        IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                         IN AND FOR KENT COUNTY

ELIJAH N. PERKINS,              :
                                : C.A. No. K13C-05-020 WLW
            Plaintiff,          :
                                :
      v.                        :
                                :
TOWNE DOLLAR AND TOBACCO,:
LLC, trading as “The Hot Spot”, :
and WAIL AYOUB,                 :
                                :
            Defendants.         :

                         Submitted: November 12, 2014
                          Decided: November 17, 2014

                                    ORDER

            Upon Plaintiff’s Motion in Limine to Request an Adverse
              Inference Jury Instruction Due to the Spoliation of
                         Videotaped Evidence. Denied.


R. Mark Taneyhill, Esquire of Schwartz and Schwartz, Dover, Delaware; attorney for
Plaintiff.

Nancy Chrissinger Cobb, Esquire of the Law Offices of Chrissinger & Baumberger,
Wilmington, Delaware; attorney for Defendants.




WITHAM, R.J.
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
November 17, 2014


      Upon Consideration of Plaintiff’s motion in limine for an adverse jury
instruction due to the alleged spoliation of videotaped evidence:
1.    The case at bar involves Wail Ayoub (hereinafter “Defendant”) and Elijah N.
Perkins (hereinafter “Plaintiff”). Defendant was an employee of Defendant Towne
Dollar and Tobacco LLC (hereinafter “Defendant-Employer”), and accused Plaintiff
of attempting to pass a counterfeit bill at the register. The Defendant and Plaintiff
were allegedly involved in a physical altercation, and Plaintiff now raises personal
injury claims for any harm suffered from Defendant’s negligent, reckless, and
intentional acts.
2.    On September 22, 2014, Plaintiff filed a motion in limine for an adverse
inference due to the alleged spoliation of evidence by the Defendant. Plaintiff alleges
that the Defendant-Employer destroyed videotape on the store’s security system that
recorded the physical altercation that is the source of this litigation.
3.    Plaintiff asserts that because the Defendant-Employer did not retain a copy of
the surveillance video from the date in question, January 18, 2012, they did not
properly preserve evidence that based on a preservation of evidence letter received
on February 2, 2012.
4.    Despite the Plaintiff’s allegation of spoliated evidence, the Plaintiff hired a
private investigator to make a copy of the surveillance video, and did so using his
smart phone to make the recording. However, Plaintiff states that there were other
events that may have been taped by the surveillance cameras that are not on the
recording made by the private investigator.

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Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
November 17, 2014


5.    The Defense responded to the motion, stating that the store’s surveillance tape
is on an automatic delete schedule after three (3) days, and during that three (3) day
time period, the Defense did not know they would be involved in litigation and would
need to preserve the videotape. The Defense also argues that when the police
investigated the incident that same night, they made no mention of preserving the
store’s security tapes, therefore the Defendants had no way of knowing they needed
to alter the automatic deletion schedule of the surveillance video.
6.    To receive an adverse jury instruction, the party seeking the instruction needs
to show that there was an actual suppression or withholding of evidence, and not
merely an accidental deletion of it.1 In the instant case, there is no evidence provided
to this Court to suggest that the Plaintiff deliberately or recklessly deleted the relevant
videotape, because the videotape was automatically overwritten before the Defense
was put on notice to preserve it.
7.    In order for a jury to receive an adverse inference based on a party’s spoliation
of evidence, the Court must determine that a party acted intentionally or recklessly
in failing to preserve the evidence.2 Plaintiff does not provide the Court with facts
to indicate the Defendant-Employer erased the video tape intentionally or recklessly,
and therefore did not meet the requirements for providing the jury with an adverse
inference.



      1
          Triton Const. Co. v. E. Shore Elec. Servs. Inc., (Del. Ch. May 2009).
      2
          Sears, Roebuck & Co. v. Midcap, 893 A.2d 542, (Del. 2006).

                                                 3
Elijah N. Perkins v. Towne Dollar and Tobacco, LLC, et al.
C.A. No. K13C-05-020 WLW
November 17, 2014


      Therefore, the Motion in Limine to Provide the Jury with an Adverse Inference
due to the spoliation of evidence is denied.
      IT IS SO ORDERED.


                                        /s/ William L. Witham, Jr.
                                        Resident Judge




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