I. FACTUAL BACKGROUND

This case arises from the arrest and detention of Plaintiff on November 16, 2013, and the subsequent prosecution for trespass after warning and resisting an officer without violence. (Am. Compl., Doc. 46, ¶¶ 18–43). Plaintiff alleges that after attending his sister’s wedding, he stopped at a restaurant in downtown Orlando, where he accidentally walked into the kitchen instead of the restroom. (Id. ¶¶ 18–20). The bar manager asked Plaintiff to leave the establishment and called 911. (Id. ¶¶ 21–22). Officers with the Orlando Police Department (“OPD”), Amy Columbo and Todd Funke, responded to the 911 call and arrested Plaintiff. (Id. ¶¶ 25–28).

Officer Reginald Clark was driving the transport van and assisted with securing Plaintiff and transporting him to the downtown substation. (Id. ¶¶ 32–33). Upon their arrival at the substation, Officer Clark and Officer Richard Patterson removed Plaintiff from the vehicle and realized that Plaintiff had maneuvered his restrained hands from behind his back to the front of his body—a maneuver Defendants refer to as “hop[ping] his cuffs.” (Id. ¶ 34; Doc. 78 at 5). Officers Clark and Patterson re-secured Plaintiff’s hands behind his back and placed him in a holding cell. (Doc. 46 at ¶¶ 34–35). While in the holding cell, Plaintiff again hopped his cuffs, and Officers Patterson and Clark along with Sargent William Walsh entered the cell, re-secured Plaintiff’s hands behind his back, and then secured the restraints to a bolt in the floor so that Plaintiff could not hop his cuffs again. (Id. ¶¶ 36–37; Nov. 16, 2013 Video, Pl.’s Ex. 3,[1] at 23:54–23:58). Plaintiff alleges that in each instance where Defendants came into contact with Plaintiff, they used excessive force, including throwing him to the ground, striking him in the head and face—both before and after he was secured—and kicking him. (Doc. 46 ¶¶ 29–30, 34, 37).

There are two holding cells in the downtown substation. (Patterson Nov. 22, 2016 Dep., Doc. 75-17, at 24:9–16). Although not alleged in his Amended Complaint, Plaintiff now asserts that he was first placed in one holding cell (“holding cell 1”) with other individuals, where he was un-cuffed, but that after he requested medical attention, he was removed from holding cell 1, beaten, re-handcuffed, and placed in another cell (“holding cell 2”). (Pl. Dep., Doc. 75-2, at 11:1–4, 11:16–22, 23:2–14). The video at issue in this motion (the “Video”) shows Plaintiff in holding cell 2 only.

II. PROCEDURAL HISTORY

The issue currently before the Court is whether sanctions should be imposed against Defendants for failing to produce the Video during the discovery process. Because there is a history of discovery violations in this case, a thorough recounting of the record is necessary.

*2 This case was initiated on November 12, 2015. (Compl., Doc. 1, at 1). On May 16, 2016, Plaintiff served interrogatories and requests for production on each Defendant. (Sept. 28, 2016 Order, Doc. 26, at 2). Defendants failed to respond within the allotted timeframe. (Id.). After their failure to respond, Plaintiff’s counsel attempted to contact defense counsel multiple times regarding the discovery requests, but defense counsel did not respond. (Id.). On July 12, 2016, at mediation, Defendants were represented by attorney Chris Curry, an associate with O’Connor & O’Connor, LLC (the “O’Connor Firm”). (Jan. 24, 2017 Hr’g Tr., Doc. 66, at 3:12–16, 7:23–8:4). At mediation, Mr. Curry assured Plaintiff’s counsel that responses would be forthcoming. (Doc. 26 at 2–3). Over a month later, Defendants still had not provided responses nor had anyone from the O’Connor Firm contacted Plaintiff’s counsel regarding the discovery requests. (Id. at 2–3). Left with no other option, Plaintiff filed his First Motion to Compel (Doc. 25). Defendants did not respond to the Motion to Compel. The motion was granted, and Defendants were required, on or before October 11, 2016, to answer in full all of the interrogatories and produce all documents sought in the request to produce; all objections to the discovery requests were deemed waived. (Doc. 26 at 4). The Court also awarded Plaintiff fees and costs under Federal Rule of Civil Procedure 37(a)(5)(A). (Id.).

Defendants failed to respond by the Court-ordered deadline. (Doc. 66 at 3:20–23). Plaintiff’s counsel graciously agreed to accept the tardy responses. (Id. at 4:4–6). No doubt to his dismay, when Plaintiff’s counsel received the responses, they were incomplete; Defendants did not produce any documents. (Id. at 4:6–8). Tellingly, at their depositions, none of the individual Defendants had ever seen the request to produce and none had been contacted by their attorney in regard to providing any documents responsive to the request. (Second Mot. To Compel, Doc. 31, at 2). Important to the matter currently before the Court, Plaintiff had requested all electronic mail pertinent to the matter, all associated video and audio recordings, and copies of all related internal affairs investigations and review files. (Pl.’s Req. for Produc. of Docs., Doc. 75-11, at 3–4, 8–9, 13–14, 18–19, 23–24). Despite evidence that such items existed, Defendants produced none.

Due to Defendants’ repeated failures to comply with Plaintiff’s basic discovery requests and the looming discovery deadline, Plaintiff was again forced to file a motion to compel. (See generally Doc. 31). Somewhere around this time, the O’Connor Firm realized that Mr. Curry was not ensuring that Defendants complied with the discovery requests and this Court’s Orders. (See Doc. 66 at 8:20–9:4). Accordingly, another attorney from the O’Connor Firm, Derek Angell, took over the file. (Id. at 9:4–5). As a credit to the professionalism of Plaintiff’s Counsel and Mr. Angell, the parties were able to resolve all of the outstanding discovery issues, and Plaintiff withdrew his Second Motion to Compel. (Mot. to Withdraw, Doc. 36).

Nevertheless, United States Magistrate Judge Thomas Smith—who has handled all of the discovery disputes up to this point—was deeply concerned with defense counsel’s disregard for the rules of procedure and this Court’s Orders, and issued an Order to Show Cause, requiring defense counsel to explain why sanctions should not be imposed. (Jan. 10, 2017 Order, Doc. 34). A show cause hearing was held before Judge Smith on January 24, 2017. (Min. Entry, Doc. 42). Although it appears that Judge Smith felt that sanctions against the O’Connor Firm may have been warranted, in light of Plaintiff’s withdrawal of his motion, Judge Smith did not award them. (Doc. 66 at 12:2–21).

With that background in mind, it is no surprise that Plaintiff and his Counsel were beyond frustrated with the events that occurred on July 3, 2015—two days, one of which was a holiday, prior to the scheduled start of trial in this case. On that day, defense counsel contacted Plaintiff’s counsel to advise him that the Video—a two-hour recording of Plaintiff in holding cell 2 at the downtown substation on the date in question—ad been discovered. (July 5, 2017 Hr’g Tr., Doc. 64, at 14:14–19). The Court has viewed the entire Video, and it is clearly a critical component of this case. Given the last minute disclosure, Plaintiff sought to have the Court exclude the Video. Instead, the Court granted a continuance and permitted Plaintiff to engage in additional discovery. (Id. at 22:12–15, 23:17–19). Defendants were also assessed $2,016.24 in jury costs. (Aug. 7, 2017 Order, Doc. 69, at 1).

*3 Plaintiff now seeks the ultimate sanction—for this Court to strike Defendants’ Answers and enter default judgment. In the alternative, Plaintiff seeks an adverse inference jury instruction with regard to evidence that Defendants have not produced. Plaintiff also seeks attorney’s fees and costs.

III. LEGAL STANDARD

Plaintiff seeks sanctions pursuant to Federal Rule of Civil Procedure 37, which provides in pertinent part: “If a party ... fails to obey an order to provide or permit discovery, including an order under Rule 26(f), 35, or 37(a), the court where the action is pending may issue further just orders,” including “striking pleadings in whole or in part” and “dismissing the action or proceeding in whole or in part.” Fed. R. Civ. P. 37(b)(2)(A)(iii), (v). “[A]lthough Rule 37 confers upon district court judges broad discretion to fashion appropriate sanctions for the violation of discovery orders, this discretion is not unbridled.” United States v. Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d 1314, 1317 (11th Cir. 1997) (citation omitted). “[D]istrict courts should wield it wisely and with restraint and discretion,” fashioning a sanction that is appropriate in light of all the circumstances. Ulysse v. Waste Mgmt., Inc. of Fla., 617 F. App’x 951, 953 (11th Cir. 2015).

IV. ANALYSIS

A. Default Judgment

Plaintiff first argues that striking Defendants’ Answers and entering default judgment against each of them is an appropriate sanction here. “[A] default judgment sanction requires a willful or bad faith failure to obey a discovery order.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993); see also Certain Real Prop. Located at Route 1, Bryant, Ala., 126 F.3d at 1317 (noting that entry of default judgment as a sanction under Rule 37 is “appropriate ... only ‘where the party’s conduct amounts to flagrant disregard and willful disobedience of discovery orders’ ” (quoting Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987) and collecting cases)). “Violation of a discovery order caused by simple negligence, misunderstanding, or inability to comply will not justify a Rule 37 default judgment or dismissal.” Malautea, 987 F.2d at 1542 (collecting cases). “Finally, the severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders.” Id.

Plaintiff asserts that each of the Defendants deliberately lied in their discovery responses and intentionally withheld the Video from Plaintiff despite his request to produce copies of video and audio recordings relating to the events at issue. The overarching theme of Plaintiff’s argument is that Defendants intentionally withheld the Video because it exhibited tortious conduct by Defendants. If the Video depicted such conduct, perhaps Plaintiff’s argument would be more persuasive. To the contrary, the Video is quite damaging to Plaintiff’s case, and it supports Defendants’ defenses. In the Video, Plaintiff is belligerent and non-compliant, to say the least. He threatens physical violence against the officers on more than one occasion, and he is clearly shown hopping his cuffs. The Video also depicts the officers reacting reasonably and rationally when exerting force to re-secure Plaintiff, who is fighting and resisting them. Despite Plaintiff’s arguments, it is not logical that Defendants would have intentionally withheld a video that supported their own defenses and that undermined Plaintiff’s claims until immediately prior to trial, thereby depriving Defendants of the opportunity to use the Video in support of a motion for summary judgment.[2]

*4 Nevertheless, the Video was not timely disclosed. In Plaintiff’s first set of interrogatories, he asked Defendants to “[i]dentify and describe any ... videotapes, audio tapes or other forms of electronic recording” associated with the events at issue in the Complaint. (Pl.’s First Interrogs., Doc. 75-12, at 9, 20, 32, 44, 56). Each of the individual Defendants who were a party in the action at the time—which was all of them except Sargent Walsh—responded with, “I know of none.” (Defs.’ Resp. to Pl.’s First Interrogs., Doc. 75-14, at 2, 6, 10, 14). Plaintiff vehemently argues that these responses were deliberate lies, but Plaintiff’s conclusion is simply not supported by the evidence.

At each of their depositions in November 2016, the relevant Defendants stated that they were aware that a surveillance system at the substation existed and that there should be a video, but they also explained that they did not have access to the surveillance system, they had never seen the Video, and they had no actual knowledge as to whether the Video did, in fact, exist. (Columbo Nov. 22, 2016 Dep., Doc. 75-15, at 13:6–22; Clark Nov. 22, 2016 Dep., Doc. 75-16, at 14:11–21; Doc. 75-17 at 27:25–28:6; see also Funke Sept. 20, 2017 Dep., Doc. 75-27, at 21:9–22:8 (indicating that in November 2016, he thought there should be a video but had no knowledge as to whether it actually existed)). While this lack of actual knowledge may not completely excuse the brevity of Defendants’ discovery responses, it does indicate a lack of intent to deceive or willfully disregard their discovery responsibilities.

Similarly, Plaintiff asserts that each of the Defendants willfully and in bad faith concealed the Video’s existence when they failed to produce it in response to Plaintiff’s request for production. First, it is important to note that the same request to produce was sent to then-Defendant City of Orlando (the “City”), which responded: “Video recordings have been requested and if said exists Defendant will produce upon receipt.” (Defs.’ Resp. to Pl.s’ First Interrogs., Doc. 75-13, at 18). Thus, it is reasonable that the individual Defendants—who did not have physical possession of the Video at the time and who would have had to request a copy of it through the City—would rely on the City to produce the Video. It is also reasonable that the individual Defendants would have assumed that the City had followed through with its statement that it would produce the Video if it existed. This reasonable reliance on the City exhibits that Defendants’ actions were not taken in bad faith.[3]

Plaintiff makes further arguments based on discrete actions taken by each of the Defendants. Each of those arguments will be addressed in turn.

Plaintiff asserts that Officer Columbo not only intentionally lied about the existence of the Video in her response to interrogatories—which was discussed above—but that she also lied about the existence of a video that she made on her personal cellular phone. In the Video, Officer Columbo can be seen using her cellular phone in a manner consistent with taking a video recording of Plaintiff. (Pl.’s Ex. 3 at 1:02–03). At the time she was completing the discovery responses—three years after the incident at issue—Officer Columbo did not remember taking such a video. (Columbo Sept. 26, 2017 Dep., Doc. 75-3, at 17:25–18:8). Once her memory was refreshed by the Video, Officer Columbo testified that she recalled wanting to capture Plaintiff yelling one of her co-worker’s names over and over again to show the co-worker. (Id. at 13:15–23). Officer Columbo could not remember whether she deleted the video, and the phone is no longer operational nor is it in Officer Columbo’s possession. (Id. at 11:5–14, 13:24–25).

*5 Plaintiff’s argument that Officer Columbo acted in bad faith by intentionally concealing the existence of the cellular phone video is not supported by the evidence. It is clear that three years after the incident, after the phone had stopped working and Officer Columbo was no longer using it, she simply forgot that she ever made such a video. There is no evidence that Officer Columbo acted in bad faith or willfully disregarded a discovery order.

Plaintiff flatly accuses Sargent Walsh of lying at every turn. In fact, in two short paragraphs, Plaintiff uses the word “lie” or “lied” three times and the phrases “falsely claimed,” “intentionally withheld,” and “tantamount to perjury.” (Doc. 75 at 14–15). Plaintiff has presented no evidence to support such bold assertions.

As background, any time OPD officers engage in a response to resistance by an individual in police custody, a Response to Resistance (“RTR”) Report is generated by the supervising sargent. (Walsh Sept. 25, 2017 Dep., Doc. 75-5, at 10:2–7, 12–18). Any videos of the incidents are required to be attached to the Report, and the Report is reviewed by a number of supervisors before being placed in a file in the Internal Affairs office. (Id. at 12:8–17). Here, because Sargent Walsh—the supervising sargent at the time—was personally involved in the response to Plaintiff’s resistance, a different sargent was required to generate the RTR Report. (Id. at 10:20–25). In this case, it was non-party Sargent Eric Goebelbecker. (Id. at 23:4–9).

When Sargent Walsh was asked at his first deposition whether he had requested or viewed any video of the holding area from when Plaintiff was in custody, he said no. (Walsh Feb. 2, 2017 Dep., Doc. 75-18, at 20:8–11). He further stated that he did not know where the Video was but that it should be with the RTR Report. (Id. at 62:8–12). When Sargent Walsh was again asked about the Video in September 2017, the question was first phrased in general terms—i.e., in the usual course of business, whether Sargent Walsh would have been the one to request the Video if he was also the one involved in the response to resistance. (Doc. 75-5 at 17:12–16). Sargent Walsh explained that he would not have been the one to request the Video because he was not the one filling out the RTR Report. (Id. at 17:17–18:6).

Later, when Sargent Walsh was shown an e-mail from his address requesting a copy of the Video for the RTR Report, (id. at 34:8–20), he testified that he had no independent recollection of the e-mail, (id. at 35:6–8). But based on the contents of the e-mail, Sargent Walsh concluded that Sargent Goebelbecker must have asked him to obtain the Video. (Id. at 34:8–35:2). Even after seeing the e-mail, however, Sargent Walsh did not remember requesting the Video. (See id. at 34:8–38:3). The e-mail further indicated that in November 2013, Sargent Walsh attempted to view the Video but that it would not work on his computer. (Nov. 21, 2013 E-mail, Doc. 75-6, at 1). Sargent Walsh also had no recollection of viewing or attempting to view the Video at that time. (Doc. 75-5 at 14:12–20, 34:22–35:5, 37:20–38:3).

Plaintiff argues that Sargent Walsh did actually remember requesting and viewing the Video and that Sargent Walsh intentionally concealed the Video and continues to lie about his actions. Plaintiff’s accusations are untenable. As previously noted, there is no reason for Sargent Walsh to have concealed the existence of the Video because it is helpful to his defense. Additionally, Sargent Walsh maintained from the beginning that the Video should exist and directed Plaintiff to the RTR Report. If he were trying to hide the Video, it would not have made sense for him to point Plaintiff to its location. Finally, when Sargent Walsh was on this nighttime shift in downtown Orlando, he would complete eight to ten RTR Reports per weekend. (Id. at 18:4–5). Thus, it is entirely credible that Sargent Walsh would not remember the details of this event four years later.

*6 Contrary to Plaintiff’s assertions, there is simply no evidence of deliberate untruthfulness, willful disregard of discovery orders, or bad faith by Sargent Walsh.

Ultimately, it was Officers Patterson and Funke who located the Video and, eventually, Officer Funke who turned it over to his attorney on July 3, 2017. (Doc. 75-27 at 50:18–22). After their first depositions in November 2016, Officers Patterson and Funke were discussing the incident and the fact that a video must exist somewhere. (Id. at 20:16–21:8). Officer Patterson contacted Sargent Goebelbecker, who directed Officer Patterson to Internal Affairs. (Patterson Sept. 20, 2017 Dep., Doc. 75-29, at 23:6–10). In approximately February 2017, Officers Patterson and Funke went to the Internal Affairs office. (Id. at 34:7–9; Doc. 75-27 at 42:5–7). There, the secretary for the Internal Affairs office pulled the RTR Report and gave Officers Patterson and Funke a CD containing the Video. (Doc. 75-27 at 33:6–20). They took the Video back to Officer Funke’s desk, but it would not play on his computer. (Id. at 33:20–24; Doc. 75-29 at 25:25–26:2).

Shortly thereafter, Officers Funke and Patterson took the CD to Sean Williams in the forensic unit to see if he could get it to play. (Doc. 75-27 at 34:23–35:6; Doc. 75-29 at 26:5–12). They left the Video with Williams for approximately one month. (Doc. 75-27 at 38:1–2; Doc. 75-29 at 28:25–29:1). Williams then provided Officers Patterson and Funke a copy of the Video in a format that would work on their computers, and Officer Funke returned the original to Internal Affairs. (Doc. 75-27 at 40:9–24). Shortly after receiving their copies, the Officers both viewed at least portions of the Video, and they were satisfied that the Video was exculpatory. (Id. at 41:5–6, 43:15–17, 44:13–21; Doc. 75-29 at 33:2–7, 36:4–16). However, neither of the Officers contacted their attorney regarding the Video. (Doc. 75-27 at 48:20–49:15; Doc. 75-29 at 36:21–37:23). Officer Patterson believed that Officer Funke had contacted the attorney, (Doc. 75-29 at 35:19–25), and Officer Funke believed that the attorney was already aware of the Video, (see Doc. 75-27 at 45:24–46:5, 49:5–8).

*7 Plaintiff asserts that the Officers’ explanation for why they did not contact their attorney about the Video is implausible. However, Officer Funke indicated that at the time he obtained the Video, he did not even know if the case was going forward because neither his attorney nor the City’s legal department had mentioned anything about the case to him in quite some time. (Id. at 46:1–16). Indeed, the overall tone of each of the individual Defendants’ depositions is that they were relying entirely on the attorneys and the City’s legal department to deal with the litigation. It is also apparent that there was a troubling failure to communicate with the individual Defendants by both the City’s legal department and retained counsel. Thus, while the proffered reason for the Officers’ silence may not have been prudent, it is certainly plausible. The evidence does not support a finding of bad faith on the part of Officers Patterson or Funke.

Plaintiff also suggests that Defendants’ explanations for their negligent behavior is undermined by their pattern of disobeying discovery Orders and by the Court’s previous admonishments. He indicates that Defendants should have been more aware of their discovery obligations because of the previous sanctions. It is clear, however, that the prior discovery violations were due to the failings of Defendants’ former attorney and not due to any action or intentional inaction by the individual Defendants. This conclusion is supported by many factors: defense counsel’s repeated failures to respond and communicate with Plaintiff’s counsel; Defendants’ testimony at their depositions that they had never even seen some of the discovery requests, despite the fact that they were months overdue at the time; the fact that the show cause hearing was specifically aimed at Defendants’ counsel; the fact that the O’Connor Firm—as opposed to Defendants—paid the previous sanctions; and the fact that the individual Defendants seemed to have been largely kept out of communications by their attorneys regarding this case. It is entirely plausible, if not probable, that the individual Defendants did not even know that discovery violations had occurred or that sanctions had been imposed previously.

Plaintiff has failed to establish that any of the Defendants acted in bad faith or willfully disobeyed discovery orders or obligations. Thus, the extreme sanction of default judgment is not appropriate here.

B. Adverse Inference Instruction

In the alternative, Plaintiff seeks an adverse inference instruction due to Defendants’ spoliation of evidence. Specifically, Plaintiff asserts that there is a portion of the Video missing and accuses Defendants of tampering with the Video. Plaintiff also asserts that Defendants have failed to produce any video of Plaintiff in holding cell 1, which Plaintiff claims he was in with other inmates for a period of time. Finally, Plaintiff takes issue with the fact that Defendants have not produced a report generated by the paramedics that treated Plaintiff’s injuries.

“A jury instruction on spoliation of evidence is required ‘only when the absence of that evidence is predicated on bad faith.’ ” Cox v. Target Corp., 351 F. App’x 381, 383 (11th Cir. 2009) (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). “While this circuit does not require a showing of malice in order to find bad faith, mere negligence in losing or destroying records is not sufficient to draw an adverse inference.” Mann v. Taser Intern., Inc., 588 F.3d 1291, 1310 (11th Cir. 2009). Further, perhaps by way of common sense, there must actually be evidence that is missing, destroyed, or altered. See United States v. Lanzon, 639 F.3d 1293, 1302–03 (11th Cir. 2011) (affirming the district court’s denial of the defendant’s spoliation jury instruction because, inter alia, “[t]here [wa]s no evidence that portions of the conversations were destroyed or altered”).

*8 Plaintiff brazenly accuses Defendants of tampering with the Video to remove incriminating portions. In support, Plaintiff points to the timestamp on the Video, which appears to be approximately one hour off from the actual time that events were occurring. The timestamp on the Video begins at approximately 11:14 p.m.,[4] and Plaintiff does not appear in the substation until the timestamp reads 11:54 p.m. The evidence on the record indicates that the police officers responded to the 911 call at 10:38 p.m., (Arrest Aff., Doc. 75-32, at 6), and Plaintiff was arrested in downtown Orlando a few blocks from the substation, so it is unlikely that it took over an hour to arrest and transport Plaintiff to the substation. Thus, Plaintiff claims that the only logical conclusion is that the Video was edited and an hour was deleted.

Plaintiff ignores the testimony of Sargent Jeffery Blye, a former supervisor at the downtown substation, (Blye Dep., Doc. 75-26, at 6:11–7:8), who installed the DVR system at issue, (id. at 12:9–10), and who had significant experience accessing the DVR system and pulling recordings off of it, (see id. at 9:10–10:4). Sargent Blye testified, “[T]he internal clock in the DVR would never seem to sync up correctly with your actual chronological time. There would be issues with it being off because of daylight savings or the time being off an hour or two either way.” (Id. at 11:1–5). Sargent Blye’s testimony is consistent with the testimony of Detective Jerome Kennon—the individual who, it appears, obtained the Video from the DVR system in this case[5]—who stated that the downtown substation DVR system was self-contained. (Kennon Dep., Doc. 75-23, at 7:17–24). In other words, it was not connected to any type of cloud or satellite system that would have automatically corrected the timestamp. Detective Kennon also indicated that there were times where a discrepancy would exist between the timestamp on the DVR system and the actual time. (See id. at 19:2–11). And although Detective Kennon testified that he would typically notify his superior of such a discrepancy, such notification could be given orally or by e-mail; he would not fill out a report or any official documentation when pulling videos from the substation’s DVR system. (Id. at 19:20–20:4). Given that these events occurred four years prior to his deposition, Detective Kennon had no memory of the specific video at issue here. (Id. at 12:16–17, 15:24–16:11).

Despite the foregoing evidence, Plaintiff claims that Defendants have “no evidence to support” their claim that the Video was not tampered with and that the timestamp was simply incorrect. (Doc. 75 at 20). To the contrary, it is Plaintiff who has provided insufficient evidence to support his claim that the Video was edited. Plaintiff relies on a forensic computer expert, but that expert merely concluded that he “[could] not give an opinion to a reasonable degree of scientific certainty that the video at issue is unaltered and authentic.” (Expert Report, Doc. 75-33, at 11). In other words, the Video could be altered or unaltered. He has no reliable opinion. That is not evidence, It is speculation and does not warrant an adverse inference instruction.

Next, Plaintiff argues that there is missing video footage of Plaintiff in holding cell 1. As previously noted, Plaintiff asserts that he was first taken into holding cell 1 with other individuals where he was un-restrained, then he was taken out of that cell, beaten, and placed into holding cell 2—which is where he is on the Video. Plaintiff argues that Defendants violated discovery orders by failing to produce video footage of Plaintiff in holding cell 1. The abundance of evidence on the record, however, suggests that there is no video of Plaintiff in holding cell 1 because Plaintiff was never in holding cell 1.

*9 The Video has three camera feeds—holding cell 1, holding cell 2, and the outdoor entryway into the substation. Plaintiff claims that he was first placed in holding cell 1 with other individuals for approximately thirty minutes before he was placed in holding cell 2. (Doc. 75-2, at 23:4–9). But the Video shows both of the holding cells and it begins approximately forty minutes prior to Plaintiff being placed in holding cell 2; in other words, the entire timeframe Plaintiff claims to have been in holding cell 1 is depicted on the Video. Holding cell 1 is empty for the duration of the Video. Further, the Video shows Plaintiff being brought in from outside of the building and being placed directly into holding cell 2. Thus, the Video belies Plaintiff’s allegations that (1) he was in holding cell 1 for thirty minutes prior to being placed in holding cell 2; and (2) that there were other individuals in holding cell 1.

Incredibly, Plaintiff seems to argue that because the Video fails to support his version of events—and in fact directly contradicts his self-serving statements—it must have been edited. Indeed, Plaintiff makes such an implausible argument despite the fact that he admits he only has a vague recollection of what occurred at the substation, (id. at 16:10–11), and on the Video it is apparent that Plaintiff was severely intoxicated at the time.

In a last ditch effort, Plaintiff makes a convoluted argument regarding the blood stain on his shirt. Plaintiff asserts that while he was unrestrained in holding cell 1, he took off his shirt and used it to stop the bleeding from the laceration on his head, which resulted in a bloodstain on the shirt. Plaintiff argues that he could not have possibly gotten the blood stain on his shirt while in holding cell 2 because his hands were restrained and tied to the bolt the entire time, and therefore, he could not have put the shirt up to his head. Thus, Plaintiff argues that the only possible conclusion is that he was placed, unrestrained, in cell 1 prior to the events portrayed in the Video.

Again, Plaintiff ignores the evidence. First, despite Plaintiff’s contention that the blood stain was on his shirt at the time he entered cell 2, no such blood stain is visible in the Video at that time. Second, almost immediately after being placed into holding cell 2, Plaintiff hops his cuffs, and several police officers take Plaintiff down to the ground and re-secure his hands behind his back. Plaintiff is shown in the Video struggling and resisting the officers. This interaction is when Defendants assert the laceration to Plaintiff’s head occurred. Notably, at this time, Plaintiff’s shirt is crumpled and at least partially laying under his head. It is after these events that the Video clearly depicts a blood stain on Plaintiff’s shirt. Although the Court makes no findings of fact as to what actually occurred—that will be left for the jury to determine—it is certainly plausible that the blood stain was created when Plaintiff was laying on his shirt in holding cell 2. Thus, Plaintiff has not convinced the Court that the only way his shirt could have gotten blood on it was if he put it up against his head while unrestrained in holding cell 1, and therefore, there must be missing footage from holding cell 1. Plaintiff has failed to present sufficient evidence that video footage of Plaintiff in holding cell 1 ever existed, and as a result, the Court declines to issue sanctions against Defendants for failing to produce such footage.

Finally, Plaintiff asserts that Defendants never produced a report filled out by the paramedics that treated Plaintiff’s injuries. The paramedics were employed by the fire department, not OPD. There is no indication on the record that Defendants were in control or possession of that report or that they could have gained access to it. Further, despite Plaintiff’s statement that the paramedic report was required to be attached to all Response to Resistance Forms, he cites no authority for that proposition. The only thing referenced by Plaintiff is a general citation to the RTR Report, which does not support Plaintiff’s argument that the paramedic report had been or should have been attached—it merely shows that the paramedic report is not attached to the RTR Report. This is not sufficient to establish that Defendants were required to produce the paramedic report.

*10 In sum, Plaintiff’s arguments for an adverse inference instruction are largely based on speculation and a disregard for the record evidence. Plaintiff asks this Court to accept his version of events and conclude that Defendants destroyed video footage despite the abundant record evidence that indicates such footage never existed. Plaintiff also seeks sanctions against Defendants for failing to produce the paramedic report, which Plaintiff has not shown was ever in Defendants’ possession or control. In short, Plaintiff has not met his burden of establishing that a spoliation jury instruction is appropriate.

C. Attorney’s Fees and Costs

Federal Rule of Civil Procedure 37(b)(2)(C) states that where a party disobeys a discovery order, “the court must order the disobedient party, the attorney advising that party, or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the failure was substantially justified or other circumstances make an award of expenses unjust.” Thus, the first issue the Court must address is whether Defendants violated a discovery order.

As an initial matter, there is no evidence that SargentWalsh violated any discovery orders. Sargent Walsh was not added as a party to this litigation until March 6, 2017—two months after the close of discovery. (See Case Management and Scheduling Order, Doc. 19, at 1 (setting the discovery deadline of January 10, 2017); Mot. To Amend, Doc. 35, at 2 (moving to amend the Complaint to add Sargent Walsh); Feb. 28, 2017 Endorsed Order, Doc. 44 (granting Plaintiff’s Motion to Amend); Doc. 46 ¶ 11 (naming Sargent Walsh as a Defendant)). There is no evidence on the record that Sargent Walsh was ever served with any of the relevant discovery requests. Nor was Sargent Walsh a party to the litigation when Judge Smith issued any of his discovery Orders. Thus, sanctions against Sargent Walsh under Rule 37 are not warranted.

With regard to the remaining Defendants, it is impossible for the Court to determine at this point whether awarding fees and costs is appropriate. Plaintiff, apparently inadvertently, failed to attach an affidavit in support of his motion, which presumably would have chronicled the costs and fees associated with the tardy production of the Video. (See Doc. 75 at 17–18). Further, Plaintiff did not provide any memorandum of law explaining why the requested fees and costs are reasonable. Additionally, the Court has questions for the parties regarding whether an award of fees and costs against the individual Defendants would be unjust given the apparent culpability of the City and Defendants’ previous attorney. Thus, the Court will hold a hearing after the conclusion of trial to determine what, if any, fees and costs should be awarded. In addition, the Court will require the City and the O’Connor Firm[6] to show cause as to why sanctions should not be imposed against them for their discovery violations.

V. CONCLUSION

In accordance with the foregoing, it is ORDERED and ADJUDGED as follows:

DONE and ORDERED in Orlando, Florida on December 13, 2017.

Plaintiff’s Exhibit 3 has been filed on CD with the Court. (SeeNotice of Filing, Doc. 76).

In fact, after the Video’s production, Defendants sought to file a dispositive motion. (Doc. 64 at 32:4–7). That request was denied, (id.), and Defendants continue to lament their inability to do so at this time, (Doc. 78 at 2).

The claims against the City were previously dismissed, and at this time, sanctions are only sought against the individual Defendants. The Court has not been apprised of why the City failed to produce the Video in a timely manner.

The Video timestamp is in twenty-four-hour time format; for ease of reference, the Court has converted it to twelve-hour time format.

The e-mail chain among Sargent Walsh, Sargent Andrew Brennan, and Detective Kennon indicates that Kennon was the one who burned the copy of the Video. (Doc. 75-6 at 1–3). But Detective Kennon testified that he had no memory of the particular video. (Doc. 75-23 at 12:13–17, 15:24–16:11).

As noted multiple times in this Order, it appears that Attorney Curry’s behavior at least partially led to the delayed production of the Video and that the attorneys of record from the O’Connor Firm are not directly culpable. However, Attorney Curry never appeared in this case, and the attorneys of record are ultimately responsible for compliance with the Federal Rules of Civil Procedure and this Court’s Orders.