#CaseoftheWeekCase Law

Episode 121: Do You Have a Plan in Place to Preserve Video? You’ll Want to in California.

In Episode 121, our CEO, Kelly Twigger discusses how failure to preserve video evidence led to an adverse inference instruction in California State Court even without the required intent showing required under FRCP 37(e) in Aposaga v. Rite Aid Corp.


Welcome to this week’s episode of our Case of the Week series brought to you by eDiscovery Assistant and in partnership with ACEDS. My name is Kelly Twigger. I’m the CEO and founder at eDiscovery Assistant, which is a platform that delivers eDiscovery knowledge on demand.

Thanks so much for joining me today. Each week on our Case of the Week series, I choose a recent decision in eDiscovery and talk to you about the practical implications of that judge’s ruling. This week’s case covers a very important source of ESI called video, as you’re all familiar with, that we’re seeing more and more often.

Before we get into that case, a couple of announcements. In partnership with ACEDS and Exterro, we’ll be conducting a webinar at 10:30 am ET on eDiscovery Day, which is December 7th, so mark your calendars. That webinar will be about the pros and cons of ESI protocols and what you should be thinking about. We’ll be sending out information in our weekly newsletter but be sure to mark that date on your calendars and sign up for our newsletter to be able to receive that information if you’re not already on that list.

Second, if you are an eDiscovery Assistant user, you may have noticed this week that we added a share button for LinkedIn to every decision in our eDiscovery Assistant database. It’s just to the left of the bookmark button on the individual case page in which you’ll be able to see the link to today’s decision. Give it a try and see how it works for you. It should include both the AI-generated summary as well as a link to the actual decision, so you can modify that to your heart’s content and be able to share information about eDiscovery case law with folks who follow you on LinkedIn.


This week’s case that we’re going to discuss touches on video, a source of ESI that we’re seeing more and more of. This week’s decision highlights the importance of knowing your data sources and having plans in place to preserve them and the need for expediency and requesting preservation. This week’s decision comes from the Aposaga v. Rite Aid Corp. matter, which is pending in California State Court. This decision is from October 6, 2023, and comes to us from the California Court of Appeals. Please note that this case is an unpublished decision.

Each of our decisions that are in eDiscovery Assistant that are unpublished will have that yellow text at the top of them that notifies you that it is an unpublished decision, and you need to consult your jurisdiction as to whether or not you can cite unpublished resources. However, there are many unpublished decisions in eDiscovery Assistant because we find that the analysis by the judges in many of those cases are helpful for lawyers in making arguments on similar issues. There’s not a huge number of cases on eDiscovery in California, more than in most states, but there’s not a lot. So even looking at the unpublished decisions can have significant impact in terms of being able to put together arguments for eDiscovery issues.


We are before the California Court of Appeals on an appeal from a jury verdict that awarded the plaintiff $329,000 in damages for injuries that she sustained when she slipped and fell in a Rite Aid retail store. The plaintiff was a 77-year-old retired nurse with diabetes who a jury found slipped and fell in the aisle of the store on an oil or a greasy substance. She suffered serious injuries, including a fractured leg and a dislocated ankle. The scope of her injuries here is particularly important because, as a result of her injuries, the plaintiff needed special hardware in her leg to hold the pieces of bone together and underwent 10 days of inpatient rehabilitation. She couldn’t put any weight on her foot for several months, and after that, she needed a walker or a cane. She was no longer able to drive for any real distance. After her husband died about a year later, her daughter had to leave her job to care for her. So significant issues associated with the fall and the damages that she incurred as a result.

Rite Aid argued at trial and on appeal that the plaintiff had neuropathy in her feet due to her diabetes, and that was what caused her to lose her balance and fall versus there being some slippery substance on the floor in their store. Plaintiff’s testimony, they argued, was also inconsistent with the facts that she gave, including the location of where she fell in the store. The incident itself happened on June 3rd. Thirteen days later, on June 16th, the floor manager for the store received a letter from the plaintiff’s attorney that stated the following, “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.” The manager’s practice at the store was to send those letters to corporate, but she testified that neither she nor anyone from corporate looked at any video from June 3rd and that no one took any steps to preserve it.

At the time of the incident, the Rite Aid store in question had video cameras that were turned on and would have captured plaintiff walking into the store, as well as walking to the aisle where the Benadryl that she was buying would have been located. According to the Court, the video of plaintiff walking in would have shown whether she had any issues with walking that might have supported Rite Aid’s argument that she lost her balance, and that the video of her walking between the aisles would have resolved the disagreement over where she fell. Recall that I mentioned that the plaintiff argued that the plaintiff had inconsistencies in her testimony in that what she said she was shopping for and where she fell were inconsistent with where the Rite Aid supervisor found her when she fell.

The Court also noted that there was a camera on the stock room that would have shown if anyone grabbed a broom to clean up the aisle at any time that day. The plaintiff testified that at her deposition that after she fell, she reached down to touch her ankle and the floor and it felt slippery. She was then taken to the hospital in an ambulance and carried out through the same front door that she would have entered on a gurney by the paramedics. Again, something else that would have shown on the video had it existed. The shift supervisor who came when the plaintiff shouted after falling testified that she did not see any oil or lotion on the floor where she fell and that she took several photographs of the area that showed light and dark areas. Those were supposedly explained by some remodeling that had been done in the store.

The plaintiff’s doctor testified that the plaintiff did, in fact, have neuropathy in her feet. The plaintiff retook the stand after the doctor’s testimony to say that she wasn’t sure whether she had neuropathy, but that she did not have any numbness in her feet. She’d never been treated for neuropathy. She did not feel dizzy the day of the fall, and she had never fallen before.

Those are the facts that are before us. Essentially, we’ve got video evidence that would have provided a lot of information for the factual arguments that are being made. That video evidence was not preserved or kept, was not produced, and the jury found in favor of the plaintiff and awarded her $329,000.


What does the Court say here on appeal? There are multiple issues here on appeal, but I want to focus just on one issue, the one that implicates ESI and concerns California State jury instruction, CACI 204. That jury instruction was given to the jury by the trial court regarding Rite Aid’s failure to preserve and produce the video from the store on the date of plaintiff’s fall. That instruction read, “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.”

Rite Aid argued on appeal that the admission of the preservation letter from counsel 13 days after the event was improperly admitted into evidence, and that without the letter, there was no evidence to support giving the jury instruction. Rite Aid argued that the preservation letter was not legally sufficient to impose a duty to preserve the video because it did not specifically, “explain why video for the entire day for the entire store was relevant.”

The Court disagreed — surprise, surprise, surprise — and found the letter was sufficient to impose a duty to preserve on Rite Aid and that the video would have been relevant to the facts at issue. The Court also included some language that is very important for clients who have retail storefronts where this issue may occur in California.:

“It should go without saying that direct evidence of a plaintiff falling or 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. Thus, at a minimum, a pattern of regular maintenance of the interior of a business open to the public plays an important role in defending against claims for personal injury by customers. In addition, while a customer’s ability to walk may not be an issue in every personal injury case, it is certainly a common issue across a variety of businesses. Rite Aid knew or should have known that any video showing inspections or maintenance of the store aisles or showing that plaintiff had difficulty walking would be relevant.”

The Court found that video existed, should have been preserved, and that after being asked to preserve the video, Rite Aid, “chose to destroy the video.” The Court noted that:

“the relevance of videos and other parts of the store was readily apparent from the bare fact of plaintiff’s slip and fall. These facts are more than sufficient to support an inference that Rite Aid destroyed the video to prevent it from being used in litigation. We find it particularly telling that Rite Aid did not preserve even the one piece of video which indisputably would have shown plaintiff in the store, the video of her walking into the store. Without this video, Rite Aid could, and did, remind the jury that plaintiff had neuropathy, which causes pain, balance problems, numbness in the feet, thereby suggesting that the neuropathy was the reason she fell.”

With that as a basis, the Court upheld the trial court’s giving of instruction CACI 204, allowing the jury to consider that the video evidence would have been unfavorable to write it.


This is the second week in a row that I’ve selected a state court case on our Case of the Week, and I did it to illustrate a point. We’re seeing a lot more activity on ESI issues at the trial court level and the appellate court level in the state courts.

eDiscovery is not just for large, complex cases in federal court. It is for every single case. This jury instruction in California doesn’t require the intent that Rule 37(e) of the Federal Rules to Civil Procedure requires to get an adverse inference instruction. That’s really important if you’re trying cases in California State Court.

The Court found here that there was substantial evidence to infer intent here by Rite Aid to destroy the evidence. But there’s no discussion of any the analysis that is required under Federal Rules of Civil Procedure Rule 37(e). What I’m saying here is that if you’re in California state court, you need to be aware of this jury instruction and consider it carefully. It is an adverse jury instruction and much easier to achieve to have the judge deliver to a jury than you would get under the Federal Rules of Civil Procedure.

If this case were in federal court, as we have seen through multiple decisions regarding sanctions for failure to preserve, the Court would not have connected the dots of what the video would have shown and how it could have supported Rite Aid’s arguments if it existed. Instead, in federal court, the Court would have required plaintiff to have shown direct action of intent. As we’ve seen in multiple decisions, unless a party takes physical, intentional action to destroy information or to fail to preserve information, that is not going to be sufficient for intent under FRCP 37(e). You’ve got a much lower bar here in California state court. Keep it in mind when you’re dealing in state court and make sure that you’re looking at other state courts jury instructions and whether that is available to you.

This next takeaway is a bit harder to swallow. This decision and jury instruction in California really puts retailers on notice that they need to have systems in place to identify when video evidence needs to be preserved. There’s no way to know here whether Rite Aid intentionally did not preserve the video or it just got lost between store workers and no corporate follow-up in a timely fashion. I don’t know how many stores at this time that Rite Aid had across the country, but it was a lot. There are many, many retailers across this country who have this same issue, and even small stores these days who have slip and fall issues.

Whatever evidence you have needs to be preserved. Get a plan in place to deal with that. Have a liaison, one person who’s responsible for managing it — if that’s practical, which it may not be for larger clients — but come up with a plan that’s going to alleviate situations like this where failure to preserve video may lead to a jury verdict.

This, as I mentioned earlier, is an unpublished, non-precedential opinion, but the next one that cites this court reasoning may not be. It might be published. So, start advising your clients on these risks and get a plan in place to handle them.


That’s our Case of the Week for this week. Thank you so much for joining me. We’re back again next week with another decision from our eDiscovery Assistant database. As always, if you have a suggestion for a case to be covered on Case of the Week, drop me a line. If you’d like to receive the Case of the Week delivered directly to your inbox via our weekly newsletter, you can sign up on our blog. If you’re interested in doing a free trial of our case law and resource database, you can sign up to get started.

Thanks so much, and have a great week.

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