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Gutierrez-Bonilla v. Target Corp.

December 16, 2009


The opinion of the court was delivered by: A. Kathleen Tomlinson, Magistrate Judge



Plaintiff Dora E. Gutierrez-Bonilla ("Plaintiff" or "Gutierrez-Bonilla") brings this action for injuries resulting from an accident which occurred while Plaintiff was shopping at a Target store on July 4, 2009. Plaintiff alleges that the presence of liquid on the floor caused her to slip and fall. Presently before the Court is Plaintiff's motion [DE 24] for the imposition of sanctions upon Defendants for the spoliation of video surveillance purportedly showing the floor on which Plaintiff fell.*fn1 I have reviewed Plaintiff's motion [DE 24] and supplemental letter [DE 27], as well as Defendants' opposition [DE 26] to the motion. For the reasons set forth below, Plaintiff's motion is DENIED.


During the October 15, 2009 discovery conference, a dispute arose as to the nature of a Target employee's deposition testimony -- namely, whether the witness testified that there were surveillance cameras in the aisle where Plaintiff's accident occurred. Following that conference, I directed Defendant's counsel to submit an affidavit from an individual at the Target store in question who is responsible for the surveillance cameras addressing (1) whether any surveillance camera was/is in place in the aisle where the incident occurred; (2) whether other surveillance cameras located in that Target store could have captured any footage of the incident at issue; and (3) Target's policy and/or practice with regard to retention of surveillance tapes.*fn2 See DE 21. Thereafter, Defendant submitted the affidavit of Genaro Rodriguez, a current Target employee who worked as the Executive Team Leader of the Assets Protection team at the Target store in question on the date of Plaintiff's accident. See DE 26, Ex. 2 ("Rodriguez Aff.") ¶¶ 1-2.*fn3 In his affidavit, Rodriguez states that at the time of Plaintiff's accident (July 2006), Target used "a digital and VHS based recording system... [which] was replaced in July 2007." Id. ¶ 5. Rodriguez further asserts that "there was no surveillance camera set upon the aisle where plaintiff's alleged accident occurred." Id. ¶ 6. "[T]here was one camera in an adjacent aisle that covered a small portion of the floor of the aisle where plaintiff's alleged accident occurred[,]" and this was the only camera "potentially capable of capturing any footage of the incident at issue." ¶¶ 7-8. However, Rodriguez is "unable to state with any certainty whether this camera was capable of capturing any footage of the incident at issue." Id. ¶ 8. Finally, with regard to Target's policy for retaining surveillance tapes, Rodriguez stated as follows:

In July 2006, it was Target's practice to recycle surveillance VHS tapes every 30 days. Additionally, all tapes in use as of []*fn4 2007 were discarded when the system was replaced. The surveillance system in place today also recycles surveillance footage [].

The VHS tape from July 4, 2006 would have been re-used no later than August 3, 2006, unless the footage was preserved in connection with an incident. I performed a search of all preserved footage at the store. There was no such footage from July 4, 2006.

Id. ¶¶ 9-10.

In the instant motion, Plaintiff argues that she is entitled to an adverse inference instruction because Defendant "could have, and normally would have, preserved the tapes 'in connection with an incident', but either deliberately or negligently destroyed those tapes."

DE 24. Plaintiff asserts that in order to prove her case, she must show "notice of the dangerous condition, either actual or constructive... [and] by destroying the tapes, [Defendant] has substantially denied the plaintiff the ability to prove that essential and required element of her case." Id. Thus, Plaintiff contends, the Court should impose sanctions upon Defendants in the form of an order stating that "the issue of notice of the dangerous condition" has been "resolved against the defendant." Id.

In opposition, Defendants assert that the store's surveillance tapes from July 4, 2006 did not contain footage showing either Plaintiff's fall or the condition of the floor during the relevant time period. See DE 26. Defendants further argue that, even if such video footage had existed, they were not put on notice that such tapes should be preserved. Id. On or about July 21, 2006 (two weeks after Plaintiff's accident), Defendants received a letter from Attorney Steve Giano stating that he represented Ms. Gutierez-Bonilla "for personal injuries and other damages sustained as a result of" the July 4, 2006 incident at Target. DE 26, Ex. 1. Mr. Giano asked Target, inter alia, to "direct all future inquires and correspondence to this claim" to his office, and to pay "all medical bills to all providers on behalf of [his] client." Id. However, according to Defendants, this letter did not constitute notice to preserve the store's video surveillance from July 4, 2006. Moreover, Defendants did not receive any further notice from Plaintiff's counsel, nor did they receive any discovery demands whatsoever in this action within the permissible time period for discovery. DE 26. Furthermore, because Defendants recycled the surveillance footage from July 4, 2006 in accordance with their "normal business practices," Plaintiff cannot show that such tapes were "recycled 'with a culpable state of mind.'" Id. Finally, Defendants contend that Plaintiff has not shown that the surveillance footage from the day of the accident would have supported her case. Id.


A. Applicable Law

"Spoliation is 'the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.'" In re WRT Energy Sec. Litig., 246 F.R.D. 185, 194 (S.D.N.Y. 2007) (quoting Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2d Cir. 2001)). The court has the inherent power to impose sanctions for the spoliation of evidence, even where there has been no explicit order requiring the production of the missing evidence. See Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002). Determination of the appropriate sanction, if any, is ...

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