United States District Court, W.D. Louisiana, Shreveport Division
HORNSBY, MAGISTRATE Judge
MAURICE HICKS, JR., CHIEF JUDGE
the Court is Defendant Target Corporation of Minnesota's
(“Target”) Motion for Summary Judgment and/or
Motion in Limine to Exclude Plaintiff's
Spoliation of Evidence Claim. See Record Document
19. Plaintiff Adrienne Tucker (“Plaintiff”)
opposes the motion. See Record Document 23. Target
seeks dismissal of all of Plaintiff's claims. For the
reasons set forth below, Target's motion is hereby
September 9, 2016, Plaintiff reported a slip incident to
Target through one of its employees from her automobile in
the Target store parking lot. See Record Document
19-3 at 1. Plaintiff alleges that she slipped on a wet
substance that was on the floor of Target's store after
leaving the restroom. See id.; Record Document 23 at
6. Plaintiff also states that she did not see the substance
before her slip and did not know how long it was present on
the floor before her slip. See Record Document 23 at
12. Furthermore, she stated that she did not know how the
substance came to be on the floor and that it did not have
any tracks or “buggy marks” in it. See
Record Document 19-3 at 1.
testified in her deposition that although she did not know
how long the liquid had been on the floor, she did know that
from the time she exited Target's restroom until the time
she slipped “some 20 to 30 seconds later, ” she
saw no one spill any substance onto the floor. See
Record Document 23 at 12. After the incident, Katon Bethay
(“Bethay”), one of Target's store team
leaders, spoke with Plaintiff from her car outside and
completed an incident report, which Bethay testified he then
dropped off to Target's asset protection department.
See id. at 7; Record Document 19-2 at 4-5. An
employee from that department later reviewed several hours of
footage and pulled video of what was believed to be the
described incident involving Plaintiff. See id. at
5. While the employee testified that the video pulled was the
only footage she was able to find that resembled the
incident, see id., Plaintiff states that she is not
the woman seen in the video and alleges that Target has
intentionally destroyed the footage of her incident,
see Record Document 23 at 9.
October 13, 2016, Plaintiff sent a letter of representation
to Target requesting preservation of video footage.
See Record Document 19-3 at 2. It is undisputed that
Target's video system only preserves video that was not
copied for a period of 5 to 30 days, depending on the camera.
See id. On April 28, 2017, Plaintiff filed a
petition in the First Judicial District Court, Caddo Parish,
Louisiana, which was subsequently removed to this Court.
See Record Document 1-7 at 9.
LAW AND ANALYSIS
Spoliation of Evidence Claim
Court first addresses Target's motion in limine
to exclude Plaintiff's spoliation of evidence claim in
which she maintains that Target intentionally destroyed
evidence of Plaintiff's slip by allegedly not preserving
video of the incident from its cameras. See Record
Document 1-7 at 7-8. Target's motion for summary judgment
is addressed below in Section II.C., infra.
asserting a spoliation of evidence claim must show: (1) a
duty existed to preserve the evidence due to litigation or
the reasonable expectation of litigation; (2) the evidence
was destroyed (or concealed); (3) the destruction was
intentional; (4) the destroyed evidence was relevant; and (5)
the unavailability of the destroyed evidence resulted in
prejudice. See In re Actos (Pioglitazone) Prods.
Liability Litig., No. 11-2299, 2014 WL 2921653, at *23
(W.D. La. Jun. 23, 2014). Generally, a party's duty to
preserve evidence arises when a party knew or should have
known of the potential for future litigation. Dixon v.
Greyhound Lines, Inc., No. 13-0179, 2014 WL 6087226, at
*3 (M.D. La. Nov. 13, 2014) (“The future litigation
must be probable, which has been held to mean more than a
possibility.”); see also Putscher v. Smith's
Food & Drug Centers, Inc., No. 13-1509, 2014 WL
2835315, at *7 (D. Nev. Jun. 20, 2014) (rejecting
plaintiff's argument that store's “duty to
preserve surveillance footage of the slip and fall arose when
Smith's completed an incident report”).
case, the Court finds that Plaintiff's spoliation of
evidence claim must be dismissed for failing to meet the
first element referenced above because she has not shown that
Target was under any duty to preserve the alleged video of
the incident. Further, Target did not receive notice from
Plaintiff regarding the potential litigation until October
13, 2016, which was over 30 days from the incident.
See Record Document 19-3 at 1-2. While Target
attempted to retrieve the requested video, its video system
did not preserve video for a period longer than 30 days.
See id. at 2. Thus, even if Target had a duty to
preserve that arose when Plaintiff sent it notice on October
13, its video system likely no longer stored Plaintiff's
requested footage. Such facts do not warrant a finding by
this Court that Target intentionally destroyed evidence of
Plaintiff's slip. See Patrick v. Tractor Supply
Co., No. 16-10755, 2017 WL 396301, at *6 (E.D. La. Jan.
30, 2017) (finding that “[d]efendant's failure to
retain the footage was not the result of a directed action to
delete the information but rather a failure to stop the
automatic deletion process [and that] [s]uch action, at best,
amounts to negligence and does not rise to the level of bad
faith”). Because Plaintiff has not shown she can prove
at trial the existence of an element essential to her claim,
see In re Actos, 2014 WL 2921653, at *23,
Plaintiff's spoliation of evidence claim must therefore
fail as a matter of law.
Summary Judgment Standard
judgment is proper pursuant to Rule 56 of the Federal Rules
of Civil Procedure when “there is no genuine dispute as
to any material fact and the movant is entitled to judgment
as a matter of law.” Quality Infusion Care, Inc. v.
Health Care Serv. Corp., 628 F.3d 725, 728 (5th Cir.
2010). A genuine dispute of material fact exists
if the record, taken as a whole, could lead a rational trier
of fact to find for the non-moving party. See Geoscan,
Inc. of Texas v. Geotrace Techs., Inc., 226 F.3d 387,
390 (5th Cir. 2000). During this stage, courts must look to
the substantive law ...