In Webb v. Giant of Maryland, LLC, __ Md. __, 2021 WL 6016453, at *1 (Dec. 21, 2021), the Court held that it was error to instruct the jury on spoliation on the facts presented. The store where plaintiff was injured had more than 30 cameras in operation and was notified of its duty to preserve. It imposed a litigation hold, but found out, and asserted, that no video existed. Because no video existed, it argued, there could be no spoliation.
Plaintiff was injured while shopping in a supermarket. After a spoliation instruction, the jury returned a verdict for plaintiff. It was reversed by the intermediate appellate court. The Court of Appeals affirmed.
The supermarket’s designee testified that “the Giant store where the incident occurred had video cameras throughout the entire store, including in the area of the frozen food section where [plaintiff] was injured. Prior to trial, he requested that the company that maintained Giant’s security cameras retain any video of the incident. Later, he learned that no such video existed.” Id. at *3 (cleaned up).
The Court explained that: “Prior to jury instructions, Petitioner asked the circuit court to give a spoliation instruction in light of the fact that Giant did not produce a video of the incident. Giant objected, arguing that such an instruction would be prejudicial, given that there was no evidence that a video of the incident ever existed.”
The circuit court gave a spoliation instruction. In closing argument, plaintiff’s counsel stated:
Another thing I really want you to pay close attention to is a spoliation instruction that the Judge gave you and I think this one is absolutely critical. You heard testimony from Giant’s rep about a couple different things. You heard they have 30 plus some odd cameras in the store that point – some cameras that point directly to the frozen food section. You had the incident report. You know they were on notice that day…. We asked them to preserve the evidence…. And then we hear for the first time at trial … [that] it definitely doesn’t exist.
* * *
Do we really believe that there’s no video footage of this incident? There’s almost always video footage. And what I would submit is if there was footage it would probably corroborate and be consistent with Ms. Webb’s description but we don’t have it and that benefits them. So when you’re thinking about that, what makes sense and what doesn’t, just bear that instruction in mind because I do think it’s really important.
On appeal, the supermarket argued the instruction was prejudicial error (and also raised other issues).
The intermediate court “explained that the instruction was improper because there was no direct evidence that a video of the incident actually existed or that it was destroyed or otherwise not preserved.” The Court stated that the instruction was also prejudicial because the jury was invited and permitted … to engage in speculation regarding concealment, destruction, and failure to preserve evidence that was not shown to actually exist.” (cleaned up; citation omitted).
Plaintiff obtained certiorari. In the Court of Appeals, the supermarket argued that there was no evidence that a video recording of the incident ever actually existed.
The Court of Appeals wrote that “Maryland recognizes some form of jury instructions regarding missing or destroyed evidence in both civil and the criminal contexts.” [citation omitted]. It quoted the civil pattern jury instruction addressing both intentional and negligent spoliation.
It then affirmed. It noted that there was “no direct evidence that a video of the incident actually existed or that it was destroyed or otherwise not preserved.” In a footnote, the Court stated that circumstantial evidence could carry the burden.
The Court wrote:
We agree that, for a spoliation instruction to be supported by the evidence, there must be some indication that the destroyed evidence existed at some prior point in time. The inference to be drawn from a spoliation instruction is clear: that a party destroyed or failed, either negligently or deliberately, to produce evidence that was unfavorable to that party. Such an inference requires necessarily that the party had the evidence in his or her possession, or, at the very least, that the party knew about the evidence’s contents or existence at some point prior to the destruction (or lack of production) of the potential evidence. Here, there was no testimony or other evidence to show that the video ever existed. To the contrary, the only evidence on that issue was the testimony of Giant’s corporate representative, Kevin Corradini, who stated conclusively that the video never existed. It was, therefore, improper for the circuit court to instruct the jury that it could draw an inference as to Giant’s destruction of the video, where there was no evidence that such a video existed previously. Giving such an instruction under the circumstances was legally erroneous and an abuse of discretion.
The Court rejected the argument that, because there were multiple cameras, there was evidence that the video existed:
Petitioner argues that the instruction was warranted because the jury could infer the existence of the video based on the fact that Giant had security cameras mounted in the area where the injury occurred. We remain unpersuaded. Were we to accept Petitioner’s argument, the jury would be required to draw a preliminary inference as to the existence of the evidence before it could draw an inference as to a party’s destruction or failure to produce that evidence. Requiring the jury to make that preliminary inference is not supported by the language of the jury instruction or by the principles embodied in the “missing evidence” rule. Again, the purpose of the instruction is to permit the jury to draw inferences about missing evidence, not to require the jury to speculate as to whether the evidence existed in the first place.
The intermediate appellate court was more colorful, stating that “the cameras are, at most, deer tracks in the snow, but they are not necessarily tracks of a particular deer – in this case, a video of the incident.” Webb, 2021 WL 733828 at *12.
The Court, however, suggested that the plaintiff could have argued to the jury that evidence was missing:
[T]here is an important distinction between a trial court instructing the jury on spoliation and a trial court allowing a party to argue spoliation during closing argument. In a jury instruction, the inference is communicated to the jury by the trial judge, which may result in the jury giving the inference undue weight. Such a result is much less likely in the context of an argument by counsel, as opposing counsel is provided the opportunity to respond and the jury is instructed that counsels’ arguments do not constitute evidence. Thus, it may be perfectly reasonable for a court to refuse a spoliation instruction, but allow the parties to argue the point during closing argument. [emphasis added].
However, the instruction in Webb was deemed to be prejudicial:
Finally, we agree with the Court of Special Appeals’s conclusion that the spoliation instruction was prejudicial. The instruction was misleading and required the jury to speculate about the existence of potentially damning evidence. The instruction also invited the jury to speculate about the applicability of a legal principle – the inference to be drawn from the destruction or concealment of evidence – regarding evidence that was never shown to exist in the first place. And, although the instruction did not mention specifically the video or Giant, Petitioner’s counsel shone a spotlight on that point during closing. Counsel told the jury to “pay close attention to” the spoliation instruction, suggesting that Giant was lying about the existence of the video because “[t]here’s almost always video footage.” Plaintiff’s counsel argued that such a video “would probably corroborate and be consistent with Ms. Webb’s description” of the incident. Plaintiff’s counsel concluded by arguing that “we don’t have it and that benefits them.”
There is a robust body of case law on video evidence in personal injury cases brought by shoppers. On some facts, it has been sanctionable. Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence – E-Discovery LLC (ediscoveryllc.com) On others, it has not. Maryland’s Intermediate Court Affirms Denial of Sanction for Spoliation of Video Evidence – E-Discovery LLC (ediscoveryllc.com) The doctrine is sometimes confusing. I discussed the intermediate opinion in Webb in: Maryland’s Confusing Spoliation Doctrine – E-Discovery LLC (ediscoveryllc.com)
Maryland courts have held that the absence of records does not equate to failure to preserve, absent more evidence. E.g., M. Berman and A. Shelton, “The Common-Law Duty to Preserve,” in M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Md. State Bar Ass’n. 2020), 159 discussing Solesky v. Tracey, No. 03- C-08-003489, 2009 WL 8606518 (Md. Cir. Ct. Balt. Co. May 29, 2009) (Fader, J.).