Linda Sammon, et al., Plaintiffs, v. Target Corporation, et al., Defendants Case No.: 8:11-CV-1258-T-30EAJ Signed September 07, 2012 Counsel Douglas E. Polk, Jr., James S. Curtis, John Bales Attorneys, St. Petersburg, FL, for Plaintiffs. David W. Hughes, Sherilee J. Samuel, John Lewis Holcomb, Hill Ward Henderson, PA, Tampa, FL, for Defendants. Jenkins, Elizabeth A., United States Magistrate Judge ORDER *1 Before the Court are Plaintiffs' Motion to Compel Discovery or Sanctions for Spoliation (Dkt. 43) and Defendant Target Corporation's Response (Dkt. 48). For the reasons that follow, Plaintiffs' motion is denied. Plaintiffs Linda Sammon and her husband Patrick Sammon (“Plaintiffs”) filed suit against Defendants Target Corporation (“Target”) and John Doe for Linda Sammon's injuries from a slip and fall incident at a Target store. Plaintiffs seek to compel Target to respond to Plaintiffs' Supplemental Request for Production and to produce additional surveillance video footage of the incident, or alternatively, seek sanctions for Target's alleged spoliation of evidence. Plaintiffs assert that Target failed to produce all of the surveillance video footage of the incident and that Target and Sedgwick CMS (“Sedgwick”), an insurer of Target, are in possession of additional incident video footage. If Target is not in possession of additional incident video footage, Plaintiffs contend that Target destroyed or intentionally failed to preserve the remaining video footage of the incident after receiving Plaintiffs' preservation letter. Plaintiffs seek sanctions pursuant to Federal Rule of Civil Procedure 37 and spoliation sanctions, specifically a rebuttable presumption or an adverse inference jury instruction. Target responds that it produced all surveillance video footage of the incident in its possession, custody, or control, does not possess any additional incident video footage, and destroyed any additional footage consistent with its retention guidelines prior to receiving Plaintiffs' preservation letter. I. Factual Background Plaintiffs filed this lawsuit on May 19, 2011. (Dkt. 1) On June 30, 2007, Plaintiff Linda Sammon slipped on a liquid substance at a Target store. (Dkt. 43 at 1) At the time of the incident, David Chavez (“Chavez”) was working at the Target store as a Target Protection Specialist. (Chavez Aff., Dkt. 48 Ex. 1 ¶ 5) His duties included reviewing and preserving store surveillance recording of guest incidents. (Id. at ¶ 6) There was one camera covering and recording the area where the incident occurred. (Id. at ¶ 10)[1] Chavez reviewed the store surveillance footage captured by that camera. (Id. at ¶ 11) Chavez preserved a copy of the store surveillance video footage of the incident. (Id. at ¶¶ 9, 13) According to Plaintiffs, the video footage is eighteen minutes and shows the area of the incident for no more than six seconds prior to the incident. (Dkt. 43 at 6) Target had no policy regarding how many minutes in advance of and after a “guest incident” store surveillance footage should be preserved. (Dkt. 48 Ex. 1 ¶ 12) At the time of the incident, all surveillance of the area of the incident was recorded digitally. (Id. at ¶ 14) Target's retention period for digital store surveillance footage, at the time of the incident, was no more than thirty days. (Id. at ¶ 15) By July 30, 2007, the digital footage from June 30, 2007 was automatically recorded over and replaced by new digital footage. (Id. at ¶¶ 15-16) Once this occurred, the June 30, 2007 footage was no longer retrievable. (Id. at ¶ 16) *2 Plaintiffs' counsel sent a letter dated August 1, 2007 addressed to “Sedgwick CMS – Target Mpls.,” in Lexington Kentucky requesting that all video surveillance of the incident be preserved. (Dkt. 43 Ex. 2) Providing three days for delivery and due to the intervening weekend, Sedgwick received the preservation letter on Monday, August 6, 2007. (Dkt. 48 at 7-8) On September 6, 2011, in response to Plaintiffs' Request to Produce, Target produced the incident video footage preserved by Chavez. (Dkt. 48 Ex. 2) The discovery deadline was June 4, 2012. (Dkt. 17) On July 12, 2012, Plaintiffs served their Supplemental Request to Produce and requested additional surveillance video footage related to the incident, including the “[e]ntire video film of [the] incident” and requested that the video “begin one hour before the fall to the conclusion of the video.” (Dkt. 43 Ex. 4 at 5) Target objected based on the untimely and duplicative nature of Plaintiffs' request and advised Plaintiffs that it “is not in possession of additional items responsive to this Request.” (Dkt. 43 Ex. 5 at 2) Target states that neither it nor Sedgwick have additional video footage related to the incident. (Dkt. 48 at 7) II. Discussion Spoliation is “the destruction of evidence or the significant and meaningful alteration of a document or instrument.” Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (internal quotation marks omitted). Because spoliation sanctions constitute an evidentiary matter, federal law governs their imposition. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). Although federal law controls spoliation sanctions, the Eleventh Circuit has not set forth specific guidelines on the imposition of such sanctions. Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009). Thus, courts may look to state law principles for guidance so long as the principles are consistent with federal spoliation principles. Id. Under Florida law, spoliation is established when the party seeking sanctions proves that: (1) the evidence existed at one time, (2) the alleged spoliator had a duty to preserve the evidence, and (3) the evidence was crucial to the movant's prima facie case or defense.... In addition to these factors, sanctions for spoliation are appropriate only when there is evidence of bad faith and lesser sanctions will not suffice.... Mere negligence in losing or destroying records is not enough for an adverse inference instruction. Id. (citations omitted). Rule 37 also provides for the imposition of sanctions. Fed. R. Civ. P. 37. However, Rule 37(e) provides that “[a]bsent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good-faith operation of an electronic information system.” Fed. R. Civ. P. 37(e). Once a party reasonably anticipates litigation, it has an obligation to make a conscientious effort to preserve electronically stored information that would be relevant to the dispute. See Se. Mech. Servs., Inc. v. Brody, No. 8:08-CV-1151-T-30EAJ, 2009 WL 2242395, at *2 (M.D. Fla. Jul. 24, 2009). While Plaintiffs did not file their complaint until May 19, 2011, Target's duty to preserve evidence arose when it became aware of the possibility of litigation upon receipt of Plaintiffs' preservation letter on August 6, 2007. Plaintiffs fail to show that Target reasonably anticipated litigation prior to this date. Cf. Martino v. Wal-Mart Stores, Inc., 835 So. 2d 1251, 1257 (Fla. 4th DCA 2003) (noting that the plaintiff, while at the store, requested that the manager preserve the video surveillance tape). Therefore, Target did not have a duty to preserve evidence prior to receiving Plaintiffs' preservation letter. *3 By the time Plaintiffs sent the preservation letter on August 1, 2007, and prior to Target's receipt of the preservation letter, the surveillance footage not preserved by Chavez after the incident was recorded over in accordance with Target's routine procedures and was no longer retrievable. Plaintiffs suggest that Target acted in bad faith by preserving only a segment of the incident footage and destroying the remaining footage. However, Target did not have a duty to preserve the evidence, and any additional incident footage was lost due to Target's routine, good-faith operation of an electronic information system that recorded over the incident surveillance footage. See Vick v. Texas Emp't Comm'n, 514 F2d 734, 737 (5th Cir. 1975) (finding no bad faith since records were destroyed under routine procedures and in advance of service of interrogatories); Floeter v. City of Orlando, No. 6:05-CV-400-Orl-22KRS, 2007 WL 486633, at *7 (M.D. Fla. Feb. 9, 2007) (finding no bad faith because re-imaging of hard-drive and overwriting of server backup tapes occurred prior to discovery request). Target's failure to retain additional video surveillance of the incident was not in bad faith under the circumstances presented. Because Target did not have any additional video surveillance footage in its possession, custody, or control upon receipt of Plaintiffs' preservation letter, Target cannot be required to produce what it does not have. Plaintiffs' motion to compel is denied. Target did not have a duty to preserve the video surveillance footage from June 30, 2007 prior to receiving Plaintiffs' preservation letter. Its failure to retain additional video surveillance of the incident was not in bad faith. Spoliation sanctions and any other sanctions pursuant to Rule 37 are not appropriate. Accordingly, and upon consideration, it is ORDERED and ADJUDGED that: (1) Plaintiffs' Motion to Compel Discovery or Sanctions for Spoliation (Dkt. 43) is DENIED. DONE AND ORDERED in Tampa, Florida on this 7th day of September, 2012. Footnotes [1] While Plaintiffs assert that Target “has three camera near the area Mrs. Sammon fell,” (Dkt. 43 at 7), Chavez states that, at the time of the incident, one camera covered and recorded the area where the incident occurred. (Dkt. 48 Ex. 1 ¶ 10)