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New Case Law Effectively Requires Video Retention Policies and Programs

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In the intricate world of legal proceedings, the duty to preserve evidence plays a pivotal role, particularly when it involves video evidence that can unequivocally substantiate claims or defenses. The recent decision in Nagy v. Outback Steakhouse sheds light on the complexities of this duty, especially in terms of the scope and adequacy of preservation efforts in a retail setting. This case not only highlights the pitfalls of inadequate evidence preservation but also sets important precedents for handling video evidence, this time in a slip and fall case.

Background of the Case:

In Nagy v. Outback Steakhouse, the plaintiff suffered a severe fall in an Outback Steakhouse restaurant, leading to significant injuries. Surveillance video captured the incident, but not all potentially relevant footage was preserved by Outback. This led to a legal battle over whether Outback’s preservation of the video footage was sufficient and whether their actions (or inactions) amounted to spoliation, which could influence the outcome of the case.

United States Magistrate Judge Douglas Arpert’s ruling focused on several critical aspects:

  • Scope of Preservation: The Court scrutinized whether the video preserved by Outback — the 19 seconds of the fall and  a period of  27 minutes including only 5 minutes before the fall occurred — was adequate. The plaintiff argued that video footage prior to the fall could show whether a slippery substance was present and how long it had been there, potentially proving negligence on Outback’s part.
  • Duty to Preserve: It was clear from the circumstances, including an immediate conversation between the manager and the claims administrator that was claimed to be privileged and the severity of the incident that litigation was reasonably foreseeable, and  Outback’s duty to preserve relevant evidence was triggered immediately following the incident.
  • Adequacy of Outback’s Efforts: The Court found Outback’s preservation efforts lacking. The limited scope of video preserved failed to capture critical moments before the fall that could demonstrate the presence of hazards and the restaurant’s response to them.

Court’s Decision:

The Court concluded that Outback, as a sophisticated entity familiar with litigation, should have preserved a more extensive section of the video. This decision was based on the understanding that additional footage could provide crucial context about the conditions leading to the plaintiff’s fall. The failure to do so led the Court to find that Outback had not taken reasonable steps to preserve necessary evidence, thereby acting in a way that could deprive the plaintiff of relevant information.

Key Takeaways:

  1. Understanding the Scope of Preservation: Legal professionals must comprehend not only what to preserve but also how much to preserve. In cases involving video evidence, this includes considering footage that could provide context to the incident in question. That complicates the process when a store manager is responsible for making that decision, and the Court here found that was not a decision a manager should be making without adequate guidance or training. 
  2. Anticipating Litigation and Responding Appropriately: Entities must recognize when litigation is reasonably foreseeable and take prompt, comprehensive steps to secure relevant evidence. This includes implementing and following clear policies on evidence preservation with regard to video. Here, the manager in charge of collecting the video snippets did not know whether Outback had policies, a fact that did not sit well with the Court.
  3. Implementing Effective Preservation Policies: Organizations should have detailed, actionable policies for evidence preservation that can be easily followed by all levels of staff. This reduces the risk of inadequate preservation and the potential for spoliation findings. The Court did not discuss the complexity of that type of policy and implementation, particularly in a restaurant setting where employee turnover is routine and continuous training and auditing of the process would be required to meet the burden imposed by the Court here. 
  4. Legal Training and Awareness: Staff, especially those in managerial positions, should be trained on the importance of evidence preservation and the potential legal consequences of failing to secure comprehensive evidence.
  5. Handling Sophisticated Evidence: The ruling underscores the importance of handling sophisticated evidence types, like video footage, with due diligence. Legal teams must ensure all potentially relevant aspects are preserved to avoid adverse legal outcomes. Where that evaluation has to happen early (here Outback overwrote data more than 7 days old), knowledgeable counsel or advisors must be consulted to ensure sufficient preservation. The Court’s ruling here may present a slippery slope on video evidence.


The Nagy v. Outback Steakhouse decision is a significant reminder of the critical role that the preservation of video evidence can play in litigation and failure to do so can result in an adverse inference instruction as ordered by the Court here. . For in-house counsel, it emphasizes the need to revisit video preservation policies for litigation and shore up processes to avoid a result like this one. The Court here viewed Outback as a sophisticated, serial litigant who should have known of the scope of its preservation obligation especially in this context. This decision serves as a benchmark for future legal disputes involving video evidence, and raises the bar for sophisticated parties to have the appropriate measures in place to preserve an appropriate scope of video in specific situations. Counsel advising clients on these issues should address this immediately.

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Kelly Twigger
Kelly Twigger is a practicing attorney, software developer, consultant, writer, and speaker on issues in electronic discovery, the development and implementation of legal technology, and how to effectively use data in planning for and during litigation.

She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.

Kelly is also the CEO of eDiscovery Assistant — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.

You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.

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