Affirmed Adverse Inference

Affirmed Adverse Inference by Court on Appeal: eDiscovery Case Law

In Aposaga v. Rite Aid Corp., B321422 (Cal. Ct. App. Oct. 6, 2023), the Court of Appeal, Second District, Division 8 of California affirmed an adverse inference sanction (as well as the judgment for the plaintiff) on appeal due to destruction of video evidence that would have been relevant in a slip and fall case.

Case Background

On June 3, 2018, the plaintiff went to a Rite Aid store to buy Benadryl. She testified at trial that after she picked up the Benadryl from a shelf, she stepped forward onto a slippery area of the floor, onto something that “look[ed] like oil,” and fell, experiencing serious injuries. The floor manager for the store acknowledged her signature on the receipt for a preservation letter sent by the plaintiff’s attorney; the receipt was dated June 16, 2018. The letter began by stating: “Our client was injured at your store on or about June 3, 2018. The purpose of this letter is to advise your company not to destroy, conceal, or alter any information stored in electronic form or generated by your company’s computer systems or electronic devices from the date of our client’s injury.”


Plaintiff’s attorney asked the floor manager if she or anyone at Rite Aid followed through “with preserving any evidence from electronic devices, including videos from the store on June 3rd, 2018.” She replied: “There wasn’t any.” She clarified there were cameras inside the store, “but not where the client fell.” She did not preserve any of the video. She never looked at any video from June 3rd. No one looked at the video, including people from corporate. While Aisle 4, where the plaintiff fell, was not covered by a working camera, there were cameras in other locations in the store that would have shown the plaintiff walking into the store and leaving on a gurney, the plaintiff potentially crossing the middle aisle to get to the aisle where the Benadryl was located, whether employees were conducting inspections in other parts of the store, and whether anyone went into the stock room and grabbed a broom.

Over the defendant’s objection, the trial court instructed the jury with CACI 204, which provides: “You may consider whether one party intentionally concealed or destroyed evidence. If you decide that a party did so, you may decide that the evidence would have been unfavorable to that party.” The jury found for the plaintiff, leading to the defendant’s appeal.

Appellate Court’s Ruling

Regarding the issuance of CACI 204, the Appellate Court stated: “Rite Aid contends the preservation letter should not have been admitted, and that without the admission of the preservation letter, there was no evidence to support CACI 204. Specifically, Rite Aid contends that the preservation letter was not legally sufficient to impose a duty on it to preserve the video, and that absent such a duty, CACI 204 was not warranted. We find the letter sufficient to impose a duty to preserve.”


Continuing, the Court stated: “Rite Aid contends a defendant only has a duty to preserve relevant evidence, and the ‘broad’ letter did not ask for anything relevant… Even if we were to assume for the sake of argument that a preservation letter only requires the recipient to preserve relevant evidence, relevancy is a very broad concept…It should go without saying that direct evidence of a plaintiff falling or of the spot where she fell, is not the only relevant evidence in a personal injury action. A store owner has a duty to exercise ordinary care and does so ‘by making reasonable inspections of the portions of the premises open to customers.’… Rite Aid knew or should have known that any video showing inspections or maintenance of the store aisles or showing that Aposaga had difficulty walking would be relevant.”

In its ruling that affirmed the adverse inference sanction, the Appellate Court stated: “After being asked by Aposaga’s attorney to preserve video recordings for June 3, 2018, Rite Aid chose to destroy the videos. Although Rite Aid complains of the broad scope of the request, Rite Aid did not preserve even a limited amount of the video, as for example keeping the video covering an hour or two before and after Aposaga’s fall (rather than for the whole day). As we discuss in some detail above, the relevance of videos of other parts of the store was readily apparent from the bare fact of Aposaga’s slip and fall. These facts are more than sufficient to support an inference that Rite Aid destroyed the video to prevent it being used in litigation.”

As a result, the judgment was affirmed and the defendant was ordered to pay costs on appeal.

So, what do you think? Are you surprised that the Appellate court affirmed the adverse inference sanction? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Watch Kelly Twigger’s discussion of the case here!

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