Commercial Litigation and Arbitration

No Spoliation Inference Where Evidence “has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for”

Felix v. GMS, Zallie Holdings, Inc., 2012 U.S. App. LEXIS 21075 (3d Cir. Oct. 11, 2012):

B. Spoliation

Felix also argues that the District Court erred in denying her re-quest for a spoliation inference based on GMS's failure to provide security camera footage showing her fall. GMS had security cameras operating throughout the store -- some of which were stationary while others moved to cover different angles and areas. App. at 123-24. When GMS submitted the footage from the surveillance cameras into evidence, while it showed Felix lying on the floor, it did not show the actual fall or the events leading up to it. Felix asserts that the fact that the surveillance footage begins only after the fall implies spoliation or destruction of evidence by GMS.

The spoliation rule applies when the evidence in question is in the party's control and it "appear[s] that there has been an actual suppression or withholding of the evidence." Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995). "No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for." Id. Applying this standard, the District Court concluded that there was no evidence of actual destruction of the evidence or other suppression. In doing so, it noted that Felix had not provided any evidence that the cameras had in fact captured the fall, nor had she contacted anyone in the ShopRite loss prevention department to ascertain if such footage even existed.

Felix reasserts this spoliation argument on appeal but has not provided any evidence that GMS destroyed evidence or otherwise engaged in efforts to suppress the evidence. Absent such evidence, we cannot apply a spoliation inference. See id. Consequently, we find no error in the District Court's failure to impose a sanction on the grounds of spoliation.

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