Court Grants Cross Motions for Spoliation Sanctions, Imposes Adverse Inference Against Both Parties

Patel v. Havana Bar, Restaurant & Catering, No. 10-1383, 2011 WL 6029983 (E.D. Pa. Dec. 5, 2011)

In this opinion addressing the parties’ cross motions for sanctions, the court ordered an adverse inference for defendants’ failure to preserve relevant video surveillance footage and an adverse inference for plaintiff’s failure to preserve relevant witness statements.  For plaintiff’s other discovery violations, including delayed and piecemeal production of witness statements and failure to timely produce a full copy of the relevant police report, as well as for the spoliation of witness statements, the court ordered re-deposition of several witnesses at plaintiff’s expense.  The court also awarded defendants’ attorneys fees and costs “for the time and effort they expended in attempting to obtain discovery that they were entitled to receive.”

Plaintiff was injured when he “fell” from a second story balcony/loft at defendants’ bar and restaurant. Whether plaintiff fell or jumped was apparently in dispute.  There was also a question as to whether plaintiff was intoxicated at the time of his “fall.”

Defendants recorded video surveillance near the time of plaintiff’s fall which was viewed by the restaurant owner on the night of the accident.  He claimed the video did not reveal how the fall occurred. At deposition, the owner explained that he had attempted to copy the video but was unable, despite a call to the system’s provider.  He further stated that although the system could print still images, he did not print any.  Thus, the video was automatically recorded over and no footage was preserved.  The court found that spoliation had occurred.  Accordingly, following its identification of the relevant considerations and after noting that “even ‘negligent destruction of relevant evidence can be sufficient to give rise to the spoliation inference,” the court ordered an adverse inference instruction.

The court’s opinion also addressed defendants’ motion for sanctions.  Specifically, it was revealed that a year after the accident, in September 2008, plaintiff’s sister solicited, via Facebook, witness statements in support of her brother’s case.  Plaintiff’s sister was explicit regarding the type of information sought, specifically asking for comments refuting the idea that plaintiff was intoxicated.  Approximately two years later (in 2010), plaintiff’s sister sought additional statements but this time asked for information indicating that plaintiff was intoxicated and that defendants “recklessly continued to serve him drinks.”  She specifically indicated that any statements that accused plaintiff of jumping from the balcony would not be included in her collection.

Neither the 2008 nor 2010 statements were provided to defense counsel during the initial discovery period. When the existence of the statements was discovered during a deposition, they were produced in a “piecemeal” fashion, and only immediately prior to each witnesses deposition. No 2008 statements were ever produced and the family and counsel provided conflicting evidence over who had possessed the statements and when.  Plaintiff’s counsel also failed to timely produce a police report of the incident and, when it was produced, failed to include relevant witness statements (which cast doubt on plaintiff’s claim that he fell) or plaintiff’s guest check from the evening of the accident.  The court found this to be a violation of plaintiff’s Rule 26 obligations following discussion of the requirements for initial disclosures.

Regarding the 2008 witness statements, the court found that spoliation had occurred.  Accordingly, an adverse inference instruction was warranted.  Further, for the delay in production of the 2010 statements (and again noting the spoliation of the 2008 statements), the court ordered that several witnesses be re-deposed at plaintiff’s expense.  The court also awarded defendants’ attorneys fees and costs “for the time and effort they expended in attempting to obtain discovery that they were entitled to receive.”

Although plaintiff’s counsel was not separately sanctioned, the court was clearly displeased with counsel’s discovery behavior and specifically took issue with counsel’s failure to initially disclose the existence of the witness statements and with the belated disclosure of those statements as well as the incomplete police report.  The court also criticized counsel’s claims that the witness statements were work product in light of the delay in raising the claim and the absence of a privilege log.