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FMG Law Blog Line

Pennsylvania Opens Flood Gates to Unlimited Video Footage Discovery Requests

Posted on: August 28th, 2020

By: Erin Lamb

The Pennsylvania Supreme Court declined to review a Superior Court opinion issued in the case of Marshall v. Brown’s IA, LLC, that found that Plaintiff was entitled to a new trial in a case where the trial judge declined to give an adverse inference jury instruction when the defendant produced only portions of the video surveillance requested by Plaintiff.

Approximately two weeks after Plaintiff’s slip and fall, her counsel issued a preservation of evidence letter instructing the grocery store to retain surveillance video of the accident and area in question for 6 hours prior to the accident, and 3 hours after the accident. Instead, the grocery store preserved only 37 minutes of video prior to the fall, and 20 minutes after the fall. The rest of the footage was overwritten automatically after 30 days. The general manager of the store testified that the grocery store’s “rule of thumb” was to keep only 20 minutes of footage before and after such incidents. Plaintiff’s counsel demanded an adverse inference charge and the Court declined to give one, finding no bad faith and that the mere request for more footage did not make it relevant evidence. The Superior Court found the trial court’s reasoning to be an unreasonably limited understanding of relevance, and a misapplication of the Pennsylvania case law regarding spoliation, which does not require bad faith.

This decision is yet another in a long line of Pennsylvania decisions that make it clear that the duty to preserve evidence in Pennsylvania is very broad, and that the Pennsylvania appellate courts see the only cure to spoliation allegations as being the adverse inference jury instruction provided by the Model Jury Instructions. An adverse inference charge is extremely difficult to overcome in any liability case.

Practically, the ruling may lead to broad requests for video footage of such incidents. Business owners must have a clear, articulated video retention policy, and an understanding of why the policy exists and how it is followed, to be able to argue that (1) such requests are an onerous and unduly burdensome, and (2) to avoid an adverse inference charge if footage was deleted on an automatic schedule. 

If you have questions or would like more information, please contact Erin Lamb at [email protected].

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