Pinkney v. Winn-Dixie Stores, Inc.
ORDER denying 33 Motion to Find Spoliation. Signed by Magistrate Judge James E. Graham on 1/13/2015. (csr)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
CIVIL ACTION NO.: CV214-075
WINN-DIXIE STORES, INC.,
Presently before the Court is Plaintiff's Motion to Find Spoliation. (Doc. 33).
Plaintiff moves the Court to find that Defendant spoliated photographs taken at the
scene of Plaintiffs slip and fall and to sanction Defendant by instructing the jury on
spoliation, finding against Defendant on the issues of negligence and causation, and
forbidding Defendant from further contesting those issues. ( L at pp. 1-2). Defendant
has filed a Response (Doc. 37), to which Plaintiff has filed a Reply (Doc. 40).
In an Order dated September 15, 2014, the undersigned dismissed, as moot,
Plaintiff's Motion to Compel the production of photographs taken at the scene of
Plaintiffs incident (Doc. 11). (Doc. 18, p. 1). Plaintiff had cited Defendant's response to
interrogatory that "photographs were taken at the time of [the] investigation" of the
incident (J (citing Doc. 11, Ex. D, p. 38)), yet the Court found dispositive Defendant's
explanation that "there [were] no photographs of the incident scene itself and that after
Plaintiff filed [her] Motion, Defendant provided to Plaintiff all previously undisclosed
photographs in Defendant's possession" (j (citing Doc. 12, pp. 7-8)). Following that
Order, Plaintiff deposed Defendant's employee, Cindy Howard ("Howard"), who testified
that Defendant had a policy of photographing the scene of a slip and fall immediately
after its occurrence, uploading the photographs to a store computer, e-mailing the
photographs to the claims management company, and delivering hardcopies to
Defendant's home office. (Doc. 33, p. 6 (citing Doc. 27, pp. 16-27)). Plaintiff then
deposed former employee Javier Aguirre ("Aguirre"), who stated that he prepared the
incident report for Plaintiffs slip and fall, took photographs of the incident scene, and
followed the protocol of uploading and transmitting those photographs. (I d. at p. 7
(citing Doc. 29, pp. 23, 33, 35-37, 50-52)).
Based on the depositions of Defendant's employees, Plaintiff now files the instant
Motion alleging that Defendant's failure to preserve the photographs of the incident
scene constitutes spoliation and warrants sanctions. (Ld. at p. 1). To show that
spoliation occurred, Plaintiff cites the doctrine of continuity—which states that evidence
proven to exist is presumed to continue to exist until the occurrence of some intervening
act—and reasons that the photographs would not have ceased to exist without some
intervening, purposeful act of Defendant to destroy the evidence. (Ld. at pp. 10-11
(citing S.T. Coleman & Burden Co. v. Rice, 31 S.E. 424, 424 (Ga. 1898))). Such an act
amounts to spoliation, according to Plaintiff, because an affidavit of Howard reveals that
Defendant had notice of the probability of litigation involving Plaintiff.
(j4. at p. 12; see
also Doc. 20, pp. 4-5 (confirming that Defendant generates incident reports for use in
potential claims or lawsuits)). Plaintiff urges the Court to impose spoliation sanctions
because (I) the spoliation has prejudiced Plaintiff; (2) that prejudice cannot be cured;
(3) the photographs are highly probative; and (4) Defendant acted in bad faith, based on
circumstantial evidence. (Doc. 33, pp. 13-19).
Defendant maintains that the Court should deny Plaintiffs Motion on the basis
that Plaintiff is not entitled to spoliation sanctions. (Doc. 37, p. 1).2 Defendant responds
to Plaintiffs grounds for sanctions in turn, arguing that (1) Plaintiff has not suffered
prejudice; (2) there is no prejudice to cure; (3) the photographs have no practical
importance in this case; and (4) the circumstantial evidence does not support a finding
of bad faith. (L. at pp. 2-5 & n.1).
"Spoliation" refers to "the destruction or significant alteration of evidence, or the
failure to preserve property for another's use as evidence in pending or reasonably
foreseeable litigation." Graff v. Baia Marine Corp., 310 F. App'x 298, 301 (11th Cir.
2009) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).
A district court has broad discretion to impose sanctions against a spoliator. Flury v.
Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005). In a diversity suit, "federal
law governs the imposition of spoliation sanctions." Id. But because federal law in this
Plaintiff cites the following as circumstantial evidence of Defendant's bad faith: that Defendant has
produced other photographs that were uploaded and transmitted along with the missing photographs; that
Defendant initially failed to disclose that photographs of the incident scene once existed; that Defendant
allegedly attempted to frustrate Plaintiffs deposition of Aguirre; and that Defendant allegedly committed
various discovery abuses unrelated to the photographs at issue. (Doc. 33, pp. 15-19).
While Defendant briefly mentions that Plaintiffs arguments "have not met the legal standard for a
finding of spoliation" (Doc. 37, p. 5), Defendant fails to more specifically refute Plaintiffs assertions in
support of spoliation. Rather, Defendant's argument focuses almost exclusively on the potential
consequences of the alleged spoliation.
Circuit does not set forth specific guidelines for the imposition of spoliation sanctions,
the Court of Appeals for the Eleventh Circuit has directed courts to consider certain
factors enumerated under Georgia law:
(1) whether the [moving party] was prejudiced as a result of the
destruction of evidence; (2) whether the prejudice could be cured; (3) the
practical importance of the evidence; (4) whether the [spoliator] acted in
good or bad faith; and (5) the potential for abuse if expert testimony about
the evidence was not excluded.
Id. at 945; see also McLeod v. Wal-Mart Stores, Inc., 515 F. App'x 806, 808 (11th Cir.
2013) (quoting Flurv, 427 F.3d at 945); Chapman v. Auto Owners Ins. Co., 469 S.E.2d
783, 785 (Ga. App. 1996).
In the Eleventh Circuit, "an adverse [spoliation] inference is drawn from a party's
failure to preserve evidence only when the absence of that evidence is predicated on
bad faith." Bashirv. Amtrak, 119 F.3d 929, 931 (11th Cir. 1997); see also Sec. & Exch.
Comm'n v. Goble, 682 F.3d 934, 947 (11th Cir. 2012) (quoting Bashi r, 119 F.3d at 931).
While bad faith does not always require a showing of malice, Flury, 427 F.3d at 946,
"'mere negligence' in losing or destroying the [evidence] is not enough for an adverse
inference, as it does not sustain an inference of consciousness of a weak case," Bashir,
119 F.3d at 931 (internal quotation marks omitted) (citations omitted). Rather, the
moving party must show that the spoliator "purposely lost or destroyed the relevant
[evidence]." Bashi r, 119 F.3d at 931; see also Goble, 682 F3d at 947 (requiring
evidence that the spoliator destroyed relevant documents or "made intentional efforts to
withhold evidence at trial"); Denim N. Am. Holdings, LLC v. Swift Textiles, LLC, 816 F.
Supp. 2d 1308, 1329 (M.D. Ga. 2011) (requiring evidence that a party possessed an
"improper motive for failing to preserve the evidence"); gf. Id. ("If the party destroyed the
evidence as part of a routine practice (or even haphazardly) with no evidence that the
party was motivated by any intent to destroy evidence, then no bad faith should be
A court may find bad faith "based on direct evidence or on circumstantial
evidence where certain factors converge." Thornton v. Blitz USA, Inc., 850 F. Supp. 2d
1374, 1376-77 (S.D. Ga. 2011) (internal quotation marks omitted) (quoting Ati. Sea Co.
v. Anais Worldwide Shipping, Inc., No. 08-23079, 2010 WL 2346665, at *1 (S.D. Fla.
June 9, 2010)). Circumstantial evidence supports a finding of bad faith when
(1) 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.
Id. at 1377 (quoting AtI. Sea Co., 2010 WL 2346665, at *1) .
It appears that photographs of the scene of Plaintiff's fall once existed, based on
Aguirre's deposition testimony ..g.., Doe. 29, p. 26), and that those photographs
could have been material to the negligence claim in this case. Plaintiff argues that
Defendant's sole possession of the photographs constitutes circumstantial evidence
that Defendant acted affirmatively in destroying this evidence. (Doc. 33, p. 15).
Defendant maintains that Plaintiffs argument is speculative (Doc. 37, p. 4); the Court
agrees. As Defendant notes, "[n]o evidence indicates what happened to the
photographs or how they were lost" or even "whether [Aguirre] correctly uploaded the
photographs into the system for transmission." (la, at p. 4 & n.2).
Even assuming, arguendo, that Aguirre properly uploaded the photographs and
that the photographs remained in Defendant's sole possession, it is possible that the
photographs were lost or destroyed haphazardly, which would not create an inference
of bad faith. Cf. Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1300 (M.D. Fla.
2009) (finding bad faith where forensic computer experts opined that the wiping of cell
phone data could only be due to the party's "deliberate and intentional actions"); Connor
v. Sun Trust Bank, 546 F. Supp. 2d 1360, 1367, 1377 (N.D. Ga. 2008) (finding bad faith
where an employee must have "affirmatively deleted" a relevant e-mail, because the
employee had received preservation instructions and the e-mail system's automatic
deletion period had not yet expired). Without any evidence that the loss or destruction
of the photographs was, or could only be, due to a deliberate, intentional act of
Defendant or its agent, the Court cannot conclude that the circumstantial evidence
supports a finding of bad faith. 3 Plaintiff's remaining allegations of Defendant's bad faith
during the discovery period do not change this result. (age Doc. 33, pp. 16-19).
Because Plaintiff has failed to offer sufficient evidence to establish that
Defendant acted in bad faith in failing to preserve the photographs of the incident scene,
Plaintiff cannot succeed on her Motion for spoliation sanctions. At trial, Plaintiff may be
able to show that the absence of the photographs warrants an adverse inference
instruction to the jury. At present, however, Plaintiff has failed to prove that such a
Plaintiff avers that "[t]he law of continuity requires Defendant to prove three good faith intervening acts
have caused the[ ] multiple sets of scene photographs to disappear." (Doc. 33, p. 15). Defendant has
repeatedly represented that it has no photographs in its possession. And regardless of whether
Defendant has identified an intervening act causing the absence of this evidence, neither the doctrine of
continuity nor the principles of spoliation requires Defendant to prove good faith. Rather, as a
prerequisite to spoliation sanctions, Plaintiff has the burden of proving that Defendant acted affirmatively
and in bad faith; Plaintiff has failed to do so here.
sanction is appropriate. For that reason, Plaintiff's Motion to Find Spoliation is DENIED
at this time.
SO ORDERED, this /
d7of January, 2015.
1ES E. GRAHAM
ITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?