I. BACKGROUND

This personal injury action was initiated on November 9, 2016, when Plaintiff Edgardo Lebron filed a Complaint against Defendant Royal Caribbean Cruises, Ltd., (“RCL”) alleging negligence related to injuries sustained by Plaintiff when he fell while ice skating aboard the Adventure of the Seas, a cruise ship operated by Defendant RCL, ECF No. [1].

In its Answer, the Defendant has generally denied the substantive allegations in the Complaint and has raised several affirmative defenses including, comparative negligence and waiver of liability by the Plaintiff, ECF No. [67].

II. MOTION FOR SANCTIONS FOR SPOLIATION OF EVIDENCE

In the Motion, Plaintiff Lebron contends that because the Defendant failed to preserve the ice skates that Plaintiff was wearing at the time of the accident, and thereby prevented the Plaintiff from having its experts examine the skates, the Court should enter a default judgment in favor of the Plaintiff on the issue of liability, ECF No. [58] at 2. In the alternative, Plaintiff requests an adverse inference against the Defendant that the condition of the subject ice skates was such that they had uneven, worn out, and broken laces, and that this caused the fall that led to Plaintiff's injuries. Plaintiff further requests that, if the Court deems that an adverse inference is not appropriate, the Court issue a rebuttable presumption that the condition of laces of the subject ice skates was unreasonable and was the cause of the fall that led to Plaintiff's injuries.

Plaintiff argues that the Defendant had a duty to preserve the ice skates as evidence in the case, that spoliation of that evidence was caused by the Defendant's actions, that the Defendant acted in bad faith in its actions, that the evidence was critical to the Plaintiff being able to prove his prima facie case, and that the Plaintiff was prejudiced by the Defendant's actions. Plaintiff further argues that no sanction less than default judgment and an award of reasonable attorney's fees and costs would sufficiently punish and deter the Defendant's abusive conduct.

In response, the Defendant counters that Plaintiff's motion is frivolous and contends that RCL did not anticipate litigation regarding the skates worn by Plaintiff and therefore had no duty to preserve those skates, ECF No. [65] at 3. Defendant further argues that sanctions are not appropriate because the spoliation of the evidence was not the result of the Defendant's intentional destruction, mutilation, alteration or concealment of the skates worn by the Plaintiff. Rather, Defendant contends that after the Plaintiff was injured, and it was determined that the skates were not defective, the skates were returned to circulation for general usage pursuant to the Defendant's policy and procedures. The Defendant further argues that the skates were not crucial for the Plaintiff to prove his prima facie case because the Plaintiff avers various negligence theories against Defendant to explain why the Plaintiff fell, and not only the theory that the skates were defective. Finally, the Defendant asserts that there is no evidence that the Defendant engaged in bad faith in failing to preserve the subject skates. On this point, the Defendant contends that the Defendant's experts were equally “prejudiced” because the skates were returned to circulation immediately following Plaintiff's incident, and thus Defendant's experts were also deprived of the opportunity to examine the subject skates.

*2 In his Reply, the Plaintiff argues that because the Defendant anticipated litigation by the Plaintiff related to the incident, the Defendant had a duty to preserve all relevant evidence, which the ice skates clearly were. Plaintiff further asserts that one of the factors for the court to consider in determining whether sanctions should be imposed is whether the spoliator acted in good or bad faith. Plaintiff argues that the Defendant has not provided a sufficient explanation for why the skates were not preserved and thus is unable to demonstrate that the Defendant did not engage in bad faith.

The Eleventh Circuit has, in an unpublished opinion, described “spoliation” as “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.” Oil Equipment Co. Inc. v. Modern Welding Co., Inc., 661 F. App'x 646, 652 (11th Cir. 2016) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).[1]

To determine whether and what sanctions are warranted for spoliation of evidence, courts should primarily consider the extent of prejudice caused by the spoliation (based on the importance of the evidence to the case), whether that prejudice can be cured, and the culpability of the spoliator. Id. at 652. See also, Eli Lilly & Co. v. Air Express Int'l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010) (“[A] party moving for [spoliation] sanctions must establish, among other things, that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice.”).

In an admiralty lawsuit such as the one at bar, federal law governs the imposition of spoliation sanctions because spoliation sanctions constitute an evidentiary matter. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). Although federal law governs, a court may look to state law for guidance to the extent that it is consistent with federal law. Oil Equipment Co. Inc. v. Modern Welding Co., Inc., 661 F. App'x 646, 652 (11th Cir. 2016). In Flury v. Daimler Chrysler Corporation, 427 F.3d 939, 944 (11th Cir. 2005), for example, the Eleventh Circuit examined a multi-factor test “borrowed” from Georgia spoliation law and opined that the following factors were relevant to the inquiry of whether the imposition of sanctions for spoliation of evidence was warranted: (1) whether the party seeking sanctions 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 spoliating party acted in bad faith, and (5) the potential for abuse if sanctions were not imposed. Id. at 945.

*3 Courts have imposed various sanctions upon a finding that spoliation has occurred, including: (1) dismissing the case; (2) excluding expert testimony; or (3) issuing a jury instruction on spoliation of evidence which raises a presumption against the spoliator. Id. The Eleventh Circuit has held that dismissal may be warranted where the “spoliation of critical evidence ... deprive[s] the opposing party of an opportunity to put on a complete defense.” Flury at 947. However, because dismissal is the most severe sanction available, it “should only be exercised where there is a showing of bad faith and where lesser sanctions will not suffice.” Flury at 944. Similarly “an adverse inference is drawn from a party's failure to preserve evidence only when the absence of that evidence is predicated on bad faith.” Sec. & Exch. Comm'n v. Goble, 682 F.3d 934, 947 (11th Cir. 2012) (internal quotation marks omitted) (emphasis added). Thus, “mere negligence” in losing or destroying evidence is not enough for an adverse inference, as “it does not sustain an inference of consciousness of a weak case.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (per curiam) (internal quotation marks omitted).

Further, where there is evidence of bad faith in the destruction of evidence, it may be inferred that missing evidence was unfavorable and that there was prejudice. See Southeastern Mechanical Services, Inc., 657 F. Supp. 2d at 1300, citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997) (court “will not infer that the missing speed tape contained evidence unfavorable to appellees unless circumstances surrounding the tape's absence indicate bad faith, e.g., that appellees tampered with the evidence”).

In the case at bar, there is no dispute that, after the Plaintiff's accident, the Defendant failed to segregate the ice skates worn by the Plaintiff, and as a result of the Defendant's failure, the ice skates were placed back into circulation for general usage, and the Plaintiff and his experts were unable to inspect the skates. The Parties however disagree as to the cause of and the implications of the Defendant's failure to preserve the skates, as well as whether the imposition of sanctions is appropriate.

At the outset, the undersigned disposes of the Defendant's argument that sanctions are not warranted under the facts of this case because the Defendant did not intentionally destroy, mutilate, alter or conceal the skates worn by the Plaintiff. On this issue, Defendant states, “spoliation did not occur because Royal Caribbean maintained the subject skates on board the vessel, preserved said skates by photographing them immediately following the incident, and thereafter produced these photographs to Plaintiff.” ECF No. [65] at 5. Defendant's argument misses the mark. First, the Defendant did in fact, conceal the skates, albeit in plain sight, by placing the skates back in general circulation which prevented the Plaintiff from determining which particular skates had been involved in the accident, thereby “spoiling” the evidence for Plaintiff to examine and present in his case in chief.

Moreover, even if the Defendant did not “conceal” the skates, it is clear that that a court's authority to impose sanctions for the spoliation of evidence would extend to the factual scenario at bar even if the Defendant did not technically dispose of the skates. Indeed, the Defendant's actions here had the same effect as actual destruction of the skates—to deprive the Plaintiff of the opportunity to inspect those skates. Thus, the Court concludes that the Defendant's actions regarding the handling of the skates after Lebron's incident are well within the type of actions contemplated by Courts in claims for spoliation.

In addition, there is little question that the ice skates are central to the Plaintiff's claim that the Defendant was negligent in providing defective skates to the Plaintiff, which caused the Lebron to fall. This is particularly so in this case where the Defendant, based upon the statements of its employees who had an opportunity to view the skates, denies that the skates and the skates’ laces were defective in any manner. See Long v. Celebrity Cruises, Inc., Case No. 12-22807-CIV-Torres, 2013 WL 12092088, *6 (S.D. Fla. July 31, 2013) (concluding that missing video footage was crucial to plaintiff's claims once defendant's agent viewed the tape and testified at his deposition that the tape supported the defendant's lack of negligence theory). Thus, there is little doubt that the Plaintiff was prejudiced, at least to some extent, by the failure of the Defendant to segregate and preserve the skates.[2] See St. Cyr v. Flying J Inc., No. 3:06-cv-13-33TEM, 2007 WL 1716365, at *5 (M.D. Fla. June 12, 2007) (the defendant was prejudiced when the plaintiffs, without notice to the defendant, destroyed the vehicle which was the subject of the lawsuit and denied the defendant an opportunity to use more reliable means of proving or disproving the plaintiffs’ theories of fault.)

*4 Even though Plaintiff is able to demonstrate that the ice skates were central to his ability to establish a negligence claim based upon the defective skates and laces, for the following reasons, the undersigned concludes that the Plaintiff is not entitled to the relief he seeks. First, it is arguable whether the Defendant had a duty to preserve the ice skates under the facts of this case. This is because given the nature and location of Lebron's accident, there may have been multiple reasons why he fell that have little to do with the condition of the ice skates. In other words, even if RCL had a duty to preserve evidence because it should have reasonably anticipated litigation related to Lebron's fall, there is a legitimate question as to what exactly should have been preserved following that fall. According to Defendant's witnesses, because there was nothing defective about the skates or the laces on the skates, the skates were returned to circulation. If such statements are true and the skates were not defective, then the segregation of the skates would not be necessary to determine what caused Lebron's fall and would not be central to resolving the litigation at bar.[3]

That notwithstanding and assuming that the Defendant should have preserved the skates at issue, the Plaintiff's request still must be denied because there is no showing that the Defendant engaged in bad faith as required by the Eleventh Circuit before sanctions for spoliation of evidence are imposed. As held in Oil Equipment Co. Inc. v. Modern Welding Co., Inc., 661 F. App'x 646, 652 (11th Cir. 2016), with regard to a spoliator's culpability, “this circuit does not require a showing of malice in order to find bad faith,” but does require something more than “mere negligence.” Id. at 653 (citations omitted). Generally, bad faith may be found where one party's actions are responsible for the spoliation of evidence and that party fully appreciated the significance of the evidence to the anticipated litigation. Id. See Flury, 427 F.3d at 945 (finding the plaintiff at fault because the “plaintiff should have known that the vehicle, which was the very subject of his lawsuit, needed to be preserved and examined as evidence central to his case”). Further, Courts in this circuit have held that bad faith can be found based on direct evidence or on circumstantial evidence where certain factors converge. Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov.16, 2009)

Before examining whether the Defendant's conduct in the case at bar rises to the requisite level of bad faith necessary for the imposition of sanctions, the undersigned notes that Plaintiff asserts, as held in, Brown v. Chertoff, 563 F. Supp. 2d 1372 (S.D. Ga. 2008), pursuant to the holding in Flury, that bad faith is only one factor to consider in assessing whether the Defendant's actions were intentional and whether the imposition of sanctions is warranted, ECF No. [69] at 3-4. However, Plaintiff misapprehends the law in this regard. First, earlier this year, the Eleventh Circuit made clear, albeit in an unpublished case related to the destruction of electronically stored information, that an adverse instruction is only proper when the absence of the evidence is predicated on bad faith. ML Healthcare Services, LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1308 (11th Cir. 2018) (citing S.E.C. v. Goble, 682 F. 3d 934, 947 (11th Cir. 2012).[4] Indeed, several district courts that have examined the holding in Brown have observed that while the Flury factors will inform the analysis of whether sanctions are appropriate, as held by the Eleventh Circuit in Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997), a finding of bad faith remains a requirement and not simply a factor in a court's decision to impose spoliation sanctions. See Woodard v. Wal-Mart Stores East, 801 F. Supp. 2d 1363, 1372 (M.D. Ga. 2011); In Matter of Complaint of Boston Boat III, L.L.C. 310 F.R.D. 510, 516 (S.D. Fla. 2015) (stating “The Undersigned is at a loss to understand how a party could legitimately argue that a district court case... which does not even expressly hold the bad faith is simply a mere factor is better authority than later appellate cases unequivocally holding that bad faith is a full-fledged requirement”); In re Delta/AirTran, 770 F. Supp. 2d at 1313-14 (rejecting the notion that “the Eleventh Circuit in Flury intended to change the spoliation calculus set forth in Bashir”); Woodard v. Wal-Mart Stores East, LP, 801 F. Supp. 2d 1363, 1372 (M.D. Ga. 2011) (declining to read Flury as having removed the bad faith prerequisite for imposing spoliation sanctions); see also Mann v. Taser Int'l, Inc., 588 F.3d 1291, 1310 (11th Cir. 2009) (applying Bashir bad faith requirement after Flury); Rives v. Lahood, 605 F. App'x 815, 820 (11th Cir. 2015) (same). Thus, in the case at bar, without a showing that the Defendant engaged in bad faith, the imposition of sanctions for spoliation is improper.[5]

*5 Turning now to the determination of whether bad faith has been established, the undersigned concludes that there is no direct evidence of RCL's bad faith in failing to segregate the ice skates in this case.[6] Rather, the record supports a finding that RCL's failure to segregate the skates was likely due to RCL's negligence and failure to fully appreciate the significance of the ice skates to the anticipated litigation.[7] The undersigned reaches this conclusion based, in part, upon a review of the deposition testimony of RCL employees Amanda Campos, the senior claims advisor for RCL, and David Ferrie, the ship's safety officer. At her deposition, Campos testified that in the ten years that she has worked at Royal Caribbean she couldn't recall any passenger claims where someone claimed that the ice skates caused them to fall, ECF No. [58-2] at 33. She further testified that the RCL did not preserve the ice skates because the skates were in good working condition and explained that perhaps if the blade had been hanging off or a chunk missing from the skates then they may have been preserved, ECF No. [58-2] at 33. She further testified that because RCL needed the skates for use, they kept them in circulation, ECF No. [58-2] at 33. Ms. Campos also stated that the Plaintiff would have been free to inspect every pair of ice skates in his size during the ship inspection had he requested to do so, ECF No. [58-2] at 33.

In his deposition, David Ferrie testified that when he arrived on the scene of Lebron's accident, he took the skates to preserve them and took three photographs of the skates in the skate sharpening room, ECF No. [98-1] at 14, 16. Ferrie stated that the skate sharpening room is not covered by CCTV, ECF No. [98-1] at 16. Ferrie testified that he asked Lebron if all of Leborn's equipment was in good condition and Lebron told him that it was, ECF No. [98-1] at 21. Ferrie testified that Lebron told Ferrie that the skates were a good fit and that Lebron never reported that anything was wrong with his equipment, including the skates, ECF [98-1] at 21. Ferrie testified that when he examined the skates he didn't notice any issues with the laces, blade or the boot, ECF No. [98-1] at 25-26. Ferrie stated that following his inspection, he handed the skates to the ice staff who placed them back on the rack, ECF No. [98-1] at 26-27. Ferrie determined that there was nothing wrong with the skates and that they didn't need to be taken out of circulation, ECF No. [98-1] at 27. Ferrie further testified that he had never investigated an ice skating incident while working for RCL and had no experience or training in investigating ice skating accidents or injuries, ECF No. [98-1] at 42.[8]

When asked if the ice skates in the case were evidence of Lebron's incident, Ferrie testified that there was nothing wrong with the skates and that he believed that he had sufficiently preserved evidence by taking photographs, ECF No. [98-1] at 69. Ferrie further testified that in his experience in investigating passenger injury accidents aboard a ship that he had preserved damaged or broken equipment, ECF No. [98-1] at 73. When asked why he did not photograph the laces themselves to show the length of the laces, Ferrie stated that it did not occur to him, and that part of the reason was because it was really the first time he had ever investigated an ice-skating accident, ECF No. [98-1] at 57-58. Further, at the deposition, Counsel for the Plaintiff questioned Ferrie about whether he adhered to the RCL policies which required him to preserve the evidence around the location, including broken equipment, and prohibit the destruction of such materials, ECF No. [98-1] at 65. Ferrie responded that he believed that the skates were segregated while they were in his custody so that he could take photographs, ECF No. [98-1] at 65.

*6 Thus, it appears that the failure to preserve the ice skates was based upon Ferrie's belief that the skates were not damaged or defective and did not contribute to or cause Lebron's fall. While Ferrie's assumption on this issue may have been factually incorrect, there is no direct evidence in the record to suggest that Ferrie believed otherwise, and returned the skates to circulation despite believing that they were central to the investigation of Lebron's fall.[9]

There also is no direct evidence in the record that Ferrie returned the skates to general circulation to prevent the Plaintiff from examining the skates, or that his decision to do so was in violation of RCL's policies or procedures. Simply put, there is no direct evidence of bad faith on the part of RCL in failing to segregate the ice skates.

In the absence of direct evidence of bad faith, the determination of bad faith may be based on circumstantial evidence, where the following factors are present: (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. Walter v. Carnival Corp., No. 09-20962-CIV, 2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010) (citing Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV, 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009). These factors are discussed below.

As to the first factor, the undersigned easily concludes that the ice skates were evidence that once existed that could fairly be supposed to have been material to the proof of the Plaintiff's claims even though the Plaintiff advanced several different theories as to what caused Lebron to fall. Similarly, the second factor is easily established and the undersigned finds that the Defendant, by returning the skates back to general circulation, engaged in an affirmative act causing the evidence to be lost, or in this case concealed.

It is less clear whether the third factor is met because, as discussed above, the record does not demonstrate that RCL committed those acts while it knew or should have known of its duty to preserve the ice skates, as opposed to anything else that may have caused the fall, as evidence. In this regard, this case differs from both of the factual scenarios presented to the courts in Flury and Oil Equipment where there was no question that the party who destroyed the evidence was aware that it had a duty to preserve the evidence at issue because it was central to litigation and the opposing party had made a specific request to examine that evidence. Rather, here, David Ferrie testified that he looked at the skates, saw no defect, and then returned skates to circulation, at that time. Absent some indication at the time of Ferrie's actions that skates contributed to Lebron's fall, it is difficult to assume that RCL knew at that point that the skates needed to be preserved.

As to the fourth factor, assuming, arguendo, that the Defendant should have known that it had a duty to preserve the ice skates, as discussed above, for the following reasons, the Defendant's failure to do so can be credibly explained as not involving bad faith. First, implicit in the cases where courts have found that factors weigh in favor of finding circumstantial bad faith is that the spoliator of the evidence intentionally destroyed or otherwise made the evidence unavailable because the evidence would have been unfavorable to the Defendant. Here, Ferrie's decision to return the skates to circulation occurred almost immediately after Lebron's fall, during the course of Ferrie's initial investigation. It is therefore hard to surmise that, after an examination of the skates, Ferrie concluded that an examination of the skates by Lebron would be unfavorable to RCL, and that he decided to make the skates unavailable to Lebron by returning them to circulation. It is this fact that further distinguishes this case from both Flury and Oil Equipment. In both of those cases, the spoliation of the evidence occurred sometime after the underlying incident.[10] Here, the “spoliation” of the skates occurred almost immediately after the incident, which cuts against the presumption that the skates would have revealed something unfavorable to the Defendant.[11] Thus, the record does not establish all four of the required factors to establish bad-faith based through indirect evidence.

*7 Thus, the undersigned concludes that based upon the current record, RCL's actions in failing to segregate the skates were, at least, negligent, but do not constitute bad faith, and thus the particular sanctions Plaintiff seeks – namely, a default judgment; or, in the alternative, an adverse inference instruction on the issue of whether the laces on the skates were worn and broken –may not be imposed. See St. Cyr v. Flying J Inc., No. 3:06-cv-13-33TEM, 2007 WL 1716365, at *5-6 (M.D. Fla. June 12, 2007) (the court found that dismissal was not warranted because the bad faith evidenced by the plaintiffs’ conduct was not flagrant, and because the plaintiffs did not act in callous disregard).

Although the undersigned finds that the Plaintiff's motion for sanctions should be denied, this ruling does not foreclose the possibility that the Plaintiff will be able to introduce evidence of the Defendant's failure to preserve/segregate the ice skates at trial. See In re Delta/AirTran Baggage Fee Antitrust Litig., 09–md–2089, 2015 WL 4635729, at *14 (N.D. Ga. August 3, 2015) (stating “Even where a motion for spoliation sanctions is denied, however, there may exist sufficient factual questions to justify presenting the issue to a jury.”) (citation omitted); See In re Delta/AirTran Baggage Fee Antitrust Litig., 770 F.Supp.2d 1299 at 1315 (N.D. Ga. 2011) (denying motion for spoliation sanctions but expressly noting that that ruling “does not necessarily foreclose the possibility that, in the event that this case goes to trial, Plaintiffs may be able to introduce evidence and argue regarding Delta's failure to retain certain documents.”); Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1333 (S.D. Fla. 2010) (denying motion for sanctions but acknowledging “the possibility that plaintiff will be able to introduce evidence of the defendant's failure to retain relevant documents at trial.”); EEOC v. SunTrust Bank, No. 8:12–cv–1325–T–33MAP, 2014 WL 1364982, at *11 (M.D. Fla. Apr. 7, 2014) (denying without prejudice a motion for adverse jury instruction based on spoliation but allowing the moving party “to introduce evidence at trial concerning ... [the defendant's] failure to preserve the [evidence] at issue.”).

In Floeter v. City of Orlando, 6:05–cv–400–Orl–22KRS, 2007 WL 486633, at *7 (M.D. Fla. Feb. 9, 2007), for example, the magistrate judge denied the plaintiff's motion for spoliation sanctions, but concluded that its ruling did not foreclose the possibility that the trier of fact would hear evidence of the defendant's failure to preserve evidence, by stating:

Id. (citations omitted). Similarly here, although the Plaintiff is not entitled to an adverse jury instruction, the District Judge may determine that the circumstances surrounding the Defendant's failure to segregate the skates are admissible at trial. See Managed Care Solutions, Inc. v. Essent Healthcare, Inc., No. 09-60351-CIV, 2010 WL 3368654, at *13 (S.D. Fla. Aug. 23, 2010); Floeter v. City of Orlando, No. 6:05-cv-400-Orl-22KRS, 2007 WL 486633, at *7 (M.D. Fla. Feb. 9, 2007). In addition, it may be appropriate to give an instruction similar to the one implicitly approved by the Eleventh Circuit in Martinez v. Brink's, Inc., 171 F. App'x 263 (11th Cir. 2006),

It is not necessary to decide at the present time whether such an instruction, or a different instruction, if any, should be given; or, if counsel should merely be permitted to argue this matter to the jury. This issue may be raised at trial before the District Judge, and is perhaps best decided after the evidence has been presented.

Accordingly, based on the foregoing, the Plaintiff's Motion for the imposition of sanctions for spoliation of evidence should be denied.

III. MOTION FOR SANCTIONS AND ENTRY OF DEFAULT JUDGMENT FOR DISCOVERY ABUSE AND FRAUD ON THE COURT

In this Motion, the Plaintiff contends that because the Defendant initially failed to turn over the entire CCTV footage surrounding the Plaintiff's fall, the Defendant has perpetrated a fraud upon the Court, and the Plaintiff is entitled to the entry of a default judgment in this action. According to Plaintiff, after Lebron's fall on June 20, 2016, the Defendant's Chief Safety Officer, David Ferrie, preserved approximately one hour of CCTV footage prior to the fall, and approximately one hour of CCTV footage after the fall, ECF No. [63] at 2. Plaintiff contends that despite this fact, in response to the Plaintiff's first request for production, which among other things sought production of any and all surveillance video, Defendant produced only a one-minute and seven-second clip of the CCTV surveillance footage in its possession and claimed that it did not possess any additional footage.

Plaintiff asserts that the Defendant did not produce the entire CCTV video footage that had been preserved until September 1, 2017, almost nine months after Plaintiff had initially requested the footage. Plaintiff further contends that although the Defendant produced the entire CCTV footage on September 1, 2017, Plaintiff did not receive a viewable copy of that tape until September 21, 2017. Plaintiff contends that because the Plaintiff was not able to view the CCTV footage prior to a number of depositions being conducted, and before the Plaintiff's expert's inspection of the ship, and only four days before the deadline for Plaintiff to serve his expert witness disclosures on September 5, 2017, that Plaintiff was unduly prejudiced.

*9 Plaintiff contends that Defendant's behavior constitutes fraud upon the court and warrants the entry of default judgment against the Defendant, or in the alternative, the imposition of sanctions pursuant to the Court's inherent power.[12] Plaintiff also requests an award of reasonable attorney's fees and costs for litigation this case, or in the alternative, for drafting and filing the instant motion.

A court may impose sanctions for litigation misconduct under its inherent power. Eagle Hosp. Physicians, LLC v. SRF Consulting, Inc., 561 F.3d 1298, 1306 (11th Cir. 2009) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-44 (1991)). The court's inherent power derives from the court's need “to manage [its] own affairs so as to achieve the orderly and expeditious disposition of cases.” Eagle Hosp. Physicians, 561 F.3d at 1306 (citing Chambers, 501 U.S. at 43) (quotation marks and citation omitted). This power, however, “must be exercised with restraint and discretion.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 764 (1980). “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). A party demonstrates bad faith by, inter alia, delaying or disrupting the litigation or hampering enforcement of a court order. See Byrne v. Nezhat, 261 F.3d 1075, 1103 (11th Cir. 2001) (quoting United States v. Sigma Int'l, Inc., 244 F.3d 841, 852 (11th Cir. 2001)).

Sanctions authorized under the court's inherent powers include the striking of frivolous pleadings or defenses, disciplining lawyers, punishing for contempt, assessment of attorney's fees, and outright dismissal of a lawsuit. See Allapattah Servs., Inc. v. Exxon Corp., 372 F. Supp. 2d 1344, 1373-74 (S.D. Fla. 2005) (citing Chambers v. NASCO, Inc., 501 U.S. 32, 43-45 (1991)); Martin v. Automobili Lamborghini Exclusive, Inc., 307 F.3d 1332 (11th Cir. 2002) (dismissing with prejudice); Malautea v. Suzuki Motor Co. Ltd., 987 F.2d 1536 (11th Cir. 1993) (striking answers and entering default judgment); State Exch. Bank v. Hartline, 693 F.2d 1350 (11th Cir. 1982) (striking pleadings); Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107 (S.D. Fla. 1987) (entering default judgment against defendant); Pelletier v. Zweifel, 987 F.2d 716 (11th Cir. 1993) (entering Rule 11 sanctions for parties’ frivolous violation of mandate rule).[13]

*10 In addition to citing the Court's inherent powers to sanction, in a footnote, Plaintiff refers to 28 U.S.C. § 1927. That statute provides, “Any attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.” Thus, Courts also have the power to impose sanctions for discovery abuses under 28 U.S.C. § 1927 when three elements are met: (1) the attorney must engage in unreasonable and vexatious conduct, (2) the unreasonable and vexatious conduct must multiply the proceedings, and (3) the sanction must be proportional to the expense caused by the misconduct. Amlong & Amlong, P.A. v. Denny's, Inc., 500 F.3d 1230, 1239 (11th Cir. 2007).

For the following reasons, the Plaintiff is not entitled to the relief he requests. First, the Plaintiff contends that the Defendant's failure to turn over the entire CCTV recording earlier constitutes fraud upon the court. However, generally, “only the most egregious misconduct, such as bribery of a judge or members of a jury, or the fabrication of evidence by a party in which an attorney is implicated, will constitute a fraud on the court.” Patterson v. Lew, 265 F. App'x 767, 769 (11th Cir. 2008) (citation omitted). The Eleventh Circuit has “consistently held that a fraud between parties is not fraud on the court” even “declar[ing] ... that perjury does not constitute fraud on the court.” Patterson v. Lew, 265 F. App'x 767, 769 (11th Cir. 2008) (citing S.E.C. v. ESM Grp., Inc., 835 F.2d 270 (11th Cir. 1988)). “Perjury and fabricated evidence are evils that can and should be exposed at trial, and the legal system encourages and expects litigants to root them out as early as possible.... Fraud on the court is therefore limited to more egregious forms of subversion of the legal process ... those we cannot necessarily expect to be exposed by the normal adversary process.” Idearc Media Corp. v. Kimsey & Assoc., P.A., No. 8:07-CV-1204-T-17EAJ, 2009 WL 928556 at *5 (M.D. Fla. Feb. 18, 2009) (quoting Great Coastal Express v. International Broth. of Teamsters, Chauffeurs, Warehousemen, 675 F.2d 1349, 1357 (4th Cir. 1982)). The Defendant's conduct in this case is not sufficiently egregious to constitute fraud on the Court.

As to the Plaintiff's request that the Court impose sanctions against the Defendant, pursuant to the Court's inherent powers, for RCL's failure to comply with the Court order and applicable rules related to the timely disclosure of discovery, although it is unclear why the entire CCTV footage was not turned over earlier, there is no evidence that the Defendant engaged in bad faith in failing to do so. In her deposition, Amanda Campos testified that David Ferrie, the safety officer, was the person responsible for determining what portions of the surveillance video were preserved, ECF No. [58-2] at 32. Ms. Campos further testified that when Royal Caribbean conducts basic investigations into incidents, the surveillance video is preserved for five minutes before and five minutes after an incident, and when RCL conducts detailed investigations into incidents, the surveillance video is preserved from one hour before and one hour after the incident, ECF No. [58-2] at 32. Ms. Campos explained that if a video is not preserved, it gets taped over, ECF No. [58-2] at 33.

In his deposition, Ferrie testified that he reviewed approximately two hours of the CCTV footage, ECF No. [98-1] at 29. Ferrie testified that Lebron's accident was the first time while he was working for RCL that he had investigated an ice skating rink-related incident and that he had no prior experience in that type of investigation and had not been given any education or training in investigating ice skating accidents, ECF No. [98-1] at 42. Ferrie testified that he did not believe that the ice skates were evidence of Lebron's incident, ECF No. [98-1] at 69. Further, at Ferrie's deposition, Counsel for the Defendant stated that Counsel first learned of the additional footage during the preparation for the Ferrie deposition, in the four days immediately preceding that deposition, ECF No. [98-1] at 44.

*11 Sanctions are not appropriate under this set of facts. Notably, this is not a situation where a litigant failed to turn over any portion of the requested evidence, but rather, here, the Defendant, in fact, turned over the most critical portion of the CCTV footage, the moments before and after Lebron fell. Further, upon discovering that additional footage existed, Counsel for RCL disclosed the existence of the footage and produced that footage to the Plaintiff within a few days of that discovery. Thus, there is nothing in the record that suggests the Defendant engaged in any bad faith related to the disclosure of the entire CCTV footage.

Moreover, the undersigned concludes that the Plaintiff was not unduly prejudiced by the Defendant's belated disclosure. On this issue, the Plaintiff argues that he was unduly prejudiced by the Defendant's eight-month delay in producing the entire CCTV footage instead of the original two-minute footage that Defendant initially produced. In support of his claim, Plaintiff asserts that because the longer footage was not produced earlier, Plaintiff was “prejudiced in preparing his expert disclosures”, and left “with little time remaining prior to the fact discovery cut-off in order for the Plaintiff to follow-up on the facts learned from the additional surveillance through re-deposing the corporate representative, the security officer, propounding additional discovery, and re-inspecting the ship.” ECF No. [63] at 9-10. Plaintiff further contends that he was unable to ask Defendant's corporate representative and Ferrie “about the number of passenger falls prior to Plaintiff's fall, which was a topic addressed by Plaintiff's expert,” was not “able to question these witness on the apparent lack of supervision of the passengers ice skating, nor question them about the other passenger catching his foot near where Plaintiff fell observed by Mr. MacLaughlin.” ECF No. [74] at 6-7. Plaintiff further argues that, while he “has been able to include a few opinions based on the two-hour long surveillance” Plaintiff was unable to propound additional discovery requesting the names and contact information of the individuals falling in the additional CCTV footage. Plaintiff further contends that he was also deprived of the opportunity to consult with a statistician or other risk analysis expert to analyze the two-hour CCTV footage from a statistical viewpoint.

Based upon a thorough review of the record in this case, the Court concludes that the Plaintiff's claims of undue prejudice are somewhat exaggerated given the posture of the case when Plaintiff received the entire CCTV tape. In particular, Plaintiff states that he was alerted to the existence of the additional CCTV footage on September 1, 2017, and was provided a viewable copy of that tape on September 21, 2017, ECF No. [63] at 5-6. Plaintiff's expert Terry MacLaughlin submitted a Supplement to Expert Witness Affidavit on September 25, 2017, ECF No. [127-2], and an Amended Supplement to Expert Witness Affidavit on September 26, 2017, ECF No. [127-3]. Both of those reports indicate that after reviewing the 2 hour CCTV video, MacLaughlin issued his opinions regarding what he observed on that tape. In addition, on October 25, 2017, MacLaughlin provided a rebuttal to Defendant's expert's report wherein MacLaughlin stated that the basis for his opinions and conclusions included the CCTV video of Lebron's incident, ECF No. [128-6]. Further, Defendant's expert, David Wescott's report was provided to the Plaintiff on or around October 6, 2017 and Wescott was deposed on October 17, 2017. Plaintiff's expert MacLaughlin was then deposed on October 24, 2017, and Plaintiff's other expert, Dr. Ying Lu, was deposed on October 19, 2017. Thus, although the deposition of the Plaintiff and the inspection of the ship by MacLaughlin occurred prior to disclosure of the additional CCTV footage, all of the depositions of the experts occurred after that disclosure occurred.

*12 Also, Plaintiff argues that he was prejudiced because he was unable to adequately question Amanda Campos and David Ferrie at their depositions because of the tardy disclosure, but given that it is undisputed that Amanda Campos, who is the senior claims manager for RCL, was not present when Lebron fell and was not involved in the investigation that occurred immediately after the fall, it seems highly unlikely that Plaintiff's questioning of Ms. Campos would change in any material way if the additional footage had been disclosed prior to her deposition. Similarly, although Ferrie conducted the investigation which occurred immediately after Lebron's fall, it is far from clear how Plaintiff's questions of Ferrie or his testimony would have changed in any meaningful way either.

Further, Plaintiff's contention that he would have asked Campos and Ferrie about the apparent lack of supervision of the passengers ice skating and about another passenger catching his foot near where Plaintiff fell, as observed by Mr. MacLaughlin, seems unlikely given the nature of those fact witnesses’ testimony, their lack of expertise to opine on the cause of Lebron's fall, and their absence from the rink at the time of the fall. Rather, it appears that the Plaintiff pointed to the testimony of Campos and Ferrie to support his claim of prejudice because those witnesses were the only witnesses, other than the Plaintiff, deposed prior to the production of additional CCTV footage. Such speculation is insufficient to show actual prejudice. See e.g., ML Healthcare Service LLC v. Publix Super Markets, Inc., 881 F. 3d 1293, 1309 (11th Cir. 2018) (affirming trial court's determination that additional benefit from undisclosed video was purely speculation and conjecture). Finally, to the extent the Plaintiff seeks to question those witnesses regarding any inconsistencies between their testimony and what is captured on the CCTV footage, the Plaintiff may cross-examine those witnesses at trial and there is no need for additional discovery on those points.

Similarly, the undersigned notes that the Plaintiff has requested that, if the Court does not enter a default judgment against the Defendant, that the discovery cut-off be extended to allow the re-deposition of the Defendant's corporate representative, a renewed deposition of Plaintiff's expert, amendment of Plaintiff's expert's report, a renewed ship inspection, and for the Plaintiff to propound additional discovery requests targeted to the new information, ECF No. [63] at 12-13. However, Plaintiff has failed to explain how any of the requested additional discovery would assist the Plaintiff in prosecuting this action. In addition, the Plaintiff's expert, Terry MacLaughlin, viewed the two-hour video and already supplemented his report to include his opinions regarding that video on September 25, 2017, ECF No. [127-3]. Tellingly, nowhere in that Supplement does MacLaughlin suggest that he is in need of an additional ship inspection because of the belated disclosure of the CCTV video. Moreover, the discovery deadline in this case was October 27, 2017, more than a month after disclosure of the video, ECF No. [16].

Further, although the Plaintiff contends that courts have dismissed actions in far less egregious situations than the one presented in this case, the undersigned concludes that the case law suggests just the opposite. See e.g. Aguilar v. United Floor Crew, Inc., No. 14-CIV-61605, (S.D. Fla. May 21, 2015) (in Rule 41(b) context collecting cases demonstrating flagrant obstruction of the discovery process, unjustified and extreme delay, and egregious misrepresentations, and concluding that in the case before that court that no lesser sanction other than dismissal with prejudice would suffice where plaintiff “perpetuated a lie regarding his true identity throughout the pendency of [the] litigation.”). While the Defendant in this case should have been more diligent in searching for and producing the relevant CCTV footage, and Counsel for the Defendant should have ensured that the entire CCTV footage was turned over when the video was requested by the Plaintiff, there is no indication that the Defendant's conduct needs to be deterred in the future through the imposition of sanctions, let alone the sanction of a default judgment. Clearly the entry of a default judgment under these facts would, indeed, be drastic given the relatively minor prejudice that Plaintiff suffered as a result of the tardy disclosure. Even if any sanctions were appropriate, clearly there are lesser sanctions available than the entry of a default judgment to cure any prejudice to the Plaintiff. See Malautea v. Suzuki Motor Co., Ltd., 987 F.2d 1536, 1542 (11th Cir. 1993) (“[T]he 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.”). The undersigned also concludes that because there is no showing of bad faith, lesser sanctions, including an award of attorney's fees, is also not warranted.

*13 Finally, the record also does not support a finding that monetary sanctions are appropriate pursuant to 28 U.S.C. § 1927. First, there is no indication that the Defendant's failure to produce the video earlier was due to the Defendant's unreasonable or vexatious conduct, or that the Defendant's conduct caused the proceeding to be multiplied. Finally, the sanction of default judgment requested by the Plaintiff is not proportional to the expense caused by the misconduct, and arguably not available under this section. Accordingly, to the extent that Plaintiff requests the imposition of any sanctions pursuant to § 1927, that request should be denied.

IV. CONCLUSION

It is respectfully

RECOMMENDED that Plaintiff's Motion For Sanctions for Spoliation of Evidence, ECF No. [58] be DENIED. It is further

RECOMMENDED Plaintiff's Motion for Sanctions and Entry of Default Judgment For Discovery Abuse and Fraud on the Court, ECF No. [63] be DENIED.

The parties will have fourteen calendar days from the date of this Report and Recommendation within which to file written objections for consideration by the United States District Judge to whom this case is assigned. Any response to objections must be filed within seven days thereafter. Any request for an extension of these deadlines must be made within seven calendar days from the date of this Order. Pursuant to Eleventh Circuit Rule 3-1, and accompanying Internal Operating Procedure 3, the parties are hereby notified that failure to object in accordance with 28 U.S.C. § 636(b)(1) waives the right to challenge on appeal the district court's order based on unobjected-to factual and legal conclusions.

DONE AND SUBMITTED in Miami, Florida, in chambers, on August 8, 2018.

Several District Courts in this circuit have defined “spoliation” as the “intentional destruction, mutilation, alteration, or concealment of evidence.” Calixto v. Watson Bowman Acme Corp., No. 07–60077–CIV, 2009 WL 3823390, at *13 (S.D.Fla. Nov. 16, 2009) (emphasis added) (citing Black's Law Dictionary 1437 (8th ed. 1999)); see Southeastern Mech. Servs., Inc. v. Brody, No. 8:08–CV–1151–T–30EAJ, 2009 WL 2242395, at *2 (M.D. Fla. July 24, 2009) (spoliation is “the intentional destruction or concealment of evidence”). However, the Eleventh Circuit has not included the word “intentional” in its definition of spoliation in its opinions. See Long v. Celebrity Cruises, Inc., Case No. 12-22807-CIV-Torres, 2013 WL 12092088, *3 (S.D. Fla. July 31, 2013) (discussing Eleventh Circuit decisions where no specific intent included in definition of “spoliation”).

This factor is somewhat mitigated by the fact that the Defendant took photos of the skates that were relied upon by both the Plaintiff's experts and the Defendant's experts in authoring their respective expert and expert rebuttal reports.

At very least, Defendant RCL's failure to segregate the ice skates under these facts lessens RCL's culpability because it is plausible that an RCL employee would believe that the removal of ice skates from general circulation might not be necessary to investigate or litigate a fall on the ice, where the ice skates appeared to be in tact, not related to the cause of the fall, and other instruments likely could have caused the fall, e.g., the ice, the injured party's loss of balance, etc.

The Court's analysis relied upon both Rule 37(e) that specifically addresses the loss of electronically stored evidence and the law that predated Rule 37(e) with respect to the loss of evidence generally, citing Flury and Goble.

Notably in Oil Equipment Co. Inc. v. Modern Welding Co., Inc., 661 F. App'x 646, 654 (11th Cir. 2016), the Court examined and explained the Court's prior analysis in Flury and concluded that the Court found the requisite “bad faith” because the plaintiff knew both the location of the evidence and the defendant's desire to inspect it, but ignored the defendant's request, and allowed the evidence to be rendered unexaminable.

This determination is appropriate for the district court to make, as opposed to submitting the issue of bad faith to the jury, because here the Court is considering whether a sanction, based on the court's inherent power, should be imposed for a failure to preserve evidence. BP Prods. N. Am., Inc. v. Se. Energy Grp., Inc., 282 F. App'x 776, 780 n. 3 (11th Cir. 2008).

The Eleventh Circuit has affirmed a district court's denial of a motion to impose sanctions where the non-spoliating plaintiff failed to identify any evidence in the record suggesting that defendant had destroyed the relevant videotape in bad faith. Cox v. Target Corp., 351 F. App'x 381, 383 (11th Cir. 2009)

Ron Noel, the manager of the ice skating rink studio, was also deposed and testified that he also inspected the skates soon after Lebron's fall, found no defects, and left the skates to be put back on the rack, ECF No. [97-1] at 7-8, 279-80.

In fact, if Ferrie had believed that the skates were defective in any manner, it would make little sense to return the skates to circulation for use by additional passengers.

As explained by the Court in Oil Equipment, in Flury, the reviewing Court found the requisite bad faith had been established under the circumstances “because the plaintiff knew both the location of the vehicle and the defendant's desire to inspect it, but the plaintiff ‘ignored defendant's request and allowed the vehicle to be sold for salvage without notification to defendant of its planned removal.’ ” Oil Equipment citing Flury at 944–45. Similarly, in Oil Equipment, the reviewing Court again found the requisite bad faith where the plaintiff chose to exclude the defendant from the exhumation of the oil tank at issue despite the defendant's request for notice and an opportunity to be present. Oil Equipment, at 657. Under such a factual scenario, the reviewing Court concluded that the plaintiff fully appreciated the significance of the spoliated evidence to the anticipated litigation. Id. at 657-58.

Even if the undersigned were to assume that Ferrie purposely placed the skates back into general circulation in order to hide evidence that was unfavorable to RCL, there is no reason to believe that the Defendant could not have engaged in this same nefarious behavior without taking photos of the skates and by simply swapping out the skates removed from Lebron's feet after his fall with other skates that had full laces, and producing those skates to Plaintiff once this litigation was commenced. Under such a circumstance, the Plaintiff would have no way of rebutting the claim that the skates produced to the Plaintiff were the same skates that Lebron was wearing at the time of his fall. Without more evidence in the record, the undersigned declines to presume that the Defendant, or its employees, engaged in such conduct.

The Court notes that in his Motion, Plaintiff also references Federal Rule of Civil Procedure 37(e), ECF No. [63] at 8. That rule, which was amended in 2015, allows for among other things, the entry of a default judgment, “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery ...” Fed. R. Civ. P. 37(e). Assuming that this Rule applies to CCTV footage, rather than just electronically stored computer information, the undersigned's analysis in this Report does not change. The Plaintiff argues that the Defendant's conduct in this case has the same effect as destruction and thus the Court may rely on Rule 37(e) for remedies to cure the prejudice, ECF No. [63] at 8, n. 1. However, the Plaintiff is incorrect. Rule 37(e) specifically, and only, addresses situations where the electronically stored information is lost, a situation not present in the instant case. See Advisory Committee Notes to Amendment to Rule 37(e) (stating “New Rule 37(e) replaces the 2006 rule. It authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures.” Thus, the new Rule 37(e) has no application to the case sub judice as the CCTV footage was not lost, but rather was belatedly disclosed.

Although not expressly cited in Plaintiff's Motion, the undersigned notes that Federal Rule of Civil Procedure 37(b)(2) provides that a party that “fails to obey an order to provide or permit discovery” may be subject to a further order imposing sanctions which may include “striking pleadings in whole or in part” or “dismissing the action or proceeding in whole or in part” or “rendering a default judgment against the disobedient party.” Fed. R. Civ. P. 37(b)(2). In order to impose the extreme sanction of default judgment under Rule 37(b), the Court must find “(1) that the party exhibited a willful or bad faith failure to obey a discovery order; (2) that the moving party was prejudiced by that violation; and (3) that a lesser sanction would fail to punish the violation adequately and would not ensure future compliance with court orders.” Falcon Farms, Inc. v. R.D.P. Floral, Inc., No. 07-23077-CIV, 2008 WL 4500696, at *3 (S.D. Fla. Sept. 30, 2008) (citing Immuno Vital, Inc. v. Telemundo Grp., Inc., 203 F.R.D. 561, 571 (S.D. Fla. 2001)).