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Hallan v. Hy-Vee, Inc.

United States District Court, D. South Dakota, Southern Division

May 2, 2019

JULIE ANN HALLAN, Plaintiff,
v.
HY-VEE INC., an Iowa Corporation Defendant.

          ORDER PERMITTING INSPECTION AND GRANTING MOTION TO PRESERVE EVIDENCE

          HONORABLE KAREN E. SCHREAIER UNITED STATES DISTRICT JUDGE.

         Plaintiffs, Julie Hallan, motion to preserve evidence came on for telephonic hearing on April 30, 2019. Plaintiff appeared by and through her attorney of record, Michael F. Marlow. Defendant, Hy-Vee, Inc., appeared by and through its attorney of record, Elizabeth Hertz. Based upon the record and arguments, the Court makes the following findings of fact and conclusions of law:

         FINDINGS OF FACT

         1. Plaintiffs counsel sent a letter to defendant and its agent, EMC, on January 7, 2019, requesting defendant preserve video evidence from five days before and five days following plaintiffs fall at the Hy-Vee store in Brookings, South Dakota.

         2. The video from five days before plaintiffs fall would show potential witnesses, other falls, and maintenance performed on the doors.

         3. Plaintiffs January 7th letter gave defendant specific notice to preserve video evidence.

         4. Defendant did not preserve the video evidence plaintiff requested in the January 7th letter.

         5. Plaintiffs preservation request for video from five days before her fall was not unduly burdensome to defendant.

         6. Defendant claimed the video evidence no longer exists, but, according to plaintiffs computer expert, the data may still be available and recoverable.

         CONCLUSIONS OF LAW

         1. The District Court "has very wide discretion in handling pretrial discovery" matters, and "the Court's discretion in managing pretrial discovery also includes deternxining whether it is appropriate to order the preservation of evidence[.]" United States ex rel. Kraxberger v. Kansas City Power & Light Co., 756 F.3d 1075, 1082 (8th Or. 2014); City of Wyoming v. Procter & Gamble Co., 2016 WL 6908110, at *2 (D.Minn. Oct. 7, 2016); see also Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991).

         2. The Court balances three factors to determine whether to grant a preservation order:

1. The level of concern for the maintenance and integrity of the evidence in the absence of ...

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