20/2013. (Copies have been distributed pursuant to the NEF - AC)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARGARET PATTON,

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2:12–cv–02142–GMN–VCF

Plaintiff,

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vs.
ORDER

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WAL-MART STORES, INC.,
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Defendant.
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Before the court is Plaintiff Margaret A. Patton’s Motion for Sanctions for the Spoliation of
Evidence (#261). Defendant Walmart Stores, Inc. filed an opposition (#32); and, Patton replied (#34).

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BACKGROUND2

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This matter arises out of Plaintiff Margaret Patton’s slip and fall at a Walmart in Henderson,
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Nevada. (Pl.’s Mot. for Sanctions (#26) at 3:1–4). The relevant facts include: (1) the circumstances
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surrounding Patton’s slip and fall; (2) the allegations in Patton’s complaint; and (3) the events leading to
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the discovery dispute before the court. Each is discussed below.

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Pathetical citations refer to the court’s docket.

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During the court’s November 15, 2013 hearing, counsel stipulated to these facts, which the court read into the
record in order to clarify the dispute before the court. The court notes that because this an interlocutory order, the
stipulation was for the limited purpose of deciding the motion before the court. See City of Los Angeles, Harbor
Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (“As long as a district court has jurisdiction
over the case, then it possesses the inherent procedural power to reconsider, rescind, or modify an interlocutory
order for cause seen by it to be sufficient.”).

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I.

Margaret Patton’s Slip and Fall
On June 10, 2011, Michael Burton—a Walmart stock employee—headed for aisle four. (Mins.

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Proceedings #49). The coffee merchandise needed replenishing. As Burton later testified, he pulled—

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and not pushed—his cart through the store. Burton had been trained to keep his back to the cart, remain

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alert, and be on the lookout for obstacles and broken items on the floor. (Id.)

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Burton rounded the corner and pulled his cart into aisle four’s east end. (Id.) A single customer

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was shopping for salad dressing at the far west end. (Id.) He passed the barbeque sauce and stopped in

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front of the coffee section. (Id.). As he would later recall, the floor appeared clean and dry to him. (Id.)

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Burton parked his cart, faced the shelf, and began stocking products. (Id.)

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Minutes later, someone screamed. (Id.) Burton turned. (Id.) He saw Margaret Patton, near the
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barbeque sauce. (Id.) She was lying next to a large amount of liquid, just ten-to-fifteen feet away, along
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the very path Burton had just traversed one or two minutes before. (Id.) She was injured. (Id.)
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Another employee arrived; he had heard the scream. (Pl.’s Mot. for Sanctions (#26) Exhibit B at
20:11–23). Onlookers gathered. (Id. at 20:21–22, 27:23). The other employee called the store manager,

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but he was unavailable. (Id. at 21:16) Soon an assistant manager arrived, and Burton left. (Id. at 22:5–7).

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Burton resumed stocking shelves, but in another aisle. (Id.) Meanwhile, paramedics placed

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Patton on a stretcher and took her away. (Pl.’s Mot. for Sanctions (#26) Exhibit D at 31). She was

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immediately admitted to a hospital, where she would remain for over twenty-four hours. (Id. at 36:7–

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13). Later that day, Burton and the assistant manager completed written reports detailing Patton’s fall,

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and the assistant manager requested that video surveillance be copied and preserved. (Pl.’s Mot. for
Sanctions (#26) at 4:16–28, 5:5, 5:10–11).

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II.

Patton Files Suit
Twenty-six days later, Patton hired an attorney. (See Pl.’s Reply (#34) at 7:23–28). On July 6,

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2011, the attorney sent Walmart a letter notifying the company that Patton was now represented. (Id.)

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The letter also instructed Walmart, in boldfaced type, to “ensure that any and all video surveillance tapes

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. . . pertaining to this matter remain completely undisturbed.” (Id.) On July 19, 2011, Patton received a

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response. (Id.) Nicole Knysch of Sedgwich Claims Management Service, Inc., the claims handler for

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Walmart, confirmed that Patton’s letter had been received. (Id. at 8:9–10) (citing (#34-4) Exhibit C at 1).

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Approximately forty-five days after Patton’s fall, on or about July 25, 2011, the digital memory

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in Walmart’s surveillance system exceeded its capacity and the DVR system automatically overwrote

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previous data. (See Def.’s Opp’n (#32-2) Exhibit A, Aff. of Kelli Briggs, Asset Protection Manager at
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3:7–10).
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On October 29, 2012, Patton filed a negligence action in state court. (Compl. (#1-2) Exhibit B at
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1). On December 17, 2012, Walmart removed the action to federal court. (Id. (#1) at 1). Patton alleges,
among other things, that Walmart failed to properly inspect its floors. (Pl.’s Mot. for Sanctions (#26) at

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6:14–18). In response, Walmart contends, among other things, that it breached no duty of care and that

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an unidentified shopper must have caused the spill that led to Patton’s fall. (Id.)

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III.

The Discovery Dispute & Walmart’s Document Preservation Directive

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Discovery is now closed. One of the key facts that Patton attempted discover was the source of

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the liquid that caused Patton’s slip and fall. In early April, Patton served Walmart with a request for

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production of documents, which demanded all surveillance footage of aisle four from the day in
question. (Pl.’s Mot. for Sanctions (#26-6) Exhibit G at 4). But, Walmart did not produce any footage

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from before or during the accident because, Walmart argues, none exists. (Id.)
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Pursuant to Walmart’s “document preservation directive,” (see Pl.’s Mot. (#26-5) Exhibit E), if
video surveillance captures an incident in the store, Walmart preserves footage from one hour before the

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incident until the incident occurs. (Def.’s Opp’n (#32-2) Exhibit A, Aff. of Kelli Briggs at 3:16–17)

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(explaining how Walmart interprets and implements the document preservation directive). If, however,

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video surveillance does not capture an incident, then Walmart preserves footage from the area closest to

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the incident from the time the incident is reported until the customer exits. (Id. at 3:18–22). Following

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Patton’s slip and fall, Walmart reviewed its surveillance footage but found nothing. (Def.’s Opp’n (#32)

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at 3:14–18). Because no camera captured Patton’s slip and fall, Walmart preserved and produced video

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footage of the east entrance of aisle four from the time the incident was reported until one hour and six

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minutes later. (Pl.’s Mot. (#26) at 6:7–9).
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On June 7, 2013, Patton deposed Burton. (Id. at Exhibit B). But, the deposition also failed to
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locate the liquid’s source, in part, because Burton testified to following Walmart’s policies perfectly:
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Burton kept his back to his cart and looked down the aisle for obstacles before turning to face the shelf
and stock the coffee. (Id. at 37:1–3) (“I’m positive that it [i.e., the water] wasn’t there while I entered. It
[i.e., the spill] had to have occurred after I entered”).

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Patton moves for discovery sanctions, arguing that Walmart must have destroyed relevant

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evidence. Patton contends that it is axiomatic that Walmart had relevant video footage and that Walmart

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should have known to preserve the footage. (See Pl.’s Mot. (#26) at 7:3–7).

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LEGAL STANDARD
Spoliation is the destruction or significant alteration of evidence, or the failure to preserve
property for another’s use as evidence in pending or reasonably foreseeable litigation. United States

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v. Kitsap Physicians Svs., 314 F.3d 995, 1001 (9th Cir. 2002) (citing Akiona v. United States, 938 F.2d
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158, 161 (9th Cir. 1991)) (a party engages in spoliation “as a matter of law only if they had ‘some notice
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that the documents were potentially relevant’ to the litigation before they were destroyed”). A party
must preserve evidence it knows or should know is relevant to a claim or defense of any party, or that

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may lead to the discovery of relevant evidence. Kitsap Physicians Serv., 314 F.3d at 1001; In re Napster,

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462 F. Supp. 2d 1060, 1067 (N.D. Cal. 2006) (citing Nat’l Ass’n of Radiation Survivors v. Turnage, 115

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F.R.D. 543, 556–57 (N.D. Cal. 1987) (noting, “[a]s soon as a potential claim is identified, a litigant is

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under a duty to preserve evidence which it knows or reasonably should know is relevant to the action”).

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There are two sources of authority under which a district court can sanction a party who has

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despoiled evidence: the inherent power of federal courts to levy sanctions in response to abusive

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litigation practices, and the availability of sanctions under Rule 37 against a party who “fails to obey an

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order to provide or permit discovery.” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006) (citing
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Fjelstad v. Am. Honda Motor Co., Inc., 762 F.2d 1334, 1337 (9th Cir. 1985); FED. R. CIV. P.
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37(b)(2)(C). Federal courts sitting in diversity jurisdiction apply federal law when addressing issues of
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spoliation of evidence. Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir.1993) (applying federal law
when addressing spoliation in diversity litigation); accord Adkins v. Wolever, 554 F.3d 650, 652 (6th

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Cir. 2009); Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001); Reilly v. Natwest Mkts.

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Group Inc., 181 F.3d 253, 267 (2d Cir. 1999).

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Where, as here, the moving party requests an adverse inference jury instruction,3 the moving

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party must establish: (1) the party having control over the evidence had an obligation to preserve it at the

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Patton’s papers present conflicting requests for relief. She states at various points that she moves the court for
(1) “a rebuttal presumption,” (see Pl.’s Mot. (#26) at 7:10), (2) a “mandatory presumption” (see id. at 8:25, 12:9),
and (3) an adverse inference jury instruction, (see id. at 12:12); (see also Pl.’s Reply (#34) at 15:8). A rebuttable
presumption requires a showing of intent to harm. See, e.g., Gonzalez v. Las Vegas Metro. Police Dept., No. 09–
cv–0381, 2012 WL 1118949, at *2 (D. Nev. April 2, 2012). Because Patton did not argue intent, she failed to
satisfy her burden. With regard to a mandatory presumption, the only authority Patton cites is from the Southern
District of New York. (See Pl.’s Mot. (#26) at 8:25). This authority is persuasive, not controlling. Additionally,
Patton did not present arguments regarding the elements of a mandatory presumption. (See generally id.) The

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time it was destroyed; (2) the records were destroyed with a culpable state of mind; and (3) the
destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of fact could

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find that it would support that claim or defense.” In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d

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1060, 1078 (N.D. Cal. 2006) (citing Hamilton v. Signature Flight Support Corp., No. C 05-0490, 2005

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WL 3481423, at *3, 2005 U.S. Dist. LEXIS 40088 at *9 (N.D. Cal. Dec. 20, 2005); Residential Funding

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Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 107 (2d Cir.2002)).

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DISCUSSION

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Patton moves the court to impose discovery sanctions on Walmart for destroying evidence
relevant to her slip and fall. The threshold question that court must decide, therefore, is whether relevant
evidence existed. See, e.g., Epstein v. Toys-R-Us Delaware, Inc., 277 F. Supp. 2d 1266, 1276–77 (S.D.

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Fla. 2003) (holding that to prevail on a motion for sanctions for the destruction of a videotape, the
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moving party must establish facts indicating that the video existed). If no relevant evidence existed, then
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Patton’s motion is moot. If, however, relevant evidence did exist, then the question is whether Walmart
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had a duty to preserve the evidence. The court addresses each issue below.
I.

Relevant Evidence of Patton’s Slip and Fall Existed

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The primary issue the court must address is whether relevant evidence existed. The court

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resolves this question by discussing, first, whether surveillance footage of aisle four actually existed and,

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second, whether the surveillance footage, if any, was relevant to Patton’s complaint.

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court, therefore, construes Patton’s motion as requesting an adverse inference instruction. See Med. Lab Mgmt.
Consultants v. Am. Broad. Cos., Inc., 306 F.3d 806, 824 (9th Cir. 2002) (“A federal trial court has the inherent
discretionary power to make appropriate evidentiary rulings in response to the destruction or spoliation of relevant
evidence.”)

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A.

Surveillance Footage of Aisle Four Existed

Walmart insists, “there was never any surveillance footage of the slip-and-fall incident or the

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surrounding area” because no camera could have captured the slip and fall. (Def.’s Opp’n (#32) at

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2:10–11, 5:1–4) (emphasis original). Walmart provides two affidavits with the following facts to

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substantiate this claim. (See Def.’s Opp’n (#32-2) Exhibit A, Aff. of Kelli Briggs, Asset Protection

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Manager; Dec. of Marjan Hajimirzaee). “PTZ Camera 5” was the nearest camera to aisle four. (Id.) PTZ

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signifies camera five’s ability to pan, tilt, zoom, and turn 360 degrees. (Id.) Under normal conditions,

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PTZ Camera 5 could have captured the east entrance to aisle four. (Id.) But, on the day in question, two

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facts prevented PTZ Camera 5 from capturing relevant footage. (Id.) First, PTZ Camera 5 had

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preprogrammed default position focusing on aisles six and seven. (Id.) Second, a tall, mobile shelving
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structure, known as a “high velocity gondola,” stood between aisles four and five and blocked PTZ
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Camera 5’s view of the east entrance to aisle four. (Id.)
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Patton’s reply, however, includes a still image from a Walmart surveillance camera that shows
the east entrance to aisle four on June 10, 2011. (See Pl.’s Reply (#34) at 5). According to Patton, “[a]

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paramedic and a stretcher are visible in the photograph.” (Id. at 4:21–22). During the court’s hearing,

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Walmart did not dispute that the image proffered by Patton is, in fact, an image of the east entrance to

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aisle four on June 10, 2011. (See Mins. Proceeings #49). The court, therefore, concludes that Patton has

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satisfied her burden of establishing that footage of aisle four existed. See, e.g., Epstein, 277 F. Supp. 2d

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at 1276–77.

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B.

The Surveillance Footage of Aisle Four Contained Relevant Evidence

The court now turns to the question of whether the surveillance footage was relevant. Walmart

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argues that it was not relevant because (1) Patton fell ten-to-fifteen feet into aisle four where no camera
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monitored customer activity and (2) pursuant to its document preservation directive, Walmart reviewed
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surveillance footage following the slip and fall but found nothing. (See, e.g., Def.’s Opp’n (#32) at 3:14–
19) (“Walmart did search for surveillance footage of Plaintiff’s incident, . . . it was discovered that there
was no camera shot of the slip-and-fall”).

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Walmart’s arguments are unpersuasive. Under Walmart’s document preservation directive, if

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video surveillance captures an incident in the store, Walmart preserves footage from one hour before the

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incident until the incident occurs. (Aff. of Kelli Briggs (#32-2) at 3:16–17). If, however, video

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surveillance does not capture an incident, then Walmart preserves footage of the area closest to the

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incident from the time the incident is reported until the customer exits. (Id. at 18–22). Following

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Patton’s slip and fall, Walmart reviewed its surveillance footage, concluded that “nothing” was caught

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on film because Patton’s fall was not caught on film. (See Def.’s Opp’n (#32) at 3:14–19). Walmart,
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therefore, produced video footage of the east entrance of aisle four for a period of one hour and six
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minutes after the fall was reported.
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The initial problem with Walmart’s argument, and its document preservation directive, is that
Walmart made a conclusion—(viz. that “nothing” was caught on film)—that was not Walmart’s to

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make. Whether “nothing” or “something” was caught on film is an evidentiary question of relevance.

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This determination is the court’s, and not Walmart’s, to make. See FED. R. EVID. 401.

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The overarching problem with Walmart’s argument and its document preservation directive,

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however, is that “nothing” is something. Even if “nothing” was caught on film, camera five’s video

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footage is probative because it tends to make the fact that Walmart maintained safe premises more

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probable than not. See FED. R. EVID. 401. “Nothing” would show: (1) an empty and unobstructed east
entrance; (2) rows of barbeque sauce and other liquids that had not fallen or leaked; and (3) a ceiling that

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kept water from dripping down and pudding on the floor. “Nothing,” therefore, would be central to
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Patton’s negligence claim because nothing would tend to show that Walmart did not breach its duty of
care.

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Something rather than “nothing,” however, was caught on film. The video footage from the time

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before Patton’s fall was reported must have recorded Burton either pushing or pulling his cart. If Burton

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was pushing the cart, then camera five’s video footage would tend to make Patton’s allegation that

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Walmart failed to properly inspected aisle four more probable than not because Burton could not have

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seen obstructions, like a puddle of liquid, as he entered aisle four. Id. But, because Walmart’s document

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preservation directive purportedly instructed employees to only preserve video footage after the incident

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was reported, Walmart’s policy prevented Patton from discovering relevant evidence. In fact,

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assuming—as Walmart represents—that its employees implemented the document preservation directive
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correctly, then the policy itself demonstrates that Walmart destroyed relevant and probative evidence.
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During the court’s November 15, 2013 hearing, Walmart attempted to frame the issue raised by
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Patton’s motion as really a complaint about not having enough evidence. (See Mins. Proceedings #49).
Walmart insisted that it produced all relevant evidence in its possession and that granting Patton’s

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motion would, in effect, create new law by imposing discovery obligations on responding parties that

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mandate the production of all evidence, not just relevant evidence. (Id.)

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This is not the case. Patton does not seek all evidence that Walmart may have possessed. Patton

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seeks the most relevant and probative evidence that Walmart, in fact, possessed. Trial of this case will

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focus on causation. Patton moves for sanctions because Walmart destroyed the best evidence regarding

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the central issue. Granting Patton’s motion, therefore, does not create new law. On the contrary, it
affirms the heart existing law. Namely, that evidence of proximate cause is relevant to a negligence

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claim. See, e.g., Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 344, 162 N.E. 99 (1928) (discussing
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proximate cause); see also Sprague v. Lucky Stores, Inc., 849 P.2d 320, 322 (Nev. 1993) (discussing
premises liability and negligence under Nevada law).
II.

An Adverse Inference Jury Instruction is Warranted

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Having concluded that Walmart destroyed relevant surveillance footage of Patton’s slip and fall,

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the court must now examine whether Patton has satisfied her burden of demonstrating that an adverse

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inference jury instruction is warranted. As discussed above, the party requesting an adverse inference

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jury instruction must establish: (1) the party having control over the evidence had an obligation to

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preserve it at the time it was destroyed; (2) the records were destroyed with a culpable state of mind; and

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(3) the destroyed evidence was relevant to the party’s claim or defense such that a reasonable trier of

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fact could find that it would support that claim or defense.” In re Napster, Inc. Copyright Litig., 462 F.
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Supp. 2d 1060, 1078 (N.D. Cal. 2006).
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The court has already concluded that the lost surveillance footage is relevant to Patton’s
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negligence claim. (See supra § I.B). The court, therefore, limits its discussion to whether Walmart had a
duty to preserve the evidence and whether it destroyed the evidence with a culpable state of mind.

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A.

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The duty to preserve arises not only during litigation, but also extends to the period before

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litigation when a party should reasonably know that evidence may be relevant to anticipated litigation.

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In re Napster, 462 F. Supp. 2d at 1067. A party must preserve evidence it knows or should know is

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relevant to a claim or defense of any party, or that may lead to the discovery of relevant evidence. Kitsap

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Walmart had a Duty to Preserve the Relevant Evidence

Physicians Serv., 314 F.3d at 1001; see also Nat’l Ass’n of Radiation Survivors, 115 F.R.D. at 556–57
(“As soon as a potential claim is identified, a litigant is under a duty to preserve evidence which it

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knows or reasonably should know is relevant to the action”).
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The parties dispute whether the following two events triggered Walmart’s duty to preserve the
video footage: (1) Walmart’s document preservation directive; and (2) Patton’s letter of representation,

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which directed Walmart to preserve “any and all video surveillance tapes . . . pertaining to this matter.”

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(See generally Def.’s Opp’n (#32) 6–19); (see generally Pl.’s Reply (#34) at 6–14). The court discusses

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each below.

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1.

Walmart’s Document Preservation Directive Created a Duty to Preserve
Evidence

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Patton argues that Walmart had a duty to preserve video footage of aisle four from the period
before the fall was reported “because [Walmart] has a protocol to preserve video surveillance.” (Pl.’s

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Mot. (#26) at 9:25–26). In response, Walmart argues that there mere existence of a document

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preservation directive is insufficient to trigger a duty to preserve evidence. (Def.’s Opp’n (#32) 9–13).

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Walmart’s argument is correct. Patton cannot satisfy her burden by resting on the mere fact that

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Walmart adopted a document preservation policy. Patton must show that Walmart had notice that the

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video surveillance footage of aisle four before and during the fall “may be relevant to future litigation.”

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In re Napster, 462 F. Supp. 2d at 1067; see also Kitsap Physicians Serv., 314 F.3d 995 at 1001.
Accordingly, although the mere existence of Walmart’s policy did not give Walmart notice that the June

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10, 2011 footage “may be relevant to future litigation,” the court holds that the manner in which
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Walmart decided to implement its document preservation directive did.
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The manner in which Walmart implements its document preservation directive is facially
suspect. As represented in Walmart’s filings and at oral argument, if an incident occurs off camera, then

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Walmart automatically destroys—(or fails to preserve)—surveillance footage before or during the

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incident. (See Mins. Proccedings #49); (see also Aff. of Kelli Briggs, Walmart Asset Protection

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Manager (#32-3) at 3:18–22) (“[I]f our search revealed that there were no cameras that captured the

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customer’s incident, Store 2838’s Asset Protection team preserved footage of the closest area to the
incident and preserved footage from the time the incident was reported to management until the time the

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customer left the store.”); (see also Def.’s Opp’n (#32) at 3:9–13) (“If, however, the search revealed that

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there were no cameras that captured the custom’s incident, Store 2838’s Asset Protection team preserved

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footage of the closest area to the incident and preserved footage from the time the incident was reported

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to management until the time the customer left the store.”) (emphasis original).4

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As discussed above, surveillance footage of a slip and fall is relevant even when the fall occurs

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off camera and “nothing” is captured on film. See supra § I.B (stating that the lost footage would

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(1) have captured the conditions of the east entrance of aisle four; (2) have recorded Burton either

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pulling his cart, and looking for obstacles along the way, or pushing his cart and—perhaps—overlooking
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the puddle of water that caused Patton’s injuries; and (3) be essential to both Walmart’s claim that it did
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not breach its duty of care and Patton’s claim that Walmart failed to keep the premises reasonably safe).
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Walmart’s document preservation directive, however, effectively states that footage of off-camera
incidents is never relevant because the policy mandates that footage of off-camera incidents are
deleted—(or failed to be preserved)—as a matter of course.

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The assertion implied in Walmart’s policy—viz., that footage of off-camera incidents is never

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relevant—is untrue as a matter of law. Relevant evidence is not limited to direct evidence. It is well

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established that relevant evidence is broadly construed for both evidentiary and discovery purposes.

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There is a discrepancy between the actual language of Walmart’s document preservation directive and how
Walmart purportedly interprets it. In its filings and during the courts hearing, Walmart represented that the above
quotations accurately reflect how the policy is implemented. (See Mins. Proceedings #49). The court, therefore,
defers to Walmart’s interpretation of its own policy. However, the record should reflect that the relevant portion
of the directive, in fact, states: “SURVEILLANCE VIDEO (one hour before and one hour after) depicting area
where the incident occurred and any condition (e.g., pallet, end-cap, cart, etc.) involved. If the incident involved
an identified substance, also collect video from the area where any product containing the substance was
displayed or sold. If none, explain.” (See Document Preservation Directive (#26-5) at 1).

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See FED. R. EVID. 401 (defining relevant evidence as evidence that has any tendency to make a fact of
consequence more or less probable) (emphasis added); see also City of Rialto v. U.S. Dept. of Defense,

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492 F. Supp. 2d 1193, 1202 (C.D. Cal. 2007) (defining discoverable information as information that has

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any possibility that the information sought may be relevant to the claim or defense of any party”)

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(emphasis added). Walmart’s document preservation directive ignores these well-settled principles and,

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thereby, impedes litigants from discovering relevant evidence.

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During the court’s hearing, Walmart argued that the court cannot conclude that Walmart should

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have known to preserve the footage because doing so requires imputing legal knowledge to Walmart’s

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layperson employees. The court disagrees. First, Walmart itself requires layperson employees to comply

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with the law’s discovery and evidentiary requirements. Its document preservation directive alters
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employees, in boldfaced type, to preserve all “potentially relevant” evidence because the company “may
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have a legal obligation to preserve information.” (See Document Preservation Directive (#26-5) at 1).
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Second, the court does not need to impute legal knowledge to Walmart employees to conclude that
Walmart should have known to preserve the footage because the footage is “relevant” under a common,

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everyday understanding of the word. See MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 985 (10th ed.

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2001) (defining “relevant” as “1 a: having significant and demonstrable bearing on the matter at hand b:

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affording evidence tending to prove or disprove the matter at issue or under discussion.”).

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Accordingly, the court finds that Walmart’s duty to preserve the footage arose when Walmart

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decided to implement the document preservation directive in the manner described by Walmart’s Asset

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Protection Manager. (See Aff. of Kelli Briggs, Walmart Asset Protection Manager (#32-3) at 1–3)
(explaining how Walmart implements the document preservation directive).

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Walmart’s document preservation directive mandates the destruction of potentially relevant
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evidence as a matter of course. Walmart’s duty to preserve the evidence, therefore, attached the date
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Walmart decided to destroy potentially relevant evidence as a matter of course because that date marks
the first time Walmart knew or should have known that it would be destroying potentially relevant

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evidence. Kitsap Physicians Serv., 314 F.3d at 1001 (citing Akiona v. United States, 938 F.2d 158, 161

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(9th Cir. 1991) (“Defendants engage in spoliation of documents as a matter of law only if they had

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‘some notice that the documents were potentially relevant’ to the litigation before they were

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destroyed.”).

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It is unnecessary for the court to decide when, exactly, Walmart decided to implement the

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document preservation directive in the manner described by Walmart’s Asset Protection Manager. It is

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sufficient for purposes of this motion that the directive was in place when Patton fell. (See Aff. of Kelli

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Briggs (#32-2 at 1–3). Similarly, because it is Walmart’s standard operating procedure to destroy
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potentially relevant evidence, it is also unnecessary for the court to decide when Walmart had notice that
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Patton would sue. Walmart’s policy existed when Patton entered the store.5
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2.

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Patton’s Letter of Representation Created a Duty to Preserve Evidence

Alternatively, the court also concludes that Patton’s letter of representation created a duty to

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preserve the surveillance footage of aisle four. As discussed above, on July 6, 2011, on Patton’s attorney

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notified Walmart that she was represented and instructed the company, in boldfaced type, to “ensure that

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any and all video surveillance tapes . . . pertaining to this matter remain completely undisturbed.” (See

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Pl.’s Reply (#34) at 7:23–28); (see also Ltr. of Rep. (#34-3) at 1). This occurred approximately nineteen

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days before Walmart’s surveillance system exceeded its capacity and automatically overwrote previous

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data. (See id.); (see also Aff. of Kelli Briggs, Asset Protection Manager (#32-2) at 3:7–10) (discussing
Walmart’s DVR surveillance system).

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Although it is unclear when the footage was deleted, the last day that it could have been retained was July 25,
2011, forty-five days from Patton’s June 10, 2011 fall. (See Def.’s Opp’n (#32-2) Aff. of Kelli Briggs, Asset
Protection Manager at 3:7–10).

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As a preliminary matter, Walmart argues that Patton is precluded from arguing that the letter of
representation created a duty because the argument first appeared in Patton’s reply brief. (See Mot. to

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Strike (#36) at 2) (citing Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) (“The district court need

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not consider arguments raised for the first time in a reply brief.”)). During the court’s hearing, Walmart

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stated that if Patton properly raised this argument in her motion, then Walmart would have (1) obtained

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affidavits from Walmart employees demonstrating that Walmart never received the letter and (2) argued

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that the letter’s phrase, “pertaining to this matter,” is too vague to give sufficient notice of litigation.

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(See Mins. Proceedings #49).

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These arguments are unpersuasive. Assuming, arguendo, that Walmart obtained affidavits and

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proffered briefs arguing that Patton’s letter is “too vague” to give sufficient notice of litigation, the fact
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remains that the appropriate corporate representative, Sedwick CMS, Walmart’s claims handler, actually
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received and understood the letter. (See Sedwick Ltr. (#34-4) at 1) (“Sedgwick Claims Management
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Services, Inc., is the claims handler for Wal-Mart Stores, Inc., and their insurance carrier concerning
customer incidents. We have been advised you represent the above captioned customer and request that

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all correspondence and inquiries be directed to the attention of this office.”). Patton’s letter of

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representation, therefore, triggered Walmart’s duty to preserve the evidence.

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B.

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The final inquiry the court must make to order an adverse inference jury instruction is whether

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Walmart destroyed the evidence with a culpable state of mind. The loss or destruction of evidence

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The Evidence was Destroyed with a Culpable State of Mind

qualifies as willful spoliation if the party “has some notice that the documents were potentially relevant
to the litigation” before they were lost. Leon, 464 F.3d at 959 (citing Kitsap Physcians Serv., 314 F.3d at

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1001). Conduct amounting to gross negligence is also sufficient culpability to justify an adverse
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inference instruction. In re Napster, 462 F. Supp. 2d 1078.
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Both of standards are satisfied here. As discussed above, Walmart had notice that the

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surveillance footage was relevant to litigation before it was destroyed. On July 6, 2011, Patten sent

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Walmart her letter of representation. (Ltr. of Rep. (#34-3) at 1). On July 19, 2011, Walmart’s claims

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handler responded. (See Sedwick Ltr. (#34-4) at 1). On or about July 25, 2011, the digital memory in

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Walmart’s surveillance system exceeded its capacity and the DVR system automatically overwrote

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previous data. (See Aff. of Kelli Briggs, Asset Protection Manager (#32-2) at 3:7–10).

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Additionally, the court finds that Walmart destroyed the surveillance footage with a culpable

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state of mind even if the footage was lost before Walmart received Patton’s letter of representation. As

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discussed above, Walmart’s document preservation directive makes the destruction of potentially

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relevant evidence standard operating procedure. (See supra § 2.A.1). This is reckless. See BLACK’S LAW
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DICTIONARY (9th ed. 2009) (defining “reckless” as “the creation of a substantial and unjustifiable risk of
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harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk;
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heedless; rash. • Reckless conduct is much more than mere negligence: it is a gross deviation from what
a reasonable person would do.”).

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In sum, the court finds that an adverse inference jury instruction is warranted because Walmart’s

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destruction of highly probative evidence interferes with the rightful decision of Patton’s case. In re

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Napster, 462 F. Supp. 2d 1075; Apple Inc. v. Samsung Elec. Co., Ltd. 888 F.Supp.2d 976 (N.D. Cal.

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2012).

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ACCORDINGLY, and for good cause shown,
IT IS ORDERED that Plaintiff Margaret A. Patton’s Motion for Sanctions for the Spoliation of
Evidence (#26) is GRANTED.

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IT IS FURTHER ORDERED that an adverse inference jury instruction against Walmart is
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appropriate sanction in these circumstances. No other sanctions will be imposed at this time.
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Alternatively, if the trial court is not inclined to give an adverse inference instruction, another remedy
for the missing video could be having the jury decide the appropriate inferences to be drawn from

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Walmart’s handling of Patton’s request to “ensure that any and all video surveillance tapes . . .

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pertaining to this matter remain completely undisturbed.”

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IT IS SO ORDERED.

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DATED this 20th day of November, 2013.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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