A recurring column intended to help you be aware of and prepared for legal issues related to security in a professional environment.
Wal-Mart v. Lee
Court of Appeals of Georgia, 2008
Key Issue: Retention of Evidence
In this case, a Wal-Mart patron was shot and her car stolen at gunpoint in the store's parking lot. A Wal-Mart unmonitored video camera recorded the incident. Store personnel immediately turned the videotape over to the police. Several police officers as well as the patron and her mother viewed the videotape, which showed both an earlier aborted robbery attempt and the successful robbery of the patron. After about six weeks, the four perpetrators were captured and prosecuted. An investigator later returned the videotape to a Wal-Mart manager.
The patron ultimately (two years later) filed suit against Wal-Mart for failing to ensure a safe environment. At that time, she learned that Wal-Mart had not preserved the recording. She moved for sanctions against Wal-Mart, alleging it had engaged in spoliation of evidence. Wal-Mart asserted that the videotape had not been intentionally
destroyed but reused - and thus recorded over – within the company's normal operations. It further asserted that no litigation had commenced at the time the recording was destroyed, and thus it had no legal duty to preserve it. The Court disagreed.
It held that Wal-Mart's handling of the videotape amounted to spoliation of evidence and ordered that the jury be charged that such spoliation creates a presumption that the evidence lost should be presumed to have been harmful to the spoliator (Wal-Mart). As a result, the jury was ordered to accept as fact the recollections of the patron and her mother about the events that had been depicted on the videotape. Further, Wal-Mart was not allowed to call any witnesses that might also have seen the videotape to counter the patron's recollections.
Equally as important, the Court held that the store was aware, or should have been aware, that the patron was contemplating a lawsuit. By destroying, or failing to preserve the videotape, which would have been evidence in that litigation, Wal-Mart prejudiced its case, on the presumption that it was doubtful that the videotape would have been destroyed if it had depicted events helpful to store. The appellate court upheld the trial court's finding for the plaintiff.
Lesson to be learned: Retain and safeguard ALL evidence that might be pertinent to any litigation targeted at you. This includes written reports, video records, access control logs, maintenance logs, etc. For how long? Except for certain financial, fiduciary and medical records, there are no hard and fast record retention requirements. The essential factor to consider is "reasonability." For routine logs and reports where no incident occurs, a 30-day retention period is generally sufficient. For any incident-related log, record or report, we recommend a much longer period – 7 years. If there has been no call for the record for a full 7 years, it certainly seems more than reasonable to destroy it. So, establish a security records retention policy and follow it. It's for your protection!
By: Pitt Crandlemire
Senior Vice President and General Manager
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