PROCEDURAL AND FACTUAL BACKGROUND

On March 13, 2017, Plaintiff Jane Elizabeth Snider-Hancox (“Plaintiff”) brought a negligence claim against Defendant, alleging that she sustained damages on May 9, 2016 during a cruise aboard the Norwegian Sky. SeeCompl. [D.E. 1]. Plaintiff alleges that she slipped and fell on a wet floor and that, as a result, she sustained severe injuries. Id. By July 12, 2016, Plaintiff had retained counsel. See Letter dated July 12, 2016 (hereafter, “Representation Letter”) [D.E. 123-7].

On May 4, 2017, Defendant served its Initial Request for Production, which requested, inter alia, “[a]ny and all photographs (reproduction from negatives or laser copies, not photocopies) or videotape footage taken at any time during the subject cruise, including those taken aboard the vessel and those taken ashore.” See Initial Request for Production [D.E. 123-2 at 3]. On June 30, 2017, Plaintiff responded with the word “None.” SeeResponse to Initial Request for Production [D.E. 123-4 at 1].

On September 26, 2018, during an exhibit exchange in preparation for trial, Plaintiff disclosed a photograph taken on the date of the incident, which depicted Plaintiff with her father near the area of the Champs Bar where she alleges she fell. See Defendant’s Emergency Motion to Compel Production of Plaintiff’s Photographs Taken During Subject Cruise and the Inspection of the Device that Took Said Photographs (hereafter, “First Emergency Motion to Compel”) [D.E. 83 at 3, filed on October 4, 2018]. On October 4, 2018, Plaintiff produced 17 photographs in response to Defendant’s Initial Request for Production. See Emergency Motion for Continuance of Trial (hereafter, “Emergency Motion for Continuance”) [D.E. 85 at 2, filed on October 5, 2018].

On October 5, 2018, the Court denied Defendant’s Emergency Motion for Continuance [D.E. 95]. The Court also denied as moot Defendant’s First Emergency Motion to Compel [D.E. 83] based upon Plaintiff’s representation that she had “complied with Defendant’s discovery request and produced all cruise related photographs.” See Order [D.E. 97]. Trial was scheduled to commence on October 9, 2018; however, on October 8, 2018 Defendant filed a Motion for Reconsideration of Order Denying Continuance (hereafter, “Motion for Reconsideration”) [D.E. 107]. On October 9, 2018, the Court granted Defendant’s Motion for Reconsideration and reopened discovery for the limited purpose of addressing the issues related to Plaintiff’s photographs. See Order Granting Defendant’s Motion for Reconsideration, Continuing Trial, and Revising Scheduling Order [D.E. 109 at 1].

*2 On October 18, 2018, Defendant filed an Emergency Motion to Compel Inspection of Plaintiff’s Phone and for Sanctions (hereafter, “Second Emergency Motion to Compel” and “First Motion for Sanctions”), requesting an order permitting its forensic expert, Ryan Horton (“Mr. Horton”) to conduct a forensic examination of Plaintiff’s phone to determine whether any additional responsive photographs “exist on the device, and whether any such photographs have been deleted or modified.” See Second Emergency Motion to Compel [D.E. 111 at 2]. In response, Plaintiff submitted the Affidavit of Michael Timothy Hancox (“Mr. Hancox”), Plaintiff’s husband (hereafter, “Hancox Affidavit”) [D.E. 114-1]. On October 25, 2018, the undersigned granted in part Defendant’s Second Emergency Motion to Compel and granted Mr. Horton leave to examine Plaintiff’s cell phone to search for images, limited to the time period of May 9-13, 2016. See Order [D.E. 118 at 1]. Plaintiff’s counsel was directed to mail Plaintiff’s cell phone, including the memory card, to Mr. Horton that same day. Id. at 2. The undersigned deferred ruling on Defendant’s First Motion for Sanctions pending the results of Mr. Horton’s examination. Id. After receiving a cell phone and memory card from Plaintiff’s counsel, Mr. Horton reported that the metadata contained on the photographs revealed that the photographs were taken on a different cell phone, and that the memory card only contained a backup of the device but did not contain any photographs that appeared to have been transferred to the memory card. See Second Motion for Sanctions [D.E. 123 at 4-5].

On November 18, 2018, Defendant filed the instant Second Motion for Sanctions [D.E. 123]. Defendant argues that it is entitled to sanctions pursuant to the Court’s inherent authority and Federal Rules of Civil Procedure 37(b), 37(e) and 41(b) (“Rule 37(b);” “Rule 37(e)” and “Rule 41(b),” respectively). See Second Motion for Sanctions [D.E. 123 at 10-20]. Defendant seeks as sanctions an Order: 1) striking Plaintiff’s pleadings and dismissing the action with prejudice; 2) awarding Defendant its costs and attorneys' fees in preparing and filing the Emergency Motion for Continuance [D.E. 85], the First Emergency Motion to Compel [D.E. 83], the Motion for Reconsideration [D.E. 107] and the Second Emergency Motion to Compel [D.E. 111]; 3) awarding Defendant its costs and attorneys' fees in preparing for the trial that was scheduled to commence on October 9, 2018; and 4) awarding Defendant all costs associated with engaging Mr. Horton’s services. See Second Motion for Sanctions [D.E. 123 at 20-21]. Plaintiff filed her Responses to Defendant’s Second Motion for Sanctions (hereafter, “Sanctions Response”) on November 19, 2018 and November 28, 2018 [D.E. 125, 135].

APPLICABLE LAW

Courts have the inherent authority to sanction parties who have willfully disobeyed a court order or who have acted in bad faith, vexatiously, wantonly, or for oppressive reasons. See Chambers v. NASCO, 501 U.S. 32, 45-46 (1991). A court’s inherent power is “governed not by rule or statute but by the control necessarily vested in courts to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.” Id.at 43 (citation omitted). This authority “must be exercised with restraint and discretion” and be used “to fashion an appropriate sanction for conduct which abuses the judicial process.” Id. at 44-45. Such sanctions may include the dismissal of a lawsuit or an assessment of attorney’s fees. Id. at 45.

“The key to unlocking a court’s inherent power is a finding of bad faith.” Barnes v. Dalton, 158 F. 3d 1212, 1214 (11th Cir. 1998). To find bad faith, the court must “focus primarily on the conduct and motive of a party, rather than on the validity of the case.” Barash v. Kates, 585 F. Supp. 2d 1347, 1362 (S.D. Fla. 2006). A court may find bad faith when a party has committed a fraud on the court, delayed or disrupted the litigation, or hampered the enforcement of a court order. Tarasewicz v. Royal Caribbean Cruises Ltd., No. 14-CIV-60885, 2016 WL 3944176, at *4 (S.D. Fla. Feb. 9, 2016), report and recommendation adopted, No. 14-CIV-60885, 2016 WL 3944178 (S.D. Fla. Mar. 17, 2016). See also, Barnes, 158 F.3d at 1214 (“A party also demonstrates bad faith by delaying or disrupting the litigation or hampering enforcement of a court order.”). Proving a fraud on the court requires more than inconsistencies, but rather “clear and convincing evidence of an unconscionable plan designed to improperly influence the court in its decision.” Tarasewicz, 2016 WL 3944176 at *4 (finding that a pattern of inconsistent statements by the plaintiff and his wife did not amount to fraud on the court) (citations omitted). Such sanctions are generally reserved for only the most egregious misconduct. Id. at *5.

*3 District courts have broad discretion to impose appropriate sanctions for discovery violations under Rule 37(b), which states:

Fed. R. Civ. P. 37(b)(2)(A). See also, Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993). Rule 37(b) further provides that “[i]nstead of or in addition to the orders above, 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.” Fed. R. Civ. P. 37(b)(2)(C). A court may impose sanctions under Rule 37(b) for a variety of purposes, including: “1) compensating the court and other parties for the added expense caused by the abusive conduct; 2) compelling discovery; 3) deterring others from engaging in similar conduct; and 4) penalizing the guilty party or attorney.” Bobroff v. Univ. of Miami, No. 15-22695-CIV, 2016 WL 6433095, at *3 (S.D. Fla. Oct. 31, 2016) (citations omitted).

To avoid Rule 37(b) sanctions, the opposing party must prove that its discovery conduct was substantially justified, meaning that it was a “genuine dispute, or if reasonable people could differ as to the appropriateness of the contested action.” Devaney v. Cont'l Am. Ins. Co., 989 F.2d 1154, 1163 (11th Cir. 1993) (citing Pierce v. Underwood, 487 U.S. 552, 565 (1988) ). The severe sanction of dismissal “is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders,” and cannot be justified by a violation resulting from “simple negligence, misunderstanding, or inability to comply.” SeeMalautea, 987 F.2d at 1542.

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App'x. 298, 301 (11th Cir. 2009). When considering a claim of spoliation of electronically stored information (“ESI”), courts look to Rule 37(e). Title Capital Mgmt., LLC v. Progress Residential, LLC, No. 16-21882-CV, 2017 WL 5953428, at *3 (S.D. Fla. Sept. 29, 2017); Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *3, 4 n.2 (S.D. Fla. Mar. 22, 2016) (“[W]hen confronting a spoliation claim in an ESI case, a court must first look to newly amended Rule 37(e) and disregard prior spoliation case law based on ‘inherent authority’ which conflicts with the standards established in Rule 37(e).”). Rule 37(e)“forecloses reliance on inherent authority or state law to determine when certain measures would be used.” Living Color, 2016 WL 1105297, at *4(quoting Fed. R. Civ. P. 37(e) Advisory Committee’s notes to 2015 amendment).

*4 Rule 37(e) states:

Fed. R. Civ. P. 37(e).

Before a court may impose sanctions under Rule 37(e), it must determine that: “(1) the information sought constitutes ESI; (2) the ESI should have been preserved in anticipation of litigation; (3) the ESI is lost because a party failed to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.” Title Capital Mgmt., 2017 WL 5953428, at *3. Once these threshold elements are satisfied, sanctions may be appropriate if the Court finds prejudice or finds that a party acted with the intent to deprive the moving party of the ESI at issue. Id.

Rule 37(e) leaves judges with discretion to determine how best to assess prejudice. Id. at *6 (quoting Fed. R. Civ. P. 37(e) Advisory Committee’s notes to 2015 amendment). As to whether a party acted with intent to deprive, that standard “may very well be harmonious with the ‘bad faith’ standard previously established by the Eleventh Circuit” in spoliation cases. Living Color, 2016 WL 1105297, at *6 n.6. Under this standard, where there is no direct evidence of bad intent, bad faith may be found on circumstantial evidence where: “(1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.” See Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1322-23 (S.D. Fla. 2010) (applying this test, declining to find bad faith and denying a request for an adverse inference instruction); Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV, 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009) (declining to find bad faith and denying a request for spoliation sanctions); Alabama Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 746 (N.D. Ala. 2017)(finding that there was sufficient circumstantial evidence for the court to conclude that the defendant acted with an intent to destroy ESI, warranting an adverse inference instruction and an award of attorney’s fees and costs), motion to certify appeal denied, No. 2:11-CV-03577-RDP, 2017 WL 4572484 (N.D. Ala. Apr. 3, 2017).

*5 Rule 41(b) states that “[i]f the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order, a defendant may move to dismiss the action or any claim against it.” Fed. R. Civ. P. 41(b). “Dismissal under Rule 41(b) is appropriate where there is a clear record of ‘willful’ contempt and an implicit or explicit finding that lesser sanctions would not suffice.” Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374 (11th Cir. 1999) (affirming dismissal under Rule 41(b) where the plaintiff was culpable and was not deterred by two prior lesser sanctions).

FINDINGS OF FACT

The following witnesses testified at the November 28, 2018 Evidentiary Hearing: Plaintiff, Mr. Hancox, and Mr. Horton. The following documents were admitted into evidence: Defendant’s Exhibits 1-3.[1]

Plaintiff testified that she vaguely remembered Defendant’s Initial Request for Production in May 2017. She stated that she provided hard copies of three photographs to her attorney: one of her and her father on the ship just after boarding on May 9, 2016; one of her in a sling; and one from a previous cruise. She testified that she did not produce any additional photographs because she forgot that she had them on her phone. She further testified that when Defendant asked for additional pictures in October 2018, Mr. Hancox sent all of the pictures to Plaintiff’s counsel, except for one that was a replica, which Plaintiff did not believe Defendant wanted. After Defendant requested the replica, Plaintiff sent that photograph as well. All of these photographs were taken from her phone’s memory card.

Plaintiff understood that the Court ordered her to provide her phone to the Defendant’s expert for an inspection. When Plaintiff was advised that the phone that Defendant’s expert had received was not the phone which took the photos, Plaintiff was shocked because she truly believed that it was the same phone. She further stated that she always had a pink phone case, and the phone that was produced was in a pink phone case. As a result of the expert’s findings, Mr. Hancox called Metro PCS and was advised that Plaintiff’s phone had been replaced in October 2016. Plaintiff then remembered that the phone that was used to take photographs on the cruise (hereafter, the “Original Phone”) broke when it fell out of her sling onto the road and was run over by a car. The screen of the Original Phone was cracked, but Mr. Hancox was able to transfer all of the pictures from the Original Phone to a memory card (hereafter, “Memory Card”). He then put the Memory Card into a new phone (hereafter, the “Replacement Phone”). Plaintiff threw out the Original Phone because it was broken and useless, though she later stated that the Original Phone still worked because Mr. Hancox was able to transfer the photographs from the Original Phone onto the Memory Card. Plaintiff testified that she never personally deleted any photos from the cruise. She also stated that she did not believe that there were any other photographs on the Original Phone from the cruise.

On cross-examination, Plaintiff was impeached several times with her prior deposition testimony. After one such impeachment, she eventually admitted that she initially provided to her attorney only the pictures that she thought were relevant. She stated that the photographs that were not produced until October 2018 included: a photograph of Plaintiff alone holding two mimosas at the Champs Bar where she claims to have fallen; and a photograph of Plaintiff and her husband with a mimosa on the table at the Champs Bar where she claims to have fallen. As to her understanding that she was required to produce only relevant photographs, Plaintiff first testified that the understanding came from a discussion with her husband. She then testified that it was based on her conversations with her attorney. She later testified that she could not remember. She then testified that it was her own idea to produce only the pictures that showed her shoulder before and after her injury. Lastly, she testified that the understanding came from both herself and from what her lawyer told her.

*6 Plaintiff also stated that her previous deposition testimony about how many drinks she had at the Champs Bar and when she had them was incorrect, but that the photographs jogged her memory. Plaintiff admitted that there was no way for Defendant to know that she had any additional drinks until the photographs were turned over in October 2018.

The undersigned finds that Plaintiff’s testimony was contrived, non-responsive, evasive, equivocal, inconsistent and wholly lacking in credibility.

Mr. Hancox testified that in early October 2018, he took the cruise photographs from the memory card in Plaintiff’s cell phone and provided them to Plaintiff’s counsel. When he first produced these photographs, he omitted one that he believed to be just a duplicate. Mr. Hancox was aware that the Court had ordered Plaintiff to provide her phone to the Defendant’s expert for an inspection. When Mr. Hancox was advised that the phone that was produced was not the Original Phone, he was very surprised. As a result, he called Metro PCS and asked them to look through the account and provide any activation dates. The activation date for the Replacement Phone was October 10, 2016. Up until that point, Mr. Hancox believed that the Replacement Phone was the phone that was used to take the cruise photographs.

Mr. Hancox testified that Plaintiff had apparently dropped the Original Phone in the road and it was run over by a car. Mr. Hancox claimed to have not remembered the incident until he contacted Metro PCS. He did not observe the incident, but he saw the condition of the Original Phone afterwards and stated that it was unusable as a phone because the screen was cracked. The next day, he transferred all of the photographs from the Original Phone to the Memory Card located inside the Original Phone. Mr. Hancox explained that he used a USB cable to access the Original Phone’s internal memory and move the photographs to the Memory Card, and that the Original Phone was operational enough to accomplish this. Specifically, all of the photographs were located on several different albums, and he moved every album from the Original Phone to the Memory Card. He used a computer to make this transfer, but could not recall if it was his laptop or his desktop.

According to Mr. Hancox, at some point after the October 2016 photo transfer, he dropped his laptop onto a concrete patio while carrying coffee, which spilled on it, and the laptop was destroyed. Additionally, Mr. Hancox claimed that a few days before October 22, 2016, he threw water on the desktop when its power supply caught fire, and it was destroyed. After the laptop and the desktop were destroyed, Mr. Hancox disposed of both of them because they were not repairable. The Original Phone was also discarded because Mr. Hancox believed it was not going to be of any use to anybody. Plaintiff and Mr. Hancox had already retained counsel in this case at the time the Original Phone was discarded.[2] Mr. Hancox further testified that every device that had touched the cruise photographs was destroyed except for the Memory Card.

Mr. Hancox admitted to signing the Hancox Affidavit [D.E. 114-1], which stated that he had made a transfer of photos from the Original Phone to the Memory Card of the Original Phone in order to free up memory on the Original Phone. He claimed to believe that statement to be correct at the time he swore to the Hancox Affidavit. However, when the Defendant’s expert said that the phone that was produced was not the Original Phone, Mr. Hancox realized that the statement he made in the Hancox Affidavit was incorrect. He also testified that it was possible that he had deleted photographs from the Memory Card, but that he had no specific recollection of ever deleting any cruise photographs from the Memory Card.

*7 Mr. Hancox recounted discussing the cruise photographs with Plaintiff and Plaintiff’s counsel, but stated that he did not think that the photographs were useful, even though there were photographs that depict Plaintiff holding alcoholic beverages in the area where she claims to have fallen.

The undersigned finds that Mr. Hancox’s explanations for the destruction of the Original Phone, the laptop and the desktop strain credulity and defy logic.

Mr. Horton testified that if the photographs had been copied over to a computer and then to the Memory Card, then there would be artifacts of those photographs on the computer. However, if they were copied directly from the Original Phone to the Memory Card while the Original Phone was connected to the computer, there would be no need to temporarily store the photographs on the hard drive of the computer. He also stated that, without the laptop or the desktop, there was no way to determine the method by which the photographs were transferred or whether there would be any artifacts left on the computer.

Mr. Horton examined the Replacement Phone and found evidence that the Original Phone had been backed up to the Memory Card on October 9, 2016 from 5:20 a.m. to 6:54 a.m. According to Mr. Horton, a backup is a separate file that is user-generated and does not require the use of a computer. Mr. Horton could not determine whether this was a backup of the entire internal memory of the Original Phone or just a partial backup. The fact that the Original Phone was backed up on October 9, 2016 indicated that it was operational without the need to use a computer on that date. There were 17 cruise photographs in the backup file. Mr. Horton stated that there could be information that was not backed up and put into the backup file.

During his examination, Mr. Horton also found evidence that the photographs on the Original Phone had been transferred to the Memory Card on October 9, 2016 at 6:56 a.m. The phone did not need to be operational for the transfer to occur. The photographs that were transferred also existed in a deleted state as if they were copied twice—one set was deleted and one set was live. There were variations between the deleted set and the live set. Mr. Horton testified that he found cruise photographs in the deleted set, but also found those same photographs in the live set.

Mr. Horton further testified that if photographs or files were not selected to be backed up or transferred, they could survive on the memory of the Original Phone and would not be apparent in the backup or anywhere on the Memory Card. Without being able to examine the Original Phone, Mr. Horton was unable to determine whether there were any other photographs that existed with respect to the timeframe of the cruise. Additionally, without the ability to examine the computer that was used to perform the transfer, Mr. Horton could not determine whether any of the photographs were contained in the computer’s memory.

The undersigned finds Mr. Horton’s testimony to be credible and reliable.

CONCLUSIONS OF LAW

Defendant seeks sanctions pursuant to the Court’s inherent authority and Rule 37(b), Rule 37(e) and Rule 41(b). See Second Motion for Sanctions [D.E. 123]. Plaintiff argues that the Motion for Sanctions should be denied because there is no clear and convincing evidence that Plaintiff acted in bad faith, perpetrated a fraud, willingly violated discovery rules, or intended to deprive Defendant of the Original Phone or any photographs; nor was there any prejudice to Defendant because the photographs were preserved. SeeResponse [D.E. 135].

*8 Given that any potential remedy for Plaintiff’s alleged spoliation must stem from Rule 37(e), the undersigned must determine whether Plaintiff’s other discovery conduct—namely her false response to Defendant’s Initial Request for Production, her late disclosure of responsive photographs, and her failure to notify Defendant that the Original Phone was destroyed—warrants sanctions pursuant to the Court’s inherent powers. See Living Color, 2016 WL 1105297, at *4 n.2. To impose such sanctions, the undersigned must find that Plaintiff committed a fraud on the court, delayed or disrupted the litigation, or hampered the enforcement of a court order. Tarasewicz, 2016 WL 3944176, at *4.

Plaintiff’s conduct, though troubling, does not rise to the level of “an unconscionable plan designed to improperly influence the court in its decision.” Id. As such, the undersigned does not find clear and convincing evidence of fraud on the court. However, Plaintiff’s actions did ultimately cause a delay in the trial and did hamper the Court-ordered forensic examination of Plaintiff’s phone. Consequently, the undersigned finds the requisite bad faith and concludes that sanctions pursuant to the Court’s inherent authority are warranted.

Defendant seeks sanctions under Rule 37(b) for Plaintiff’s violation of the undersigned’s October 25, 2018 Order, which required Plaintiff’s counsel to mail Plaintiff’s cell phone, including the memory card, to Mr. Horton for the purpose of conducting a forensic examination to determine whether any additional responsive photographs existed and whether any had been deleted or modified. See Second Motion for Sanctions [D.E. 123 at 15-16]; Second Emergency Motion to Compel [D.E. 111 at 2]; Order [D.E. 118]. Plaintiff argues that her actions were justified because she believed that the Replacement Phone was the Original Phone. See Sanctions Response [D.E. 135 at 13]. However, in light of the undersigned’s finding that Plaintiff’s testimony was wholly lacking in credibility, the undersigned gives no weight to Plaintiff’s purported belief. Thus, reasonable people could not differ as to the inappropriateness of Plaintiff sending a completely different phone for examination than the one on which she took the cruise photographs and failing to inform Defendant or the Court of this fact. See Devaney, 989 F.2d at 1163 (11th Cir. 1993). Therefore, Rule 37(b) sanctions are warranted.[3]

As to the spoliation claim, the first two threshold requirements under Rule 37(e)—that the information sought constitutes ESI and that it should have been preserved in anticipation of litigation—are not in dispute. Thus, the undersigned must determine whether the ESI was lost because Plaintiff failed to take reasonable steps to preserve it; and whether the ESI cannot be restored or replaced through additional discovery. Title Capital Mgmt., 2017 WL 5953428, at *3.

Plaintiff admits that she discarded the Original Phone, and Mr. Hancox testified that he discarded the laptop and the desktop. Thus, the third threshold question is satisfied. Id. Additionally, Mr. Horton testified that there was no way to. determine whether there were any other photographs that existed with respect to the timeframe of the cruise without the Original Phone. Moreover, without the ability to examine the computer that was used to perform the purported transfer, Mr. Horton could not determine whether any of the photographs were contained in the computer’s memory. As such, even though Plaintiff claims to have produced all of the cruise pictures that were taken, the corresponding metadata that could only be found on the Original Phone, or possibly on the laptop or the desktop, is forever lost. Hence, the final threshold requirement is satisfied, and the undersigned must determine if Defendant was prejudiced or if Plaintiff acted with the intent to deprive Defendant of the ESI at issue. Id.

*9 With regard to prejudice, not only will Defendant never be able to obtain the lost metadata, but it also incurred great expense in retaining a forensic expert. Therefore, the undersigned finds prejudice.

As to Plaintiff’s intent, the circumstantial evidence establishes that Plaintiff acted in bad faith or with intent to deprive Defendant of the ESI. See Living Color, 2016 WL 1105297, at *6 n.6 (finding that the “intent to deprive” standard under Rule 37(e) is harmonious with the bad faith standard used in Eleventh Circuit spoliation cases). First, metadata of any pictures taken on the cruise “could fairly be supposed to have been material.” Managed Care Sols. 736 F. Supp. 2d at 1323; Calixto, 2009 WL 3823390, at *16; Alabama Aircraft Indus, 319 F.R.D. at 746. Even Plaintiff admitted that the photographs jogged her memory as to how many drinks she had and when she had them, and that Defendant had no way to know this information until the photographs were produced in October 2018. Second, Plaintiff affirmatively caused the metadata to be lost when she discarded the phone. Id. Third, she did so after obtaining counsel, illustrating that she knew or should have known of her duty to preserve the evidence. Id.; seeRepresentation Letter [D.E. 123-7]. Lastly, the undersigned has found that Plaintiff wholly lacked credibility and that Mr. Hancox’s explanations strain credulity and defy logic when they claimed that the Original Phone was run over by a car; that neither Plaintiff nor Mr. Hancox remembered that the Original Phone had been replaced until almost two years later; and that the device used to transfer the Original Phone’s photographs was destroyed either by being dropped on a concrete patio or doused in water after catching fire. Hence, the affirmative act causing the loss of the ESI “cannot be credibly explained as not involving bad faith by the reason[s] proffered.” See Managed Care Sols. 736 F. Supp. 2d at 1323; Calixto, 2009 WL 3823390, at *16; Alabama Aircraft Indus, 319 F.R.D. at 746.

Based on these factors, the undersigned concludes that Plaintiff acted with the intent to deprive Defendant of the use of the ESI. Given the undersigned’s findings of prejudice and intent to deprive Defendant of the ESI, Rule 37(e) sanctions are warranted.

APPROPRIATE SANCTIONS

Defendant seeks as sanctions an Order: 1) striking Plaintiff’s pleadings and dismissing the action with prejudice; 2) awarding Defendant its costs and attorneys' fees in preparing and filing the Emergency Motion for Continuance [D.E. 85], the First Emergency Motion to Compel [D.E. 83], the Motion for Reconsideration [D.E. 107] and the Second Emergency Motion to Compel [D.E. 111]; 3) awarding Defendant its costs and attorneys' fees in preparing for the trial that was scheduled to commence on October 9, 2018; and 4) awarding Defendant all costs associated with engaging Mr. Horton’s services. See Second Motion for Sanctions [D.E. 123 at 20-21].

Although dismissal and striking of the pleadings are contemplated in Rules 37(b) and 37(e), such sanctions are “appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court’s orders.” See Malautea, 987 F.2d at 1542. Neither is dismissal proper under Rule 41(b) because there is no “clear record of ‘willful’ contempt” or any “finding that lesser sanctions would not suffice.” See Gratton, 178 F.3d at 1374.

*10 As to Defendant’s request for an award of costs and fees, the undersigned finds that such a sanction is appropriate under the Court’s inherent authority and Rule 37(b). To that end, Defendant shall submit a statement of its reasonable fees and costs incurred in: litigating the Emergency Motion for Continuance [D.E. 85], the First Emergency Motion to Compel [D.E. 83], the Motion for Reconsideration [D.E. 107] and the Second Emergency Motion to Compel [D.E. 111]; preparing for the trial that was scheduled to commence on October 9, 2018; and engaging Mr. Horton’s services.

Due to the nature of Plaintiff’s spoliation, further sanctions under Rule 37(e)are warranted. Plaintiff’s intent to deprive Defendant of the ESI calls for the more severe sanction of an instruction to the jury that it may or must presume the information was unfavorable to the party. See Fed. R. Civ. P. 37(e)(2)(B). However, the undersigned defers to the District Judge whether to issue an adverse inference instruction at trial as an additional sanction.

CONCLUSION

Based on the foregoing considerations, it is

ORDERED AND ADJUDGED that Defendant’s Second Motion for Sanctions [D.E. 123] is GRANTED IN PART. It is further

ORDERED AND ADJUDGED that Defendant shall submit a statement of its reasonable fees and costs incurred in: litigating the Emergency Motion for Continuance [D.E. 85], the First Emergency Motion to Compel [D.E. 83], the Motion for Reconsideration [D.E. 107] and the Second Emergency Motion to Compel [D.E. 111]; preparing for the trial that was scheduled to commence on October 9, 2018; and engaging Mr. Horton’s services.

DONE AND ORDERED in Chambers at Miami, Florida this 3rd day of December, 2018.

Defendant’s Ex. 3 is a composite exhibit consisting of Plaintiff’s tax returns from 2013-2017. This exhibit was admitted under seal [D.E. 138].

According to Plaintiff’s counsel, Mr. Hancox initially considered asserting a claim for loss of consortium.

Plaintiff also argues that it is debatable if any court order has been violated in this case because the undersigned ordered an inspection of Plaintiff’s phone, and her phone was provided and inspected. See Sanctions Response [D.E. 135 at 13]. The undersigned finds no merit in Plaintiff’s disingenuous argument, given that the purpose of the forensic examination was to determine whether any additional responsive photographs existed in Plaintiff’s cell phone and whether any had been deleted or modified. See Second Emergency Motion to Compel [D.E. 111 at 2].