THIS MATTER came before the Court on Plaintiffs' Motion for Adverse Inference Regarding Spoliation filed on March 24, 2016, and Plaintiffs' Motion for Adverse Presumption Regarding Spoliation filed on March 25, 2016 (collectively "Motions"). The Court has carefully considered the Motions; Defendant, Christie's International Real Estate, Inc. ("CIRE")'s, Responses; Plaintiffs' Reply; the arguments made at the March 29, 2016 hearing; and is otherwise fully advised in the premises.

I. STATEMENT OF THE CASE AND FACTS

Plaintiffs David W. Roberts and Royal Palm Properties, LLC, have sued Defendants CTRE, Rick S. Felberbaum, and Felberbaum & Associates, P.A., for false or misleading advertising, trade libel, and defamation. During discovery, Plaintiffs sought electronically stored information ("ESI") from Defendants. After a period of protracted discovery motion practice, CIRE filed a Motion for Protective Order on July 9, 2015. This Court denied CIRE's motion by order dated September 10, 2015.

On the eve [*2]  of the trial of this matter, Plaintiffs filed the instant Motions. In the Motions, Plaintiffs argue that despite CIRE's provision of over 300,000 emails pursuant to Plaintiffs' own designated search terms, over 20,000 emails were provided without corresponding attachments. Plaintiffs argue that these missing attachments require the Court to exercise a leveling mechanism in order to prevent Defendants from unfairly benefitting from improperly deleted or removed ESI. Specifically, Plaintiffs ask the Court to read jury instructions granting either an adverse inference or an adverse presumption in Plaintiffs' favor. A hearing on Plaintiffs' Motions was held on March 29, 2016.

II. LEGAL ANALYSIS AND RULINGS

Plaintiffs allege CIRE has spoliated the email attachments missing from the ESI discovery. Plaintiffs allege that the missing attachments are directly relevant as to the true nature of the business relationship between CIRE and Premier Estate Properties, Inc. ("Premier")—the publisher of the purportedly defamatory statements at issue.1 Plaintiffs seek jury instructions as a leveling mechanism due to this spoliation.

Prior to a court exercising any leveling mechanism due to spoliation of [*3]  evidence, the court must answer three threshold questions: 1) whether the evidence existed at one time, 2) whether the spoliator had a duty to preserve the evidence, and 3) whether the evidence was critical to an opposing party being able to prove its prima facie case or defense.

Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 781 (Fla. 4th DCA 2006). Examples of spoliated evidence justifying a leveling mechanism include a boat cradle from a boat on which a plaintiff sustained an injury, id., a ladder from which a plaintiff fell and sustained injuries, Am. Hospitality Mgmt. Co. of Minn. v. Hettiger, 904 So. 2d 547, 550-51 (Fla. 4th DCA 2005), and a soda bottle which fell from a shelf and caused injury to a plaintiff, Hagopian v. Publix Supermarkets, Inc., 788 So. 2d 1088, 1092 (Fla. 4th DCA 2001).

The Court finds the first prong of the Golden Yachts test has not been satisfied. As the cases surveyed above show, Golden Yachts's first prong is a question of whether there is in fact "evidence" of the claim at issue. Plaintiffs have not shown that the missing attachments contain evidence of the relationship between CIRE and Premier. Plaintiffs' argument otherwise relies purely on speculation. This is far different than, for example, the missing instrument that caused the actual injury in a personal injury action. See, e.g., Golden Yachts, 920 So. 2d at 781. In such a case, no speculation is required, as the missing instrument is the source of the injury. [*4]  Here, Plaintiffs have not shown that the purported missing attachments are actual evidence of any business relationship between CIRE and Premier. This distinction is critical, as missing discovery is not itself sufficient for a spoliation instruction. Instead, a plaintiff must show the missing discovery is evidence of a claim. Plaintiffs have not satisfied their burden.

Even if Plaintiffs had shown that evidence of the business relationship existed in the missing attachments, Plaintiffs have failed to show this evidence is "critical" to proving a prima facie case of the business relationship. As a threshold matter, in the operative Complaint, Plaintiffs do not specifically allege that Premier was an agent of CIRE. Instead, Plaintiffs simply aver that some relationship—possibly an agency relationship, possibly something less—existed between CIRE and Premier. Plainly even the text of emails between CIRE and Premier employees without attachments2 can serve as prima facie evidence of some relationship between CIRE and Premier. This is notwithstanding the allegations in Plaintiffs' complaint that

[i]n the promotional advertisements in which the statement is contained, Premier is explicitly identified [*5]  as part of [CIRE]'s global network of affiliates, and a section of the advertisement is devoted to [CIRE]'s featured auctions and events. In addition, [CIRE]'s corporate name and logo is feature prominently jointly and alongside the Premier corporate name and logo, indicating to the public the control and responsibility of [CIRE]'s for the advertisements and content therein.

(Seventh Am. Compl. ¶ 36). The promotional advertisements in question were attached to the complaint. These advertisements themselves can serve as prima facie evidence of a relationship between CIRE and Premier.3 Accordingly, this Court finds that Plaintiffs have not shown the purported spoliated evidence is critical to proving a prima facie case of a business relationship.

Finally, the Court notes that the nature of ESI renders a leveling mechanism inappropriate in this case. Plaintiffs have proffered two federal cases in which a spoliation instruction was proper in the face of intentionally spoliated ESI. These cases, though, illustrate the careful line that must be drawn when granting a spoliation instruction for missing ESI and further illustrate why such an instruction is improper here. In Optowave Co. v. Nikitin [*6] , No. 6:05-cv-1083-Orl-22DAB, 2006 WL 3231422 (M.D. Fla. Nov. 7, 2006), a spoliation instruction was appropriate regarding the intentional destruction of internal company emails. In Southeastern Mechanical Services, Inc. v. Brody, 657 F. Supp. 2d 1293, 1301-02 (M.D. Fla. 2009), a spoliation instruction regarding wiped emails, calendar items, text messages, and telephone records was appropriate. In both these cases, the discovery process was compromised by the intentional deletion of responsive ESI discovery documents. Here, Plaintiffs' own, arguably overbroad, search terms yielded over 300,000 ESI documents. Plaintiffs do not dispute that ORE has produced the documents made pursuant to Plaintiffs' searches. While a portion of the produced documents are missing attachments, conservatively there remain over 275,000 non-objectionable ESI documents. This discovery process was far more cooperative than the process in Optowave or Brody. This is simply not a case where the ESI discovery process itself has been abused, where whole swaths of potentially critical documents were intentionally deleted or removed. It is that abuse that may render a spoliation instruction appropriate in the face of missing ESI. See Optowave Co., 2006 WL 3231422 at *7 (noting "[s]anctions for discovery abuses are intended to prevent unfair prejudice to litigants and to insure the integrity of [*7]  the discovery process"). CIRE produced the documents requested and there has been no showing that the missing attachments were spoliated in bad faith. These circumstances render a spoliation instruction unnecessary.

The Court in its September 10 order recognized that ESI had not been properly preserved in this case. This finding resulted in denial of a motion for protective order. The Court's finding did not and was never meant to imply that a spoliation instruction would also be necessary. Such an instruction requires a wholly separate inquiry under the applicable case law. As stated, Plaintiffs have not satisfied that inquiry. Accordingly, it is hereby,

ORDERED that Plaintiffs' Motion for Adverse Inference Regarding Spoliation is DENIED. It is further ORDERED that Plaintiffs' Plaintiffs' Motion for Adverse Presumption Regarding Spoliation is DENIED.

DONE AND ORDERED at West Palm Beach, Palm Beach County, Florida, on March 30, 2016.

/s/ Meenu Sasser

Meenu Sasser, Circuit Judge

Footnotes