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Failing To Preserve Evidence; Exception Carved Out By Pennsylvania Superior Court

June 17, 2020

In a landmark decision, the Pennsylvania Superior Court ruled on the critical issue of failing to preserve evidence and created an important carve out to the prior case law on this important evidentiary issue. This closely watched decision has been the subject of much discussion.

“In many instances, a business’ failure to maintain or preserve evidence can be fatal to the defense of a hotly contested action,” said WSHB Partner Andrew Kessler, who handled the appeal on behalf of the prevailing party. Kessler, managing partner of the WSHB Pennsylvania office believes that, “This case gives rise to development of a strong defense in those instances where evidence is inadvertently destroyed and removes the presumption that the party who destroyed the evidence did so because it was unfavorable to them. Avoiding the thought in a juror’s head that “they got rid of the evidence” can be vital in these types of cases where these issues arise. Avoiding the presumption helps to keep the playing field level.”

In Monarca v. Annie’s Express Laundry, LLC, the Pennsylvania Superior Court created an exception focused on the mindset of the entity which possessed/controlled the evidence. The manner in which the entity preserved this evidence, and the timing of the request to preserve the evidence in question, is pivotal especially given that many businesses possess surveillance footage that automatically tapes over older footage after a certain amount of days.

“This case reminds us of the importance of preserving evidence after an accident that may give rise to litigation in the future,” said Kessler. “In the heat of the moment, considerations as to the parameters for taping over old footage or cleaning up accident scenes may take second priority to getting back to normal. Nevertheless, advising clients prospectively as to these types of issues may later reap significant benefits if the matter proceeds to litigation. “

Here, plaintiff tripped over a bucket of sand that was propping open the entrance to the laundromat. A surveillance camera monitoring the area captured video footage of the incident itself. Additional video footage was preserved for a period of two weeks before being automatically overwritten. It was not until 15 days after the incident that Plaintiff’s counsel requested the owner preserve additional video footage preceding the event. When the additional video surveillance footage could not be produced due to it being automatically overwritten, Plaintiff asserted that said evidence had been spoiled and that she was entitled to a jury charge that would have instructed the jury that had said video footage been preserved it would have been unfavorable to the Defendant.

“We now have significant guidance for business owners in Pennsylvania with regard to the preservation of evidence,” said WSHB attorney Kamela Devole, who handled the underlying briefing together with Kessler. “If a written policy relative to preservation of video footage or other evidence exists, it should be followed. If no such policy exists, business owners should take such affirmative efforts to ensure that a reasonable amount of such surveillance footage is preserved before the same is lost due to automatic overwriting.”

The Pennsylvania Superior Court ruled that the business owner’s actions did not constitute spoliation of evidence. Attorneys Kessler and Devole successfully distinguished this situation from that in a recent decision by the Superior Court in Marshall v. Brown’s IA, LLC, 213, A3d 263 (Pa. Super. 2019)(holding that a spoliation of evidence instruction was appropriate where the Defendant only produced a small amount of available video footage despite Plaintiff’s request that nine hours of video footage which be produced). They successfully argued that Plaintiff failed to establish that the Defendant negligently, or otherwise intentionally, permitted the destruction of evidence and that before any formal request had been received, the Defendant took considerable affirmative efforts to preserve relevant footage of the accident rather than permitting all of the footage to be overwritten.


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