TRAVELERS INSURANCE COMPANY, as Subrogee of G. Robert Toney & Associates, Inc., d/b/a National Liquidators and Maritech Services, Inc., Plaintiff, v. COMMERCIAL COOL-TEMP CORP., Defendant CASE NO. 11-61748-DIMITROULEAS/Snow United States District Court, S.D. Florida Signed September 05, 2012 Counsel Daniel Scott Marcotte, McAlpin Conroy, P.A., Patrick Edward Novak, Horr Novak & Skipp, P.A., Miami, FL, for Plaintiff. Diana Beaz, Emanuel Galimidi, Mark A. Hendricks, Lydecker Diaz, Miami, FL, for Defendant Snow, Lurana S., United States Magistrate Judge ORDER *1 THIS CAUSE is before the Court on the Defendant, Commercial Cool-Temp Corp.’s Motion for Determination of Spoliation of Evidence and Appropriate Sanctions (DE 70), which was referred to United States Magistrate Judge Lurana S. Snow. The motion is fully briefed and an evidentiary hearing was held on August 21, 2012. I. PROCEDURAL HISTORY AND THE PARTIES' PAPERS This is a subrogation action arising out of services the Defendant provided the Plaintiff’s predecessor in interest, in connection with the repair of a 1996 '83 Falcon Motor Yacht named Priceless. The Plaintiff contends that the Defendant’s negligent repair of the vessel caused it to sink, resulting in its total loss on July 12, 2009. The Defendant’s motion asserts that a surveillance video that allegedly captured the sinking of the vessel, security logs, and a security report (Incident Report)[1] have been either not preserved (or selectively preserved) or deliberately destroyed, and that these pieces of evidence are critical to the Defendant’s case. The motion alleges that the Plaintiff had a duty to preserve the evidence[2] and the Plaintiff acted in bad faith. The Plaintiff responds that the Defendant has failed to establish that a written security report ever was created other than the security logs produced to the Defendant in discovery.[3] Security logs from May 8, 2008 (the date the vessel was taken into custody by National Liquidators) through May 6, 2009 (three days before the vessel sank) had already been destroyed at the time of the subject loss. There was no bad faith in the failure to preserve the surveillance video as it did not depict the subject vessel and was automatically overwritten by the digital recorder system. The Plaintiff concedes that while a video depicting the vessel sinking would be relevant, such a video is not crucial to the Defendant’s defense in this case, as there is already ample evidence going to the cause of the vessel sinking. In support of this assertion the Plaintiff attached the expert reports of Allister Dredge, David Willis, and Frank Grate which it contends establish that the vessel sank as a result of the failure of the fitting adjacent to the AC pump. (DE 75-3, 75-4, 75-5) *2 The Plaintiff further asserts that its subrogor would have no incentive to destroy surveillance footage as the U.S. Marshals Service was paid in full for its loss pursuant to its policy of insurance by Travelers, and it was also paid by Travelers for its salvage efforts. The subrogor therefore would have no reason to destroy surveillance footage in anticipation of a potential lawsuit to be later filed by Travelers against the Defendant. Travelers itself did not have possession of the surveillance footage at any time before it was automatically deleted by the digital recording system at National Liquidators. The Defendant’s reply disputes the Plaintiff’s assertion that National Liquidators would have no incentive to destroy video footage depicting the sinking of the vessel. If the footage portrayed its negligence in failing to maintain, secure and inspect the vessel in accordance with its contract with the U.S. Marshals Service, such evidence could impact its contract.[4] Furthermore, such evidence could cause it to lose its insurance coverage with Travelers, which would at a minimum make it more difficult to obtain substitute coverage. In advance of the hearing, the parties each supplemented their papers. (DE 105-110) On August 17, 2012, the Plaintiff filed an Incident Report prepared by Guy Boone on the date the vessel Priceless sank. The report indicates that at 2:12 a.m. on Sunday July 12, 2009, Mr. Boone noticed that the vessel was taking on water while he was conducting his rounds. He called for backup which arrived within fifteen minutes. An attempt to pump out the water was unsuccessful as there was too much water on board at that point. His report indicates that any visual contact with the vessel was hampered because the cameras were not functioning due to adverse weather conditions. (DE 105) On the same date, the Defendant filed deposition designations of Kevin Zimbrick, William O'Dell, Adolph Boone and Istvan Kopar[5]. (DE 106) On August 17, 2012, the Plaintiff filed the complete deposition transcripts of Adolph Boone, Ernie Labadie, Mark Ribeiro, Kevin Zimbrick, and William O'Dell. (DE 107) The Court will briefly summarize the testimony of Adolph Boone and Kevin Zimbrick.[6] Ernie Labadie and William O'Dell each testified at the evidentiary hearing; their testimony will be summarized below. The Defendant deposed Adolph (Guy) Boone on July 26, 2012.[7] Mr. Boone testified that he was employed by National Liquidators as a security guard during the relevant time period. His duties included challenging access to the area at night, checking the boats for security purposes, and checking to see if any of them were taking on water. There were three, two-man shifts each day. One person would stay in the office and monitor the security cameras, and the other would conduct rounds. Each round would take about thirty to forty minutes. After a round was completed, the officers would change places. Security personnel were required to conduct their rounds even in poor weather. *3 Handwritten logs were maintained by each employee on every shift, and these were then submitted to the security supervisor; probably Joe Longo, either by handing them to Mr. Longo if he was there or placing them on Mr. Longo’s desk. Mr. Longo would review the logs, and if there was something he could not read or, if he did not understand something, the log would have to be re-written. Mr. Boone stated that he believes Mr. Longo would then turn the logs in to the personnel director, Ernie Labadie. Security personnel were also required to create incident reports to document when “incidents” occurred. The initials “IR” on a security log would refer to an incident report which would be stapled to the daily log. On occasion the security cameras would malfunction. When this occurred, security would report the malfunction and spend more time patrolling the area. The cameras never malfunctioned for any real length of time, however. Mr. Boone recalled the sinking of a vessel, but did not recall which vessel. He did recall that it was docked in the secure area of the facility, referred to as the “Island.” He testified that he may have been the individual who initially discovered the vessel was taking on water. He first noticed that the vessel was listing. He testified that he would have inspected the vessel earlier that same night, but does not recall noticing any issues during the earlier inspection. He did not hear any alarms. He called the security office and waited with the vessel. According to Mr. Boone the maintenance workers arrived fairly quickly. Mr. Boone testified that he did not know if there was a system in place for saving recorded video from the security cameras. There were cameras on sections of the Island, some of which had the capability of rotating slightly. Although he was not certain, Mr. Boone did not believe that the vessel’s sinking would have been captured by video because there were only a few cameras, and these were trained on the entrances rather than on the boats. He never heard that a video depicting the vessel taking on water existed. He does not recall ever being told that cameras on the Island were trained on one particular vessel for security reasons, but believes he would have been told if that were the case. He was never questioned by anyone about the incident after the vessel sank. Mr. Boone was shown the security log of Renois Hazler[8] who was on duty with him on the night the vessel sank. Mr. Hazler’s log stated that at 23:30 he completed his round at National due to rain. Mr. Boone testified that a completed round at National should have included the Island. Renois Hazler’s log was attached as Defendant’s Exhibit 8 to Adolph Boone’s deposition. There was no indication on Mr. Hazler’s report that he noticed anything amiss while conducting his rounds. The Defendant deposed Kevin Zimbrick on May 18, 2012. Mr. Zimbrick testified that he was employed as General Manager for MariTech from January of 2009 through May of 2010. His job duties included supervising MariTech’s service writers who in turn, were charged with creating work orders and assigning work to technicians and sub-contractors. Mr. Zimbrick stated that the last time he saw the vessel Priceless probably would have been on the Friday before it sank because he made a daily walk through the yard, including the Island. He testified that after the vessel sank and was raised, he entered the vessel and heard a hissing sound coming from the engine room. He observed a fitting which was leaking and spraying water into the bilge. Conceding that he was not an expert, Mr. Zimbrick estimated that based upon the amount of water spraying from the fitting, it would have taken more than one day for the vessel to sink. He testified that he recalls taking either a video or still picture of the spray which might still be on the computer he used while at MariTech. He believes he would have shown the images to his crew, and perhaps to Istvan Kopar and Bill O'Dell. *4 Mr. Zimbrick testified that he created a timeline after the incident, although he does not think anyone asked him to do so. His timeline refers to a conversation with Joe Longo, head of security, who advised that he would have reports by the afternoon. Mr. Zimbrick does not recall ever receiving a security report, however. Mr. Zimbrick stated that he believed the cameras in the area where the vessel sank were operational because he believed he reviewed the video which depicted the vessel sinking. The video footage did not show any security personnel walking by the boat. He did not recall for certain with whom he reviewed the video, although he listed Istvan Kopar, Michael Bacchiocchi and Bill O'Dell as possibilities. On August 20, 2012, the Plaintiff filed the report of Defendant’s expert, Stephen Klaity, as a supplement to its response to the instant motion. (DE 108) The parties disagree on the significance of Mr. Klaity’s report. Although Mr. Klaity concurs with the Plaintiff’s expert, Exponent, that the raw water pump servicing the air conditioner system on the vessel showed a cracked poly fitting in the pump housing, he also reports that there were holes in the underside of the swim platform that would have contributed to the flooding of the vessel; the bilge pumps were fouled with oil which could have resulted in diminished de-watering capabilities, and the batteries apparently were discharged and unable to adequately power the bilge pumps. On August 20, 2012, the Plaintiff also filed a notice of filing supplemental authority in support of its response to the instant motion. (DE 109) The Plaintiff cites the case of Aetna Casualty & Surety Co. et al. v. Tracor Marine, Inc., 629 F.Supp. 526 (S.D. Fla. 1986) to bolster its assertion that National Liquidators owed no duty to the Defendant, and therefore it is not relevant whether National Liquidators was comparatively negligent in this case. Finally, on August 20, 2012, the Plaintiff filed a notice of filing documents in support of its motion. (DE 110) These documents include a July 13, 2009 memo from the Defendant outlining its position concerning the incident, a July 17, 2009 letter from the Defendant to National Liquidators requesting a time to send a surveyor to inspect the vessel before any repairs were initiated, and an August 17, 2012 e-mail from Defendant’s counsel attempting to schedule the deposition of Michael Whiteman in advance of the scheduled hearing on the Defendant’s motion. II. EVIDENCE PRESENTED An evidentiary hearing was held on August 21, 2012, during which the Court heard oral argument. Additionally, the Plaintiff called three witnesses whose testimony is summarized below. The Plaintiff called Mr. Bill O'Dell as its first witness. Mr. O'Dell testified that he has been employed by National Maritime Services/National Liquidators since 2004. He is currently Vice President of Operations. Mr. O'Dell explained that National Liquidators has a contract with the United States Marshals Service and the Treasury Department to store seized vessels and aircraft. They also contract with lenders to store civilly arrested vessels. National Liquidators currently stores and cares for twenty vessels which were seized by the U.S. Marshals Service and 60 or more vessels seized by Treasury Department. Additionally, they are responsible for 25 seized aircraft and 16 arrested vessels across the nation. *5 After National takes custody of a vessel, a technician prepares a seven page condition report. The report documents the condition of the vessel’s bilges and electronics, and the results of inspections for water intrusion and mold and mildew, among other things. The report then goes to the client and is stored in an electronic database. Owing to its value, the Priceless would have been placed on an approved maintenance plan. The vessel would have been boarded daily, and a technician would start its engines and conduct an inspection looking for abnormal conditions on a biweekly basis. In addition, the vessel would have been washed once a month. The Priceless was transported from Miami to Fort Lauderdale, via the Atlantic Ocean in May of 2008. No abnormal conditions were noted at the time. It was stored in a slip in a secured area where it remains to this day. Mr. O'Dell testified that shortly after the loss he watched video footage from the night the vessel sank. None of the footage showed the Priceless. The cameras in the secured part of the facility had been recently re-positioned to capture a vessel called the Bull which had been seized from Bernie Madoff. Both vessels were located at the secure part of the facility known as the Island. The Bull was about fifteen paces away from the Priceless. On cross-examination, Mr. O'Dell testified that he believed handwritten security logs were prepared on a daily basis in 2009 athough he did not know this for a fact because this would not be something with which he personally would be involved. He explained that Plaintiff’s counsel contacted him over the course of the litigation for assistance in responding to discovery requests. He passed these requests on to Ernie Labadie, who was involved in the investigation of the loss from the beginning, along with Kevin Zimbrick, who had the most knowledge and actually ran the investigation. The Plaintiff’s next witness was Ernest Labadie. Mr. Labadie testified that he currently serves as the Director of Human Resources and Risk Management for National Liquidators. In July of 2009, he served as Human Resources Manager. At the time of the incident security personnel did not report to him. Mr. Labadie stated that one of his duties was to make sure that cameras were in all of the appropriate areas. Whenever there was an incident he would work with Mike Whiteman (Director of IT) to review video footage. He learned about the loss in this case on the Monday morning after it occurred. He was asked to review the video footage with Mike Whiteman to determine if anything useful was captured by any of the cameras. They found nothing that needed to be retained. Of ninety cameras on site, three were located near the Priceless. None of the cameras were trained on the Priceless. Had they seen anything of import in the video footage, as they had in the case of a sinking which occurred in June of 2009, they would have burned a CD to preserve the evidence. Mr. Labadie testified that after he was deposed on August 15, 2012, he asked Mr. Whiteman to check again to make sure that they had not burned a CD from footage of the night when the Priceless sank. Mr. Whiteman reported to him that he did not find anything. Mr. Labadie testified security logs were not turned in to him, instead, they were scanned each day into the computer system and kept in a file for any employee of National Liquidators to access. After his deposition, he asked Mr. Whiteman if incident reports would have been preserved in the same way as the security logs. This was how he learned that incident reports would have been scanned into the computer as well. In less than four hours he located Guy Boone’s Incident Report and turned it over immediately. On cross examination, Mr. Labadie conceded that he has a role providing information in connection with a lawsuit when it is requested of him. He does not recall ever being advised of the Defendant’s position with regard to liability in this case. *6 Mr. Labadie testified that he thoroughly reviewed the video footage in this case. This involved reviewing footage from 90 cameras contained on four or five DVRs. His review started on the Monday following the loss, and probably continued for much of the week. Mr. Whiteman also reviewed the footage, as did security personnel. The footage would have been retained on the DVRs for about 30 days, after which time it would automatically have been overwritten. In response to the Court’s inquiry, Mr. Labadie stated that he interviewed the guards, including Guy Boone, who had been on duty when they arrived for their next shift. None had pertinent information. When he interviewed Mr. Boone he would have asked if he wrote anything down concerning the incident, but he does not think he would have used the term “Incident Report.” Mr. Labadie conceded that he had 25-30 years of risk management experience, and that incident reports were prepared in the normal course of business after an accident. He clarified however, that he was not the Risk Manager for National Liquidators until August of 2009. In July of 2009, he was only the Human Resources Manager. It would have been Kevin Zimbrick’s responsibility to follow up about any incident reports. In response to the Court’s inquiry, Mr. Labadie testified that the Incident Report provided to the Defendant is complete. Joe Longo, Supervisor of Security, probably would have been in charge of determining whether incident reports submitted by security were complete, but he did not know if there was a policy in place. The Plaintiff’s last witness was Michael Whiteman. Mr. Whiteman testified that he has been the IT Manager for National Liquidators for almost five years. He described the camera system utilized by National Liquidators. DVRs on site automatically record what every camera sees. Additionally, a network connection permits the guards to see certain portions of the video footage. Mr. Whiteman testified that he would have looked at video in connection with the sinking of the Priceless. The cameras did not capture anything because they were trained on the Madoff vessel. If there had been any worthwhile footage, he would have transferred it to a file and burned a CD. Had he done that, there would be evidence on the system. He recently went back to the tape achives and searched the entire system, but found nothing. On cross examination, Mr. Whiteman testified that the guards are not able to see all of the footage as it is happening. He stated that he never saw Guy Boone’s Incident Report, nor did he interview him. He stated that it was possible that cameras may have been impacted by the weather because they sometimes go down temporarily in heavy rain. The guards do not see everything from the cameras anyway. The DVRs however, capture everything and offer a more complete picture. Finally, Mr. Whiteman testified that Mr. Labadie contacted him after his deposition and asked if there was anywhere else to look for relevant material. Mr. Whiteman was able to verbally direct Mr. Labadie where to look for additional information on the computer system. III. ANALYSIS “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. Baha Marine Corporation, 310 Fed. Appx. 298, 301 (11th Cir. 2009) (citing West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). “Federal law governs the imposition of sanctions for failure to preserve evidence in a diversity suit.” Flury v. Daimler Chrysler Corp., 427 F.3d 939 (11th Cir. 2005). The Flury Court noted that federal law in the Eleventh Circuit does not set forth specific guidelines with regard to when to impose sanctions for spoliation, however. In that case, the Court looked to Georgia law for guidance, finding that the standards in Georgia law were wholly consistent with federal spoliation principles. Id. *7 Although the Eleventh Circuit has not expressly found Florida law to be wholly consistent with federal spoliation principles, lower federal courts have routinely looked to Florida law for guidance on when to impose spoliation sanctions. Socas v. The Northwestern Mutual Life Insurance Company, 2010 WL 3894142 at *3 (S.D. Fla. 2010) (citations omitted). “Under Florida law, to establish spoliation, the moving party has the burden of proving ‘(1) the missing evidence existed at one time, (2) the non-moving party had a duty to preserve the evidence and (3) the evidence was crucial to the movant being able to prove its prima facie case or defense.’ ” Id. (citing Sharp v. City of Palatka, 2008 WL 89762 (M.D. Fla. 2008)). In addition, the Eleventh Circuit requires a finding of bad faith in order to impose the sanction of dismissal or the imposition of an adverse inference. Id. (Citations omitted) MereC negligence is not sufficient to support a finding of bad faith because ‘it does not sustain an inference of consciousness of a weak case.’ Id. (citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). A determination of bad faith may be based upon circumstantial evidence if direct evidence is absent. Id. (citing Walter v. Carnival Corp., 2010 WL 2927962, at *2 (S.D. Fla. 2010)). The following factors must be present to make a finding of bad faith based upon circumstantial evidence: (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. Id. Potential sanctions for spoliation of evidence include, dismissal of the case, exclusion of expert testimony, or a jury instruction on spoliation of evidence which raises a presumption against the spoliator. Flury 427 F. 3d at 945. (citing Chapman v. Auto Owners Insurance Co., 469 S.E. 2d 783, 784 (1996)). In determining whether dismissal is warranted the court must consider (1) whether the defendant was prejudiced as a result of the destruction of evidence; (2) whether the prejudice could be cured; (3) the practical importance of the evidence; (4) whether the plaintiff acted in good or bad faith; and (5) the potential for abuse if expert testimony about the evidence was not excluded. Id. A. The Existence of the Missing Surveillance Footage and Documents The Court notes that by the time the instant motion was fully briefed and in the days leading up to the hearing, certain documents that the Defendant believed had been spoliated were produced, and new evidence surfaced concerning the missing surveillance video. Although it is now clear that the Incident Report which the Defendant has been seeking since December of 2011 exists and has been produced, as have at least a portion of the security logs that were requested, this was not the case when the Defendant filed the instant motion. As the Incident Report has been produced, the Court need not undertake a spoliation analysis with regard to that document. The Court notes however, that the Plaintiff’s position in response to the instant motion was that there was no evidence that such a report ever existed and it was not produced until just days prior to the hearing. There is no question that footage captured by video cameras from the night the vessel sank existed at one time. Although Guy Boone reported that visual contact with the vessel was hampered by malfunctioning cameras owing to poor weather conditions, several witnesses testified that they viewed footage from the night the vessel sank. This testimony is not necessarily inconsistent with Mr. Boone’s report, as Mr. Whiteman testified that the footage the guards saw on their monitors was not the complete footage captured by the DVRs. It is also not clear which cameras malfunctioned or for how long. In any case, the Plaintiff did nothing to preserve the video footage that was captured by the DVRs, and it was automatically overwritten after about thirty days. *8 Further, although some security logs between the dates of May 6, 2009 and July 11, 2009, were produced in response to the instant motion for determination of spoliation of evidence, the Defendant contends that logs from about twenty-five days within that time period are still missing. It is likely that these existed at one time, as Mr. Boone testified that the guards were required to keep daily written logs. At the hearing Mr. O'Dell similarly testified that he believed handwritten logs were prepared on a daily basis, and Mr. Labadie testified that logs were scanned into the computer system each day for National Liquidators employees to access if needed.[9] Accordingly, the Defendant has established that video footage from the night the vessel sank existed at one time. It is also likely that handwritten logs from the missing dates existed as well, and although this is less certain, the Court will assume for the purposes of the instant motion that they existed. See Klezmer v. Buynak, 227 F.R.D. 43, 49 (E.D. N.Y., 2005). B. The Duty to Preserve When a party reasonably anticipates litigation it must suspend whatever document retention/destruction policy is in place and put in place a “litigation hold” to ensure the preservation of relevant documents. Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431 (S.D. N.Y. 2004). Furthermore, it is counsel’s duty to oversee compliance with the litigation hold, which includes proper communication with the client to ensure (1) that all relevant information is discovered, (2) that relevant information is retained on a continuing basis and (3) that relevant non-privileged material is produced to the opposing party. Id. at 432. The Defendant argues and the Court agrees that litigation was reasonably anticipated in this case at least as early as the Defendant’s July 13 and 17, 2009 correspondence to National Liquidators, and certainly no later than Defendant’s counsel’s August 17, 2009 letter to National Liquidators requesting that they preserve evidence. The Plaintiff does not dispute that it was under a duty to preserve relevant evidence following the sinking of the vessel. (DE 75, p. 7) Instead the Plaintiff emphasizes that it has produced any relevant information the Defendant has sought. Anything that has not been produced is irrelevant to this litigation. Alternatively, the Plaintiff argues that any relevant evidence that was lost or destroyed was not the result of bad faith. Both arguments will be addressed below. C. The Crucial Nature of the Missing Surveillance Tape and Documents To prevail in its motion for spoliation sanctions, the Defendant must demonstrate that the missing evidence is crucial to the action; in other words, that it will be unable to prove its defenses owing to the unavailability of the evidence. Point Blank Solutions v. Toyobo America, Inc.2011 WL 1456029 (S.D. Fla. 2011). The greater weight of the evidence supports the Plaintiff’s position that the Defendant has not met its burden. Although any video footage from the night the vessel sank was lost owing to the digital recording system’s automatic overwriting function, the Plaintiff offered credible testimony which established that the sinking was not captured by the cameras. Mr. Labadie, Mr. O'Dell and Mr. Whiteman each testified that they viewed the footage captured by the security cameras after the incident, and none of them saw any images of the vessel sinking. Mr. O'Dell explained that the cameras on the Island had been trained on the Madoff vessel, the Bull in light of excessive public interest in that vessel. Although Mr. Zimbrick testified in his deposition that he viewed footage of the vessel sinking, the Court finds that the testimony offered by Mr. Labadie, Mr. O'Dell and Mr. Whiteman to be credible. In fact, Mr. Labadie and Mr. Whiteman both testified that another vessel sank in June of 2009, and footage from that incident was preserved. This testimony lends credence to the Plaintiff’s assertion that had the cameras caught the sinking of the Priceless, steps would have been taken to preserve the footage. It also offers a possible explanation for Mr. Zimbrick’s contrary testimony, as he may have viewed footage from the earlier sinking. *9 The Defendant argues however, that the footage is critical because it could have shown that security personnel were not patrolling the area as required, evidencing the subrogor’s comparative negligence.[10] The Defendant also argues that the footage may have showed how long it took for the vessel to sink. If the vessel sank slowly, security personnel should have noticed sooner that it was in distress. If the vessel sank rapidly, the cracked fitting could not have been the cause. To the extent that such evidence would be material, it is cumulative because numerous witnesses who viewed the video footage testified that they saw no individuals in it. This testimony is credible because it was offered by employees of the subrogor, and does not bolster the Plaintiff’s case. Further, other evidence exists as to causation. Arguably the best evidence of the cause of the sinking; the vessel Priceless herself, still exists. There has been no indication that its condition has not been preserved as requested by the Defendant shortly after the incident. Both the Plaintiff and Defendant have retained experts who have offered their opinions in this case. In fact, the Defendant’s expert, Steve Klaity, found evidence of holes in the underside of the swim platform that in his opinion would have contributed to the sinking of the vessel. Mr. Klaity’s report also notes that the bilge pumps were fouled with oil which could have diminished de-watering capabilities, and the batteries were apparently discharged and unable to adequately power the bilge pumps. Additionally, Guy Boone’s eyewitness testimony offers some evidence as to the amount of time it took for the vessel to sink. In support of its contention that the missing security logs are crucial to its defense, the Defendant argues that among the security logs that are missing, are logs for the date that the prior sinking occurred. The Defendant has not offered any other argument as to their crucialness however, and the Court finds that it has not met its burden. D. Evidence of Bad Faith Finally, for the following reasons, there has not been a showing of bad faith in this case as required in the Eleventh Circuit for a determination of spoliation of evidence. The missing evidence cannot fairly be supposed to have been material to the proof of the Defendant’s defenses. The credible testimony of numerous witnesses established that the video footage from the night in question did not contain images of the sinking vessel. To the extent that the footage did not show security personnel making their rounds, the witnesses who viewed the footage can testify to that fact. Further, there is ample other evidence going to causation in this case, including the existence of the vessel itself. Also, the facts surrounding the destruction of the video footage in this case simply do not support an inference of consciousness of a weak case on the part of the Plaintiff. According to their credible testimony, the National Liquidators employees charged with viewing the video footage after the incident did not see anything of value in the images captured by approximately 90 cameras and therefore decided that none of the footage needed to be preserved. Although a good argument can be made that they should have preserved the entire universe of footage from the night of the sinking, this Court does not find that the failure to do so rises to the level of bad faith. *10 The Court has not been presented with enough evidence concerning the circumstances surrounding the missing security logs to make a determination as to whether their loss was predicated on bad faith. However, since the Court has found that the Defendant has not met its burden of establishing that the missing logs are crucial to its case, the Court need not make that determination. E. The Appropriateness of Sanctions Although the undersigned finds that the Defendant’s motion does not support a finding of spoliation of evidence, that does not mean that the Plaintiff’s conduct in delaying the production of relevant evidence and witnesses in this case should go unaddressed. The Defendant served its First Request for Production of Documents on December 6, 2011. The Plaintiff asserts that it did not have any reason to know that its responses were not satisfactory until the Defendant retained new counsel in March of 2012, when new counsel requested better responses. The Defendant supplemented its responses, and motions to compel were not filed until May of 2012 when the Defendant’s motion to extend the discovery cut-off was denied. From the outset, the Plaintiff insisted that it was undertaking a diligent search for relevant responsive documents, but it was not until the Defendant filed the instant motion that the Plaintiff turned up the missing security logs, followed by Guy Boone’s Incident Report which for the first time suggested that the security cameras may have been malfunctioning on the night of the incident. These documents evidently were found with relative ease once the correct individual was asked where to look for them. Further, the existence of Ernie Labadie and his involvement with the investigation of the sinking of the Priceless was first disclosed in response to the instant motion. At best, the Plaintiff has not taken its discovery obligations in this case seriously. There is no question that the Defendant has been prejudiced by these late disclosures on the eve of trial. The Court recently ordered the Plaintiff to compensate the Defendant for the expenses it incurred in filing its Second Motion to Compel Compliance with Court Ordered Discovery. (DE 104) At the hearing on the instant motion the Defendant persuasively argued that it should also be compensated for the instant motion and for all of the motions it has filed in an effort to obtain the Incident Report and security logs which have finally been produced. These would include the Defendant’s Motion to Compel Responses to Defendant’s First Request for Production (DE 39), and Defendant’s Motion to Compel Responses to Defendant’s Second Request for Production. (DE 56) The Defendant also seeks compensation for the depositions of Guy Boone, Ernie Labadie and Bill O'Dell because it took those depositions without the benefit of the late produced Incident Report. Additionally, the Defendant wants to depose Michael Whiteman as well as security officers discovered via the late produced security logs, including Sergeant Acosta, Lt. A. Durismy, Lt. Adele, Officer Gilot, Officer Renoir Hazler, Officer M. Prosper and Rafael Abarca.[11] Finally, the Defendant wants access to the Plaintiff’s servers and all correspondence reflecting a litigation hold. *11 Courts have broad discretion in imposing consequences for abusive discovery practices or for a failure to preserve the integrity of the discovery process. Sphinx Intern., Inc. v. National Union Fire Ins. Co. of Pittsburgh, Pa., 2003 WL 24871000 at *8 (M.D. Fla. 2003) (citing Aztec Steel Co. v. Florida Steel Corp., 691 F.2d 480, 482 (11th Cir. 1982)). A court also has inherent powers to impose sanctions to achieve the orderly and expeditious disposition of cases where a party’s conduct disrupts or impairs the judicial process. National Hockey League v. Metropolitan Hockey Club, Inc., 427 U.S. 639 (1976)[12] Implicit in Fed.R.Civ.P. 37 is the recognition that in cases of discovery abuse, the non-offending party should at the very least be compensated by the non-complying party and/or its counsel, if circumstances warrant, for the added expenses caused by the violation. See BankAtlantic, 130 F.R.D. at 154 (S.D. Fla. 1990). IV. CONCLUSION Based upon the applicable law, the Defendant should be compensated for the expenses it has incurred as a result of the Plaintiff’s discovery abuses. It should also be permitted to depose Renois Hazler because he was on duty with Guy Boone on the night the Pricelesssank, and re-depose Guy Boone concerning the late produced Incident Report he authored. This Court having considered carefully the pleadings, arguments of counsel, and the applicable case law, it is hereby ORDERED AND ADJUDGED that the Defendant’s Motion for Determination of Spoliation of Evidence and Appropriate Sanctions (DE 70) is GRANTED IN PART as follows: 1. The Plaintiff shall compensate the Defendant for expenses it has incurred in pursuing the instant motion (DE 70) as well as its prior motions to compel (DE 39 and 56). On or before September 19, 2012, the parties' attorneys shall agree on the amount of these fees, and the Plaintiff shall pay the agreed amount to the Defendant. If the parties cannot agree on the amount of fees, the Defendant shall file a motion with the Court in compliance with Local Rule 7.3 detailing its fee request, and the Plaintiff may respond to the motion. 2. The Defendant may take the deposition of Renois Hazler, the Security Officer who was on duty with Guy Boone on the night the vessel Priceless sank. The Defendant may also re-depose Guy Boone concerning the Incident Report he authored. The cost of these depositions shall be borne by the Plaintiff. These depositions shall be scheduled at the earliest practicable time prior to trial. *12 DONE AND ORDERED at Fort Lauderdale, Florida, this 5th day of September, 2012. Footnotes [1] The Plaintiff located and filed the July 12, 2009 Incident Report of Guy Boone on August 17, 2012, in advance of the hearing. (DE 105) Security logs spanning May 6, 2009 through July 11, 2009 were produced on June 29, 2012, the same date that the Plaintiff responded to the instant motion. Evidently, the logs do not cover the entire time period, however. According to the Defendant, logs for 25 dates are missing. Surveillance video has never been produced. [2] The motion cites correspondence from July 13 and 17, 2009, as well as, August 13 and 17, 2009 putting the Plaintiff on notice that litigation was likely and requesting that evidence be preserved. (DE 70-9) [3] Again, Guy Boone’s Incident Report was located and produced after the Plaintiff filed its response to the motion but before the date of the hearing. [4] A copy of the contract with the U.S. Marshals Service is attached to the Defendant’s motion. (DE 70-13) [5] To the extent that the Court relies on the deposition testimony of Kevin Zimbrick, William O'Dell, or Adolph Boone, it has read the entire transcript of their depositions which was subsequently filed by the Defendant. (DE 107) The portion of Istvan Kopar’s deposition testimony filed by the Plaintiff indicates only that Mr. Kopar does not know if the sinking of the vessel was captured by the security cameras and that he does not recall ever seeing any such footage. The Court notes that William O'Dell also testified at the hearing held on August 21, 2012. [6] Although the Defendant makes much of inconsistencies in Mr. Ribeiro’s undated, unsigned statement which is attached as Exhibit 7 to Ernie Labadie’s deposition (DE 107-2), which inconsistencies were explored at length in Mr. Ribeiro’s deposition, the Court finds that his testimony is not relevant to the issues to be determined in the instant motion. [7] Guy Boone is the author of the Incident Report which the Plaintiff produced on August 16, 2012. The Court notes that Defendant’s counsel had not yet seen the Incident Report, and therefore, was not able to question Mr. Boone about it at his deposition. [8] The Defendant has not had the opportunity to depose this individual. [9] The Court notes that this testimony seems inconsistent with Mr. Labadie’s affidavit in which he attests that handwritten security logs are not kept by National Liquidators unless there is a basis to preserve them, and for that reason all logs from between May 8, 2008 and May 6, 2009 had already been discarded. [10] The Plaintiff argues that any comparative negligence on the part of the subrogor is not relevant as the subrogor owed no duty to the Defendant. It cites the case of Aetna Casualty Company v. Tracor Marine, 629 F.Supp. 526 (S.D. Fla. 1986) in support of this assertion. Although the Aetna Court found no duty under the particular facts of that case, it also noted that the question of duty is a question for the trier of fact and is “likewise a question of reasonableness applied to the facts presented.” 629 F.2d at 530. Furthermore, evidence need only be reasonably calculated to lead to the discovery of admissible evidence to be discoverable. Therefore, evidence concerning the whereabouts of security personnel during the relevant time period could be discoverable even if the trier of fact later determines that such information is not relevant. [11] The Court has spelled the names of the security personnel phonetically as the correct spelling of each name was not offered at the hearing. [12] The extensive sanctions available to courts for abusive discovery practices are necessary to compensate the court and parties, facilitate discovery, and deter abuse of the discovery process. As stated by the Supreme Court in National Hockey League, 427 U.S. at 643, even the “most severe in the spectrum of sanctions provided by statute or rule must be available to the district court in appropriate cases, not merely to penalize those whose conduct may be deemed to warrant such a sanction but to deter those who might be tempted to such conduct in the absence of such deterrent.” Id. Accord Gratton v. Great American Communications, 178 F.3d. 1373, 1374-75 (11th Cir. Jun. 29, 1999)(“Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.”); BankAtlantic v. Blythe Eastman Paine Webber, Inc., 130 F.R.D. 153, 154 (S.D. Fla., Jun. 19, 1990) (“Enforcement of the sanctions order is necessary to serve the punishment and deterrence goals of the rule and to vindicate the integrity of the Court and discovery process.”) Furthermore, sanctions should insure that the party complying with discovery is not prejudiced. Id.