Motion for Sanctions Sunk: The Southern District of Florida Refuses to Impose Rule 37(e) Sanctions Where Carnival Was Not on Notice of Potential Relevance of CCTV Footage From Passenger’s Slip and Fall
In Easterwood v. Carnival Corporation, the plaintiff filed suit against the defendant, Carnival Corporation, for personal injuries she sustained after she slipped and fell while onboard the defendant’s cruise ship. The plaintiff filed a motion for sanctions, arguing that the defendant spoliated critical evidence – closed-circuit television (CCTV) footage of another passenger on the defendant’s cruise ship who had fallen an hour before in the same spot as the plaintiff did. The plaintiff requested that an adverse inference be drawn against the defendant. The defendant submitted the declaration of a company representative stating that, because the other passenger’s incident involved a minor injury, the defendant did not preserve the CCTV footage of the incident, as it had no reason to anticipate litigation would ensue from that incident and such footage was automatically overwritten after 14 days.
In determining whether to impose spoliation sanctions pursuant to Rule 37(e), the Southern District Court of Florida analyzed whether the CCTV footage (1) constitutes electronically stored information (ESI); (2) should have been preserved in anticipation of litigation; (3) was lost because the defendant failed to take reasonable steps to preserve it; and (4) cannot be restored or replaced through additional discovery. While we have previously blogged on the question of whether a court may impose sanctions pursuant to the court’s “inherent authority” for ESI spoliation-related misconduct, the court in this case concluded that it was precluded from assessing sanctions pursuant to its inherent authority because the misconduct could be adequately addressed by Rule 37(e).
While the court concluded that the CCTV footage constituted ESI and that the defendant had a duty to preserve it (the first factor), the court found that the plaintiff failed to establish that the defendant had a duty to preserve the ESI in anticipation of litigation. The court explained that the plaintiff’s failure to establish a duty on the part of the defendant to preserve the ESI was sufficient in and of itself to deny the motion for sanctions pursuant to Rule 37(e).
As to the third element, the court found that the defendant took reasonable steps to preserve the relevant ESI, such as preserving the CCTV footage of the plaintiff’s fall, preparing an incident report, taking the plaintiff’s statement, and photographing the area. The fact that the defendant did not preserve all relevant ESI was not fatal, as the most crucial evidence – the CCTV footage of the plaintiff – was preserved. The court concluded that the loss of the other CCTV footage was due to “the routine, good-faith operation of an electronic information system” that automatically got overwritten, rather than the defendant’s failure to take reasonable steps to preserve the video. In reaching this conclusion, the court invoked the standard of the prior version of Rule 37(e), which forbade spoliation sanctions when evidence was lost through the “routine, good faith operation” of computerized data maintenance systems. The Advisory Committee notes to amended Rule 37(e) make it clear that this standard can still be considered by the court in evaluating the question of whether a party took reasonable steps to preserve information, but cautioning that “the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation.” In this case, the court found no such steps were called for.
As to the fourth factor, the court noted that both parties agreed that the CCTV footage of the prior fall could not be restored or replaced because it was automatically overwritten. Thus, the fourth factor under Rule 37(e) was satisfied. The court, however, denied the plaintiff’s motion because two of the four Rule 37(e) factors for imposing sanctions were not met.
This decision warrants the attention of both plaintiffs’ and defendants’ counsel. Plaintiffs’ counsel may consider putting potential defendants in personal injury suits on notice immediately of the need to preserve CCTV footage, including footage of similar incidents, that they feel is relevant to the current claims. Conversely, defendants should carefully consider the specifics of plaintiffs’ preservation requests, and, in the absence of such specifics, whether decisions to allow the deletion of footage of similar but unrelated incidents will be defensible on future spoliation challenges.