Decker v. Target Corp.

In this personal injury claim, the court granted harsh sanctions for the defendant’s bad faith spoliation of evidence.

This case began with a 2015 accident in a store operated by the defendant, Target. The plaintiff, Caryl Jean Decker, “was shopping when she tripped on a flatbed stocking cart” and struck her head. She was transported from the store, clearly injured and “bleeding from the head,” by an ambulance.

Immediately after the incident, two Target employees reviewed the store’s surveillance video. They preserved only the portions of it that included Decker.

One month after the incident, Decker sent a preservation letter to Target, requesting video of the cart before the accident. By then, the unsaved portions of the video had already been automatically overwritten.

In 2017, during discovery, Decker requested Target’s training records and safety statistics. Target responded that it had deleted that information pursuant to its 12-month retention policy.

Decker moved for spoliation sanctions, citing Target’s loss of the video, training records, and safety statistics. She did not, however, invoke Federal Rule of Civil Procedure 37 in her motion.

The court evaluated the motion under a general spoliation of evidence theory. That claim requires both a duty to preserve evidence and prejudice from the loss of that evidence to impose sanctions.

First, the court found that Target was on notice of its duty to preserve evidence as soon as the accident occurred. Clearly, “litigation was imminent” when Decker “left the Target store in an ambulance.”

Target countered that it was not on notice until it received Decker’s preservation letter. The court found this argument “disingenuous.” Indeed, Target’s internal policies refer to this type of “guest incident” as creating “potential for a general liability claim” against the store. Two Target employees reviewed store video, and two others wrote incident reports. The court held that Target should have preserved all of the evidence in question.

The court then evaluated whether the lost evidence prejudiced Decker.

Regarding the video, Target conceded that its employees had placed the cart on the floor. However, it argued that the cart was being “attended” or “worked” by a Target employee. Target indicated that it would offer evidence to prove that the cart was in use at the time of the accident. Because Target lost the video, Decker had no evidence to contradict that claim or prove that the cart was unattended. Therefore, the court found that the loss of video prejudiced Decker.

The court did not find any prejudice from the loss of training records, though. In fact, “it is not even clear that Target failed to produce any training records”; its safety binder dated to 2015. It also produced a “safety observation card” from two weeks before Decker’s accident, noting that employees were leaving carts on the store floor.

Regarding the safety statistics, the court seemed to be of two minds. It first noted that Decker suffered no prejudice because “general safety statistics” would not indicate whether Target was negligent in this case. In the next paragraph, though, it precluded Target from “offering any evidence [of] high safety scores” in 2015. Such evidence would, the court reasoned, prejudice Decker, who would be unable to counter it.

Finally, the court weighed the appropriate sanction for Target’s prejudicial spoliation of video evidence. Decker sought an adverse inference jury instruction, which requires a finding of bad faith.

Target’s own policy required the preservation of on-scene video from 20 minutes before until 20 minutes after an incident. The employees who reviewed the video stated that they were not aware of this policy. The court noted that if it were to consider their actions as individuals, it would not find bad faith.

But, of course, “the employees were not acting as individuals” but rather as agents of Target. Considering Target’s actions, the court concluded that it acted in bad faith. For one thing, it “failed to instruct its employees” regarding appropriate preservation practices. It also “failed to preserve all relevant footage,” depriving Decker of evidence. Finally, Target sought “to take advantage of the evidence that [it] failed to preserve by arguing that the flatbed cart was attended.” This argument was the nail in the coffin as far as the court was concerned. It concluded that Target spoliated the video evidence in bad faith.

Therefore, the court granted Decker an adverse inference jury instruction for the video’s loss. That instruction would advise the jury “that the flatbed cart was unattended for the twenty minutes” preceding Decker’s accident.

Takeaways on Preserving Critical Evidence

Don’t leave important preservation decisions up to employees who aren’t trained or experienced in ediscovery. Yes, you may choose to draft policies to guide an initial on-site preservation effort — in which case, unlike Target, you should educate your employees on those policies. But that should not take the place of a full assessment by a competent ediscovery professional who can evaluate the likely claims and defenses and ensure that relevant evidence is preserved.

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