Gallegos v. Brewski's on Historic 25th Street, No. 20240219-CA, Utah Ct. App. (Aug. 6, 2026), full opinion (PDF)
Jerry Gallegos sued a Utah bar for injuries he suffered when a bouncer carried him out of the building and he fell. The bar's security cameras had recorded the removal, and the recording system overwrote itself before anyone produced a copy. The district court imposed an adverse jury instruction as a spoliation sanction. The bar appealed, arguing that rule 37(e) of the Utah Rules of Civil Procedure shelters information lost to the routine operation of an electronic system.
On August 6 the Utah Court of Appeals affirmed the sanction. That shelter carries two requirements, routine operation and good faith, and a party whose failure to preserve was reckless cannot establish the second.
What Happened
Gallegos called the police after the incident, and the responding officer came to the bar that night. The officer told the manager that Gallegos wished to bring legal action. The manager showed him the security footage, and the officer told him to make a copy and hold on to it. A few days later Gallegos sent certified letters to the bar and its owner requesting a copy, and bar employees signed for them.
The officer returned within a week of his first visit. The manager told him a copy had been made and was with the owner, but the officer could never reach her, and no copy went to the officer or to Gallegos. The bar's security system automatically loops over itself approximately every ten days, so the footage was lost and could not be recovered.
The district court found that the bar had a duty to preserve the footage and violated it. It found the officer's body camera recording of the footage "not equal in quality" to the footage itself, and it imposed an adverse inference instruction. Both sides challenged that sanction on appeal, the bar arguing that no sanction was warranted and Gallegos arguing that the court should have deemed liability admitted. The Utah Court of Appeals disagreed with both.
The Court's Analysis
Under Utah law, "The duty to preserve evidence begins when litigation is pending or reasonably foreseeable." The bar argued that its manager had not understood the officer's request and that the certified letters never reached the relevant people. The court answered that "the existence of a duty is judged by an objective standard", measured by whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation. A reasonable party that both a police officer and the injured man had asked for the recording would have understood that it needed to preserve the footage.
The bar next argued that it should not have been sanctioned because the footage was information "lost as a result of the routine, good-faith operation of an electronic information system" and the district court had never found the exceptional circumstances the rule requires. Nobody contested that the loss happened because the security system automatically looped over itself.
Good faith was where the argument failed. The district court had found the bar's conduct in failing to preserve the footage reckless, and recklessness is not the good-faith operation of an electronic information system that rule 37(e) requires. Because the safe harbor never applied, the district court did not have to find exceptional circumstances before imposing sanctions.
On the choice of sanction, the appellate court found that the district court had weighed the bar's fault, the prejudice to Gallegos, and whether a lesser sanction would suffice, and had "fashioned a proportionate sanction to cure the prejudice". The court also resolved several non-ESI disputes over an excluded expert witness and summary judgment.
Why It Matters
Routine operation and good faith are separate requirements, and the party invoking the safe harbor has to establish both. Proving that a retention cycle ran on schedule establishes only that the loss was routine. Once a duty to preserve attaches, letting the cycle keep running becomes a choice, and a court that calls that choice reckless has taken the safe harbor away.
Suspend the cycle the moment the duty attaches. Auto-overwriting systems such as surveillance video, voicemail, ephemeral messaging, and log files leave counsel days rather than months. The bar had about ten.
Measure the duty against what a reasonable party would have foreseen, whatever anyone inside the client actually understood. The manager's misunderstanding of what the officer wanted carried no weight. A police request and a signed-for certified letter clear the objective standard comfortably.
Treat a partial substitute as an argument about severity. The officer's body camera had captured the footage as he watched it, and the district court still found prejudice because that recording was "not equal in quality" to the original.
The full opinion is available as a PDF.
