Defendant’s Failure to Preserve Surveillance Video Supports Waiver of Investigator’s Fact Work Product

In Whitmore v. Kroger Limited Partnership, 2024 WL 4795686 (W.D. Va. Nov. 14, 2024), defendant Kroger’s inadvertent failure to preserve surveillance video footage of the area at the time of the alleged tort was a factor leading to its waiver of fact work production protection.

Defendant Kroger moved to quash a subpoena served by the plaintiff, Mr. Whitmore, on a nonparty claims investigator, Sedgwick Claims Service.  Because Kroger did not rely on the subpoena rule, Fed.R.Civ.P. 45(d)(3), its motion was construed as a Fed.R.Civ.P. 26(c)(1) motion for protective order.

Kroger’s motion was denied and Sedgwick was ordered to produce “any remaining materials in Sedgwick’s claims file that contain nonprivileged fact work-product responsive to Whitmore’s second Rule 45 subpoena.”  In deciding the motion, the Kroger court cited the work product rule, Fed.R.Civ.P. 26(b)(3).  Although a failure to preserve video could have triggered the federal ESI sanctions rule, Fed.R.Civ.P. 37(e), the Kroger court did not rely on Rule 37(e), even though it was cited in a cross-motion for sanctions.

Mr. Whitmore alleged that a Kroger employee negligently ran into him with a pallet jack while he was shopping.  Kroger admitted some facts; however, it denied that its employee, Ms. Keefe, hit Mr. Whitmore’s shopping cart and injured him.

The Kroger court stated: “Thus, the central factual issues in this case will be whether the pallet jack made physical contact with the shopping cart and, if so, whether and to what extent that contact caused Whitmore’s alleged injuries.”

Sedgwick Claims Services is a third-party company that “investigates and administers all accident reports and claims against Kroger.”  Mr. Whitmore issued a subpoena to Sedgwick for email, communications, and video footage regarding the claim.

Kroger produced 19 pages of claims notes, some redacted, from Sedgwick’s 35-page claims file.  Kroger asserted that it withheld 16 pages as work product.  Kroger also produced a video of the dairy section taken roughly twelve hours before the incident.

However, in the Kroger court’s words, the “missing video” at issue was a recording “of the exact area where the [alleged] incident occurred” in the store’s dairy section around 10:00 p.m. on December 17, 2020….”

The Kroger court wrote that:

• “The parties dispute whether this footage ever existed, … and if so, whether it was lost because Kroger failed to take reasonable steps to preserve it….”
• “Nonetheless, Kroger concedes that there was a working video camera in the dairy section on December 17, that its employee ‘inadvertently’ saved that day’s footage from twelve hours before the alleged incident, and that any footage from the timeframe of the alleged incident on December 17 was automatically written over 30 days later…. That footage is lost and cannot be restored.”

What was the non-video work product prepared by Sedgwick that plaintiff wanted to have produced?  The court wrote that he wanted witnesses’ contemporaneous statements to Sedgwick obtained “while [Sedgwick was] investigating his claim shortly after the incident occurred on December 17, 2020, which was almost four years ago.” [emphasis added].

The court cited precedent that contemporaneous statements are unique: “Memory inevitably fades and with it the accuracy of witness statements. Accounts rendered from fresh recollections are universally held to be more reliable that those given after time has passed.”  The  Kroger court noted that Ms. Keefe and other Kroger employees were key witnesses.

The court wrote that Mr. Whitmore, who did not file suit until late in 2022, was not building his case on the back of Kroger’s strategy.  Instead, he was seeking equal access to important, contemporaneous information.  The court concluded that:  “Accordingly, Whitmore has shown a substantial need for the requested materials.”  Id. at *5.

The Kroger court also held that Mr. Whitmore could not obtain the substantial equivalent of those contemporaneous statements. “Kroger does not suggest that deposing these individuals more than three years after the incident would be an acceptable substitute.”

Was there a video that went missing?

The plaintiff said “yes.”  He referred to Kroger’s “admitted failure” to preserve the correct video.

As quoted above, Kroger admitted that there was a working video camera in the area and its employee “inadvertently” saved the wrong footage, resulting in routine overwriting of the necessary footage.

The Kroger court did not resolve the Fed.R.Civ.P. 37(e) sanctions question presented by Mr. Whitmore’s motion.  Instead, it resolved the dispute under the fact work product rule.

The court noted the factual dispute over how the plaintiff came to be injured and it wrote that:

Any video footage of the dairy aisle from the correct timeframe on December 17, 2020, is lost and cannot be restored…. I take no position on what this footage might have shown or whether it was lost because Kroger failed to take reasonable steps to preserve it. Nonetheless, the fact remains that there is no visual recording to corroborate—or to contradict—the parties’ “drastically conflicting accounts’ of what happened when Ms. Keefe encountered Whitmore in the dairy aisle that night.

On these facts, the court determined that:

The Kroger employees’ contemporaneous statements given during Sedgwick’s investigation may be important information to aid in this lawsuit’s search for the truth…. Whitmore has shown that this is one of those “limited circumstances” where he can discover his opponent’s fact work-product.

The Kroger court essentially determined that, in the absence of the video, Sedgwick’s work product was the best evidence of what happened at the time of the alleged tort.  In the words of Fed.R.Civ.P. 26(b)(3), Mr. Whitmore has shown “substantial need for the materials to prepare [his] case” and he “cannot, without undue hardship, obtain their substantial equivalent by other means.”  The court did not address the multiple sanctions factors under Rule 37(e).

One can speculate that, had the video been preserved and produced, the fact work product would likely have remained protected.

Where video was not preserved, and depending on the circumstances, secondary evidence, such as that in Kroger, may suffice: Secondary Evidence of Missing Video Permitted (Dec. 10, 2023).

Video evidence is important in many personal injury and property damage actions and its loss is often resolved using spoliation principles.  Cf. No Spoliation Instruction Regarding Surveillance Video in Supermarket Personal Injury Case (Jan. 16, 2022), with Maryland’s High Court Affirms Sanction for Spoliation of Video Evidence (Jan. 8, 2021).

Overwriting of surveillance video is often done shortly after it is recorded, and that may present information governance issues:  cf. Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation (Aug. 21, 2024), with Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024).

One lesson learned is that companies rapidly overwrite video and if a party anticipates relying on a prospective opponent’s security or surveillance video, it is prudent to immediately send a specific preservation letter to that prospective party.  Felder Part 3 of 4: Defendant’s Overwriting of Video Footage After 14 Days Held Not to be Spoliation.

Preservation demands need to be prompt and follow proper procedures.  Procedural Failures in Request to Preserve Video Evidence (Feb. 22, 2023).[1]

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[1] The Kroger Order stated that: “Counsel for Kroger hereby is DIRECTED to produce Sedgwick’s remaining claim notes to Plaintiff’s attorney within ten (10) days from the date of his Order. Kroger may redact from those materials any attorney-client communications or opinion work-product, which are outside the scope of the Rule 45 subpoena at issue, and provide a privilege log. Kroger may designate any materials as ‘confidential’ in accordance with the protective order. ECF No. 75. Counsel for the parties are directed to confer if Kroger believes greater protection is required. See Fed. R. Civ. P. 26(c)(2).”