United States District Court, D. South Dakota, Southern Division
ORDER PERMITTING INSPECTION AND GRANTING MOTION TO
HONORABLE KAREN E. SCHREAIER UNITED STATES DISTRICT JUDGE.
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:
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
video from five days before plaintiffs fall would show
potential witnesses, other falls, and maintenance performed
on the doors.
Plaintiffs January 7th letter gave defendant specific notice
to preserve video evidence.
Defendant did not preserve the video evidence plaintiff
requested in the January 7th letter.
Plaintiffs preservation request for video from five days
before her fall was not unduly burdensome to defendant.
Defendant claimed the video evidence no longer exists, but,
according to plaintiffs computer expert, the data may still
be available and recoverable.
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).
Court balances three factors to determine whether to grant a
1. The level of concern for the maintenance and integrity of
the evidence in the absence of ...