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Patel v. Havana Bar - No. 10-1383, 2011 U.S. Dist. LEXIS 139180 (E.D. Pa. Dec. 2, 2011)


When spoliation occurs, courts may impose sanctions on the offending party because a litigant has an affirmative duty to preserve evidence that it knows, or reasonably should know, will likely be requested in reasonably foreseeable litigation. The duty to preserve applies even where the evidence is marked as privileged.


Plaintiff Patel attended an engagement party at defendant Havana Bar & Restaurant, where he fell from a second floor and severely injured himself. Plaintiff initiated suit alleging series of negligence claims, including: failure to properly maintain the premises and supervise; and failure to warn Plaintiff of hazardous conditions and rectify those conditions. Plaintiff alleged spoliation of evidence in his motion for sanctions, particularly the destruction of video footage ad non-production of the witness statements.


Does defendant restaurant’s failure to preserve a video surveillance footage and present witness statements constitute spoliation?




The court held that defendant’s failure to preserve the video surveillance footage constitutes spoliation. Given the circumstances of the accident, litigation was reasonably likely and thus Defendants had an affirmative duty to preserve the video evidence. Although Defendants appear to have taken some steps to copy the video within the three weeks before its automatic erasure, they failed to take reasonable alternative measures to preserve the footage. The court also agreed that the failure to present witness statements was clearly a spoliation.

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