Ledesma v. Ross Dress for Less, Inc.
Ledesma v. Ross Dress for Less, Inc.
2021 WL 8892813 (S.D. Fla. 2021)
April 8, 2021

Torres, Edwin G.,  United States Magistrate Judge

Legal Hold
Sanctions
Adverse inference
Scope of Preservation
Video
Failure to Preserve
Bad Faith
Spoliation
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Summary
The court denied the Plaintiff's motion for an adverse inference against the Defendant for failing to preserve video evidence of the Plaintiff's slip and fall in a Ross store. The court found that the Plaintiff had not established any act of bad faith on the part of the Defendant and that the Plaintiff was free to raise the absence of the video clip during trial for impeachment purposes.
CARMEN LEDESMA, Plaintiff,
v.
ROSS DRESS FOR LESS, INC., a foreign insurance company, Defendant
Case No. 20-20405-Civ-WILLIAMS/TORRES
United States District Court, S.D. Florida
Entered on FLSD Docket April 08, 2021

Counsel

Karel Remudo, Law Office of Karel Remudo, P.A., Miami, FL, for Plaintiff.
Jason A. Glusman, Daniel F. Ieraci, Wicker Smith O'Hara McCoy, Ford P.A., Fort Lauderdale, FL, for Defendant.
Torres, Edwin G., United States Magistrate Judge

ORDER ON PLAINTIFF'S MOTION FOR AN ADVERSE INFERENCE

*1 This matter is before the Court on Carmen Ledesma's (“Plaintiff”) motion for an adverse inference against Ross Dress for Less, Inc.’s (“Defendant” or “Ross”) for a failure to preserve video evidence. [D.E. 48]. Defendant responded to Plaintiff's motion on March 9, 2021 [D.E. 51] to which Plaintiff did not reply and the time to do so has now passed. Therefore, Plaintiff's motion is now ripe for disposition. After careful consideration of the motion, response, relevant authorities, and for the reasons discussed below, Plaintiff's motion for an adverse inference is DENIED.
 
I. APPLICABLE PRINCIPLES AND LAW
“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009) (citation omitted). In certain circumstances, a party's “spoliation of critical evidence may warrant the imposition of sanctions.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th Cir. 2005). “Sanctions for spoliation may include ‘(1) dismissal of the case; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator.’ ” Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020) (quoting Flury, 427 F.3d at 945); see also Morrison v. Veale, 2017 WL 372980, at *5 (M.D. Ala. Jan. 25, 2017).
 
Federal law governs the imposition of spoilation sanctions. See Flury, 427 F.3d at 944 (concluding that “federal law governs the imposition of sanctions for failure to preserve evidence”). However, “the Court may look to state law for guidance to the extent that it is consistent with federal law.” Wilson v. Wal-Mart Stores, Inc., 2008 WL 4642596, at *2 (M.D. Fla. Oct. 17, 2008) (footnote omitted). “A district court's power to sanction a party for spoliation of evidence derives from two sources: (1) the Federal Rules of Civil Procedure and (2) a court's inherent power to control the judicial process and litigation.” Sosa v. Carnival Corp., 2018 WL 6335178, at *8 (S.D. Fla. Dec. 4, 2018) (citing Fed. R. Civ. P. 37(e)), reconsideration denied, 2019 WL 330865 (S.D. Fla. Jan. 25, 2019); see also Flury, 427 F.3d at 944 (explaining that district courts have inherent power to impose sanctions for discovery abuses to “prevent unfair prejudice to litigants and to [ensure] the integrity of the discovery process”).
 
II. ANALYSIS
Plaintiff filed this action due to a slip and fall that occurred when she stepped onto an unknown object in a women's shoe department at a Ross store located in Miami-Dade County, Florida on December 23, 2017 at 12:25 p.m.[1] [D.E. 28]. Defendant preserved video evidence of the incident, including a time range from 12 p.m. noon to 3 p.m. in the afternoon. A few days after the fall, Plaintiff sent a letter to Defendant and requested that Ross preserve any photos, footage, videos, or other media of the fall and the shoe section of the store. [D.E. 48 at Exhibit A].
 
*2 Plaintiff now argues that – after Defendant filed a motion for summary judgment – there is compelling evidence that Defendant failed to produce a video that captured her fall and that could help her establish liability. Plaintiff relies primarily on the deposition testimony of Defendant's Corporate Representative and Assistant Store Manager because they confirmed that Ross has camera angles in almost every aisle of the shoe department where she fell and that a video of the incident is missing in the items produced thus far. Because there is concrete evidence that the missing video previously existed, that Defendant had a duty to preserve the footage, and that the items are essential to proving negligence, Plaintiff requests an adverse inference.[2]
 
“To establish spoliation, the party seeking sanctions must prove several things; first, that the missing evidence existed at one time; second, that the alleged spoliator had a duty to preserve the evidence; and third, that the evidence was crucial to the movant being able to prove its prima facie case or defense.” Walter v. Carnival Corp., 2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010) (citing Floeter v. City of Orlando, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007)). Even if all three elements are met, “[a] party's failure to preserve evidence rises to the level of sanctionable spoliation ‘only where the absences of that evidence is predicated on bad faith,’ such as where a party purposely loses or destroys relevant evidence.” Id. at *2 (citing Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)) (adverse inference from party's failure to preserve evidence must be predicated on bad faith). “Mere negligence” in losing or destroying records is not enough for an adverse inference, as “it does not sustain an inference of consciousness of a weak case.” Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975); see also In Matter of Complaint of Bos. Boat III, L.L.C., 310 F.R.D. 510, 516 (S.D. Fla. 2015) (noting that “even grossly negligent conduct would not justify [an adverse inference] jury instruction when it is not accompanied by bad faith”).
 
If direct evidence of bad faith is unavailable, the moving party may establish bad faith through circumstantial evidence. Id.; see also Atl. Sea Co. v. Anais Worldwide Shipping, Inc., 2010 WL 2346665, at *2 (S.D. Fla. June 9, 2010) (noting that where the movant “offer[s] no direct evidence of bad faith, ... this Court must assess the circumstantial evidence of bad faith under the standard set forth in Calixto.”). The following includes the requirements to establish circumstantial evidence of bad faith:
(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.
*3 Walter, 2010 WL 2927962, at *2 (citing Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009)). The party seeking sanctions must establish all four of these factors where there is no direct evidence of bad faith. See Calixto, 2009 WL 3823390, at *16 (stating that “in this Circuit, bad faith may be found on circumstantial evidence where all of the [aforementioned] hallmarks are present”). Ultimately, when deciding whether to impose sanctions, courts consider: (1) “whether the party seeking sanctions was prejudiced as a result of the destruction of evidence and whether any prejudice could be cured”; (2) “the practical importance of the evidence”; (3) “whether the spoliating party acted in bad faith”; and (4) “the potential for abuse if sanctions are not imposed.” ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018) (citing Flury, 427 F.3d at 945).
 
Plaintiff's motion falls short because she fails to establish – much less allege – any act of bad faith. This is a requirement for the relief Plaintiff seeks because “[s]poliation sanctions – and in particular adverse inferences – cannot be imposed for negligently losing or destroying evidence.” Tesoriero, 965 F.3d at 1184. That means “ ‘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.’ ” Id. (quoting Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)). And bad faith, in the context of spoliation, “generally means destruction for the purpose of hiding adverse evidence.” Id. (quotation marks omitted).
 
Here, Plaintiff relies on the deposition testimony of a former Assistant Store Manager because she uploaded a video of the slip and fall onto a thumb drive, delivered it to Defendant's Third-Party Administrator, and Defendant somehow lost the footage shortly thereafter:
Q. Okay. We don't have that video, correct?
A. Correct. We don't have the middle section video which that's the one where I looked at the most since that was the area where the customer allegedly said that she fell in.
Q. Okay. And when – after you sent the videos to Sedgwick, did they tell you whether you were missing any videos?
A. No, sir. They – like I said, they didn't inform me anything after I sent everything over and that's all it was, nothing else. No communication or if – nothing, not even from the customer allegedly fell nor the son ever came back after that.
[D.E. 41-5 at 56:8-20].
 
But, even in light of this deposition testimony, Plaintiff's motion is plainly insufficient because there is no evidence, allegation, or even a reference to Defendant acting in bad faith.[3] See Tesoriero, 965 F.3d at 1184 (“This consideration is key in evaluating bad faith because the party's reason for destroying evidence is what justifies sanctions”). Plaintiff only states that Defendant failed to produce a video that should have been provided during discovery, yet there is no theory underpinning the reasons for that failure. It is therefore unclear if Plaintiff believes that Defendant purposefully destroyed or discarded the video because the motion only references a failure to produce.
 
However, even if we attempt to piece together Plaintiff's conclusory remarks, the most that can be assumed is that Defendant acted negligently in failing to preserve the video or otherwise produce the items in response to her discovery requests. Neither is sufficient to impose sanctions because, when a party attempts to establish spoilation via circumstantial evidence, bad faith is only available where the “act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.” Id. at 1185 (quoting Calixto, 2009 WL 3823390, at *16). But, the loss here can, of course, be explained because – even assuming that the Assistant Store Manager delivered the video to Defendant's Third-Party Administrator – Plaintiff only alleges that Defendant lost the video footage. And that cannot be spoliation, by Plaintiff's own admission, because “[m]ere negligence in losing or destroying evidence is not enough to warrant sanctions.” Id. at 1186 (Bashir, 119 F.3d at 931). So, even if we assume that Plaintiff has established every other element to warrant an adverse inference, “nothing in the record smacks of bad faith.” Id. Plaintiff's motion for an adverse inference is therefore DENIED.[4]
 
III. CONCLUSION
*4 For the foregoing reasons, it is hereby ORDERED AND ADJUDGED that Plaintiff's motion for an adverse inference is DENIED.
 
DONE AND ORDERED in Chambers at Miami, Florida, this 8th day of April, 2021.

Footnotes
Although Plaintiff filed her original complaint in Florida state court, Defendant removed it to federal court because the parties are completely diverse, and Plaintiff seeks hundreds of thousands of dollars for her injuries.
Plaintiff does not specify what type of inference she seeks. However, courts have generally found that three types of inferences exist:
There are different types of adverse inferences: (1) a jury may be instructed that certain facts are deemed admitted and must be accepted as true; (2) the Court may impose a mandatory, albeit rebuttable, presumption; or (3) the jury must presume that the lost evidence is relevant and favorable to the innocent party, but also consider the spoliating party's rebuttal evidence, and then decides whether to draw an adverse inference.
Schultze v. 2K Clevelander, LLC, 2018 WL 4859071, at *7 (S.D. Fla. Oct. 4, 2018) (citing United States Equal Emp. Opportunity Comm'n v. GMRI, Inc., 2017 WL 5068372, at *22 (S.D. Fla. Nov. 1, 2017)).
Defendant says that Plaintiff's motion misses the mark because there is no missing video. Defendant claims that it produced all video footage of the slip and fall, and that Plaintiff's complaint is about something that does not otherwise exist.
It appears that Plaintiff is entirely unsure as to why Defendant failed to produce the “missing video.” If Plaintiff intended to make an assertion that Defendant purposefully destroyed or discarded the video, she should have made that clear. But, Plaintiff failed to do so and all that we can gather is that she believes Defendant either negligently lost the video or failed to meet its discovery obligations. Either way, the relief Plaintiff seeks does not go hand in hand with the allegations presented and, even worse, the motion is unclear with nothing to substantiate a request for an adverse inference. On the other hand, Plaintiff is free, of course, to raise the absence of the video clip during trial for impeachment purposes.