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Never Too Spoiled (PA)

July 11, 2019

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<p style="text-align: justify;">The Pennsylvania Superior Court concluded that spoliation of evidence could be found even when the party was not guilty of bad faith in failing to preserve the evidence. In<em> <a href="">Marshall v. Brown's IA</a></em>, Marshall slipped and fell on a wet surface in a ShopRite.  Immediately after her fall, she filed an incident report with the staff at ShopRite.  Two weeks later, her attorney sent ShopRite a letter of representation and requested that ShopRite retain surveillance video of the area of the fall for six hours prior to the accident and three hours after it.  ShopRite did have video of the fall, but it determined to preserve only thirty-seven minutes prior to the fall and twenty minutes after it because ShopRite felt the remainder of the footage was irrelevant.</p>
<p style="text-align: justify;">Ultimately, the matter went to trial, and in closing arguments, counsel for Marshall argued that Marshall was entitled to an adverse inference based upon ShopRite’s deletion of most of the surveillance footage, <em>e.g.</em>, that ShopRite did not preserve it because it was harmful to its defense.  The trial court disagreed with Marshall, and a jury returned a verdict for ShopRite.</p>
<p style="text-align: justify;">On appeal, the Superior Court vacated the judgement and remanded for a new trial.  It discussed the standard for spoliation claims and adverse inferences.  It reasoned the duty to retain evidence is established as soon as a party knows that litigation is pending or likely, and it is foreseeable that discarding evidence would prejudice the other parties.  In this case, ShopRite had notice of the litigation when Marshall sent a letter of representation two weeks after the accident.  The decision therefore hinged on the issue of prejudice.  So, while ShopRite was not guilty of bad faith in discarding the footage, its conscious decision to only retain a small portion of the surveillance video constituted spoliation of evidence.</p>
<p style="text-align: justify;">Thus, this case illustrates the importance of ensuring that all potential evidence is preserved, as soon as there is notice of a potential claim, as to avoid an adverse inference at trial.</p>
<p style="text-align: justify;">Thank you to Robert Turchick for his contribution to this post.  Please email <a href="">Colleen E. Hayes</a> with any questions.</p>
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