United States District Court, D. Nevada
CAM FERENBACH, Magistrate Judge.
This matter involves Loretta Putscher's slip and fall at a local Smith's Food & Drug Centers store. In the motion before the court, Putscher requests two forms of relief. First, Putscher requests an order compelling Smith's to disclose surveillance footage from 935 days after the slip and fall. ( See Pl.'s Spoliation Mot. (#12) at 13). Second, Putscher requests sanctions for Smith's alleged spoliation of two reels of surveillance footage from the day of her slip and fall. ( See id. at 15). For the reasons stated below, Putscher's requests are denied.
For the purposes of Putscher's motion, the relevant facts include: (1) the circumstances surrounding Putscher's slip and fall; (2) an overview of the discovery dispute; and (3) a review of the arguments made during the court's June 18, 2014 hearing. Each is discussed below.
I. Loretta Putscher's Slip and Fall
On July 14, 2011, Loretta Putscher went shopping at Smith's Food. (Compl. (#1-2) at ¶ 12). She walked through aisle twenty-one, along rows of salad dressing, and towards the produce department. ( Id. ); (Pl.'s Spoliation Mot. (#12) at 4:6). Without warning, she slipped, fell, and found herself lying next to a display of russet potatoes. (Compl. (#1-2) at ¶ 12); (Herbias Depo. (#13-1) at 22:5-7). There were no witnesses.
A liquid substance - probably water from the nearby refill station - had been left on the tile floor. (Pl.'s Spoliation Mot. (#12) at 4:10). Putscher attempted to get back up; but she fell again. ( Id. at 4:9). She was hurt, and felt an immediate pain in her right arm and hand. ( Id. )
An employee in Smith's liquor department reported the fall. (Herbias Depo. (#13-1) at 21:5-10). A manager, Jessie Herbias, appeared and asked Putscher if she was okay. ( Id. at 61). She stated that she was "fine, " did not want to complete a report, and was in a hurry to leave. So, she left. ( Id. )
Nonetheless, Herbias investigated. Under Smith's policy, accidents must be investigated, and an incident report completed whenever an accident occurs. ( See Mins. Proceedings #20). Herbias discovered a puddle of water on the floor where Putscher fell. (Herbias Depo. (#13-1) at 27); ( see also Incident Report (#12-1) at 1) (" How large an area did it cover? 2 floor tiles - a small line of water"). Because no water is sold in that area, Herbias guessed that the water came from a water-refill station thirty or forty feet away and that it ended up on the floor near the produce after Putscher or another customer spilled their own bottle of water in the produce department. ( Id. ) ("water from what seemed from water refill"); ( see also Herbias Depo. (#13-1) at 27) (discussing the possible cause of the spill).
Herbias recorded this information in Smith's preprinted incident-report form. However, Herbias failed to complete the form. One of the form's preprinted questions read: "Is there video evidence? Y/N." (Pl.'s Spoliation Mot. (#12) at 19:10). Neither option was circled. Herbias then signed her name on the bottom of the form, above a bolded and italicized notice, stating: "This report is being prepared in anticipation of litigation under the direction of legal counsel. It is confidential and is not to be released to any person unless approved by legal counsel and authorized by a member of Kroger management with such authority." (Incident Report (#12-1) at 1).
Forty-four days later, on August 24, 2011, Putscher's attorney sent Smith's insurance carrier a letter notifying the store of Putscher's legal claim. (Pl.'s Reply (#14) Exhibit 1).
II. The Discovery Dispute
After reviewing Smith's discovery and deposition testimony, Putscher asserts that Smith's failed to preserve two pieces of relevant evidence: surveillance footage of her slip and fall and surveillance footage of the area surrounding the produce department and water-refill station. There is no question that footage of the area surrounding the produce department and water-refill station existed, but it is unclear whether any footage of Putscher's slip and fall ever existed.
Some evidence suggests that surveillance footage of Putscher's slip and fall did exist. For instance, Smith's Rule 30(b)(6) deponent, Suzanne Martin, testified, "I believe that some of the cameras do capture some of the footage in the - on the floor in the produce department." (Pl.'s Spoliation Mot. (#12) at 8:13-15). When asked why surveillance footage was not preserved, Martin replied: "I do not [know]." ( Id. at 10:12). Putscher also filed pictures of the interior of the Smith's where she fell. The pictures show surveillance cameras that might have captured her slip and fall.
Smith's answers to written discovery also suggest that footage Putscher's slip and fall may have existed. When asked how long Smith's preserves surveillance footage, Smith's answered: "The recorders typically maintain video between 21-90 days, depending on the available space of the hard drive. If the video is not burned to a DVD within the time period mentioned above, the system will delete it." (Def.'s Opp'n (#13) at 7:8-11) (citing answer number eight).
However, other evidence suggests that surveillance footage never existed. For instance, Smith's loss prevention manager, Jason Grice, executed an affidavit in support of Smith's opposition. It states:
On July 14, 2011, there were no surveillance cameras that were trained on the area where plaintiff slipped and fell. As such, there would not have been video surveillance of the slip and fall accident. There also were no surveillance cameras trained on or that had a short of the water refill station located in the Service Deli of the store.
(Grice Aff. (#13-3) at ¶¶ 5-6). Grice also testified that on July 14, 2011, when Putscher fell, each DVD unit had one terabyte of available storage. This means that the entire store's surveillance footage would be deleted in approximately 21-28 days. ( Id. at ¶ 8).
Putscher believes that one piece of evidence may resolve this ambiguity. On February 3, 2014, Putscher conducted a site inspection of the store where the accident occurred. During the inspection an expert conducted coefficient of friction testing where Putscher fell. If surveillance footage from February 3, 2014, depicts Putscher's expert conducting a ...