Order On Spoliation Motion - Abdulahi v. Wal-Mart Stores, LP
Order On Spoliation Motion - Abdulahi v. Wal-Mart Stores, LP
ATLANTADryISION
IBRAHIM ABDULAHI,
Plaintiff,
ORDER
I. BACKGROUND
Plaintiff has filed
testified that Plaintiff and another employee left one of the stords entrances
unlocked overnight. According to Jacksory he arrived at the store early on the
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morning of October 23,2009, and found that the Garden Center entrance was
unlocked. (Jackson Deposition ("Dep!'), Doc. No. [a9-11 at 58-61). Jackson
testified,
"If my memory
serves me correctly,
moming myself and saw the chains not up and the doors not locked." Id. at
60-61. The Garden Center entrance is closed
deter theft. Id. at 58-61; Plaintiff's ("Pla.") Dep., Doc. No. [36-3] at 245;
Defendants'Statement of Material Facts ('DSMF"), Doc. No. [36] fl 36.
Jackson testified that he questioned the two AssistantStore Managers who
worked that night, Plaintiff and Mark Corurer. (Jackson Dep., Doc. No. [49-1] at
62). According to Jackson, both Plaintiff and Conner admitted that they failed
to ensure that the Garden Center doors were locked. Id. plaintifl however,
testified that he knows that the doors were locked that night and that Jackson
was not being truthful when he stated that the doors were unlocked. (pla. Dep.,
Doc. No. [36-3] at 276-7n.
Jackson testified that he reviewed surveillance video footage of the doors
and that the video footage confirmed that the doors had remained unlocked
overnight. (Jackson Dep., Doc. No. [a9-1] at62-661. However, Jackson took no
steps to preserve the video footage. ld. at66. when asked if the footage was
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still
preserved/ Jackson testified, "I don't think they keep anything over six months."
ld. at 62. Defendant Wal-Mart has confirmed that the video footage was
recorded over in the normal course of business, in the absence of a specific
request to save the footage. Doc. No. [50-1], p. 4, fl9.
Opportunity
Commissioner ("EEOC"). (Pla. Dep. (Doc. No. [36-3]at251, Doc. No. [36-7l,pp.
36, 38, Exs.
preserve the footage in November, 200g when plaintiff amended his EEoC
charge to include his termination. Doc. Nos. [36-7], p.32, [49], p.10.1
The Court held a hearing on October
21,,
for
review.
' .At oral argumen! Defendant wal-Mart argued that it probably would not have
,
received notice of the November
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II.
LEGAL STANDARD
"Spoliation is the destruction or significant alteration of evidence, or the
e9-
341.
Chrysler Corp.. 427 F.3d939,944 (11th Cir. 2005). However, where applicable,
courts may look to Georgia law as "[f]ederal law in this circuit does not set forth
specific guidelines" regarding spoliation sanctions and as ,,Georgia state law on
time; (2) the alleged spoliator was under a duty to preserve the evidence; and (3)
the evidence was crucial to the movant being able to prove its pn
defense.
ma
facie case or
770F.Supp.2d1299,
1305 (N.D. Ga. 2011); Southeastem Mech. Servs.. Inc. v. Brody, 657 F.Supp.2d
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." Gr&
310 F.
III.
ANALYSIS
The court
thatplaintiff hasestablished
that the evidence (videotape footage) existed at one time and that Defendantwas
'?
herein.
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beginning on the date that the employee at issue reported to the human
resources advisor that she was the victim of sexual harassment and had retained
a lawyer); see also 29 C.F.R. S 1602.14 ("Where a charge of discrimination has
been filed . . . against an employer under title VII, . . . the respondent employer
shall preserve all personnel records relevant to the charge or action until final
disposition of the charge or the action."). The Court further finds that plaintiff
has shown that the evidence is crucial to his being able to prove his pima
faae
In the absence of authority that holds that the employee is responsible for
identifying (for the employer) video footage subject to preservation, the Court does not
find persuasive Defendant wal-Mart's arguments thai the video was not identified in
the Abdulahi's EEOC charge.
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single piece of relevant evidence for purposes of proving pretext and causation.
Doc. No.
1491,
impartial and indisputable evidence that shows whether the entrance was
unlocked overnight and accordingly, whether Plaintiff was fired for an illegal
reason. Doc. No. [51], pp. 2-3,7. ln response, Defendant denies prejudice and
argues that the conduct at issue can be proved through direct testimony of
Demetrius Jackson and contemporaneous evidence (such as emails Jackson sent
regarding the incident). Doc. No. [50], p. 10. The Court finds that plaintiff has
shown prejudice or damage to his legal claim (in terms of his ability to prove
retaliation) by the destruction of the video. The Court will address Defendant's
as the
for
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As to the third factor, the Court must consider the practical importance of
the evidence. Plaintiff argues that the video footage was the single piece of
relevant evidence for purposes of proving pretext and causation. Doc. No. [49],
p. 7. Defendant Wal-Mart argues that the video footage was immaterial and
a small-piece of the retaliation scheme alleged by
The
only
"[t]he court should weigh the degree of the spoliator's culpability against the
prejudice to the opposingparty." F\ury,427 F3d at946. ,,Mere negligence,, in
losing or destroying the records is not enough for an adverse inference, "as it
does not sustain an in-ference of consciousness of a week case." Bashir v. Amtrak,
119 F.3d 929,931. (11th Cir. 1997).a
* The parties
disagree as to whether there must have been intentional destruction
of the video to show bad faith. At least one district court has interpreted Eleventh
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regarding the basis for Plaintiff's termination. Doc. No. 49-1,, p.66. Defendant
jury
No. [53], p. 44. The Court finds that Plaintiff have shown something more than
mere negligence in Wal-Mart's destruction of the videotape footage.
Circuit authority to conclude that "t]he party claiming spoilation must present
'probative evidence' that the relevant materials were'purpoiely lost or destrbyed."'
Williams v. Wal-Mart Stores. Inc..584 F. Supp. 2d.731.6,7921.-22 (M.D. Ala. 2008t aff,d
342F . App'x 478 (1lth cir. 2009). After review of said case and binding Eleventh circuit
authority, the Courtfinds thatit is not clear as to whether "purposely lost or destroyed,"
is the actual standard. It is, however, clear thatsomething more than,,mere negligence,,
is required.
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that Wal-Marfs stated reason for terminating Plaintiff was pretextual and that
CONCLUSION
Plaintiff's Renewed Motion for sanctions for spoliation of Evidence (Doc.
No. [65] is hereby GRANTED. The court orders the following sanctions. At
trial, the jury will be instructed that destruction of the video footage creates a
. The_e-xact l3nguage of the jury instruction will be finalized during the charge
conference. Plaintiff shall submit a_draft jury
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motion in the amount of $19,$0.fi). Defendant shall pay said attomey's fee
amount to Plaintiffs Counsel within thirty (30) days of the enty of this Order.
ITIS SO ORDERED,this
day of
HONORABLESTEVEC.
UNITEDSTATES
11
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