*1 THIS CAUSE comes before the Court upon Plaintiff Eileen Ledet's Motion for Adverse Inference Instruction and Incorporated Memorandum of Law (ECF No. 56) and Defendant's Motion for Relief from Order to Show Cause (ECF No. 94). The Motions were referred to the undersigned United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(A) and the Magistrate Judge Rules of the Local Rules of the Southern District of Florida, by the Honorable Rodney Smith, United States District Judge for appropriate resolution (ECF No. 65). After careful consideration of the Motions, Responses in Opposition, two evidentiary hearings, and review of the entire docket as a whole, Plaintiff's Motion for Adverse Inference Instruction is Granted, and Defendant's Motion For Relief is Denied.

I. BACKGROUND

On March 29, 2018, Plaintiff was a passenger on Defendant's vessel, the M/S Valor (“Valor”). In the morning of March 29, 2018, Plaintiff was using the bathroom on Deck 4 of the Valor when she slipped on a transitory substance on the floor. On November 13, 2018, Plaintiff filed a Complaint for compensatory damages against Defendant. (ECF No. 1). Plaintiff alleges that Defendant knew or should have known of the likelihood of a wet substance causing injury in the restroom but failed to take appropriate steps to ensure the safety of its passengers. (Id. ¶ 11). Defendant denies Plaintiff's allegation that the transitory liquid had been there for a sufficient period of time before Plaintiff's accident that Defendant had actual or constructive knowledge of the alleged dangerous condition and opportunity to cure or warn Plaintiff (ECF No. 14 ¶ 11-12).

Plaintiff's Motion contends that Defendant kept certain logs (referred to by both Parties as “Bathroom Logs”) that memorialized the times the bathroom was checked and cleaned by assigned housekeeping staff. The existence of the Bathroom Logs has been a moving target relative to this Motion, thus it bears explaining here how their story developed over the course of the litigation.

Plaintiff demanded via interrogatory that Defendant identify what maintenance it had performed on the subject bathroom, including the last time the bathroom was checked, and what staff members had performed the maintenance. (Plaintiff's Interrogatory No. 17). Specific to the date of Plaintiff's injury, Defendant provided a sworn answer to Plaintiff's Interrogatory that identified the steward assigned to check the bathroom, Vinarose Geronimo, and stated “[o]n the date of the incident, the subject bathroom was being cleaned every 10-15 minutes.” (ECF No. 84-3 at 15).

Plaintiff also served a request for production of documents, which included a request for the “logs for inspecting the [subject] bathroom.” (ECF No. 34 at 38). On March 8, 2019, Chief Magistrate Judge O'Sullivan held a discovery hearing at which he ordered Defendant to produce any bathroom logs for three months prior to and thirty-six hours after Plaintiff's incident (ECF No. 25). Following the hearing, on March 11, 2019, outside counsel for Defendant Caroline Milewski sent an e-mail to several Carnival representatives, including Monica Borcegue, Carnival's Litigation Representative, and Susanne Vazquez, Carnival's in-house counsel. Milewski's e-mail reported on the discovery hearing and Court order to propound better responses within a week. Milewski identified specific categories of documents, including “anything showing times that crew was in an [sic] out for routine cleaning, etc.” as well as “any ... inspection reports for the subject bathroom for 3 months prior to subject voyage through the end of the subject voyage.” (ECF No. 99-2 at 2). Borcegue responded on March 18, 2019 that there were no logs “specific to the bathroom.” (ECF No. 99-3 at 2).

*2 On March 22, 2019, following “several, lengthy telephone calls” in which Plaintiff's counsel “insisted that he had seen ‘bathroom logs’ in other Carnival cases”, (ECF No. 99 at 3), Milewski “requested that Ms. Borcegue ‘double check’ that there were no such logs.” (id.). Milewski also spoke with Shakbeva Abuthalip, Assistant Housekeeping Manager on the Valor, who was on duty at the time of Plaintiff's incident. Abuthalip mentioned a checklist that would have shown the last time the bathroom was checked. (ECF No. 99 at 3). Following the conversation with Abuthalip, Milewski e-mailed Borcegue on March 29, 2019, again copying in-house counsel Suzanne Vazquez. Milewski warned the client representatives that Carnival faced “a very high risk of getting sanctioned” unless it produced the court-ordered discovery. Milewski, addressing Ms. Borcegue, acknowledged that she [Borcegue] has “been swamped,” but insisted that the deadline of Monday was inflexible and asked if anyone else could help collect the missing documents. The first of those missing documents was described with reference to her conversation with Abuthalip:

(ECF No. 99-6 at 2) (underline in original). It bears noting here that investigation of incidents, including injuries that may end up in litigation, are performed by security; it is the arm of Carnival responsible for investigating alleged lawsuits, collecting evidence, and taking witness statements.

On April 1, 2019, Borcegue e-mailed the housekeeping manager on Valor, requesting “any ... inspection reports for the subject bathroom for December 29, 2017 to April 1, 2018.” (ECF No. 99-7 at 4). Borcegue's email, on which Susanne Vazquez, was copied, made no reference to the Bathroom Log described by Abuthalip. On April 2, 2019, Assistant Housekeeping Manager Abuthalip responded to Borcegue's inquiry by stating “Note: Retention period to keep the restroom cleaning logs is 6 months only. The logs was [sic] discarded already.” (id. at 2). Borcegue forwarded Abuthalip's e-mail to Milewski on April 4, 2019. At this point, Milewski claims to have “reasonably believed” “that these documents existed at one point but were no longer available due to the retention period” (ECF No. 99 at 3).

Shortly thereafter, Carnival took the position that its Answers to Interrogatories were based in part on the Bathroom Logs. On April 10, 2019, Carnival presented Borcegue for deposition as its designated corporate representative, pursuant to Federal Rule of Civil Procedure 30(b)(6). Borcegue was asked how Carnival had knowledge of its Answer to Interrogatory 17, which represented that Geronimo was assigned to the subject bathroom, that she checked the subject bathroom every 10 to 15 minutes, and that she had observed the bathroom to be dry. Borcegue testified “I believe that there are logs kept. We don't have them any longer because of the time period ... But they do have logs that they keep of every check that they do in the bathroom.” (ECF No. 37-1 at 76). Borcegue further affirmed the logs “are an internal record that Carnival utilizes as part of its business” and were used by housekeeping personnel such as Geronimo. (id. at 77). Borcegue, however, had never personally seen the bathroom logs or spoken to Geronimo. Borcegue had only read a statement by Geronimo, which she had provided to security on the day of the incident. (id. at 42, 85–86).

On June 28, 2019, Plaintiff filed the subject Motion for Adverse Inference Instruction and Incorporated Memorandum of Law, asking the Court to find that spoliation of the logs had occurred, and that the jury should be instructed that the logs, if they still existed, would be unfavorable to Defendant's case (ECF No. 56). In her Motion, Plaintiff argues that the logs were “important evidence” and that Defendant's admitted destruction of them warranted an adverse inference instruction to the jury that they may presume the logs would have been unfavorable to Defendant if they had been preserved. Defendant's response to Plaintiff's Motion did not deny that the Bathroom Logs existed for the subject bathroom or that they were destroyed (ECF No. 59). Instead, Defendant's response focused on the absence of a duty to preserve them, arguing that the logs were non-crucial to Plaintiff's case, and asserted Defendant's lack of bad faith in destroying them. Defendant's response affirmatively described the logs as “a paper document that was physically kept inside the restroom” that “indicates each time the restroom was checked by a crewmember.” (ECF No. 59 at 2). Defendant also repeatedly emphasized that the logs’ destruction, flowing from a six-month retention policy, did not amount to action undertaken in bad faith.

*3 The Court held an evidentiary hearing on September 10, 2019. On the morning of the hearing, Defendant filed an affidavit executed by Borcegue, in which she then swore that there were no Bathroom Logs used or kept by the ship Valor. (ECF No. 81-1 at ¶ 10, 12). Borcegue attested that she had learned of the non-existence of bathroom logs by asking for confirmation of the retention policy with Dima Draganova, the Fleet Housekeeping Manager, who she e-mailed a few days before the evidentiary hearing. (Id. at ¶ 10). Borcegue averred that she then understood that Abuthalip must have been mistaken in his response to her that the logs had been discarded, due to language barrier or otherwise (Id. at ¶ 11). Notwithstanding, Borcegue explained that she had relied upon his answer to her e-mail for her testimony at deposition, because he had first-hand knowledge of how the housekeeping department on the Valor was run, and had been on duty at the time of Plaintiff's injury (Id. at ¶ 8).

Despite the confusion regarding the existence of the logs, Borcegue testified during the first hearing that she did not know whether anyone had gone back to Valor to investigate the conflicting answers she had received and determine whether there are in fact Bathroom Logs used on the ship. (ECF No. 86 at 86). Borcegue testified that she is “not an attorney”, (ECF No. 86 at 65), hasn't “ever actually received real official training[,]” (id. at 70) and doesn't “know what the law requires” in regard to a party's duty to update its interrogatory answers, (id. at 64–65), despite being responsible for compiling the information necessary for Carnival's discovery responses. Furthermore, Borcegue testified that no in-house attorney had been involved in the case until the day immediately prior to the hearing. (id. at 82).

The evidence advanced at the first hearing was insufficient to resolve Plaintiff's Motion. Most significantly, the undersigned had insufficient and incompetent evidence from which to determine if the allegedly destroyed document had ever existed. More troubling however were the indications that Carnival and its counsel had failed to conduct reasonable investigation required by the Federal Rules of Civil Procedure before making various factual representations to an opposing party or the Court.

Accordingly, on September 13, 2019, the undersigned issued an Order to Show Cause why Carnival and/or its counsel should not be sanctioned (ECF No. 85). Specifically, the undersigned explained the concern that Defendant did not adequately investigate the existence of the Bathroom Logs nor did it verify the truthfulness of Borcegue's deposition testimony that the Logs served as Carnival's basis of knowledge for its interrogatory answers. (id.) Defendant was ordered to explain why its repeated and exclusive reliance on unverified hearsay from Abuthalip for its discovery responses and deposition testimony, resulting in self-contradictions regarding the existence of the Bathroom Logs, did not warrant sanctions beyond that which Plaintiff had requested in her Motion for Adverse Instruction.

On September 20, 2019, Defendant filed a response to the Court's Order (ECF No. 95). Defendant referenced a supplemental production it had made the same day in response to Plaintiff's Request to Produce Number 64.[1] Defendant's supplemental response attached a previously unseen sheet titled “Public Restroom Daily Tracking”, which was formatted in a way to allow employees to note the time and location of their maintenance and cleaning, including the memorialization of other details such as confirmation that toilets are flushing, that toilet seats are properly affixed, that lights are working, and that the hand dryer is working (ECF No. 96-1 at 3). In other words, the tracking form approximated what anyone would reasonably believe to be a bathroom log.

*4 Defendant also advanced an affidavit by Stephen Cristofferson, Vice President of Housekeeping, Laundry & VSP, in which he explained that he had then come to learn that Abuthalip had distributed the “Public Restroom Daily Tracking” form to housekeeping staff on Valor during the month of Plaintiff's incident (ECF No. 95-5 at 1–3). Cristofferson explained he learned of the tracking form from Slavica Durisic, the Senior Fleet Housekeeping Manager, who spoke with Abuthalip (id. at 2). Cristofferson averred that the tracking form was used to assist housekeeping staff in their duties as part of a Carnival program called 4FunDX, which promoted friendly competition among members of an organization in reaching their goals, rather than any sort of monitored logging of the bathroom (id. at 2–4). There was also no consistent storage procedure for completed tracking forms (id. at 4).

At the hearing on October 2, 2019, Christofferson testified and clarified that all of the information he had about 4FunDX he had received by talking to someone else. He testified that he was never involved in the implementation of the 4FunDX on the Valor, he had never seen or used the 4FunDX forms on the Valor, and did not know how they were used, for how long they were used, and for what reason they were used other than through the conversation he had with Durisic.

Defendant's position regarding the Bathroom Logs has changed three times now. Initially, Borcegue's testimony, entirely dependent on Abuthalip's e-mail and Geronimo's statement, represented that bathroom logs were routinely used by housekeeping personnel and destroyed after six months as part of a retention policy, and that the logs supported Defendant's knowledge for its interrogatory answers. Subsequently, Borcegue's affidavit, filed the morning of an evidentiary hearing meant to address Plaintiff's request for sanctions against Defendant for destroying the logs, represented that the Bathroom Logs never existed on the Valor, after a singe e-mail exchange with the Fleet Housekeeping Manager, Draganova. Now, in response to the Court's Order, Cristofferson's affidavit represented that a tracking form, bearing the closest imaginable resemblance to a Bathroom Log, was used by housekeeping personnel on Valor as part of a friendly competition. Notably, however, Cristofferson testified that he did not know of anyone from Carnival speaking to someone on Valor who had actual knowledge of the tracking form. Furthermore, Cristofferson testified that he never personally spoken with Abuthalip. Lastly, Cristofferson's testimony that he had no personal knowledge of how the tracking form may have been used on Valor. Susanne Vazquez, in-house counsel who was copied on the e-mail correspondence described above, also testified that when she eventually did speak with Christofferson about bathroom logs she never told him why she was looking for logs, or that she was looking for a specific log. She only asked if the Valor used and held onto bathroom logs. No one has undertaken to identify the security officer who took Abuthalip's statement and with it, the Bathroom Log he was given by Ms. Geronimo, or attempt to find it on the ship.

Notwithstanding, Defendant filed a Motion for Relief from The Order to Show Cause (ECF No. 94) concurrently with its Response to the Order. For the reasons set forth below, that Motion is denied.

I. DISCUSSION

Despite the conflicting evidence advanced by Carnival, Plaintiff's Motion is due to be granted.[2] Indeed, defense counsel acknowledged at the conclusion of the hearing that the requested adverse inference instruction was warranted; and further agreed to an award to Plaintiff for the expenses incurred.

*5 In an admiralty action, federal law governs the imposition of sanctions for spoliation of evidence because spoliation sanctions constitute an evidentiary matter. Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005); In Matter of Complaint Boston Boat III, LLC, 310 F.R.D. 510, 513–14 (S.D. Fla. 2015).

Spoliation is defined as the “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); see also Sosa, 2018 WL 6335178, at *8 (defining spoliation as the “intentional destruction of evidence or the significant and meaningful alteration of a document or instrument” and “the intentional concealment of evidence”). The party moving for spoliation sanctions must prove by a preponderance of the evidence that: (1) the missing evidence existed at one time; (2) the alleged spoliator had a duty to preserve the evidence; (3) the evidence was crucial to the movant being able to prove its prima facie case or defense; and (4) that the loss of the evidence cannot be credibly explained without the existence of bad faith. See Boston Boat, 310 F.R.D. at 515. It is not enough to show that the spoliation occurred; sanctions for spoliation are not available absent a finding of bad faith. See Barnes v. Dalton, 158 F.3d 1212, 1214 (11th Cir. 1998) (“The key to unlocking a court's inherent power requires a finding of bad faith.”); see also Cox v. Target Corp., 2009 WL 3497730, *2 (11th Cir. Oct. 30, 2009). Plaintiff thus bears the burden to show that 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;” that the Defendant engaged in an affirmative act causing the evidence to be lost; that it did so while it knew or should have known of its duty to preserve the evidence; and that “the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator.” Calixto v. Watson Bowman Acme Corp., No. 07-60077-CIV, 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009).

A court has broad discretion to impose sanctions for misconduct based on its inherent power to manage its own affairs. Boston Boat, 310 F.R.D. at 514. However, in order to impose sanctions under the Court's inherent power, there must be a finding of bad faith. Id. (citing In re Mroz, 65 F.3d 1567, 1575 (11th Cir. 1995)). Sanctions for spoliation of evidence include but are not limited to: (1) dismissal of an action or default judgment against the defendant; (2) exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a presumption against the spoliator. Flury, 427 F.3d at 945.

Spoliation requires a finding that the evidence once existed. Boston Boat, 310 F.R.D. at 520. Defendant's denial that the contested log existed was predicated on its argument that the thing sought was not a “bathroom log” but something else; whatever it was named, Abuthalip told outside counsel that the person assigned to clean the bathroom on the day of the accident (Geronimo) gave it to him, and he gave it to security along with his own statement. Crediting the March 29, 2019 email from Milewski to Borcegue, in which Milewski memorialized Mr. Abuthalip's statement to her, I find that the Bathroom Log existed at one time.

*6 The second question is whether Defendant had a duty to preserve the Bathroom Logs. Id. Generally, a party must preserve evidence “when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” Tesoriero v. Carnival Corp., No. 16-21769-Civ, 2017 WL 8895347, at *23 (S.D. Fla. Sept. 22, 2017). While notice that evidence is relevant to litigation may be established before the filing of a complaint, finding a party's duty to preserve evidence at such a point in time requires some form of concrete evidence, such as pre-litigation correspondence with counsel or an opposing party, that the party has considered future litigation beyond an awareness of its possibility. See Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y. Sept. 27, 1991); Compare Oil Equipment Co. Inc. v. Modern Welding Co. Inc., 661 F. App'x. 646, 657–58 (11th Cir. 2016) (finding plaintiff's duty to preserve evidence was triggered when they sent defendant a demand letter through counsel) with Tesoriero, 2017 WL 8895347, at *23 (finding a passenger injury statement, as well as medical attention on the vessel, did not suffice for defendant's duty to preserve evidence because there was no “concrete evidence that future litigation was probable....”).

Carnival contends that it was not on notice until the Complaint was filed in November 2018, seven months after Ms. Ledet's fall, and argues that because it had a six-month retention policy for bathroom logs, it had no duty to preserve the documents. While this may have been the case if Carnival did nothing in anticipation of litigation following Ms. Ledet's fall, it is not the case under the facts adduced at the evidentiary hearings. As evidenced by Mr. Abuthalip's statements to Milewski, the contested Bathroom Log was handed to a security officer for purposes of an investigation into Plaintiff's fall. The evidence shows that Carnival's security team acted as though they were anticipating litigation as they collected evidence and took witness statements. The only evidence regarding this particular log, moreover, contradicts Carnival's representation that it was destroyed in the ordinary course of a reasonable retention policy: by handing the document to security, in the course of the investigation, Carnival's agents initially did preserve the document. There is no evidence that it was at any point stored in a locker among other similar logs, which Abuthalip reported were regularly destroyed after six months. Accordingly, I find that Carnival was on notice of potential litigation while the documents were still in existence, and accordingly, had a duty to preserve the logs.

The next step in the inquiry is to determine whether the evidence was crucial to the movant being able to prove her prima facie case. Boston Boat, 310 F.R.D. at 520. In the Eleventh Circuit, the standard of reasonable care for maritime negligence claims requires that the cruise ship operator have actual or constructive knowledge of a dangerous condition id.; relevant to this case, Plaintiff alleges that the bathroom floor was wet for a sufficient amount of time before her fall that Defendant knew or reasonably should have known about the dangerous condition. Plaintiff contends that the missing Bathroom Log is critical to proving that Defendant's employee Geronimo found water on the floor shortly before her fall, and/or that the bathroom was not checked every 10-15 minutes, contrary to Carnival's interrogatory answers and corporate representative testimony. Defense counsel averred that the missing Bathroom Log would have been more helpful to the defense than to Plaintiff, on his assumption that it would corroborate Ms. Geronimo's statement that she regularly checked the bathroom and left it dry.

Courts should not be strict in determining whether evidence that no longer exists would have been crucial because doing so would allow spoliators to profit from the destruction. Id. at 521. It is impossible now to know whether the missing Bathroom Log would in fact have helped one side more than the other; at a minimum, it would have indicated the last time that Geronimo noted her inspection of the bathroom, a contested issue in this case. Defendant avers that Plaintiff could have obtained this information by deposing Geronimo, an argument that overlooks that the Bathroom Log would have been the best evidence, recorded closer in time to the contested events. The Bathroom Log would have served to verify or impeach Ms. Geronimo's recollection. Furthermore, Defendant has used the Logs as a basis for its defense that it had no notice repeatedly throughout this litigation. As such, the undersigned finds that Plaintiff has shown that the Bathroom Logs are critical to her case.

*7 The final inquiry requires the Court to determine whether bad faith was present. Bad faith can be shown either through direct evidence or through circumstantial evidence. In order to demonstrate bad faith through circumstantial evidence, the Court must find (1) whether 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. Boston Boat, 310 F.R.D. at 521.

I have already addressed the first circumstantial evidence factor: whether evidence once existed that could have been material to Plaintiff's claim. “Material” and “critical” are similar standards, however, critical is the higher burden, and I have already determined that the evidence was critical. As such, the first factor is satisfied. Boston Boat, 310 F.R.D. at 522. Likewise, I have also discussed the third circumstantial evidence: whether Defendant had a duty to preserve the documents. I find that it did.

There must also have been an affirmative act causing the evidence to be lost or else the evidence would have been turned over. As stated previously, the Bathroom Log in question was turned over to the security team investigating Ms. Ledet's fall. It was relied on by Carnival during the course of interrogatories and depositions, yet they it was never turned over and is claimed to have been destroyed. Allowing Carnival to claim that it caused no affirmative act to lose the Bathroom Log when the Log was always in the sole custody of Carnival during the time relevant to the dispute would allow the spoliator to hide behind the destruction of evidence so long as they never tell how or why the Log was destroyed.

Moreover, Carnival still to this date has failed to undertake any investigation into the current location of the Log or its subsequent demise. Neither Carnival nor its counsel has attempted to question Abuthalip about which security guard he gave the document to. Neither Carnival nor its counsel has attempted to question any security guard about the receipt of the Log. See Swofford, 671 F. Supp. 2d at 1281 (finding spoliation had occurred when a sheriff's department had returned guns to a manufacture after an officer-involved shooting and had failed to attempt to retrieve the guns even as late as the date of the hearing for the spoliation sanction).

In-house counsel for Carnival, Susanne Vazquez, testified that she was not involved in the search for the Log until September 9, 2019. It was not until this point, 90 days after the filing of the subject Motion, that any in-house lawyer at Carnival was involved in the quest for the Log. Even once Vazquez was involved in September, her inquiry was limited. Instead of searching herself for any evidence of the Log, she delegated her search to non-attorneys with little to no supervision. She had security search the internal database to see if any Log existed in it, however, she has failed to contact or have anyone contact on her behalf the security guard in charge of existing this incident or anyone else at security to attempt to determine the location of the Log. Weighing the evidence and the relevant factors, the Undersigned concludes that Carnival's “overall conduct amounted to more than mere negligence and breached the bad faith barrier.” Boston Boat, 310 F.R.D. at 523.

Upon a finding that spoliation has occurred, the Court has the discretion to impose sanctions up to and including dismissal, striking affirmative defenses, and entry of judgment against the offending party. However, the Eleventh Circuit has cautioned that the most severe sanction is appropriate only where a lesser sanction will not suffice, Flury, 427 F.3d at 944; and should be limited to where the conduct represents such “flagrant bad faith and callous disregard of the party's obligations under the Rules as to warrant the sanction not simply for the purpose of preventing prejudice to the discovering party but as a necessary deterrent to others.” St. Cyr v. Flying J Inc., No. 3:06-CV-13-33TEM, 2007 WL 1716365, at *6 (M.D. Fla. June 12, 2007) (citing Wilson v. Volkswagen, 561 F.2d 494, 503–04 (4th Cir. 1977)).

*8 Carnival's conduct here rises to the level of bad faith, but I do not find callous disregard or the flagrant bad faith that courts have found to require a sanction sufficient to deter others. Rather, the appropriate sanction to cure Plaintiff's prejudice is an adverse inference jury instruction and an award of expenses incurred by Plaintiff.

Plaintiff advocated for a stronger sanction: that the element of notice be established, relieving Plaintiff of the necessity of proving that Defendant knew of the existence of a dangerous condition that cause Ms. Ledet's injuries; and precluding Defendant from offering evidence or argument to the contrary (ECF No. 96). Notwithstanding the undersigned's conclusion that Carnival's conduct demonstrated bad faith, the sanction urged by Plaintiff is disproportionate to the prejudice incurred by the sanctionable conduct. While the absent log may be the most precise record of the last time anyone checked the bathroom before Ms. Ledet fell, it is not the only evidence available, for example, Ms. Geronimo's statement volunteers that she had last checked the bathroom at 9:50 a.m. Defendant has no evidence that someone went in to check the bathroom closer in time to the fall, despite its policy requiring the check to be performed in 15 minute intervals. Thus, with or without the Bathroom Log, Plaintiff can advance evidence to the jury that Defendant had a policy to conduct regular inspections of its bathrooms and that it was not adhered to on the day of Ms. Ledet's fall. Though Plaintiff would also ask the Court (and jury) to assume that the destroyed logged memorialized a dangerous condition existed, this is not a fair assumption to draw from the exemplar (belatedly)[3] produced by Defendant. The form does not include a spot to fill that asks the attendant to memorialize whether the floor is wet, dry, clean or otherwise; Plaintiff's inference that Ms. Geronimo noted the condition of the floor is complete conjecture. More would have been known if Plaintiff had deposed her, but the only information in the record is her statement of March 30, 2018, from which it is fair to infer (from the precise time she identified) that she wrote down the time she last entered the bathroom, but not much else may be fairly assumed in the manner Plaintiff urges.

Under the circumstances, the relief sought in Plaintiff's Motion for an Adverse Inference Instruction is the appropriate fit for the spoliation of the Bathroom Log, and the Motion is GRANTED.

As recounted above, the undersigned ordered Defendant and its counsel to show cause why further sanctions should not be imposed for apparent violations of Rule 26(g), which requires that an attorney of record sign discovery filings, certifying that the filing conforms to the discovery rules, is made for proper purpose, and does not impose undue burdens on the opposing party. F. R. Civ. P. 26(g). Rule 26(g) imposes upon attorneys a duty to make a reasonable investigation to assure that their clients have provided all responsive information and documents. See In re Delta/Airtran Baggage Fee Antitrust Litigation, 846 F. Supp. 2d 1335, 1350 (N. D. Ga. 2012). The attorney's investigation and conclusions drawn therefrom must be reasonable under the circumstances. See id. An attorney's reliance on her client's assurances without confirming those assurances is a failure to undergo a reasonable inquiry when, like here, the attorney has reason to doubt the client's words. See Bernal v. All Am. Realty, Inc., 479 F. Supp. 2d 1291, 1334 (S.D. Fla. 2007) (sanctioning an attorney for, among other things, relying on his clients’ assertions that their gross annual revenue was less than $500,000).

*9 First, I'll address the concern raised by the Order to Show Cause which defense counsel has fully briefed: I find no violation with respect to Defendant's Answer to Interrogatory No. 17, which Defendant fairly demonstrated was informed by Ms. Geronimo's statement. Notwithstanding the inaccurate testimony by its corporate representative identifying the Bathroom Logs as the basis for answering Interrogatory No. 17, Defendant demonstrated that its Answer had a basis in fact and complied with Rule 26.

I cannot conclude with the same confidence that the remainder of examined certifications by Defendant or counsel were the result of reasonable inquiry as required by Rule 26(g). Counsel's Response to Plaintiff's Motion for An Adverse Inference Instruction offered a multitude of factual averments made without appropriate investigation by counsel. It was unreasonable for counsel to describe the content or placement of the Bathroom Logs, or to represent that the Logs had been destroyed pursuant to the ordinary retention policy. None of those facts were verified in any reasonable way, and all are contradicted by the evidence ultimately adduced.

Outside counsel argues that they had the right to rely on their client for information. That is not the case where, as here, counsel here had a first-hand account (from Abuthalip) that contradict her client's denial of the Bathroom Logs. Further investigation to reconcile the conflict was required, and counsel's duty was not discharged by sending another email.

The undersigned will not, however, impose further sanctions upon Defendant nor its counsel. Defendant will already be sanctioned for its spoliation of the Bathroom Logs in the form of an adverse inference instruction, and payment of Plaintiff's expenses, which is required pursuant to Rule 37 in addition to any other sanction imposed.

Nor will I amend the Order to Show Cause as requested by Defendant in its Motion For Relief (ECF No. 94). To the extent the Order contains factual errors regarding the timing of disclosures or development of discovery disputes between these parties, Defendant is in no position to complain about the Court's reliance on a less-than-perfect recitation of facts at the September 2, 2019 hearing. The Order memorializes the facts as then known to the undersigned, as well as its well-founded concern that Defendant's discovery violations warranted more stringent sanctions than those sought in Plaintiff's Motion. Accordingly, Defendant's Motion for Relief is DENIED.

For the foregoing reasons, it is hereby ORDERED that Plaintiff's Motion for Adverse Inference Instruction is GRANTED. Plaintiff shall be permitted to advance evidence to the jury of the existence and destruction of the Bathroom log, and to propose an adverse inference instruction to the jury, permitting the jury to infer from the non-existence of the Bathroom Log that if it still existed, it would be unfavorable to Defendant on the contested issue of the condition of the bathroom floor preceding Ms. Ledet's fall, and the duration of time between Ms. Ledet's fall and the last time an employee of Defendant checked the condition of the floor.

Carnival is ORDERED to pay $19,500 to Plaintiff's counsel within 14 days of the entry of this Order.

Carnival's Motion For Relief from The Court's Order To Show Cause is DENIED.

DONE AND ORDERED in Chambers at Miami, Florida this 11th day of November, 2019.