“Roll the video tape . . . If we haven’t deleted it yet”

April 22nd, 2016 by JBWK

Submitted by Attorney Charles P. Tench

Virginia Federal Court Denies Summary Judgment When Employer Deleted Video of Workplace Incident
A Litigation Hold Letter is a written notice to preserve documents and other electronically stored information (“ESI”) in anticipation that a lawsuit will be filed. Its purpose is to make record custodians preserve relevant evidence so that it will be available during litigation and trial and is particularly important for ESI, where electronic documents, pictures, audio recordings, or videos can easily be deleted and overwritten if precautions are not taken. One company in Western Virginia is feeling the negative impact of failing to take those precautions. In Meade v. Turman Group Tye River LLC, Judge Norman K. Moon of the U.S. District Court for the Western District of Virginia issued a Memorandum Opinion denying summary judgment to the defendant employer (“Turman”), partially because of its failure to preserve a video tape. Mr. Meade is a 53 year old African-American man who filed a Title VII discrimination suit against Turman alleging that he was fired because of his age and race. The firing stemmed from a physical altercation between Meade and another employee. Meade was fired, but the other employee involved was not. The employer alleges that Meade started the fight, providing a legitimate reason for his termination. Meade alleges that he did not start the fight and was fired because of his age and race. The incident was caught on video, but Turman failed to preserve the footage and it was destroyed.
In ruling that there was a material issue of disputed fact, such that Turman was not entitled to summary judgment, Judge Moon said that “[t]his dispute of fact is further exacerbated from the destruction of the video footage featuring the altercation.” Judge Moon also added that “[c]ritically, [Turman] apparently did not put a litigation hold on the video footage of the altercation, as it was subsequently destroyed . . . The inability to view the video also produces the dispute of material fact. Furthermore, the destruction of significant evidence could result in an ‘adverse inference against’ Turman at trial if deemed to have been willful.” Meade v. Turman Group Tye River, LLC, No. 6:15-CV-00042, 2016 WL 1337302, at *3, fn 7 (W.D. Va. Apr. 5, 2016). In other words, the fact that the employer failed to preserve video of the incident created a dispute of fact about what happened, so the employer was not entitled to have the case decided on purely legal grounds. Also, if the Court finds that the failure to preserve the video was willful, it could infer that what was shown on the video would be bad for the employer and helpful to Meade.
This case highlights the importance of preserving documents, especially ESI, when litigation is threatened or can be reasonably anticipated. If you receive a Litigation Hold Letter or anticipate that you may be involved in litigation, contact us at 873-8000 and we can address all of your litigation needs, including the preservation of potential evidence.

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