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Decker v. Target Corp.

United States District Court, D. Utah

October 9, 2018

CARYL JEAN DECKER and DENNIS DECKER, Plaintiffs,
v.
TARGET CORPORATION, a Minnesota corporation, Defendant.

          MEMORANDUM, DECISION, AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR FINDINGS OF SPOLIATION AND FOR SANCTIONS

          Jill N. Parrish United States District Court Judge

         Before the court is the Motion for Findings of Spoliation and for Sanctions (“Motion”) filed by Caryl Jean Decker and Dennis Decker (“the Deckers”) against Defendant Target Corporation (“Ta rg e t ”). ECF No. 27.

         BACKGROUND

         This Motion arises from a trip and fall incident that occurred on December 26, 2015, at the Target store located in Riverdale, Utah. Caryl Jean Decker was shopping when she tripped on a flatbed stocking cart and fell onto the floor, suffering serious injury. Mrs. Decker, bleeding from the head, received medical attention at the scene of the incident. She was transported from Target by ambulance.

         In response to the incident, Target employees Mackenzie Steele and Trevor Phillips reviewed video surveillance footage of the incident and created a copy of the portions of the video that included Mrs. Decker in the frame. Steele and Phillips did not save any other portions of the video. The unsaved portions of the footage were later automatically overwritten by Target's system, which only maintains video surveillance footage for approximately fifteen to twenty-five days.

         Exactly one month after the incident, on January 26, 2016, the Deckers delivered a letter to Target, through counsel, requesting that Target preserve “all pertinent records and electronic records pertaining to [the] incident or that could relate to [the] incident, ” as well as “a copy of any video surveillance that shows [the] accident or the area of the accident at any time before, during, or after the event.” Motion for Findings of Spoliation and for Sanctions (“Motion”) Exhibit 6.

         Following the demand letter and the subsequent filing of this lawsuit, the Deckers and Target engaged in several rounds of discovery and document production. On September 14, 2017, in their “Third Set of Requests for Production of Documents, ” the Deckers specifically requested Target's training records and safety statistics from 2015. However, Target's internal policy only mandated the retention of safety records and safety statistics for a period of twelve months, and therefore any materials from 2015 that had not already been produced had been deleted.

         On June 8, 2018, the Deckers filed this motion for a finding of spoliation and for sanctions based on 1) Target's failure to save more of the video surveillance footage; 2) Target's failure to retain training records from 2015; and 3) Target's failure to retain the store's safety statistics and records for 2015.

         ANALYSIS

         The Deckers, having failed to seek sanctions under Fed.R.Civ.P. 37, seek sanctions under a spoliation of evidence theory. See Turner v. Pub. Serv. Co. of Colo., 563 F.3d 1136, 1149 (10th Cir. 2009) (quoting Mathis v. John Morden Buick, Inc., 136 F.3d 1153, 1156 (7th Cir. 1998) (“When a plaintiff fails to seek sanctions under Rule 37 and thus ‘forecloses access to the substantial weaponry in the district court's arsenal,' the plaintiff's only remaining option is to seek sanctions under a spoliation of evidence theory.”) “Spoliation sanctions are proper when ‘(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.'” Turner, 563 F.3d at 1149 (quoting Burlington Northern & Santa Fe Ry. Co. v. Grant, 505 F.3d 1013, 1032 (10th Cir. 2007)).

         A. Imminence

         The duty to preserve evidence is triggered when future litigation is likely or imminent. “In most cases, the duty to preserve is triggered by the filing of a lawsuit, but that duty may arise even before a lawsuit is filed if a party has notice that future litigation is likely.” Philips Electronics N. Am. Corporation v. BC Technical, 773 F.Supp.2d 1149, 1195 (D. Utah 2011). In this case, it is apparent that Target was on notice that litigation was imminent when Mrs. Decker tripped, fell, and left the Target store in an ambulance on December 26, 2015. Target argues it was not on notice until the Deckers' demand letter arrived on January 26, 2016; however, that argument is disingenuous. Mrs. Decker fell and an ambulance was called. This was a “guest incident” of the sort that Target's internal policies note create the “potential for a general liability claim to be brought against Target.” Memorandum Providing Additional Evidence on Plaintiffs' Motion for Finding of Spoliation and for Sanctions (“Second Reply Memorandum”) Exhibit 2. Additionally, directly following the incident, at least two separate Target employees wrote reports of the incident and two other Target employees reviewed and saved portions of the surveillance footage, generating material that would not have been created or preserved absent the imminence of litigation. Thus, Ta rg e t knew or should have known that litigation was a very strong possibility upon the occurrence of Mrs. Decker's accident.

         In the case of the store training records and safety statistics, while Target arguably should have been on notice at the time of the incident that it needed to preserve all training and safety records, there can be no question that it was on notice when it received the Deckers' demand letter on January 26, 2016. According to Target's own internal policy, safety records are maintained for a period of twelve months. Thus, safety and training evidence should have been retained and available to be produced from a year prior (January 2015) to receipt of the preservation letter (received January 2016).

         B. ...


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