In Kwon v. Costco Wholesale Corp., 2010 U.S. Dist. LEXIS 13614 (D. Hawaii Feb. 17, 2010), U.S. District Court Judge J. Michael Seabright granted, in part, plaintiff's request, in limine, for an adverse inference instruction due to defendant's failure to preserve video surveillance footage.

Plaintiff brought this action to recover damages in connection with injuries she sustained at defendant's store.  Defendant tended to plaintiff's injuries and filled out an incident report which advised that "surveillance video, whether or not it depicts accident must be retained as evidence on all bodily injury incidents." Six days after the incident, plaintiff's counsel sent a demand letter to defendant specifically requesting preservation of any video surveillance footage. Nonetheless, defendant recycled the footage pursuant to its document retention policy.

The court found defendant violated its duty to preserve the videotape and granted plaintiff's request for an adverse inference instruction.  The court denied plaintiff's request for monetary sanctions finding the request improper in limine.