Goines v. Lee Memorial Health System et al
Filing
202
ORDER denying 193 Motion for Sanctions. Signed by Judge John E. Steele on 8/26/2019. (FWH)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
DONIA GOINES,
Plaintiff,
v.
Case No:
2:17-cv-656-FtM-29NPM
LEE MEMORIAL HEALTH SYSTEM
and JEOVANNI HECHAVARRIA,
Defendants.
OPINION AND ORDER
This matter comes before the Court on review of defendant Lee
Memorial Health System’s Second Amended Motion for Spoliation
Sanctions (Doc. #193) filed on June 21, 2019.
Both Plaintiff and
non-party Halberg & Fogg, PLLC filed Responses in Opposition (Doc.
#195; Doc. #197) on July 5, 2019.
For the reasons that follow,
the motion is denied.
I.
Plaintiff
alleging
she
Donia
was
Goines
sexually
has
filed
assaulted
an
by
Amended
Complaint
defendant
Jeovanni
Hechavarria while a patient at a Lee Memorial hospital.
#31.)
(Doc.
The issue currently before the Court involves plaintiff’s
responses to discovery requests and her deletion of her Facebook
account, and whether such actions warrant sanctions.
A. Factual Background
According to the Amended Complaint, plaintiff was admitted to
the Cape Coral Hospital on the evening of July 15, 2016 and stayed
through July 17th.
(Id. p. 2.)
Hechavarria was plaintiff’s night
nurse and was in plaintiff’s hospital room multiple times between
10 p.m. July 16th and 7 a.m. July 17th.
(Id. p. 3.)
Plaintiff
alleges that Hechavarria sexually assaulted her during the early
morning hours of July 17th.
(Doc. #120-49, pp. 3033, 3036-37.)
She has also testified Hechavarria threatened her if she told
anyone, telling plaintiff he had written down her address and
“would come get” her.
since
the
alleged
(Id. p. 3036.)
assault,
paranoia, and isolation.
she
has
Plaintiff testified that
experienced
depression,
(Id. p. 3074.)
In August 2016, Lee Memorial received a demand letter from
plaintiff’s then-attorneys.
67-68.)
ran
a
(Doc. #193, p. 4; Doc. #193-4, pp.
Per Lee Memorial, upon receipt of the letter its attorneys
Facebook
search
for
plaintiff.
(Doc.
#193,
p.
4.)
Plaintiff’s profile was located and fourteen pages of screenshots
were saved, although several of the pages were duplicates of each
other.
(Id.)
The screenshots indicate plaintiff was active on
Facebook during the early morning hours of July 17th, making
various posts and comments.
(Doc. #193-2, pp. 54-57.)
One such
post, purportedly made at 1:16 a.m., stated plaintiff was “Getting
- 2 -
well”
and
utilized
Facebook’s
location
plaintiff was at the Cape Coral Hospital. 1
feature
to
indicate
(Id. p. 56.)
Plaintiff filed her initial Complaint in November 2017 (Doc.
#2), and Lee Memorial submitted to plaintiff interrogatories and
requests for production in February 2018 (Doc. #193-5; Doc. #1936.)
In the interrogatories, Lee Memorial requested, inter alia,
the following:
Identify (as defined above) social media accounts owned
by you or used by you between July 1, 2016 through the
present for which your posts, comments or discussions
reference Defendant Lee Health, your hospitalization at
Defendant Lee Health, any of Defendant Lee Health’s past
or current employee [sic], any issues relating to your
lawsuit, or your mental health or status.
For each
account, identify (as defined above) the forum and user
name. Include accounts for Facebook, Twitter, LinkedIn,
Instagram, SnapChat and/or any other social media pages
or sites in which you participate.
(Doc. #193-5, pp. 72-73.)
Lee Memorial also requested from the
same time period “all electronic postings on any social networking
website,” including Facebook, in which plaintiff “reference either
Defendant,
your
hospitalization
with
Defendant,
Lee
Health,
Defendant Lee Health’s past or current employees, any issues
relating to your lawsuit, or your mental or emotional state.”
1
The other screenshots are of plaintiff’s Facebook page and
various posts between July 2016 and February 2017. (Doc. #193-2,
pp. 44-53.) Additionally, Lee Memorial has obtained screenshots
of a non-party’s Facebook posts, which contain several photographs
of plaintiff between September and November 2016. (Doc. #193-3,
pp. 58-66.)
These photographs depict plaintiff with other
individuals at various social activities, such as restaurants and
the beach. (Id.)
- 3 -
(Doc. #193-6, p. 77.)
The request was “not limited to postings
on [plaintiff’s] own social media sites.” (Id.)
Plaintiff responded to the requests on April 23, 2018, stating
she
“had
Facebook
“deactivated.”
until
October,
2017”
(Doc. #193-5, p. 73.)
and
it
had
been
Plaintiff also provided
her username, but stated the following: “I do not believe that any
of my posts mention Lee Health, my hospitalization at Cape Coral
Hospital or any of the Defendants [sic] past or current employees.”
(Id.)
Plaintiff also stated she had none of the electronic posts
requested and did not maintain an active social media account.
(Doc. #193-6, p. 77.)
Being
referenced
Memorial
in
her
possession
of
plaintiff’s
hospitalization
evidently
requested
at
post
Cape
Coral
plaintiff
in
which
she
Hospital,
Lee
provide
information regarding her Facebook account.
additional
(Doc. #195, p. 5.)
Plaintiff supplemented her responses in May 2018, stating her
Facebook account had been deleted and she was unable to retrieve
any information, posts, or photographs.
(Doc. #193-7, p. 84.)
She also stated again that, to the best of her recollection, none
of
her
posts
hospitalization,
referenced
or
“any
Lee
Memorial,
issues”
plaintiff’s mental health.” 2
relating
its
to
employees,
the
lawsuit
her
or
(Id.)
2
Plaintiff’s attorney has since testified that he did not
learn plaintiff deleted her Facebook account until after Lee
- 4 -
Plaintiff was deposed by Lee Memorial in June 2018, during
which she testified that she had not used social media during the
night of July 16th or early morning of July 17th.
pp.
3034,
3048,
3050,
3052-53.)
When
(Doc. #120-49,
confronted
with
the
screenshots of posts made on July 17th, plaintiff testified she
did not recall going on Facebook while at the hospital.
3100-04.)
(Id. pp.
During the deposition, plaintiff also testified that
she briefly reactivated her Facebook account in 2018 but she did
not
recall
when.
(Id.
p.
3116.)
When
asked
if
she
could
reactivate the account again, plaintiff testified that she did not
know because she had not tried.
(Id.)
When asked if she had
tried as part of the discovery in the lawsuit, plaintiff responded,
“Why would I? As part of this discovery. What do I need to discover?
. . . Why would I want to go check on something.”
(Id. p. 3117.)
Following the deposition, Lee Memorial sent a letter to
plaintiff’s attorneys again requesting plaintiff’s Facebook posts
responsive
to
the
previous
requests.
(Doc.
#193-9,
p.
96.)
Plaintiff’s attorney responded that plaintiff did not have access
to the deleted Facebook account, and characterized Lee Memorial’s
letter as “merely an attempt to artificially create a discovery
issue as a litigation tactic.” 3
(Doc. #123-11, pp. 125-27.)
Memorial challenged the April 23rd responses. (Fogg Depo. pp. 5758, 61.) Plaintiff testified that she did not inform her attorney
prior to deleting the account. (Plaintiff Depo. p. 63.)
3
The attorney’s response was included as an exhibit to Lee
- 5 -
Each party subsequently made attempts to either retrieve the
Facebook information or restore access to the account.
2018,
Lee
account.
Memorial
subpoenaed
Facebook
(Doc. #193-10, p. 98.)
regarding
In August
plaintiff’s
Facebook responded that it could
not identify the account and therefore had no information to
provide.
(Id.)
In September 2018, plaintiff unsuccessfully
requested Facebook restore access to her account “to satisfy
discovery
activity.”
requests
related
to
[her]
Facebook
account
and
Facebook,
Lee
(Doc. #195-1, p. 22.)
B. Procedural History
After
failing
to
obtain
information
from
Memorial filed an initial and then an amended motion for spoliation
sanctions in December 2018.
(Doc. #110; Doc. #123.)
The amended
motion accused plaintiff of willfully destroying her Facebook
account to prevent the defendants from using the contents to defend
themselves.
(Doc. #123, p. 2.)
While the motion was pending,
the Court received a letter purportedly written by an individual
named “Bonnie Hayes.”
(Doc. #153.)
In the letter, which the
Court has filed under seal, Ms. Hayes makes allegations that
plaintiff deleted her social media accounts to destroy evidence
and did so under the direction of her attorney.
(Id.)
Lee
Memorial evidently received a similar letter and subsequently
Memorial’s prior motion for sanctions.
- 6 -
filed a motion requesting an evidentiary hearing on the matter.
(Doc. #160.)
As an alternative to an evidentiary hearing, Lee
Memorial requested discovery be reopened and it be allowed to take
depositions of various individuals.
(Id.)
Plaintiff objected to
both requests, stating the letters were written by a disgruntled
former
employee
of
plaintiff’s
attorneys
therein was “categorically false.”
plaintiff’s
objection,
the
and
the
information
(Doc. #174, p. 1.)
Court
granted
alternative request to reopen discovery.
Lee
Over
Memorial’s
(Doc. #176.)
The Court
also permitted the parties to file any motions related to the issue
or to supplement the then-pending motion for sanctions.
(Id.)
During the reopened discovery period, depositions were taken
of plaintiff and plaintiff’s attorney, as well as a paralegal and
the former employee of plaintiff’s attorneys.
Lee
Memorial
filed
the
Second
Amended
Sanctions currently before the Court.
On June 21, 2019,
Motion
for
(Doc. #193.)
Spoliation
The motion
requests (1) sanctions against plaintiff’s attorney pursuant to 28
U.S.C. § 1927, (2) sanctions against plaintiff and her attorney
pursuant to the Federal Rules of Civil Procedure, and (3) sanctions
against plaintiff pursuant to this Court’s inherent authority. 4
4
The Court notes that Lee Memorial’s motion does not rely
upon the egregious allegations in the letters for support. When
deposed, the former employee plaintiff’s attorneys accuse of
writing the letters invoked the Fifth Amendment over two hundred
times.
- 7 -
(Id. pp. 10-18.)
In relief, Lee Memorial requests to recoup the
fees and expenses it has incurred in pursuing the motion and the
spoliation issue generally, as well as various jury instructions
related to plaintiff’s Facebook activity.
(Id. pp. 22-24.)
II.
A. Section 1927
Lee
Memorial
first
argues
sanctionable under 28 U.S.C. § 1927.
plaintiff’s
(Id. p. 10.)
attorney
is
Section 1927
provides the following:
Any attorney or other person admitted to conduct cases
in any court of the United States or any Territory
thereof who so multiplies the proceedings in any case
unreasonably and vexatiously may be required by the
court to satisfy personally the excess costs, expenses,
and attorneys’ fees reasonably incurred because of such
conduct.
28 U.S.C. § 1927.
The purpose of section 1927 “is to deter
frivolous litigation and abusive practices by attorneys and to
ensure that those who create unnecessary costs bear them.”
O’Neil
v. McDonald’s Corp., 2019 WL 2226010, *3 (M.D. Fla. Jan. 23, 2019)
(citation omitted).
The Eleventh Circuit has held that an
attorney multiplies proceedings “unreasonably and vexatiously”
within the meaning of section 1927 “only when the attorney’s
conduct is so egregious that it is ‘tantamount to bad faith.’”
Amlong & Amlong, P.A. v. Denny’s, Inc., 500 F.3d 1230, 1239 (11th
Cir. 2007) (citation omitted).
“[N]egligent conduct, standing
alone, will not support a finding of bad faith under § 1927—that
- 8 -
is, an attorney’s conduct will not warrant sanctions if it simply
fails to meet the standard of conduct expected from a reasonable
attorney.”
Id. at 1241-42; see also Schwartz v. Millon Air, Inc.,
341 F.3d 1220, 1225 (11th Cir. 2003) (“A determination of bad faith
is warranted where an attorney knowingly or recklessly pursues a
frivolous claim or engages in litigation tactics that needlessly
obstruct the litigation of non-frivolous claims.”).
Lee Memorial argues plaintiff’s attorney engaged in reckless
conduct with respect to the Facebook account in several ways.
(Doc.
#193,
p.
12.)
First,
Lee
Memorial
states
plaintiff’s
counsel “failed to prevent the spoliation issue from arising by
inadequately educating [plaintiff] with respect to her obligations
to preserve evidence.”
(Id.)
The Court disagrees.
Plaintiff’s
attorney testified that he had at least one conversation with
plaintiff regarding her obligation to preserve or protect her
social media accounts.
(Fogg Depo. p. 25.)
Similarly, plaintiff
testified that on at least one occasion someone at the attorney’s
law firm told her she could not delete or destroy her social media
account or the postings therein.
(Plaintiff Depo. pp. 62-63.)
To
the extent Lee Memorial suggests plaintiff’s attorney should be
held
liable
for
plaintiff
subsequently
deleting
the
account
anyways (Doc. #193, p. 12), the Court declines to do so.
Lee
Memorial
also
argues
plaintiff’s
attorney
acted
improperly for failing to confirm plaintiff checked her Facebook
- 9 -
account for responsive posts as part of discovery.
(Id. p. 13.)
As noted, Lee Memorial submitted interrogatories and requests for
production regarding various types of Facebook posts plaintiff may
have
made
starting
on
July
1,
2016.
Plaintiff’s
attorney
testified that plaintiff was provided with the discovery requests
and plaintiff stated there were no responsive documents.
Depo. pp. 51.)
(Fogg
However, the record indicates plaintiff did not
affirmatively check her Facebook history before informing her
attorney of this, and both plaintiff and the attorney testified no
one from the law firm specifically instructed plaintiff to look
through her Facebook account for responsive posts. 5
53;
Plaintiff
Depo.
pp.
86-87.)
Plaintiff’s
(Id. pp. 52attorney
also
testified that he did not take any steps to verify the accuracy of
the information besides speaking to plaintiff.
34.)
(Fogg Depo. p.
He did, however, testify that someone at the firm would have
attempted to verify that the account was deactivated per customary
practice, but he could not recall who.
5
(Id. pp. 36-37.)
In her June 2018 deposition, plaintiff testified she had
not tried to reactivate her Facebook account as part of discovery,
asking “Why would I? As part of this discovery. What do I need to
discover? . . . Why would I want to go check on something.” (Doc.
#120-49, p. 3117.) Similarly, in her recent deposition plaintiff
testified she did not check her Facebook as part of the discovery
requests, stating there were no documents responsive to the
request.
(Plaintiff Depo. pp. 85, 86.)
When asked if she
looked, plaintiff again responded, “Why would I need to go back
and look?” (Id. p. 85.)
- 10 -
Lee Memorial suggests the attorney’s approach of “blindly
accept[ing]” plaintiff’s answers without an independent inquiry
warrants sanctions under section 1927.
Court disagrees.
(Doc. #193, p. 13.)
The
Even if plaintiff’s attorney did improperly
accept plaintiff’s answers without “independent inquiry” (an issue
that will be discussed more in-depth later in this Opinion and
Order), the Court finds such conduct would constitute negligence
rather than recklessness.
As negligent conduct does not support
a finding of bad faith, Amlong, 500 F.3d at 1239, the Court
declines to impose sanctions on plaintiff’s attorney pursuant to
section 1927.
B. Federal Rules of Civil Procedure
Lee Memorial next argues that both plaintiff and her attorney
should be sanctioned for violating Rules 26 and 37 of the Federal
Rules of Civil Procedure.
(Doc. #193, pp. 15-18.)
The Court will
address these arguments individually.
1. Rule 26
Rule 26 provides the general provisions governing discovery,
including the requirement that every discovery response be signed
by at least one attorney of record.
Fed. R. Civ. P. 26(g)(1).
Rule 26(g) further states that by signing, an attorney “certifies
that to the best of the person’s knowledge, information, and belief
formed after a reasonable inquiry,” the disclosure “is complete
and
correct
as
of
the
time
it
is
- 11 -
made.”
Fed.
R.
Civ.
P.
26(g)(1)(A).
Under this rule, “an attorney must make a reasonable
investigation and effort to assure that the client has provided
all information and documents available to it which are responsive
to the discovery request.”
Sexton v. United States, 2001 WL
649445, *1 (M.D. Fla. Apr. 12, 2001).
If a certification violates
this rule without “substantial justification,” the Court “must
impose an appropriate sanction on the signer, the party on whose
behalf the signer was acting, or both.”
Fed. R. Civ. P. 26(g)(3);
see also Prior v. State Farm Fire & Cas. Co., 2013 WL 12158147, *1
(M.D. Fla. Feb. 7, 2013) (“To avoid sanctions, the party who is
alleged to have failed to comply with Rule 26 bears the burden to
show that its actions were substantially justified or harmless.”).
Lee Memorial argues plaintiff’s counsel violated Rule 26(g)
when
he
signed
and
certified
plaintiff’s
discovery
responses
stating there were no responsive documents and suggesting her
Facebook account was lost.
(Doc. #193, pp. 17-18.)
As noted, in
responding to Lee Memorial’s interrogatories, plaintiff stated her
Facebook account was deactivated and she did not believe any of
her posts mentioned Lee Memorial, her hospitalization at Cape Coral
Hospital, or any of Lee Memorial’s past or current employees.
(Doc. #193-5, p. 73.)
In responding to Lee Memorial’s request for
production, plaintiff stated she did not have any posts referencing
these topics, or any referencing issues relating to her lawsuit or
her mental or emotional state.
(Doc. #193-6, p. 77.)
- 12 -
Both of
these documents were signed by plaintiff’s attorney (Doc. #193-5,
p.
69;
Doc.
#193-6,
p.
74),
implying
counsel
conducted
the
“reasonable inquiry” required pursuant to Rule 26(g)(1)(A).
However, it seems without question at least one Facebook post
existed that fell within the scope of Lee Memorial’s request.
As
stated, plaintiff used Facebook’s location feature to indicate she
was at the Cape Coral Hospital at 1:16 a.m. on July 17, 2016 and
posted that she was “Getting well.”
(Doc. #193-2, pp. 56.)
Such
a post clearly references her hospitalization at the Cape Coral
Hospital.
Additionally, based on the testimony provided to the
Court, it seems plaintiff’s Facebook account was already deleted
rather than only deactivated when she responded to Lee Memorial’s
interrogatories on April 23, 2018.
(Plaintiff Depo. pp. 13-14)
(stating plaintiff reactivated her Facebook account for four days
at the end of March or beginning of April 2018 and then deleted
it).
Accordingly,
the
issue
is
whether
plaintiff’s
counsel
improperly signed and certified plaintiff’s responses.
Having
reviewed the evidence presented to the Court and the arguments
provided by the parties, the Court finds Rule 26(g) was not
violated.
The deposition testimony indicates that in providing a client
with discovery requests, plaintiff’s attorney typically informs
the client to use reasonable efforts to attempt to locate and
- 13 -
produce documents responsive to the requests. 6
51.)
(Fogg Depo. p.
Counsel testified that he never instructed plaintiff to
review her Facebook account for responsive posts because she told
him the account was deactivated and there were no posts responsive
to the requests.
(Id. p. 52.)
He also testified that per
customary practice, someone at the firm would have attempted to
verify whether the account was active prior to submitting the
responses.
are
(Id. pp. 36-37.)
sufficient
to
The Court finds counsel’s actions
constitute
“reasonable
inquiry”
under
Rule
26(g).
While “[b]lind reliance on the client is seldom a sufficient
inquiry,” Bernal v. All Am. Inv. Realty, Inc., 479 F. Supp. 2d
1291, 1327 (S.D. Fla. 2007) (citation omitted), an attorney “may
rely on assertions by the client . . . as long as that reliance is
appropriate
under
the
circumstances,”
1983
Advisory
Committee
Notes, 97 F.R.D. 165, 219; see also Menuel v. Hertz Corp., 2009 WL
10665026, *16 (N.D. Ga. Dec. 9, 2009) (“The operative language of
Rule 26(g) is ‘reasonable under the circumstances,’ and while an
attorney may rely on representations of the client, such reliance
must be appropriate under the circumstances.”).
Here, the Court
finds counsel could reasonably rely on plaintiff’s representations
6
There is evidence that plaintiff may not have understood
her discovery responsibilities, as she testified she did not recall
receiving any instructions with the discovery requests and “did
not know about discovery.” (Plaintiff Depo. pp. 61, 71, 82.)
- 14 -
that the Facebook account was deactivated and no responsive posts
existed.
Counsel
was
not
required
to
certify
as
to
the
truthfulness of plaintiff’s responses, Tampa Port Auth. v. M/V
Duchess, 1997 WL 1175718, *6 (M.D. Fla. June 6, 1997), and it does
not
seem
counsel
regardless.
could
independently
verify
their
accuracy
Whether the Facebook account was deactivated or
deleted at the time, it seems plaintiff’s counsel would not have
been able to access the account to check for responsive posts. 7
Therefore, as counsel had to rely on plaintiff’s assertions, the
Court finds he did not violate his duty to make a reasonable
inquiry.
See Scanlon v. N3, LLC, 2009 WL 10699687, *3 (N.D. Ga.
May 26, 2009) (“[A]bsent reason to doubt a client’s veracity, an
attorney is entitled to rely on a client for information for which
there is no other source.”); see also Mike Ousley Prods., Inc. v.
WJBF-TV, 952 F.2d 380, 382 (11th Cir. 1992) (noting that one of
the factors to consider in determining whether an attorney made a
reasonable inquiry is “whether he had to rely on a client for
7
To the extent Lee Memorial argues plaintiff’s counsel should
have known of the July 17th posts because counsel viewed
plaintiff’s Facebook page previously (Doc. #193, p. 17), the Court
is unconvinced.
While counsel testified he viewed plaintiff’s
Facebook account one time prior to the initial Complaint being
filed (Fogg Depo. p. 12), he did not testify he thoroughly reviewed
the account. Furthermore, plaintiff testified that when she had
an active account, she posted on Facebook at least once or twice
a week.
(Plaintiff Depo. p. 45.)
Under such facts, the Court
will not assume that when counsel viewed the account prior to the
Complaint being filed in November 2017 (Doc. #2), he saw the July
17th posts made over a year prior.
- 15 -
information as to the facts”). 8
As the Court has found plaintiff’s
attorney did not improperly certify the discovery responses, the
Court denies Lee Memorial’s request to impose sanctions pursuant
to Rule 26(g).
2. Rule 37
Lee Memorial also argues plaintiff and her counsel should be
sanctioned under Rule 37 (Doc. #193, p. 18), which governs the
failure to make disclosures or cooperate in discovery.
Rule 37(c)
provides that a court may impose sanctions on a party for failing
to provide information as required under Rule 26(e) unless the
failure was substantially justified or is harmless.
P. 37(c)(1).
Fed. R. Civ.
Rule 26(e) imposes a duty on a party to supplement
or correct a prior interrogatory response “in a timely manner if
the party learns that in some material respect the disclosure or
response
is
26(e)(1)(A).
incomplete
or
incorrect.”
Fed.
R.
Civ.
P.
“[T]he duty, while imposed on a ‘party,’ applies
whether the corrective information is learned by the client or by
the attorney.”
1993 Advisory Committee Notes, 146 F.R.D. 401,
641.
8
While the Eleventh Circuit in Mike Ousley was addressing
the pre-filing inquiry required under Rule 11, a similar standard
applies to Rule 26. 1983 Advisory Committee Notes, 97 F.R.D. 165,
219 (stating the “reasonable inquiry” standard under Rule 26 “is
an objective standard similar to the one imposed by Rule 11”).
- 16 -
The Court rejects Lee Memorial’s argument that plaintiff’s
counsel
should
be
sanctioned
under
Rule
37.
The
deposition
testimony indicates counsel told plaintiff not to delete the
Facebook account, plaintiff deleted the account without informing
counsel, and counsel did not learn of this until after Lee Memorial
challenged plaintiff’s April 23rd responses.
indicates
(1)
counsel
unsuccessfully
The testimony also
attempted
to
access
the
account upon receiving Lee Memorial’s challenge (Fogg Depo. pp.
43-44), and (2) counsel asked plaintiff to check her Facebook for
responsive posts but she had already deleted the account (Plaintiff
Depo. pp. 46, 49).
Soon thereafter on May 16th, a supplemental
response was provided to Lee Memorial in which plaintiff stated
the account was deleted.
(Doc. #193-7, p. 84.)
Under these
facts, the Court finds plaintiff’s attorney did not violate his
duty to supplement under Rule 26(e), and therefore sanctions are
inappropriate under Rule 37(c).
Turning to plaintiff, Lee Memorial argues she was obligated
under Rule 26(e) to turn over responsive posts after reactivating
her Facebook account in 2018.
(Doc. #193, pp. 17-18.)
As noted,
the record indicates plaintiff deactivated her account in October
2017, reactivated the account for several days at the end of March
or beginning of April 2018, and then deleted the account.
However,
all this appears to have taken place prior to plaintiff submitting
her responses to Lee Memorial on April 23rd.
- 17 -
As such, Rule 26(e),
which creates a duty to supplement or correct responses already
made, would not apply to plaintiff’s actions at the end of March
or
beginning
of
April.
Accordingly,
the
Court
denies
Lee
Memorial’s request to sanction plaintiff pursuant to Rule 37.
C. Inherent Authority
Finally, Lee Memorial requests the Court sanction plaintiff
under its inherent authority for plaintiff’s spoliation of the
Facebook account.
(Doc. #193, pp. 18).
A district court has
“broad discretion” to impose sanctions for spoliation, which is
derived “from the court’s inherent power to manage its own affairs
and to achieve the orderly and expeditious disposition of cases.”
Austrum v. Fed. Cleaning Contractors, Inc., 149 F. Supp. 3d 1343,
1346 (S.D. Fla. 2016) (quoting Flury v. Daimler Chrysler Corp.,
427 F.3d 939, 944 (11th Cir. 2005)).
Generally spoliation is
established when the party seeking sanctions proves (1) the missing
evidence existed at one time, (2) the alleged spoliator had a duty
to preserve the evidence, and (3) the evidence was crucial to the
movant being able to prove its prima facie case or defense.
St.
Cyr v. Flying J Inc., 2007 WL 1716365, *3 (M.D. Fla. June 12, 2007)
(citation
omitted).
Additionally,
in
the
Eleventh
Circuit,
sanctions for spoliation of evidence are appropriate “only when
the absence of that evidence is predicated on bad faith.”
Swofford
v. Eslinger, 671 F. Supp. 2d 1274, 1280 (M.D. Fla. 2009) (quoting
Bashir v. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997)).
- 18 -
Factors to be considered when determining the seriousness of
the sanctions to impose against a party for failure to preserve
critical
evidence
in
its
custody
vary
according
to
(1)
the
willfulness or bad faith of the party responsible for the loss or
destruction of the evidence, (2) the degree of prejudice sustained
by the opposing party, and (3) what is required to cure the
prejudice.
a
St. Cyr, 2007 WL 1716365, *4 (citations omitted).
sanction
for
plaintiff
deleting
her
Facebook
account,
Memorial requests costs and adverse jury instructions.
#193, pp. 22-24.)
the
parties,
inappropriate
As
Lee
(Doc.
Having reviewed the evidence and arguments of
the
Court
finds
because
Lee
Memorial
spoliation
sanctions
has
to
failed
are
demonstrate
plaintiff acted in bad faith in deleting her Facebook account. 9
Plaintiff testified that she deleted the account rather than
leaving it deactivated because she was scared “somehow some way
someone could still get in it and find me and hurt me as I was
threatened.”
(Plaintiff Depo. p. 33.)
She has also testified
that during the alleged sexual assault, Hechavarria stated he knew
her address and threatened to “come get” her (Doc. #120-49, p.
9
There are also questions as to whether the Facebook evidence
is “crucial,” and whether Lee Memorial has sustained a great degree
of prejudice given that it possesses at least some of plaintiff’s
Facebook posts and other posts in which she is tagged. However,
because the Court finds Lee Memorial has failed to demonstrate the
Facebook account was deleted in bad faith, these issues need not
be addressed.
- 19 -
3036; Plaintiff Depo. p. 12), and that despite her attempts to set
privacy settings on her account she was contacted through Facebook
by the media after Hechavarria was arrested (Plaintiff Depo. p.
12).
Despite Lee Memorial’s argument to the contrary (Doc. #193,
p. 20), the Court finds plaintiff’s explanation is credible given
the circumstances of this case, and the Court cannot say she acted
in bad faith by deleting the account.
See Wandner v. Am. Airlines,
79 F. Supp. 3d 1285, 1298 (S.D. Fla. 2015) (“Given this Circuit’s
requirement that an adverse inference flowing from spoliation
requires
discovery
the
presence
conduct
of
does
bad
not
faith,
even
justify
grossly
that
type
negligent
of
jury
instruction.”); Preferred Care Partners Holding Corp. v. Humana,
Inc., 2009 WL 982460, *7 (S.D. Fla. Apr. 9, 2009) (describing
defendant’s performance in carrying out its discovery obligations
as “clearly egregious,” but nonetheless finding it was the result
of “grossly negligent oversights” rather than bad faith).
As Lee
Memorial
faith,
has
failed
to
demonstrate
the
required
bad
spoliation sanctions are inappropriate. 10
10
While the Court will not impose spoliation sanctions, Lee
Memorial is not precluded “from introducing into evidence the facts
concerning this failure to preserve relevant [evidence].” Socas
v. The Nw. Mut. Life Ins. Co., 2010 WL 3894142, *9 (S.D. Fla. Sept.
30, 2010); see also Wandner, 79 F. Supp. 3d at 1300 (“[A]n order
denying spoliation sanctions would not be the death knell for
Wandner’s efforts to present the County’s actions (or inactions)
to a jury.”).
- 20 -
While the Court will not impose a sanction on plaintiff, it
feels obligated to rebuke her discovery efforts in this case.
record
indicates
plaintiff
had
already
deleted
her
The
Facebook
account when she responded to Lee Memorial that the account was
only deactivated.
Furthermore, plaintiff’s deposition testimony
indicates she did not attempt to reactivate and look through her
account for responsive posts, believing none existed because she
could
“absolutely
remember
(Plaintiff Depo. p. 85.)
everything
[she]
did
not
post.”
However, this has proven to be untrue,
and unfortunately resulted in a waste of time and litigation.
Therefore, to the extent plaintiff’s attorneys request the Court
sanction
Lee
Memorial
“for
unnecessarily
multiplying
these
proceedings” (Doc. #197, p. 6), the Court denies that request.
Accordingly, it is hereby
ORDERED:
Defendant’s Second Amended Motion for Spoliation Sanctions
(Doc. #193) is DENIED.
DONE and ORDERED at Fort Myers, Florida, this
of August, 2019.
Copies:
Counsel of Record
- 21 -
26th
day
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