Spoliation: How Long Should Businesses Keep Surveillance Video? (Ohio Edition)
Video surveillance is one of the most effective tools retailers have to protect customers, employees, and their business. When an incident occurs – whether a slip and fall, theft, or customer dispute – the first question is almost always the same: “Do you have it on video?”
In Ohio, what happens next can carry significant legal consequences. If footage is lost, overwritten, or unavailable, a business may face claims of spoliation of evidence or adverse inferences that can dramatically shift the outcome of a case.
Understanding how Ohio courts view missing video and what steps retailers must take to preserve it is essential to minimizing risk and defending claims effectively.
What Is Spoliation?
In Ohio, spoliation refers to the destruction, alteration, or failure to preserve evidence that’s relevant to a legal claim. This concept is especially important when it comes to surveillance video. If footage is erased or lost after a business knows that an incident may lead to litigation, the business may face serious consequences. Ohio stands out in this regard, and it’s one of only a handful of states that recognize a separate claim for spoliation.
Ohio first recognized a separate legal claim for intentional spoliation of evidence in the 1993 case Smith v. Howard Johnson Co., Inc., 67 Ohio St.3d 28 (1993). In that ruling, the Ohio Supreme Court established that intentionally destroying or withholding evidence may create liability on its own, apart from the underlying claim.
Importantly, the Ohio Supreme Court later clarified the limits of intentional spoliation in Elliott-Thomas v. Smith, 110 N.E.3d 1231 (Ohio 2018). In that case, the Supreme Court confirmed that an independent claim for spoliation exists but only where there is actual destruction or alteration of evidence. Mere concealment, interference, or failure to produce evidence during discovery - even if intentional - does not meet the threshold. In other words, the tort is reserved for truly intentional acts that destroy evidence, not ordinary discovery disputes or negligent loss of material.
For retailers and other business owners, the takeaway is simple: video footage is more than a security tool - it’s potential evidence. Once an incident occurs and litigation is on the horizon, you should immediately preserve all relevant footage, suspend automatic overwriting, and document your efforts. Courts look favorably on businesses that act promptly and transparently when evidence preservation becomes an issue - and unfavorably on those that don’t.
Examples of Spoliation
Spoliation happens when key evidence is lost, destroyed, or altered after an incident. In Ohio, surveillance footage is a common example, but it isn’t the only one. Here are a few examples:
If a business records over a video that shows a customer falling in the store, that could be spoliation.
If an employee deletes emails or accident reports after learning of a claim, that could also count.
Even failing to preserve a damaged product or piece of equipment involved in an injury may be treated as spoliation.
The common thread is intent. When evidence is destroyed knowingly after a business should anticipate a lawsuit, Ohio law treats it as spoliation, and courts don’t take it lightly.
The Duty of Business Owners To Preserve Evidence
In Ohio, the duty to preserve evidence kicks in the moment a business knows, or should reasonably know, that an incident could lead to a claim. You don’t need a lawsuit filed against you for that obligation to begin. A slip and fall, a fight in the parking lot, or an employee injury is enough to trigger the duty.
For retailers, this often means surveillance footage. Most security systems automatically overwrite video after a set number of days. If an incident occurs, you’re expected to retrieve and preserve that footage before it’s lost.
Failing to do so opens the door to a spoliation claim on top of the original lawsuit. Courts in Ohio have made it clear: once litigation is foreseeable, protecting evidence isn’t optional.
Consequences of Spoliation
Spoliation has serious consequences in Ohio courts. Judges treat the destruction of evidence as an attack on the fairness of the legal process. When surveillance video or other records disappear after an incident, the court assumes the missing evidence would have helped the other side. The damages can include compensation for the harm caused to the plaintiff’s ability to prove the underlying case, as well as any additional economic loss linked to the destruction of evidence.
In cases where a party cannot prove intentional destruction of evidence, other remedies may still be available when a party loses key evidence. Courts have broad discretion under the rules of discovery to impose sanctions for lost, destroyed, or withheld evidence. Possible sanctions include:
Excluding evidence or testimony related to the lost material.
Allowing the jury to draw an adverse inference - meaning jurors may assume the missing evidence would have been unfavorable to the party who lost or destroyed it.
Striking pleadings or entering default judgment in egregious cases.
Awarding attorney’s fees and costs associated with the motion for sanctions.
How Courts Evaluate Spoliation
Courts don’t treat every lost document or deleted file as spoliation. To prove spoliation, an adverse party must establish five separate elements. Here’s a look at what needs to be proven:
Pending or Probable Litigation
The first element requires that litigation be pending or probable at the time the evidence was destroyed. This means there must be a reasonable expectation that a claim will be filed – not just a remote possibility.
In the retail context, this element is often met when an incident occurs that a reasonable person would recognize could lead to a claim. For example, if a customer slips and falls and reports an injury, asks to complete an incident report, or if the business receives a letter of representation from an attorney, litigation is probable. The same is true when a serious injury occurs on the premises and employees know that medical attention or emergency services are required.
Conversely, minor incidents where a customer walks away unharmed, makes no complaint, and there’s no indication of further action generally won’t satisfy this element. Courts look to whether the business had a concrete reason to believe that litigation was forthcoming at the time the evidence was lost.
Knowledge on the Part of the Business Owner
The second element requires that the business or its representatives know that litigation exists or is probable at the time the evidence is destroyed. This doesn’t require a filed lawsuit – only awareness that a claim is likely.
That knowledge can arise when a customer reports an injury and mentions taking legal action, when an incident report is completed and escalated to management, or when the business receives a letter of representation or preservation request. Once that awareness exists, the duty to preserve evidence is triggered.
Courts look closely at who knew and when. If a manager or claims representative had clear warning signs of potential litigation but failed to act, the business may be deemed to have had knowledge, even if the loss of evidence wasn’t intentional.
Willful Destruction of Evidence Designed to Disrupt the Plaintiff’s Case
The third element requires proof that the business intentionally destroyed or altered evidence for the purpose of disrupting a potential or pending claim. This is a high bar. Ordinary mistakes, like a surveillance system automatically recording over old footage, do not meet this standard. The conduct must be deliberate, with the specific intent to make the evidence unavailable to the opposing party.
In the retail setting, this might involve a manager purposely deleting footage after learning that a customer was injured or after receiving notice of a claim. In contrast, allowing a system to overwrite footage as part of its normal retention cycle, before any duty to preserve arises, would not constitute willful destruction. Courts distinguish between routine business operations and intentional acts designed to conceal or eliminate key evidence.
Disruption of the Plaintiff’s Case
The fourth element requires proof that the destruction of evidence disrupted the plaintiff’s ability to pursue the underlying claim. In other words, the missing evidence must meaningfully impair the plaintiff’s case. Courts look for a clear connection between the lost evidence and the plaintiff’s ability to prove liability or damages.
In a retail context, this might occur where surveillance video would have shown how a fall happened, who was nearby, or what the floor condition looked like - and without it, the plaintiff has little way to establish those facts. If the lost evidence hadn’t materially changed the outcome or could be replaced by witness testimony or other documentation, this element likely wouldn’t be met.
Damages
The final element requires proof that the plaintiff suffered damages as a direct result of the spoliation. It’s not enough to show that evidence was lost – the plaintiff must demonstrate that the loss caused measurable harm, such as increased litigation costs, the inability to prove a claim, or a less favorable outcome in the underlying case.
In practice, this element can be difficult to establish. Courts often find that even when video footage or documents are missing, a plaintiff can still pursue their case through testimony, photographs, or other evidence. Without a clear showing that the loss of evidence changed the result or value of the case, the damages element will fail.
What About Missing Evidence?
Not every case of lost or missing evidence amounts to spoliation under Ohio law. When the loss is unintentional, or the evidence is simply unavailable through no fault of the business, courts address the issue under Ohio’s “missing evidence” or “adverse inference” doctrine rather than through the independent tort of spoliation. This is an important distinction, and one that is frequently confused.
In these situations, the court may allow the jury to consider the absence of evidence and, in some cases, infer that the missing material would have been unfavorable to the party who failed to preserve it. However, this is not automatic. To obtain an adverse inference instruction, the requesting party must show that the evidence was under the opposing party’s control, that it was material to the case, and that its loss has not been satisfactorily explained.
Ohio courts generally reserve a strong adverse inference – one that explicitly tells the jury to assume the evidence was unfavorable – for cases involving bad faith or gross negligence. If the loss resulted from ordinary business practices, such as a video system automatically overwriting footage before litigation was anticipated, courts are more likely to permit only a general inference or no instruction at all.
Practically speaking, even an unintentional loss of video can affect credibility and defense strategy. That’s why retailers should adopt clear evidence retention policies, act quickly to preserve footage once an incident occurs, and document every step taken to maintain transparency if footage later becomes unavailable.
Preventing Spoliation and Managing Missing Evidence Risks
Preventing spoliation – and the disputes that come with missing evidence – starts long before an incident occurs. Retailers that integrate consistent preservation practices into their daily operations are far better positioned to defend claims when they arise. Proactive systems, not reactive measures, are what protect a business when evidence becomes critical to a case.
Step #1: Train Employees To Report Incidents Immediately
Every slip, trip, or altercation signals a potential claim. Train staff to report incidents on the spot so managers can secure video and records without delay.
Step #2: Preserve Surveillance Footage Promptly
Most systems overwrite footage in days or weeks. As soon as an incident occurs, pull and store the relevant video. Keep it backed up and labeled for future reference.
Step #3: Maintain Strong Documentation Practices
Accident reports, maintenance logs, and witness statements serve as evidence. Create a system for consistent recordkeeping and store these files securely.
Step #4: Establish a Litigation Hold Policy
When litigation is reasonably expected, freeze all relevant records. A litigation hold stops routine deletion processes and signals to employees that they must preserve evidence.
Step #5: Work With Legal Counsel Early
An experienced business attorney guides you on what evidence to preserve and how long to keep it. Legal support strengthens your defense and shows the court you acted responsibly.
What To Do if Spoliation Has Occurred
If evidence is already lost, don’t ignore it. Courts look more favorably on businesses that acknowledge the issue and take corrective steps.
First, document what happened. Record when the evidence was lost, why it was lost, and what steps you took to try to preserve it. Transparency shows you acted in good faith, even if the outcome isn’t ideal.
Next, notify your legal counsel immediately. An attorney will help you assess the risk, prepare explanations for court, and mitigate potential sanctions.
Finally, preserve everything else connected to the incident. Showing the court you acted quickly and responsibly after the loss strengthens your defense.
Spoliation: Frequently Asked Questions
Is spoliation a felony?
Spoliation itself is not classified as a felony. In Ohio, it’s recognized as a separate civil claim, not a criminal charge. However, if evidence is destroyed to obstruct justice in a criminal case, that act falls under obstruction laws and may result in criminal penalties.
What does spoliation mean in law?
In law, spoliation means the destruction, alteration, or failure to preserve evidence that’s relevant to a legal proceeding. Courts treat it as interference with the judicial process and may sanction the party responsible.
Can I be sued for spoliation if the video was deleted automatically?
Usually not. If footage is overwritten or deleted as part of your system’s normal retention cycle before litigation was anticipated, it’s unlikely to meet the high standard for intentional spoliation. However, once you know an incident could lead to a claim, you must preserve relevant footage to avoid sanctions or adverse inferences.
What if the video is missing, but I didn’t delete it on purpose?
Even unintentional loss can have consequences. While it may not qualify as spoliation, courts can allow the jury to draw an adverse inference, meaning they may assume the missing evidence would have been unfavorable to your business.
What are the penalties for spoliation of evidence?
Penalties can include separate civil liability (for intentional spoliation), discovery sanctions under Ohio Civ.R. 37, exclusion of evidence, or adverse jury instructions. In extreme cases, courts may even enter default judgment or dismiss defenses.
How long should businesses keep surveillance video?
Retention policies vary, but most retail systems overwrite footage every 7–30 days. To protect your business, you should suspend automatic deletion immediately after any incident involving injury or potential liability and preserve the footage until the matter is resolved.
How can my business avoid spoliation claims?
Establish clear evidence-retention policies, train employees to report and document incidents, suspend auto-deletion when a claim is likely, and maintain a consistent process for preserving and logging video. Documenting your efforts shows good faith and can prevent or defend against spoliation allegations.
Work With Retail Lawyer Michelle Casper
Surveillance video protects your business, but only if you handle it the right way. Spoliation claims put retailers at risk for steep penalties and damaged credibility. I help business owners build strong policies, defend against claims, and stay ahead of legal exposure. Contact me today to protect your business the right way.