*1 Before the Court is Plaintiff Kelly Wilson's motion for sanctions against Defendants HH Savannah, LLC (“HH”), HHC TRS Savannah, LLC (“HHC”), and Hyatt Corporation (“Hyatt”).[1] Doc. 59. She argues that they allowed relevant electronically-stored information (“ESI”) to spoliate. See generally id. Defendants responded in opposition, doc. 63, and she replied, doc. 68. The motion is ripe for review.

Plaintiff alleges that while staying at a Hyatt hotel she slipped and fell while exiting her guestroom's shower. She further alleges that the hotel was “owned,” “leased,” “managed,” “operated,” and “occupied” by Defendants.[2] Doc. 46 at 2-3. According to her, the fall was caused by a defective shower head which “[shot] water over the ... glass door and onto the bathroom floor[.]” Id. She asserts that Defendants allowed relevant room inspection data stored in a computerized system called “HotSOS” to spoliate. Doc. 59 at 1. HotSOS stores two categories of data: (1) records created by room “inspector[s]/cleaner[s]” upon “each cleaning of a room” (“Flash Inspections”), and (2) quarterly repair and maintenance inspections conducted by Hyatt's engineering department (“RMI”). See doc. 59 at 2; doc. 63 at 4-5. HotSOS data is automatically deleted two years after it is entered in the system, see doc. 59 at 3, and any Flash Inspection and RMI records from Plaintiff's guestroom prior to her fall “were automatically deleted under the policy.” Doc. 63 at 5. Plaintiff requests “an order striking the Defendants' answer, or in the alternative, ordering that a rebuttable presumption exists that the destroyed evidence was unfavorable to Defendants, or whatever relief the Court deems just and proper.” Doc. 59 at 9.

A. Although Plaintiff did not comply with the Court's discovery dispute procedures, the Court will dispense with those requirements for this motion.

Defendants argue that Plaintiff's motion for sanctions should be denied because she did not comply with the Court's Standard Procedures for Discovery Disputes (“Standard Procedures”) before filing the motion. See doc. 63 at 18-20; Standard Procedures, available at https://www.gasd.uscourts.gov/judge-ray-instructions-and-forms (parties must “receive permission from the Court following an informal telephonic discovery dispute conference” before filing a motion “pursuant to Federal Rule of Civil Procedure 37[.]”). Since she seeks relief under Rule 37, see doc. 59 at 1, the motion is subject to the Standard Procedures. The parties, however, do not dispute that the spoliation issue is ripe for decision, and the benefit of a discovery dispute conference would be minimal in this case. The Court will therefore dispense with that requirement and consider the motion's merits.

B. Spoliation Analysis

*2 “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) (internal quotation and citation omitted). While federal law governs questions surrounding whether spoliation sanctions are warranted, the Eleventh Circuit has adopted a multi-factor test from Georgia spoliation law, finding that it is consistent with federal spoliation principles. See Flury v. Daimler Chrysler Corporation, 427 F.3d 939, 944 (11th Cir. 2005). The factors identified by the Court in Flury include: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of evidence; (2) whether any 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 are not imposed. Id. at 945.

However, since the Eleventh Circuit's decision in Flury, the Federal Rules of Civil Procedure have been amended to specifically address the spoliation of electronically stored information (“ESI”). Fed. R. Civ. P. 37(e); see also ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018). This December 2015 amendment to Fed. R. Civ. P. 37(e) provides:

Fed. R. Civ. P. 37(e). The Eleventh Circuit has not determined whether the new Rule 37(e) has displaced the multi-factor Flury test when a party seeks sanctions based on the spoliation of ESI. See ML Healthcare Servs., LLC, 881 F.3d at 1307 (declining to determine whether the Flury factors were still applicable in light of amendment to Rule 37(e), as district court did not abuse discretion under either test). But, as the Advisory Committee notes, Rule 37(e) does not fundamentally alter the common-law spoliation framework, and “does not purport to create a duty to preserve. The new rule takes the duty as it is established by case law, which uniformly holds that a duty to preserve information arises when litigation is reasonably anticipated.” Fed. Trade Comm'n v. F&G Int'l Grp. Holdings, LLC, 339 F.R.D. 325, 329 (S.D. Ga. 2021) (citing Fed. R. Civ. P. 37(e), Advisory Committee Notes to 2015 Amendment). Indeed, the introductory section of Rule 37(e) requires that a party must first be shown to have failed in its duty to preserve existing evidence before sanctions should be considered. Fed. R. Civ. P. 37(e).

Rule 37(e) also relies upon principles similar to the common-law spoliation analysis. Subsection (e)(1) requires that prejudice be shown before sanctions can be imposed, and that, in most cases, any sanction must be no greater than necessary to cure that prejudice. Fed. R. Civ. P. 37(e)(1); see also id., Advisory Committee Notes to 2015 Amendment (“[A] court may resort to (e)(1) measures only ‘upon finding prejudice to another party from loss of the information.... The rule leaves judges with discretion to determine how best to assess prejudice in particular cases.’ ”). Further, the bad faith requirement for more severe sanctions, such as default and adverse inferences, is also largely encompassed in subsection (e)(2), since such sanctions are still only permitted upon a “finding that the party that lost the information acted with the intent to deprive[, thereby] rejecting cases ... that authorize the giving of adverse-inference instructions on a finding of negligence or gross-negligence.” Fed. R. Civ. P. 37(e), Advisory Committee Notes to 2015 Amendment; see also Living Color Enters., Inc. v. New Era Aquaculture, Ltd., 2016 WL 1105297, at *6 (S.D. Fla. Mar. 22, 2016) (finding the intent to deprive standard of Rule 37(e) to be “harmonious with the ‘bad faith’ ” standard).

*3 Because the present motion involves ESI,[3] the Court follows Rule 37(e)'s framework. See Marshall v. Dentfirst, P.C., 313 F.R.D. 691, 695 (N.D. Ga. March 25, 2016) (applying Rule 37(e) to determine whether spoliation sanctions are warranted). But the Court also draws direction from general spoliation case law since the pertinent analyses of duty to preserve, prejudice, and “intent to deprive” are essentially the same. Id.; see also ML Healthcare, 881 F.3d at 1307-08; Atta v. Cisco Systems, Inc., 2020 WL 7384689, at *5 (N.D. Ga. Aug. 3, 2020) (applying Rule 37(e) and relying on established Eleventh Circuit spoliation case law).

Courts in the Eleventh Circuit generally require that the party seeking Rule 37(e) sanctions show that its elements are satisfied. See Sosa v. Carnival Corp., 2018 WL 6335178, at *16-17 (S.D. Fla. Dec. 4, 2018).[4] Plaintiff agrees that she shoulders the “burden of proving that spoliation did indeed occur.” Doc. 59 at 5. Courts, however, may lessen or shift the burden for the “prejudice” element in certain circumstances, discussed below. See Fed. R. Civ. P. 37, Advisory Committee Notes to 2015 Amendment.

Accordingly, to prevail on her spoliation motion, Plaintiff must first show that the records at issue “should have been preserved in the anticipation or conduct of litigation.” Fed. R. Civ. P. 7(e). This inquiry involves “asking both when the duty to preserve evidence attached and what needed to have been preserved.” Atta, 2020 WL 7384689, at *5. “The duty to preserve arises when litigation is reasonably foreseeable or pending, ... [Cit.] and it extends broadly to all documents ‘relevant’ to discovery that exist at the time....” Id. (internal citations omitted). This duty only attaches to information within the party's “possession, custody, or control.” See In re Disposable Contact Lens Antitrust, 329 F.R.D. 336, 430 (M.D. Fla. 2018).

If Plaintiff can show that Defendants had a duty to preserve the ESI, she must also demonstrate that their actions were unreasonable and that the information cannot be restored or replaced. See Fed. R. Civ. P. 37(e). Only then, if she is prejudiced by the loss of the information, the Court “may order measures no greater than necessary to cure the prejudice[.]” Fed. R. Civ. P. 37(e)(1). The Court may only consider imposing the more severe sanctions listed in Rule 37(e)(2)(A)-(C) if it finds that Defendants “acted with the intent to deprive” her of the ESI. Fed. R. Civ. P. 37(e)(2).

1. Only Hyatt had Possession, Custody, or Control of the HotSOS Data.

Plaintiff has met her burden of showing that Hyatt had possession of the HotSOS data because Defendants concede that it did; however, she has not shown that HH and HHC had possession, custody, or control. See doc. 63 at 11 n.3 (Defendants argue “there is absolutely no record evidence put forth by Plaintiff to indicate that either HH or HHC ever had any access, control, possession, or right to control the Documents[.]”). “ ‘[C]ontrol has been construed as including the legal right, authority, or practical ability to obtain the evidence upon demand.... Under the practical ability test, a party might control a non-party based on their relationship, such as where there is a contract empowering the party to obtain information from the non-party or where it is customary in the industry for the non-party to furnish the information to the party.” Lidey v. Moser's Rides, 2018 WL 6308012, at *3 (M.D. Fla. Sept. 7, 2018) (internal citations omitted); see also Selectica, Inc. v. Novatus, Inc., 2015 WL 1125051, at *4 (M.D. Fla. Mar. 12, 2015) (“The attorney-client relationship and the corporate parent-subsidiary relationship are examples.”).

*4 Plaintiff only provides conclusory statements that HH and HHC controlled the data. See, e.g., doc. 59 at 6 (“The evidence at issue was in the possession of the Defendants long after the incident took place.”); doc. 68 at 3 (“The ESI sought by the Plaintiff was clearly within the custody, reach or control of the Defendants before and after Plaintiff's fall[.]”); id. at 4-5 (“The fact that this information may be in the possession of a third party is irrelevant since the information would be in the possession or control of the Defendants”). The parties explain that HH, the owner of the hotel property, leased the property to HHC, which contracted with Hyatt to “provide day-to-day management and operation services at the hotel.” Doc. 63 at 2 n.2; doc. 59 at 1. Absent some indication that HH and HHC had a relationship with Hyatt where they were “empower[ed] to obtain” the HotSOS data, or customarily receive similar data from Hyatt, Plaintiff has not met her burden of showing that HH and HHC had sufficient “possession, custody, or control” of the data to trigger a duty to preserve under Rule 37(e). See Lidey, 2018 WL 6308012, at *3. Her conclusory statements that all three defendants had the requisite control over the information is insufficient. Accordingly, the Court will only assess whether Hyatt spoliated evidence, and, if so, whether sanctions are appropriate.

2. Hyatt's Duty to Preserve the HotSOS Data

Plaintiff has shown that litigation was reasonably foreseeable to Hyatt on the day of her alleged injury. “A party's duty to preserve evidence only arises once litigation is pending or reasonably foreseeable.” Easterwood v. Carnival Corp., 2020 WL 6781742, at *5 (S.D. Fla. Nov. 18, 2020) (internal quotations omitted). “[T]he mere fact that someone is injured, without more, is not notice that the injured party is contemplating litigation sufficient to automatically trigger the rules of spoliation.” Wiedeman v. Canal Ins. Co., 2017 WL 2501753, at *3 (N.D. Ga. June 9, 2017) (quoting Phillips v. Harmon, 774 S.E. 2d 596, 603 (Ga. 2015) (citations omitted)). However, “[c]onstructive notice may be based on a variety of circumstances, including the type and extent of the injury; the extent to which fault for the injury is clear; the potential financial exposure if faced with a finding of liability; the relationship and course of conduct between the parties, including past litigation or threatened litigation; and the frequency with which litigation occurs in similar circumstances.” Wiedeman, 2017 WL 2501753, at *3.

The day Plaintiff fell, Hyatt employees created an incident report which includes the following pre-printed language:

Doc. 59-3 at 1.[5] Further, Hyatt's own statement of material facts supporting its summary judgment motion indicates that after Plaintiff advised hotel management that she “had fallen and needed help”, the “manager on duty for Hyatt” and a “representative from the Hotel engineering department” came to Plaintiff's room to “assess the situation.” Doc. 61 at 4-5. The incident report notes that Plaintiff had a cut on her lip which was a “deep wound but not all the way through,” a minor cut on her knee, and a “[b]ruised shin, [and] shoulder pain (nothing visible).” Doc. 59-3 at 1. After she stated that the “shower head burst and was spilling over the floor causing her to fall,” “[e]ngineering [staff] confirmed that the shower head was loose[.]” Id. Finally, the report states that she “found a hospital 30 [minutes] away.” Id. Given the totality of these circumstances, Plaintiff has shown that litigation was foreseeable to Hyatt the day she slipped. See Title Cap. Mgmt., LLC v. Progress Residential, LLC, 2017 WL 5953428, at *4 (S.D. Fla. Sept. 29, 2017) (finding that litigation was reasonably foreseeable “based on the totality of circumstances”).

*5 Plaintiff has also shown that the HotSOS data was sufficiently relevant to trigger a duty to preserve it under Rule 37(e). To prevail on a slip-and-fall claim in Georgia,[6] a plaintiff must show, among other things, that “the injury was caused by a defect, condition, or hazard on the owner/occupier's property and not its active negligence ... [and that] the owner/occupier had actual or constructive knowledge of the defect, condition, or hazard[.]” Charles R. Adams III Ga. Law of Torts § 5:6 (2021). “To prove constructive knowledge, a plaintiff may choose between ‘one of two ways: [1] by evidence that an employee was in the immediate area of the hazard and could easily have discovered and removed it, or [2] by showing that the owner did not use reasonable care in inspecting the premises.’ ” Plymale, 2022 WL 988313, at *8 (quoting Taylor v. AmericasMart Real Estate, LLC, 651 S.E.2d 754, 759 (Ga. Ct. App. 2007)).

The RMI data is relevant because it directs engineering staff to check “yes” or “no” in response to the question “[i]s the water pressure and temperature acceptable? (bathtub, shower ... etc.)” Doc. 59-6 at 5.[7] Whether staff checked “yes” or “no” could indicate whether there was a water-pressure-related defect in the room before Plaintiff's stay, and whether Hyatt had knowledge of a defect. Further, although the Flash Inspection prompts do not ask cleaning staff whether the shower is functioning properly, it does ask whether “[t]he shower/tub is completely clean and amenities are replaced[.]” Doc. 59-5 at 5. Defendants note in their statement of material facts that “the cleaning procedures ... included turning on the shower head to clean the shower, given that the chemicals used are not “self-cleaning[.]” Doc. 61 at 7. Accordingly, the answer to this “yes/no” question could confirm whether cleaning staff turned on the shower before Plaintiff's stay, and whether Hyatt had notice of any hazard.

Hyatt's argument that the HotSOS data is not relevant is unconvincing:

Doc. 63 at 13 (citing the Hyatt manual checklists, docs. 59-5 at 5 & 59-6 at 5). First, as discussed, “direct evidence that an individual in fact cleaned the room” is relevant to the issue of notice. Id. Second, the RMI checklist does not, as Hyatt suggests, merely indicate that an “individual in fact ... completed the quarterly inspection” and completed the required steps. Id. It asks staff whether water pressure in appliances, including the shower, are acceptable, see doc. 59-6 at 5, which is relevant to the issue of notice.[8]

3. Plaintiff has shown that Hyatt did not take reasonable steps to preserve the HotSOS data, and that the data cannot be restored or replaced.

*6 “Simply put, [t]he duty to preserve evidence ... arises when a party reasonably anticipates litigation and thereafter requires that party to suspend its routine document retention or destruction policies and institute a litigation hold to ensure the party properly preserves relevant documents.” In re Abilify (Aripiprazole) Prod. Liab. Litig., 2018 WL 4856767, at *2 (N.D. Fla. Oct. 5, 2018) (internal quotations omitted) (quoting McBride v. Coca-Cola Refreshments, USA, Inc., 2012 WL 12915435 (M.D. Fla. June 20, 2012)). Although Hyatt correctly notes that “[t]he routine, good-faith operation of an electronic information system is a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information”, doc. 63 at 15 (quoting Sosa, 2018 WL 6335178 at *12), courts have explained that “the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation[.]” Coward v. Forestar Realty, Inc., 2017 WL 8948347, at *8 (N.D. Ga. Nov. 30, 2017) (quoting Marten Transp., Ltd. v. Platform Advert., Inc., 2016 WL 492743, at *4 (D. Kan. Feb. 8, 2016)). Since Hyatt does not dispute that it failed to halt the deletion policy after it should have reasonably foreseen litigation, the Court cannot conclude that it took reasonable steps to preserve the data.[9] Further, since Hyatt concedes that the data “cannot be restored or replaced, at least in any reasonable manner”,[10] doc. 63 at 15, Plaintiff has met her burden on these elements.

4. Plaintiff has not shown that the deletion was intentional; however, she was prejudiced by the deletion.

Plaintiff has shown that Hyatt had a duty to preserve the HotSOS data in anticipation of litigation, that the data was lost because Hyatt failed to take reasonable steps to preserve it, and that it cannot be restored or replaced through additional discovery. See Fed. R. Civ. P. 37(e). Therefore, if Plaintiff is prejudiced by the deletion, then the Court “may order measures no greater than necessary to cure the prejudice[.]” Fed. R. Civ. P. 37(e)(1). If, however, Hyatt acted “with the intent to deprive [her] of the information's use in [this] litigation,” the Court may impose more severe sanctions, including a presumption that the lost information was unfavorable to Hyatt; a jury instruction that it may or must presume the information was unfavorable to Hyatt, or entry of a default judgment against Hyatt. See Fed. R. Civ. P. 37(e)(2).

Courts in the Eleventh Circuit have suggested that the “intent to deprive” standard in Rule 37(e)(2) is harmonious with the “bad faith” standard established before the 2015 amendments to Rule 37. See Alabama Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730 at 746 (N.D. Ala. 2017) (citing Living Color Enteres., Inc., 2016 WL 1105297, at *6). In establishing bad faith, the party seeking spoliation sanctions can rely on circumstantial evidence, including: (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. Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1331 (S.D. Fla. 2010).

*7 Plaintiff argues that Hyatt acted intentionally because it is a large, “litigation-savvy” corporation that knows “when and how to preserve the data at issue.” Doc. 59 at 8-9; see also doc. 68 at 4 (“[Hyatt] operate[s] a large hotel and clearly know[s] that the existence of a prior issue in Plaintiff's room is central to processing and evaluating Plaintiff's claim.”). This argument appears to address the first factor discussed above: Hyatt is a sophisticated party which should have known that the HotSOS data was material to impending litigation. Even if the Court agreed that Hyatt's sophistication leans the first factor in her favor, there is no indication that Hyatt “affirmative[ly] acted” to delete the data. See Managed Care Sols., Inc, 736 F. Supp. 2d at 1322; see also Atta, 2020 WL 7384689, at *8 (“Without more from Plaintiff, there is no way to conclude that the loss was result of anything more than negligence, and ‘[t]he Court is not convinced that [D]efendant's negligence—even recklessness ... rises to the stringent ‘intent’ requirement set forth in the amended Rule 37(e).’ ”) (quoting Storey, 2017 WL 2623775, at *4).

Since Plaintiff has not shown that Hyatt's failure to preserve the data was intentional, if the Court finds that she was “prejudice[d]” by the deletion, it may impose sanctions “no greater than necessary to cure the prejudice[.]” See Fed. R. Civ. P. 37(e). As mentioned above, courts in the Eleventh Circuit generally require the party seeking Rule 37(e) sanctions to show that its elements are satisfied. See Sosa, 2018 WL 6335178, at *16-17. The Advisory Committee notes to Rule 37(e), however, explain that:

Fed. R. Civ. P. 37 Advisory Committee's Notes to 2015 Amendment (emphasis added); see also Reed v. Royal Caribbean Cruises, Ltd., 2021 WL 3557747, at *6 (S.D. Fla. Mar. 4, 2021) (quoting Coward, 2017 WL 8948347, at *8 (“[S]ome ‘courts have concluded that the party accused of spoliating evidence, not the party moving for spoliation sanctions, bears the burden of showing the lack of prejudice.’ ”)). Here, however, regardless of the allocation of the “prejudice” burden, the record before the Court demonstrates that Plaintiff was prejudiced by the loss of the HotSOS data.

“Although Rule 37(e)(1) requires a finding of ‘prejudice’ in order for sanctions to issue, the Rule is unclear as to what is meant by this word.” Ungar v. City of New York, 329 F.R.D. 8, 15 (E.D.N.Y. 2018). This District and other courts in this Circuit have suggested that a non-spoliating party suffers “prejudice” under Rule 37(e) if the unavailable ESI would have helped evaluate the merits of its positions, regardless of whether the ESI would be favorable its case. See, e.g., Storey, 2017 WL 2623775, at *5 (“But, plaintiff has been prejudiced by the ... defendants' carelessness. Again, the lost videos deprive plaintiff of the best and most compelling evidence of what happened ... and would have offered the only unbiased and dispassionate depiction of events.”) (internal quotations and citations omitted); Coward, 2017 WL 8948347, at *8 (N.D. Ga. Nov. 30, 2017) (“The Court finds that the loss of the videos is prejudicial to the ... Defendants. Certainly, the videos at issue would be helpful in evaluating the merits of the Parties' positions.”); Sosa, 2018 WL 6335178, at *20 (Plaintiff suffered prejudice when she “cannot probe the accuracy of [Defendant's] assessment because [it] inexplicably lost the [ESI].”).[11]

*8 As discussed, the RMI and Flash Inspection data would be valuable in evaluating whether Hyatt had notice of a hazard in the room, and Plaintiff is therefore prejudiced by its deletion.[12] Further, as Hyatt notes, witnesses have testified in depositions that “a[n] ... employee would have cleaned the room before [her] stay, and had an employee noticed any malfunction, he or she would have alerted maintenance to address it.” Doc. 63 at 13. The unavailability of the record memorializing the cleaning makes it difficult for Plaintiff to confirm or challenge this testimony, and she is therefore prejudiced.[13]

5. Sanctions are appropriate, but the parties have not sufficiently briefed the appropriate nature of the sanctions.

Since Hyatt failed to preserve relevant ESI in its control despite foreseeable litigation, and since Plaintiff was prejudiced by that failure, spoliation sanctions against Hyatt are appropriate. See Fed. R. Civ. P. 37(e). Plaintiff requests that the Court strike Defendants' Answer; however, she has not shown that Hyatt acted intentionally, and that request is, therefore, DENIED. Doc. 59, in part. See Fed. R. Civ. P. 37(e)(2). Since she has shown that she is prejudiced by the deletion, however, the Court “may order measures no greater than necessary to cure the prejudice[.]” Fed. R. Civ. P. 37(e)(1).

Plaintiff vaguely requests:

Doc. 59 at 9; see generally doc. 68 (Plaintiff does not clarify in her reply); doc. 65 (Hyatt does not take a position on the appropriate nature of Rule 37(e)(1) sanctions). Given the Court's “wide range of discretion in crafting remedies under [Rule 37(e)(1)],” the parties' briefing is inadequate for the Court to discern what sanction is “no greater than necessary” to cure the deletion. Muhammad v. Mathena, 2016 WL 8116155, at *9 (W.D. Va. Dec. 12, 2016). Accordingly, within 14 days from the date of entry of this Order, Plaintiff is DIRECTED to file a brief explaining what sanctions are “no greater than necessary” under Fed. R. Civ. P. 37(e)(1) to cure the prejudice resulting from Hyatt's loss of the relevant ESI. Hyatt is DIRECTED to file a response brief within 14 days from the date Plaintiff files her brief. If Plaintiff seeks to file a reply, she must file a notice of her intention to reply within 3 days from the date Hyatt files its brief. If she seeks to file a reply, she must do so within 14 days from the date Hyatt files its response.

*9 For the foregoing reasons, to the extent Plaintiff's motion seeks spoliation sanctions against Hyatt, it is GRANTED,[14] in part. Doc. 59. To the extent it seeks sanctions against HH and HHC, it is DENIED, in part. Doc. 59. The Court DEFERS ruling on the appropriate nature of the sanctions pending the parties' briefing discussed above.

SO ORDERED, this 1st day of June, 2022.

She filed her original Complaint in the Middle District of Florida, doc. 1; however, this case was transferred to the Southern District of Georgia. See doc. 20 at 7.

Defendants assert that HH owned the hotel property, “but it did not operate or manage the Hotel.” Doc. 63 at 2 n.2. They explain that “HH leased the Hotel to HHC[,] ... which contracted with [Hyatt] to provide day-to-day management and operation services at the hotel.” Id.

The parties do not dispute that the records at issue are appropriately categorized as ESI. See doc. 63 at 15-16; doc. 68 at 1-3.

But see, e.g., DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 979 (N.D. Ill. 2021) (“This Court is not so sure about that allocation of burden [articulated by the Sosa Court, and by another district court]. Again, burdens of proof generally fall on the party with better access to the information.... It seems odd to place the burden on the movant to show that the party that unquestionably destroyed the ESI failed to take reasonable steps to preserve the destroyed evidence.”).

Several courts have held that a post-accident incident report can be sufficient to put a company on notice of litigation in slip-and-fall cases. See, e.g., Lacey v. Target Corp., 2015 WL 2254968, at *9 n.4 (E.D.N.Y. May 13, 2015) (plaintiff “complete[d] an accident report at Target ... This was sufficient to place Target on notice of potential litigation”); Freidig v. Target Corp., 329 F.R.D. 199, 207 (W.D. Wis. 2018) (“Freidig filled out a guest incident report that said she was injured after slipping on a puddle in a checkout lane.... This report gave Target notice of potential litigation.”); Alvarez v. Walmart, Inc., 2021 WL 7758614, at *2 (D. Nev. June 11, 2021) (“Courts in [the District of Nevada] typically consider an incident report as sufficient notice for a defendant to preserve evidence.”); but see Putscher v. Smith's Food & Drug Centers, Inc., 2014 WL 2835315, at *7 (D. Nev. June 20, 2014) (rejecting slip-and-fall plaintiff's argument that “a grocery store has notice, and therefore a legal duty to preserve evidence, as soon as it completes an incident report that contains a legal notice.”). Even if the incident report alone was insufficient to trigger Hyatt's duty to preserve the data, it had numerous other indications, discussed below, of the “strong whiff of impending litigation on the breeze.” Storey v. Effingham Cnty., 2017 WL 2623775, at *3 (S.D. Ga. June 16, 2017).

“A federal court sitting in a diversity action applies state law using the choice of law rules of the forum state, in this case Georgia”, Travelers Prop. Cas. Co. of Am. v. Moore, 763 F.3d 1265, 1270 (11th Cir. 2014), and the parties do not dispute that Georgia substantive law governs here. See generally doc. 46 (Third Amended Complaint; doc. 49 (Answer); see also Plymale v. Cheddars Casual Cafe Inc., 2022 WL 988313, at *8 n.8 (M.D. Ga. Mar. 31, 2022).

Plaintiff attached Hyatt manuals to her spoliation motion which show the 12 “yes/no” questions cleaning staff must answer during a Flash Inspection, and 13 “yes/no” questions engineering staff must answer during an RMI. See doc. 59-5 at 5 (Flash Inspection questions); doc. 59-6 at 5 (RMI questions). Although both manuals indicate that individual Hyatt hotels may modify these questions, Hyatt's director of engineering, doc. 60-7 at 7, testified at his deposition that the hotel's Flash Inspection and RMI questions are consistent with the questions in the manuals. See doc. 59-4 at 3.

Hyatt also argues that the data is not relevant because Plaintiff has obtained the information it would have contained via deposition testimony. See doc. 63 at 13-14. This argument, however, does not address the “relevance” element of Rule 37(e). It addresses the issue of whether Plaintiff was “prejudice[d]” by the deletion, which the Court will discuss below. See Fed. R. Civ. P. 37(e).

Hyatt also argues that it “took reasonable steps to preserve the Documents” because “there was plainly no basis for Hyatt at the time, or in the two years following the fall, to reasonably believe that such tangential and basic Documents would be relevant to a potential suit.” Doc. 63 at 15-16. This argument conflates the “relevance” and “reasonable steps” components of Rule 37(e). As discussed above, the HotSOS data was relevant, and Hyatt does not assert that it attempted to prevent its deletion. See generally id.

Absent any explanation from Hyatt regarding the meaning of “at least in any reasonable manner”, the Court construes this statement as a concession that the HotSOS data is permanently deleted.

But see Ungar, 329 F.R.D. at 15 (“Two different views of ‘prejudice’ may be hypothesized[.] ... Under one view, ‘prejudice’ may be taken to mean merely that the evidence is probative, similar to the concept of relevance under Fed. R. Evid. 401. Under the alternative view, prejudice may require proof that the evidence was not only probative, but that it would affirmatively support the movant's claim. Courts in this Circuit generally require some proof of prejudice in the latter sense before sanctions will issue.”); Karsch v. Blink Health Ltd., 2019 WL 2708125, at *21 (S.D.N.Y. June 20, 2019) (“It is sufficient if the existing evidence plausibly ‘suggests’ that the spoliated ESI could support the moving party's case.”); Danielson v. Huether, 2021 WL 217706, at *5 (D.S.D. Jan. 21, 2021) (noting the tension among district courts on this issue, and holding that “[j]udging prejudice by relevance alone is not appropriate under the unique circumstances here.” (emphasis added)).

Although the Court addresses the ESI's tendency to show whether Hyatt had notice of a hazard in both its “relevance” and “prejudice” discussions, these two components of Rule 37(e) are separate inquires. See Karsch, 2019 WL 2708125, at *20 (“Proof of relevance does not necessarily equal proof of prejudice.” (internal quotations and citation omitted)). The “relevance” inquiry refers to evidence a party “should reasonably know” will be “relevant to future litigation.” King v. Cath. Health Initiatives, 2019 WL 6699705, at *3 (D. Neb. Dec. 9, 2019) (quoting The Valspar Corp. v. Millennium Inorganic Chemicals, Inc., 2016 WL 6902459, at *4 (D. Minn. Jan. 20, 2016)). “Prejudice”, on the other hand, can “arise[ ]” at any point in litigation. See, e.g., Lewis v. Zatecky, 2020 WL 9351305, at *1 (S.D. Ind. June 2, 2020); Knight v. Boehringer Ingelheim Pharms., Inc., 323 F. Supp. 3d 837, 845 (S.D.W. Va. 2018).

Hyatt cites this deposition testimony to argue that Plaintiff was not prejudiced by the deletion because she “already has secured testimony” that the room was cleaned before her stay. Courts have rejected the argument that a party is not prejudiced by spoliation because “there are other means to obtain the contents of the [deleted ESI], including prior oral discovery and potential trial testimony[.]” See Schmalz v. Vill. of N. Riverside, 2018 WL 1704109, at *4 (N.D. Ill. Mar. 23, 2018) (internal quotation and citation omitted)); see also id. (quoting Larson v. Bank One Corp., 2005 WL 4652509, at *14 (N.D. Ill. Aug. 18, 2005) (“A party has the right to prosecute its case in the way it deems fit based on all available relevant evidence.”)).

“[M]agistrate judges have jurisdiction to enter sanctions orders for discovery failures which do not strike claims, completely preclude defenses or generate litigation-ending consequences.” QBE Ins. Corp. v. Jorda Enterprises, Inc., 280 F.R.D. 694, 694 n.2 (S.D. Fla. 2012). Since the Court imposes “non-dispositive relief”, it may do so by entering an order, as opposed to a report and recommendation. Matter of In re Skanska USA Civ. Se. Inc., 340 F.R.D. at 190 n.4; see also QBE Ins. Corp., 280 F.R.D. at 694 n.2 (explaining that magistrate judge has authority to enter a sanctions order, as opposed to a report and recommendations, when sanctions are denied).