*1 THIS CAUSE is before the Court on the Defendants’ Motion to Dismiss and/or for Sanctions. (ECF No. 58) The Defendants seek dismissal or other sanctions against the Plaintiff for her failure to preserve the shoes she was wearing at the time of her fall that is the subject of this negligence lawsuit, and also based on the Plaintiff having produced, during discovery, a photograph purportedly showing the shoes she was wearing which does not depict the correct shoes.

This case is before the Court on diversity jurisdiction and, thus, federal law governs evidentiary issues, including the imposition of sanctions for spoliation of evidence. See, e.g., Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (examining factors enumerated in Georgia law, but holding that “federal law governs the imposition of sanctions for failure to preserve evidence in a diversity suit”).

“[S]anctions for discovery abuses are intended to prevent unfair prejudice to litigants and to insure the integrity of the discovery process.” Flury, at 944. When a party fails to preserve property for another's use as evidence in pending or reasonably foreseeable litigation, a court can impose sanctions, including dismissal of the case, exclusion of expert witness testimony or issuing a jury instruction on spoliation of evidence “which raises a presumption against the spoliator.” Flury, 427 F.3d at 945 (citing Georgia law).[1] A party's failure to preserve evidence, however, is sanctionable spoliation only where “the absence of that evidence is predicated on bad faith.” Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997). As explained by the Eleventh Circuit, an opponent's “[m]ere negligence in losing or destroying” records is insufficient to entitle a movant to be granted an adverse inference, “as it does not sustain an inference of consciousness of a weak case.” Id. (internal quotations and citation omitted).

A party seeking spoliation sanctions must also establish “that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice.” Eli Lilly and Co. v. Air Exp. Intern. USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010), citing Flury, 427 F.3d at 943. Although federal law controls, the Eleventh Circuit instructs courts to look to Florida law for guidance on when to impose sanctions for spoliation. Flury, 427 F.3d at 944. “Under Florida law, the party claiming spoliation must demonstrate not only that the evidence existed at one time and that the spoliator had a duty to preserve the evidence but also that the evidence was critical to the party being able to prove its ... defense.” F.T.C. v. Nationwide Connections, Inc., No. 06-80180, 2007 WL 4482607 (S.D. Fla. Dec. 19, 2007) (internal quotation and citation omitted).

*2 A district court also has the inherent authority to impose a sanction when a party acts in bad faith. J.G. v. Carnival Corp., No. 12-21089, 2013 WL 5674707 (S.D. Fla. Oct. 17, 2013). As observed by then-District Judge Robin Rosenbaum in J.G., “a court's inherent powers must be exercised with restraint and discretion.” Id. (internal quotation and citation omitted). A finding of bad faith is a prerequisite to imposing sanctions pursuant to the Court's inherent authority, and bad faith conduct can be shown by “a party's knowing or reckless raising of a frivolous argument, by a party's harassment of an opponent, by a party's delay or disruption of a proceeding, or by a party's hampering of the enforcement of a court order.” Id., citing Byrne v. Nezhat, 261 F.3d 1075, 1121 (11th Cir. 2001).

The Defendants argue that the Plaintiff's failure to preserve her shoes constitutes fraud, and also spoliation of evidence, and that the Plaintiff should be sanctioned under the Court's inherent power and also pursuant to Eleventh Circuit precedent on spoliation sanctions. Specifically, the Defendants seek dismissal of this case or, at minimum, a jury instruction that imposes an adverse inference as a result of the Plaintiff's spoliation. The Plaintiff does not deny that her shoes were never produced, but argues that the Defendants had access at all times to the surveillance video showing the actual shoes and that the Defendants have not been prejudiced.[2]

To determine whether the Plaintiff had a duty to preserve the shoes she was wearing when she fell, the Court has reviewed the record. In the Plaintiff's response served on May 4, 2018, to the Defendant Bank of America's discovery request for the “shoes the Plaintiff was wearing at the time of the incident alleged in Plaintiff's complaint,” the Plaintiff stated that “The requested items will be made available for inspection at Plaintiff's counsel's office at a mutually agreed upon date and time.” Plaintiff's response to Defendant's Request for Production No. 11 (ECF No. 58-1).

The Plaintiff also responded, approximately one year later, to another request from the Defendant Bank of America (which was served on the Plaintiff after she was deposed on April 11, 2019), as follows:

Plaintiff's Response served May 24, 2019, to Defendant Bank of America's Second Request for Production, Request No. 8 (ECF No. 58-6). In other words, although the shoes were going to be made available at Plaintiff's counsel's office some time after May 4, 2018, they were not in the United States on May 24, 2019.

*3 Interestingly, at her deposition on April 11, 2019, the Plaintiff was asked whether she still had the shoes she was wearing at the time she fell in February 2017, and she responded that she still had those shoes in her possession. Deposition of Shembel, at 14 (ECF No. 58-5, at 3). So at some time between April 11, 2019, and May 24, 2019, the shoes were no longer in her possession, or at least were not in the United States.

Although the notice for the deposition, served by Defendant Jones Lang LaSalle Americas, had requested that the Plaintiff bring the “exact shoes” she was wearing when she fell, Second Re-Notice of Taking Deposition (ECF No. 58-4), she failed to bring the shoes to the deposition, Deposition of Shembel, at 14 (ECF No. 58-5, at 3). When it was clear that the Plaintiff had failed to bring the shoes with her, she was asked to not dispose of the shoes. Id. The Plaintiff also was asked whether she was walking in wedge heels on the day of the fall, and she responded: “What wedges? I don't know.” Id., at 56. When she was asked if the shoes she was wearing that day had a heel, she testified “No. I showed you.... You have a photo of my shoes.” Id., at 56.

Somewhat incredibly, the Plaintiff now claims that “there is no way to know with certainty at this point in time that Plaintiff was referring to the black and white photograph,” as she claims that other photographs had been discussed and marked as exhibits, and the Defendant failed to make the black and white photograph an exhibit to the deposition. Response (ECF No. 71), at 5. The Plaintiff failed, however, to support her argument with citations to the deposition transcript, or with examples of other photographs to which the Plaintiff might have been referring when she stated that “I showed you.... You have a photo of my shoes.” The Defendants respond by pointing to the Plaintiff's specific testimony, at page 56 of the deposition, and assert that the photographs submitted to the Court, which were generated from the surveillance video and which showed the Plaintiff's shoes, were made “after the Plaintiff was ordered [on July 23, 2019] to produce color photographs ... but failed to do so.” Reply (ECF No. 78), at 8.

This dispute about the photograph of the Plaintiff's shoes was the subject of a Motion to Compel filed by the Defendants, which was granted by the Court on July 23, 2019. Order (ECF No. 56) The Plaintiff was directed to “provide the requested photographs to Defendant no later than July 31, 2019.” Id. Subsequent to the Court's Order, the Plaintiff amended her response, on July 31, 2019, to include the following statement: “Plaintiff has conducted a diligent search of her residences in both the United States and Ukraine and has not located the item requested.” Plaintiff's Amended Response to Second Request for Production (ECF No. 58-8, at 2).

In other words, although the Plaintiff reported on May 4, 2018, that the shoes would be made available, and testified on April 11, 2019, that she still had the shoes and claimed to have provided a photo of those shoes, she then stated on May 24, 2019, that the shoes were not in the United States and, finally, on July 31, 2019, claims that the shoes no longer exist. The Court is surprised by the Plaintiff's argument that when the Plaintiff traveled in March 2019 from the Ukraine, where she was working, to Florida to attend mediation “she could not have known that [the Defendants] would be requesting to inspect a pair of shoes she wore two years ago.” Response (ECF No. 71), at 6. The record is clear that the Plaintiff should have known since at least May 4, 2018, the date she served her responses to the Defendant Bank of America's (first) Request for Production, that her shoes had been requested.

*4 Lacking any reasonable explanation for the disappearance of the shoes, the Plaintiff instead argues that the prejudice to the Defendants, if any, is only minimal, as the surveillance video is “better evidence than an inert pair of shoes.” Response (ECF No. 71), at 6. The Defendants argue, however, that the shoes are “crucial to Defendants being able to prove to the greatest extent [their] defense of comparative negligence in Plaintiff's ability to walk or to avoid alleged hazards,” and that a surveillance video is not “better evidence” than the ability of the jurors to touch for themselves the soles of the shoes, see the height of the heel, etc. Reply (ECF No. 78), at 7.

The Eleventh Circuit has directed that the issue of bad faith as to spoliation of evidence is a determination for the court, not the jury, to make. BP Prods. N. Am., Inc. v. Southeast Energy Group, Inc., 282 F. App'x 776, 780 n.3 (11th Cir. 2008). Bad faith can be found based on either direct evidence or on circumstantial evidence. As noted by then-District Judge Robin Rosenbaum in Calixto v. Watson Bowman Acme Corp., No. 07-60077, 2009 WL 3823390 (S.D. Fla. Nov. 16, 2009):

Calixto, at *16. In Wandner v. Am. Airlines, 79 F. Supp.3d 1285 (S.D. Fla. 2015), the court found that the plaintiff was not entitled to imposition of a spoliation sanction against one of the defendants, because the spoliator's conduct was negligent, and possibly even grossly negligent, but did not constitute bad faith. In Wandner, the plaintiff had been arrested at Miami International Airport for disorderly conduct. He posted bond, and his case was nolle prossed that same day. Five days later he sent a letter to Miami-Dade County asking that it preserve all video surveillance in the relevant area near the American Airlines ticket counter. Although the County received the request, it failed to obtain the video and allowed it to be destroyed when it was recorded over after thirty days, as was the County's policy. The court noted that bad faith had not been shown, but that even if it had, the plaintiff had failed to show the other requirements for imposition of spoliation sanctions. Specifically, the plaintiff failed to demonstrate that the video evidence he sought existed before it was recorded over, and failed to show that any such evidence was crucial to his ability to prove his case, particularly because there were several witnesses to the plaintiff's conduct with the airline's ticket agents and the law enforcement officer. Although the court declined to impose spoliation sanctions, the plaintiff was not precluded from presenting to the jury facts and related arguments surrounding his requests for the video to be preserved and the County's failure to do so.[3]

In this case, having considered the Plaintiff's discovery responses and her testimony at the deposition, in addition to the black-and-white photograph she produced, and applying the factors set forth in Calixto, the Court finds that the circumstantial evidence supports a finding beyond mere negligence and, at least arguably, supports a finding that the Plaintiff engaged in bad faith.

*5 The Defendants cannot rely solely on the Court's finding of bad faith, however, as the Defendants must also establish “that the destroyed evidence was relevant to a claim or defense such that the destruction of that evidence resulted in prejudice.” Eli Lilly and Co., 615 F.3d at 1318. The Defendants have met their burden here, as they argue convincingly that the shoes were “crucial,” Motion (ECF No. 58), at 11, and directly relevant to their defense that the Plaintiff was comparatively negligent and also that there was no alleged defect in the flooring at the time the Plaintiff fell. The Court must, therefore, fashion a remedy for the spoliation of this crucial evidence.

The types of adverse inference instructions that can be given include a jury being instructed to presume that the lost evidence is relevant and favorable to the innocent party. Flury, 427 F.3d at 945. In Flury, which involved allegations that the plaintiff's vehicle was not crashworthy, the court of appeals found that the trial court's jury instruction “was insufficient to cure the resulting prejudice” to the defendant caused by the plaintiff having allowed his vehicle to be sold for salvage despite a request from the defendant that the vehicle be preserved as evidence. The court found that the jury instruction was “extremely weak” and “allowed the jury to balance the conduct of the parties.” Id., at 945.[4]

The Court has considered the pertinent portions of the record, the relevant caselaw, and the arguments of the parties, and concludes that the Defendant is entitled to a sanction for the Plaintiff's failure to preserve the shoes worn on the date of the fall, but that the record does not support dismissing the Plaintiff's action. The Court will permit the Defendants either to have an instruction to the jury that an adverse inference is warranted based on the Plaintiff's spoliation of the evidence, or the Defendants may question the Plaintiff about the photograph she produced in discovery, and her testimony at deposition, which did not accurately reflect the shoes she was wearing as seen in the surveillance video. The Defendants shall advise the Court of their selection as to the remedy for the Plaintiff's spoliation of evidence when the parties jointly file their Pretrial Stipulation.

For the reasons stated above, it is

ORDERED and ADJUDGED that the Defendants’ Motion to Dismiss and/or for Sanctions (ECF No. 58) is GRANTED, in part, consistent with the discussion above.

DONE AND ORDERED at Fort Lauderdale, Florida, this 6th day of September, 2019.