Archive: August 2008

1
Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction
2
Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party’s Production under Rule 34(b)(2)(E)

Supermarket’s Failure to Retain Video Surveillance Footage of Periods Preceding and Following Slip and Fall Incident “Shocks the Conscience of the Court” and Warrants Adverse Inference Instruction

Bright v. United Corp., 2008 WL 2971769 (V.I. July 22, 2008)

In this case, plaintiff alleged that she slipped on drops of "a thick, pink liquid" while shopping at defendant supermarket, sustaining injuries to her left leg and ankle.  She sued for negligence, bodily injury, medical expenses, lost income and lost future earning capacity.  Defendant moved for summary judgment contending that it did not have notice of the spill which may have caused plaintiff’s injuries.  The trial court granted the motion, holding that, because plaintiff failed to provide any evidence that defendant knew or should have known about the substance on the floor, no reasonable jury could find that defendant had breached its duty to plaintiff as a matter of law.  Plaintiff appealed, and the Supreme Court of the Virgin Islands reversed and remanded, finding that there was a genuine issue of material fact as to constructive notice.

Plaintiff’s fall was captured on defendant’s closed-circuit video surveillance system, which was comprised of both a digital hard drive that records only a finite amount of data before reusing itself and a video recorder.  The digital footage was automatically recorded over every few weeks unless it is manually copied from the digital hard drive to the video recorder.  The supermarket’s manager testified that he examined the footage of plaintiff’s fall immediately after being notified of her fall, and the video failed to show anything visible on the floor at the time of the fall.  Concluding that plaintiff "probably tripped on herself," the manager testified that he elected not to review or copy any of the footage prior to or after the fall.  He also testified that the store had no set procedure for retaining video footage of slip and fall accidents and that the store simply retained the footage of the actual fall in plaintiff’s particular circumstance.

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Right to Specify Form of Production of ESI Does Not Authorize Requesting Party to Dictate Organization of Opposing Party’s Production under Rule 34(b)(2)(E)

Suarez Corp. Ind. v. Earthwise Techs., Inc., 2008 WL 2811162 (W.D. Wash. July 17, 2008)

In this trademark infringement case, Suarez moved to compel Earthwise to organize and correlate responsive documents and ESI to Suarez’s 136 or more requests for production.  Earthwise had produced “55,000 emails, six boxes of documents consisting of approximately 8,700 pages in .pdf form as [Suarez] requested, and nine CDs of data in native format that contain hundreds-if not thousands-of individual files.”  Suarez claimed that Earthwise’s production was essentially a “document dump” without any cognizable organization.

Rule 34(b)(2)(E) provides:

Producing the Documents or Electronically Stored Information.  Unless otherwise stipulated or ordered by the court, these procedures apply to producing documents or electronically stored information:

(i)  A party must produce documents as they are kept in the usual course of business or must organize and label them to correspond to the categories in the request;
(ii)  If a request does not specify a form for producing electronically stored information, a party must produced it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms; and
(iii)  A party need not produce the same electronically stored information in more than one form.

There was no evidence that Suarez had requested that responsive ESI be produced in a specific form or that Earthwise had objected to that requested form, if any.  However, it was also unclear how Earthwise determined what documents were responsive to Suarez’s requests.

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