In Bright v. United Corp., 50 V.I. 215, 221 (V.I. 2008), the Court dealt with this exact issue regarding the same defendant.
There, United had deleted surveillance footage of a slip and fall that occurred in one of its Plaza Extra stores on St. Croix. 50 V.I. at 225.
In holding that the Superior Court should have granted the spoliation inference, this Court held that:
"Before the spoliation inference can be applied it is essential that the evidence in question be within the spoliator's possession or control, and it must appear that there has been an actual suppression or withholding of evidence. Such a presumption or inference arises, however, only when the spoliation or destruction of evidence was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent." Id. at 226.
While the Superior Court held that the video was deleted in accordance with United's video-retention policy and without any fraudulent intent -- an argument United again asserts on appeal -- the Court rejected this exact argument in Bright.
There the Court noted that:
"Plaza's manager retained only the portion of the footage which he believed to be relevant, purportedly in accordance with the store's routine practice. It is clear, however, that Plaza's routine practice regarding the destruction of surveillance footage capturing slip and fall accidents is flawed. Store managers should retain recorded footage of the area in which an accident occurred both prior to and following the accident. Obviously, such footage is likely to provide relevant and valuable evidence regarding the cause or timing of a spill resulting in a slip and fall accident. It is certainly not within the discretion of a store manager to determine what portion of the available recorded surveillance footage is relevant to anticipated litigation. To allow store managers unbridled discretion to determine what footage to retain would encourage the destruction of relevant evidence by allowing managers to destroy unfavorable footage under the pretext of routine practice." (50 V.I. at 229.)
The Court held that the deletion of the relevant surveillance footage after it was reviewed by the store manager -- just as it was in this case -- was enough to "indicate Plaza's bad faith and fraudulent intent to suppress the truth." Id. at 230.