Ballard v. Wal-Mart Stores East, LP.
Filing
117
MEMORANDUM OPINION AND ORDER: Granting in part and denying in part Plaintiff's 98 Motion for Sanctions Based on Recent Evidence of Spoliation of Evidence; permitting Plaintiff to re-open discovery, but denying the motion to the extent the Pla intiff seeks additional sanctions related to the late-disclosed photographs; granting the motion to the extent the Plaintiff seeks to introduce evidence of spoliation and discovery abuses during the trial, holding the motion in abeyance as to the req uest for a negative inference instruction, and denying the motion as to additional sanctions; granting Plaintiff an award of attorney fees and costs associated with bringing the motion for sanctions, the motion in limine with respect to sanctions, an d responding to the Defendant's motion in limine related to sanctions; directing Plaintiff to submit a motion documenting the associated fees by 11/9/2018; directing Plaintiff to notify the Court by 10/16/2018 at 12:00 noon, as to whether it wishes to re-open discovery and extend the scheduling order. Signed by Judge Irene C. Berger on 10/15/2018. (cc: attys; any unrepresented party) (slr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BECKLEY DIVISION
LORETTA GAYLE BALLARD,
Plaintiff,
v.
CIVIL ACTION NO. 5:17-cv-03057
WAL-MART STORES EAST, LP,
Defendant.
MEMORANDUM OPINION AND ORDER
The Court has reviewed the Plaintiff’s Omnibus Motion in Limine and Incorporated
Memorandum of Law in Support Thereof (Document 42), 1 Defendant Wal-Mart Stores East, LP’s
Objections to Plaintiff’s Omnibus Motions in Limine (Document 46), Defendant Wal-Mart Stores
East, LP’s Motion in Limine to Exclude Evidence of Spoliation (Document 83), and the Plaintiff’s
Response to Defendant Wal-Mart Stores East, LP’s Motion in Limine to Exclude Evidence of
Spoliation (Document 88). The Court has also reviewed the Plaintiff’s Motion for Sanctions
Based on Recent Evidence of Spoliation of Evidence (Document 98), the Memorandum in Support
of Motion for Sanctions Based on Recent Evidence of Spoliation of Evidence (Document 99), and
Defendant Wal-Mart Stores, East, LP’s Response in Opposition to Plaintiff’s Motion for Sanctions
Based on Recent Evidence of Spoliation of Evidence (Document 101). For the reasons stated
1 This opinion addresses only the issue of spoliation. The remaining motions contained within the omnibus motion
will be addressed on the record during the Pretrial Conference.
herein, the Court finds that the Plaintiff’s motion for sanctions should be granted in part and denied
in part.
FACTS
This litigation involves the Plaintiff, Loretta Gayle Ballard’s allegations of a slip and fall
accident at a Wal-Mart store in Beckley, West Virginia. Ms. Ballard alleges that she suffered
serious injury to her shoulder when she slipped in liquid and fell while shopping at Wal-Mart on
June 6, 2016. Immediately after Ms. Ballard’s fall, Wal-Mart initiated an investigation. An
Asset Protection Manager, Glenni Snodgrass, immediately began an investigation of the accident.
She took photographs of the area where Ms. Ballard fell, including liquid on the floor, and
completed a Customer Incident Report with Ms. Ballard. Ms. Ballard informed her that she would
seek medical attention for her shoulder. Ms. Snodgrass reviewed surveillance footage to try to
track Ms. Ballard throughout her time in the store to see if she was distracted, moving carelessly,
carrying a drink, or otherwise behaving in a way that might indicate she was responsible for the
accident. Ms. Snodgrass does not recall any specifics of the tracking review of Ms. Ballard’s time
in the store but did take a few still images from the surveillance footage. Ms. Snodgrass also
reviewed video of the area of the fall.
Prints of the digital photographs taken by Ms. Snodgrass were included in an accident file,
but the memory card was eventually left in a desk drawer, to the best of Ms. Snodgrass’s
recollection, and has not been located. 2 Ms. Ballard notified Wal-Mart that she was represented
by counsel in relation to the accident on July 25, 2016. The Plaintiff was provided with the
surveillance video of the fall area, including video of her fall, as well as poor quality photocopies
2 Ms. Snodgrass subsequently testified that she took the photos on her cell phone and deleted them after she had
printed the photos at a store kiosk.
2
of the photo prints taken by Ms. Snodgrass during the initial discovery phases.
Wal-Mart
discovered better-quality photo prints in July 2018 and provided prints of those photos to the
Plaintiff on September 19, 2018, after the close of discovery. 3 Wal-Mart did not preserve the
surveillance footage of Ms. Ballard’s time in the store. At some point prior to July 2018, the WalMart store where Ms. Ballard fell “had undergone an upgrade to its surveillance system
and…additional post-fall surveillance video was not recoverable, nor were the stills taken from
the surveillance video.” (Document 101 at 5.)
APPLICABLE LAW
According to the Fourth Circuit, “[s]poliation refers to the destruction or material alteration
of evidence or to the failure to preserve property for another's use as evidence in pending or
reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir.
2001). Spoliation of evidence may result in sanction under Rule 37 of the Federal Rules of Civil
Procedure or pursuant to “a court's inherent power to control the judicial process and litigation.”
Id. “Generally, conduct that occurred prior to commencement of the litigation is addressed
through the court's inherent authority.” In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig.,
299 F.R.D. 502, 511 (S.D.W. Va. 2014) (Eifert, M.J.).
A court must first determine when the duty to preserve evidence was triggered, and what
evidence should have been preserved. “The duty to preserve material evidence arises not only
during litigation but also extends to that period before the litigation when a party reasonably should
know that the evidence may be relevant to anticipated litigation.” Silvestri, 271 F.3d at 591.
3 Wal-Mart’s counsel takes responsibility for the 70-day delay in providing the better-quality photo prints to
Plaintiff’s counsel. As the Defendant’s counsel is the Defendant’s agent for purposes of this motion, the distinction
between a mistake by Wal-Mart and a mistake by Wal-Mart’s counsel has little bearing on the Court’s analysis.
3
Proper analysis of the question of what evidence must be preserved “requires the Court to
determine reasonableness under the circumstances.” In re Ethicon, 299 F.R.D. at 518 (citing and
quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 522 (D. Md. 2010)).
If a party fails to preserve relevant evidence after it reasonably should have anticipated
litigation, a court may impose sanctions. “The court has broad discretion when selecting a
sanction for spoliation, however, ‘the applicable sanction should be molded to serve the
prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.’” Travelers
Prop. Cas. Co. of Am. v. Mountaineer Gas Co., No. 2:15-CV-07959, 2018 WL 1370862, at *5
(S.D.W. Va. Mar. 16, 2018) (Goodwin, J.) (quoting Silvestri, 271 F.3d at 590. The Fourth Circuit
requires a showing of culpability, but ordinary negligence is sufficient to impose sanctions where
appropriate. In re Ethicon, 299 F.R.D. at 519. The sanction should be tailored to address the
prejudice suffered as a result of the spoliation. Silvestri, 271, F.3d at 593 (explaining that
dismissal may be necessary to cure the prejudice, even absent clear bad faith, where the spoliation
would deny the defendant the ability to defend the case).
DISCUSSION
As an initial matter, Wal-Mart’s response to the Plaintiff’s initial request for spoliation
sanctions in a motion in limine requests a hearing, pursuant to West Virginia precedent.
“Spoliation is a rule of evidence, and the decision to impose sanctions for violations is one
administered at the discretion of the trial court and governed by federal law. Turner v. United
States, 736 F.3d 274, 281 (4th Cir. 2013) (internal quotation marks and references omitted). Thus,
the state precedent requiring a hearing is not applicable, and the Court finds a hearing unnecessary
in light of the parties’ detailed briefing.
4
For ease of analysis, the Court will divide the issues in this case to separately address the
late disclosed photographs and the unavailable digital photographs and video surveillance.
A. Late-Disclosed Photographs
The Plaintiff contends that the disclosure of the clearer versions of the photographs after
the close of discovery hampered her ability to depose fact witnesses who may have had knowledge
of hazardous conditions of the floor and/or to retain a premises liability expert to provide testimony
about the spill, the substance on the floor, the condition of the floor, and industry standards. The
Defendant argues that the Plaintiff did not request better quality photographs until July 2018, and
that the scanned copies of the photos adequately show liquid on the floor. It contends that there
was no bad faith and no prejudice.
The Court finds that disclosing poor quality scans or photocopies of photographs, rather
than the substantially better-quality photo prints, was not justifiable. Wal-Mart appears to argue
that it did not find the better-quality prints until July 2018 because the Plaintiff did not specifically
request better-quality versions of the photos until that time.
Wal-Mart, however, had an
obligation to preserve and disclose relevant evidence. The Court further notes that the Plaintiff
questioned Ms. Snodgrass about the availability of the original digital photographs well before
July 2018.
Because the photographs were ultimately provided to the Plaintiff, the Court finds that the
prejudice asserted by the Plaintiff can be cured without the type of sanctions typically imposed in
response to spoliation. The Court recognizes that the Plaintiff has stated a preference for going
forward with trial as scheduled, rather than taking additional time to re-open discovery. Given
the preference for resolution on the merits, however, additional time to permit the Plaintiff to take
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new depositions, re-depose certain witnesses, and/or retain an expert is a more appropriate cure,
should the Plaintiff wish to do so. The Court further finds that the Defendant’s unjustifiable delay
warrants requiring it to bear the costs of such additional discovery, should the Plaintiff choose to
undertake it, as well as the Plaintiff’s attorney fees and costs associated with briefing the spoliation
issue. This sanction adequately addresses the alleged prejudice suffered by the Plaintiff with
regard to these photos.
B. Unavailable Evidence
The Plaintiff contends that Wal-Mart failed to preserve surveillance video footage of her
in Wal-Mart before and after her fall. She further contends that Wal-Mart failed to preserve the
digital files of the photographs taken immediately after her fall—including both digital versions
of the late-disclosed photographs discussed above, and additional photographs of the fall area that
she believes the surveillance video shows Ms. Snodgrass taking. The Plaintiff argues that the
additional photographs of the fall location would be helpful in demonstrating the hazardous
condition of the floor. She suggests that the slippery floor may have been caused by liquid and
potting soil from the plant area, information that would be important to demonstrate Wal-Mart’s
responsibility for maintaining the area. The surveillance video from other areas of the store, she
argues, would be useful in supporting her claims, negating Wal-Mart’s defenses, and
demonstrating to a jury that she was acting as a reasonable shopper and was not responsible for
her fall. She further points out that Wal-Mart had sole custody and control of the evidence.
Thus, she contends that she would be prejudiced and is entitled to sanctions, including the striking
of defenses, leave to introduce spoliation evidence, a negative inference instruction, exclusion of
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Defense testimony related to the source of the spill, and an award of the costs and expenses
incurred in bringing this motion.
The Defendant argues that it retained footage of the fall in accordance with its own policies
but had no duty to preserve the other surveillance footage. It contends that its duty to preserve
began when it received the letter from the Plaintiff’s counsel on or about July 25, 2016. It further
argues that the evidence it did disclose, including footage of the fall area, photographs of the fall
area, and still photographs extracted from surveillance footage of Ms. Ballard, is sufficient to
render the additional evidence irrelevant and/or duplicative. In addition, the Defendant contends
that it had no duty to preserve both physical prints or copies of the photographs Ms. Snodgrass
took of the fall area and the original digital versions of those photographs. It notes that Wal-Mart
policy did not require employees to retain either native versions of the photographs taken in
connection with an accident investigation or all surveillance video of the store visit during which
a customer was involved in an accident. Thus, this information no longer existed 4 by the time
Wal-Mart contends its duty to preserve evidence was triggered.
The Court strongly disagrees with Wal-Mart’s position that it had no duty to preserve the
evidence it reviewed or created in order to investigate an accident until it received the letter
notifying it that the Plaintiff was represented by counsel. It conducted an investigation into the
accident because it anticipated a claim or litigation, and the materials created or reviewed in the
course of that investigation consisted of evidence it believed might be relevant. To permit WalMart to conduct such an investigation but choose which evidence to retain would interfere with
4 It is not clear from the record exactly when or how the evidence sought by the Plaintiff was destroyed. As noted,
Wal-Mart states that the surveillance video could not be recovered because of a change in the surveillance system, but
does not state when that change occurred. Likewise, it is not clear when the digital version of the photographs was
deleted or destroyed.
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the functioning of the judicial process. This is not a products liability case in which a vendor has
no warning that a customer may bring a suit about a purchased item months or years later. This
matter is specifically related to evidence gathered during Wal-Mart’s investigation of an accident
under circumstances where it could reasonably anticipate litigation. Therefore, the Court finds
that Wal-Mart had a duty to preserve the evidence related to that investigation, including all
photographs and surveillance video. It conceded that it acted in accordance with company policy
in failing to preserve that evidence, demonstrating that it acted willfully.
The Court further finds that the Plaintiff is prejudiced by the failure to preserve the digital
photographs and the video surveillance. While the newly-disclosed print photographs might be
an adequate substitute for the digital versions of the photographs, it is not at all clear that WalMart retained all the photographs taken by Ms. Snodgrass.
Retaining the original digital
photographs or memory card would serve to better ensure that all available photographs are
available to the discovery process. Ms. Ballard contends that the surveillance video suggests
additional photographs were taken but not preserved. Additional photographs of the fall location
might show additional details that would be helpful in either advancing the Plaintiff’s theories of
liability or countering the Defendant’s theories in defense. The video surveillance of Ms. Ballard
shopping before her fall and exiting the store after her fall would likewise be useful to Ms. Ballard
in countering possible defense theories and in telling a complete story to the jury. Even if the
Defendant does not argue certain theories, the Plaintiff bears the burden of proof, and the loss of
favorable evidence is therefore particularly damaging for a plaintiff.
Accordingly, the Court finds that Ms. Ballard has demonstrated that she is prejudiced by
Wal-Mart’s failure to properly preserve evidence.
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However, the Court finds that the
circumstances do not warrant striking defenses, given the type of evidence involved and the
significant evidence related to the fall and the condition of the floor that was disclosed. The Court
finds that the spoliation may be remedied by permitting the Plaintiff to present evidence of the
spoliation to the jury. The Plaintiff will be permitted to present evidence regarding Wal-Mart’s
destruction of evidence and discovery misconduct to explain the lack of that evidence to the jury.
The Court will consider whether a negative inference instruction is appropriate upon hearing the
evidence during the course of trial.
CONCLUSION
Wherefore, after thorough review and careful consideration, the Court ORDERS that the
Plaintiff’s Motion for Sanctions Based on Recent Evidence of Spoliation of Evidence (Document
98) be GRANTED IN PART and DENIED IN PART. Specifically, the Court ORDERS that
the Plaintiff be permitted to re-open discovery, as discussed above, but DENIES the motion to the
extent the Plaintiff seeks additional sanctions related to the late-disclosed photographs. The Court
further ORDERS that the motion be GRANTED to the extent the Plaintiff seeks to introduce
evidence of spoliation and discovery abuses during trial, HELD IN ABEYANCE as to the request
for a negative inference instruction, and DENIED as to additional sanctions.
The Court ORDERS that the Plaintiff’s Omnibus Motion in Limine and Incorporated
Memorandum of Law in Support Thereof (Document 42), with respect to spoliation, and Defendant
Wal-Mart Stores East, LP’s Motion in Limine to Exclude Evidence of Spoliation (Document 83)
be TERMINATED AS MOOT, as the resolution of the Plaintiff’s motion for sanctions resolves
the issues set forth therein. The Court further ORDERS that the Plaintiff be GRANTED an
award of attorney fees and costs associated with bringing the motion for sanctions, the motion in
9
limine with respect to sanctions, and responding to the Defendant’s motion in limine related to
sanctions. The Court ORDERS that the Plaintiff submit a motion documenting the associated
fees no later than November 9, 2018. Finally, the Court ORDERS the Plaintiff to notify the
Court no later than Tuesday, October 16, 2018, at 12:00 noon, as to whether it wishes to re-open
discovery and extend the scheduling order.
The Court DIRECTS the Clerk to send a copy of this Order to counsel of record and to
any unrepresented party.
ENTER:
10
October 15, 2018
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