Author: Jessica A. Huse

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...

The Risks of “Failed” Spoliation Efforts: The Southern District of New York Finds Severe Sanctions Available Under Rule 37(b)(2) and Inherent Authority for “Incompetent Spoliators”

We have previously blogged on the controversy regarding whether a court may still sanction a party for spoliation of ESI pursuant to its inherent authority following the amendments to Rule 37(e). But what happens when the attempted spoliation ultimately fails because the discovery is located and produced often after much unnecessary effort and expense by the requesting party? Abbott Laboratories v. Adelphia Supply USA involved just such a situation. The court’s decision reinforced that even when spoliation efforts are ultimately unsuccessful, and therefore Rule 37(e) does not apply because information is not “lost,” sanctions remain available under Rule 37(b)(2) and the court’s inherent authority to address litigant misconduct, including outright fraud on the court. This decision confirms that where improperly withheld documents are ultimately produced courts can “nevertheless exercise inherent authority to remedy spoliation under the circumstances presented.” CAT3, LLC v. Black Lineage, Inc., No. 14 Civ. 5511, 2016 WL 154116 (S.D.N.Y. Jan. 12, 2016). Plaintiffs Abbott Laboratories, Abbott Diabetes Care Inc., and Abbott Diabetes Care Sales Corp. (collectively “Plaintiffs”) filed a motion for case-ending sanctions against Defendants H&H Wholesale Services, Inc. (“H&H”), Howard Goldman, and Lori Goldman (collectively the “H&H Defendants”) based on electronic discovery-related violations of Federal Rule of Civil Procedure 37. The court referred Plaintiffs’ motion to the Honorable Magistrate Judge Lois...