Short answer: In Gallegos v. Brewski’s on Historic 25th Street, the Utah Court of Appeals upheld a sanction against an Ogden bar that let its security video of an injury be recorded over, even though a police officer and the injured man had both asked for it. Once a lawsuit is reasonably foreseeable, a business has a duty to keep the evidence. A camera system that erases itself on a schedule is no excuse when the loss was reckless. Here the penalty was a jury instruction that lets jurors assume the missing video would have hurt the bar.
Surveillance video is often the strongest evidence of how someone got hurt at a store, bar, hotel or parking lot, and it is usually the first thing to disappear. This decision explains when a business has to keep that video and what can happen when it doesn’t.
What Happened
The case is Gallegos v. Brewski’s on Historic 25th Street, 2026 UT App 120, decided August 6, 2026. According to the facts the court accepted for purposes of the appeal, Jerry Gallegos was at Brewski’s in January 2019 when a bouncer grabbed him from behind, put him in a “full nelson” hold, and carried and dragged him toward the door. As they reached the door, Gallegos buckled his knees and both men lost their balance as the bouncer pushed him out. Gallegos fell, and he suffered a permanent injury to his right shoulder.
Gallegos called the police that night. The responding officer told the manager that Gallegos wanted to take legal action, gave him a case number, watched the security footage of the removal, and told the manager to make a copy and hold on to it. Within a week, Gallegos sent certified letters to the bar and its owner asking for a copy, and bar employees signed for them.
No copy was ever produced. The manager later told the officer a copy had been made and was with the owner, but the officer could not reach her. The bar’s system recorded over itself about every ten days, and the footage was gone. The only remaining record was the officer’s body camera, which had captured him watching the video play. The trial judge found that secondhand view was “not equal in quality” to the original.
The Sanction the Trial Court Chose
The trial court found that the bar had a duty to preserve the footage and broke it. Gallegos asked the court to treat liability as established. The judge declined and chose a lesser penalty: an instruction telling the jury that “if the jury cannot determine from available evidence whether [Brewski’s] was negligent, it must assume that the spoliated evidence would have been unfavorable to [Brewski’s].” (“Spoliation” is the legal word for destroying evidence or failing to preserve it.)
Both sides appealed. The bar said there should be no sanction at all; Gallegos said the sanction was too weak. The Court of Appeals rejected both arguments and left the instruction in place.
When the Duty to Keep Evidence Begins
The court restated the rule: “The duty to preserve evidence begins when litigation is pending or reasonably foreseeable.” The test is objective. It asks what a reasonable business in the same position would have understood, not what a particular manager says he understood.
The bar argued that its manager did not understand the officer’s request and that the letters never reached the right people. The court was not persuaded. A police officer had asked for the footage the night it happened and mentioned a possible lawsuit, and the injured man had followed up in writing. A reasonable business would have seen litigation coming and known it had to save the video.
An Automatic Overwrite Was Not a Defense
Utah’s civil rules contain a safe harbor. Rule 37(e) of the Utah Rules of Civil Procedure says that, absent exceptional circumstances, a court may not sanction a party for electronically stored information “lost as a result of the routine, good-faith operation of an electronic information system.”
The bar argued its looping camera system fit that description. The court focused on the words “good-faith.” The trial judge had found the bar’s failure to save the footage “reckless,” and reckless conduct is not good-faith operation of a system. So the safe harbor did not apply, and no special showing of exceptional circumstances was required.
How Courts Pick the Penalty
Trial judges have broad discretion over spoliation sanctions. The court listed the options available, which range from adverse jury instructions and attorney fees to barring evidence, treating facts as established, striking pleadings, dismissal and default judgment. In choosing among them, a judge weighs the fault of the party that lost the evidence, the harm to the other side, and whether a lesser sanction would be enough. The goals are to deter the conduct and to even the playing field for the party who lost access to the evidence.
Here, some evidence of the incident survived on the body camera, so the judge chose an instruction instead of deciding liability outright. The Court of Appeals called that choice proportionate.
Discovery Rules Cut Both Ways
The same opinion upheld a harsh sanction against Gallegos. His security expert arrived at his deposition unprepared, and his lawyer ended the deposition over the defense’s objection. The trial court barred that expert from testifying, and the Court of Appeals affirmed. Deadlines and deposition rules bind injured people as much as the businesses they sue.
The court did give Gallegos a path forward. It held that his claim for negligent hiring, training and supervision does not require expert testimony, and a majority of the panel held that his narrower claim that the bouncer negligently tripped him on the way out can go to a jury without an expert too. One judge disagreed on that last point. The case was sent back to the trial court, and the opinion does not decide who was at fault.
Limits of the Ruling
- It affirms a judge’s discretion. The Court of Appeals reviewed the sanction only for a clear abuse of discretion. Another judge, on other facts, could choose a lighter or heavier penalty.
- The instruction is conditional. Jurors assume the lost video was unfavorable only if they cannot decide negligence from the evidence that remains.
- An open question. The bar argued it should be allowed to rebut the inference at trial. The court did not decide that issue because it had not been properly raised below.
- Later history. As of September 2026, we found no later appellate decision changing this ruling, though a Court of Appeals decision can be reviewed by the Utah Supreme Court.
What This Means If You Were Hurt at a Business
The lesson is less about sanctions than about speed. A sanction is a remedy after the evidence is gone; the video itself is almost always better.
- Report the incident to police or management right away, and ask that any video be saved.
- Send a written request to preserve the footage to the business and to its owner or corporate office, using a method that proves delivery. The certified letters mattered in this case.
- Name the date, time and location, and ask that the footage be preserved, not only sent to you.
- Photograph the cameras you can see, so there is a record of what could have been recorded.
- Do not rely on a promise that “a copy was made.” Ask for it.
For other evidence worth gathering early, see what evidence helps a car accident case. If the injury came from an assault or a bouncer’s use of force, negligent security claims in Utah and our premises liability page explain how property owners can be held responsible. Most Utah injury claims can be filed within four years (Utah Code 78B-2-307(4)), but video can be erased within days.
Talk to a Utah Personal Injury Attorney
Preservation letters are often among the first steps in a case like this, because the evidence a business controls is the evidence most likely to vanish. We can identify what records exist and ask for them before they are gone.
Hurt in Utah? Call (801) 921-5134 or send us your case for a free consultation. No attorney fees unless we win. Hablamos Español.