Pinkney v. Winn-Dixie Stores, Inc.

Filing 57

ORDER sustaining 43 Plaintiff's Objections to Magistrate Judge James E. Graham's January 13, 2015 Order denying Plaintiff's Motion to Find Spoliation. The Magistrate Judge's January 13, 2015 Order is hereby VACATED, and the Court GRANTS IN PART AND DENIES IN PART Plaintiff's Motion to Find Spoliation. Signed by Chief Judge Lisa G. Wood on 2/27/2015. (csr)

3Iit the Wntteb Stateo IDtotritt Court
for the boutbern flitritt of georgia
&unMuitk Mibfigton
LADONNA PINKNEY,
Plaintiff,
CIVIL ACTION NO.: CV214-075

V.

WINN-DIXIE STORES, INC.,
Defendant.

ORDER

Presently before the Court are Plaintiff's Objections to
Magistrate Judge James E. Graham's January 13, 2015 Order
denying Plaintiff's Motion to Find Spoliation. Dkt. No. 43.
For the reasons set forth below, Plaintiff's Objections are
SUSTAINED.

The Magistrate Judge's January 13, 2015 Order is

hereby VACATED, and the Court GRANTS IN PART and DENIES IN PART
Plaintiff's Motion to Find Spoliation. Dkt. No. 33.
I. Background

On July 18, 2012, Plaintiff slipped and fell in the frozen
food section of Defendant's grocery store in Brunswick, Georgia.
Dkt. No. 1,

p. 7. Plaintiff contends that her fall was caused

by a puddle of water that had leaked from a freezer cooler. Id.

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Plaintiff filed this action against Defendant seeking recovery
for injuries that she allegedly suffered as a result of her
fall. Id. at p. 7-9.
During discovery, Plaintiff served Defendant with requests
for photographs of the scene of Plaintiff's fall taken around
the time that it occurred. See Dkt. No. 43,

p. 2 & n.l.

Defendant responded that "[p]hotographs were taken at the time
of . . . investigation" but withheld the photographs on the
basis of privilege. Id. at pp. 2-3 & n.3. Plaintiff then filed
a Motion to Compel seeking the production of, among other items,
any photographs taken at or about the time of the subject
incident. Dkt. No. 11, p. 16.
In response to Plaintiff's Motion to Compel, Defendant
stated that it provided amended initial disclosures "confirming
here are no photographs of the incident scene in Defendant's
possession." Dkt. No. 12, p. 7. Defendant stated that the
"only photographs," four photos of various forms and a photo of
a diagram showing the accident location, had been produced to
Plaintiff. Id. The Magistrate Judge then dismissed Plaintiff's
Motion to Compel as moot, relying on Defendant's representations
that "there are no photographs of the incident scene itself" and
that Defendant had since "provided to Plaintiff all previously
undisclosed photographs in [its] possession." Dkt. No. 18,
(citing Dkt. No. 12, pp. 7-8)
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p. 1

Subsequently,

Plaintiff

deposed

Defendant's

employee, Francisco Javier Aguirre ("Mr. Aguirre").
29.

former
Dkt. No.

At the time of the incident, Mr. Aguirre worked as a

manager at Defendant's store where Plaintiff fell. Id. at pp. 67.

Mr. Aguirre testified that he used the store's digital

camera to take two or three photographs of the scene of
Plaintiff's fall directly after the incident.
25-27, 31, 33, 35-37.

Id. at pp. 23,

The water that allegedly caused

Plaintiff's fall was included in these pictures. Id. at

pp. 25-

27, 31, 33, 36-37. Mr. Aguirre further testified that he
uploaded the pictures of the incident scene to Defendant's
computer and sent the pictures to Defendant's claims management
company. Id. at pp. 23-24, 33, 35-37, 50-52.
Plaintiff also deposed Defendant's employee Cindy Howard
("Ms. Howard"). Dkt. No. 27. Ms. Howard testified as the
corporate representative of Defendant pursuant to Federal Rule
of Civil Procedure 30(b) (6). Id. at p. 1. Ms. Howard explained
that Defendant's policy for incidents in its stores requires an
employee to, among other things, photograph the incident scene,
upload the photographs to a store computer, and send all of the
investigative materials to Defendant's home office and claims
management company. Id. at

pp. 16-27. At Mr. Aguirre's

deposition, he testified that he strictly adhered to this policy

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in documenting Plaintiff's fall.

Dkt. No. 29,

PP. 23, 33, 35-

37, 50-52.
Plaintiff then filed a Motion to Find Spoliation alleging
that photographs of the incident scene once existed and that
Defendant's apparent failure to preserve those photographs
warrants sanctions for the spoliation of evidence. Dkt. No. 33,
pp. 1, 6-7, 19. Noting that Defendant had a duty to preserve
all evidence of the incident,' Plaintiff emphasized that
Defendant has been able to produce other investigative materials
including the incident report and video footage but has
seemingly lost the incident-scene photographs that were
transmitted along with those materials. Id. at

pp. 8, 15-16.

Plaintiff argued that the Court should impose spoliation
sanctions, based on the incurable prejudice to Plaintiff, the
probative nature of the photographs, and the circumstantial
evidence of Defendant's bad faith. See id. at

pp. 13-19.

Specifically, Plaintiff requested sanctions in the form of a
jury instruction on Defendant's spoliation, findings against
Defendant on the issues of negligence and causation, and

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On this point, Plaintiff referred to an affidavit in which Ms. Howard
stated that the incident report "was prepared in anticipation of
litigation[,] as the facts surrounding [Plaintiff's] fall, including her
reported injuries and prior injuries, caused [Ms. Howard] to believe that
[Plaintiff] would likely make a claim, or file a lawsuit against
[Defendant]." Dkt. No. 33, pp. 9-10 (citing Dkt. No. 20, p. 5). Plaintiff
reasoned that the affidavit is evidence that Defendant knew of the likelihood
of litigation involving Plaintiff's incident and therefore had a substantive
duty to preserve any evidence thereof. Id. at p. 10.

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prohibiting Defendant from further contesting those elements of
Plaintiff's claim. Id. at pp. 1-2, 15-16.
The Magistrate Judge denied Plaintiff's Motion to Find
Spoliation in the January 13, 2015 Order. Dkt. No. 41,

P. 7.

The Magistrate Judge determined that the Court could not impose
sanctions based on Plaintiff's allegations, because "Plaintiff
ha[d] failed to offer sufficient evidence to establish that
Defendant acted in bad faith in failing to preserve the
photographs." Id. at pp. 6-7. In order to prove bad faith,
according to the Magistrate Judge, Plaintiff needed to show that
"the loss or destruction of the photographs was, or could only
be, due to a deliberate, intentional act of Defendant or its
agent." Id. at p. 6. The Magistrate Judge concluded that the
absence of bad faith precluded the imposition of spoliation
sanctions and, therefore, was fatal to Plaintiff's Motion. Id.
at pp. 6-7.
Plaintiff filed the instant Objections on January 14, 2015,
asking the Court to set aside the Magistrate Judge's Order.
Dkt. No. 43, P. 13. Specifically, Plaintiff contends that the
Magistrate Judge erred in failing to find that the spoliation
has prejudiced Plaintiff and in finding that there was no
evidence that Defendant acted in bad faith. See id. at pp. 913. Defendant filed a Response on January 28, 2015, which urges

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the Court to deny Plaintiff's Objections and to affirm the
Magistrate Judge's decision. Dkt. No. 49, p. 7.
II. Discussion
A. Standard of Review

Federal Rule of Civil Procedure 72(a)

("Rule 72(a)")

permits a party to file objections to a magistrate judge's order
on a nondispositive pretrial matter. Fed. R. Civ. P. 72(a).
Rule 72(a) also provides the standard of review in the district
court for ruling on those objections: "The district judge in the
case must consider timely objections and modify or set aside any
part of the order that is clearly erroneous or is contrary to
law." Id. Given that the parties have timely filed their
respective Objections and Response, the undersigned must
determine whether the Magistrate Judge's ruling on Plaintiff's
Motion to Find Spoliation was clearly erroneous or contrary to
the applicable law.
B. The Magistrate Judge's Spoliation Analysis

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. Baja 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 for spoliation, in order "to
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prevent unfair prejudice to litigants and to insure the
integrity of the discovery process." Flury v. Daimler Chrysler
Corp., 427 F.3d 939, 944 (11th Cir. 2005). The imposition of
spoliation sanctions is governed by federal law. Id. Federal
law in the Eleventh Circuit, however, does not set forth
specific guidelines for ruling on a spoliation claim; therefore,
a court may consider spoliation principles of the state where
the alleged spoliation occurred. Id.
Under Georgia law,

"[a] spoliation claim cannot be pursued

unless the spoliating party was under a duty to preserve
evidence." Whitfield v. Tequila Mexican Rest. No. 1, 748 S.E.2d
281, 287 (Ga. Ct. App. 2013). In the slip-and-fall context,
courts have held that "the injured party must show that the
alleged tortfeasor was put on notice that the party was
contemplating litigation."

Id. (quoting Clayton Cnty. v.

Austin-Powell, 740 S.E.2d 831, 835 (Ga. Ct. App. 2013)).

In

this case, the parties have not disputed that Defendant had a
duty to preserve evidence of the incident, and it appears that
the Magistrate Judge assessed Plaintiff's spoliation claim under
the assumption that Defendant had a duty to preserve photographs
of the incident scene. See Dkt. No. 41, pp. 3-5.
There is ample evidence to support this assumption. In her
affidavit, Ms. Howard testified that she directed Mr. Aguirre to
investigate the incident because she believed that Plaintiff
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"would likely make a claim, or file a lawsuit against
[Defendant]." Dkt. No. 20,

P. 5. Moreover, Mr. Aguirre's

unrefuted testimony establishes that photographs of the incident
scene once existed on Defendant's camera, were uploaded to
Defendant's computer, and were sent to Defendant's claims
management company. Dkt. No. 29,

pp. 23, 33, 35-37, 50-52.

Defendant concedes that it cannot locate those photographs. On
these facts, the Magistrate Judge properly moved to an analysis
of whether spoliation sanctions are appropriate.
Once a court finds that a party has spoliated evidence,
Georgia law permits the court to sanction that party by
dismissing the case, excluding expert testimony based on the
unpreserved evidence, or issuing a jury instruction on the
spoliation of evidence raising a presumption against the
spoliator.

Flury, 427 F.3d at 945 (citing Chapman v. Auto

Owners Ins. Co., 469 S.E.2d 783, 784 (Ga. Ct. App. 1996)).

In

determining whether such sanctions are appropriate, the court
must consider
(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. (citing Chapman, 469 S.E.2d at 784)

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In Bashir v. Amtrak, the Court of Appeals for the Eleventh
Circuit stated that "an adverse inference is drawn from a
party's failure to preserve evidence only when the absence of
that evidence is predicated on bad faith."
(11th Cir. 1997).

119 F.3d 929, 931

The Court in Bashir explained that "'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." Id. (internal quotation marks
omitted) (citations omitted) (noting that the moving party had
offered no evidence that the spoliator "purposely lost or
destroyed" the evidence).
However, in the Flury decision, decided after Bashir, the
Eleventh Circuit held that a court weighing spoliation sanctions
cannot focus on only one factor but instead "must consider" all
of the factors enumerated above. 427 F.3d at 945.
Specifically, the Court "should weigh the degree of the
spoliator's culpability against the prejudice to the opposing
party." Id. at 946; see also Brown v. Chertoff, 563 F. Supp. 2d
1372, 1381 (S.D. Ga. 2008) (finding spoliation sanctions
warranted and recognizing that "since Flury, bad faith is only
one factor to consider"). Additionally, the Eleventh Circuit
explained that bad faith in the spoliation context "does not
require a showing of malice." Flury, 427 F.3d at 946; see also
Brown, 563 F. Supp. 2d at 1381 (spoliator's negligence in the
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destruction of evidence "does not excuse the [spoliator's]
culpability").
The Magistrate Judge, relying heavily on the reasoning in
Bashir, did not conduct the multifactorial analysis required by
Flury but instead limited the review to the issue of Defendant's
bad faith. Importantly, the Magistrate Judge conducted no
analysis of the prejudice that the destruction of the
photographs caused Plaintiff. Additionally, the Magistrate
Judge rejected Plaintiff's circumstantial evidence of bad faith
as failing to demonstrate "a deliberate, intentional act" by
Defendant. Dkt. No. 41,

pp. 4-6. This analysis essentially

held Plaintiff to the standard of proving malice, which the
Eleventh Circuit and Georgia courts have rejected as a standard
of culpability in the spoliation context. Flury, 427 F.3d at
946; Bridgestone/Firestone

N. Mi.

Tire, LLC v. Campbell, 574

S.E.2d 923, 927 (Ga. Ct. App. 2002) . For these reasons, the
Court must set aside the Magistrate Judge's Order as contrary to
law, and Plaintiff's Objections to the Magistrate Judge's Order
are SUSTAINED.
C. Analysis of Plaintiff's Motion for Sanctions

Having set aside the Magistrate Judge's Order in its
entirety, the Court must revisit the merits of Plaintiff's
Motion to Find Spoliation and determine whether spoliation

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sanctions are appropriate.

The Court will do so by weighing

each of the factors enumerated in Flury in turn.
1. Prejudice to Plaintiff

Plaintiff was prejudiced as a result of Defendant's failure
to preserve the photographs of the incident scene. Plaintiff
alleges that the cause of her slip-and-fall injury was
Defendant's negligence in allowing water from a leaking freezer
cooler to collect on the floor of its store. Dkt. No. 1,

pp. 7-

8. As Plaintiff emphasizes in her Motion to Find Spoliation,
the photographs could have contained "critical evidence of the
existence of water on the floor and the water's origin." Dkt.
No. 33,

p. 14. "If relevant evidence is not produced, for

whatever reason, and then is destroyed before either party
learns of the existence of that evidence, then the absence of
the relevant evidence prejudices the party that would have
relied on it to prove its case." Connor v. Sun Trust Bank, 546
F.Supp.2d 1360, 1376 (N.D. Ga. 2008).
Defendant attempts to downplay the importance of the
photographs by citing Mr. Aguirre's testimony that the photos
"didn't really show anything because of the positon of the
lighting, and it just looked like a really shiny floor." Dkt.
No. 29,

p. 36. Plaintiff is unable to rebut Mr. Aguirre's

testimony without the ability to view the photographs
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themselves.

Allowing Defendant to avoid spoliation sanctions

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through the testimony of its witness that the destroyed evidence
would not have benefited Plaintiff would "turn 'spoliation law'
on its head." Brown, 563 F.Supp.2d at 1379 (citing Residential
Funding Corp. v. Degeorge Fin. Corp., 306 F.3d 99, 109 (2d Cir.
2002) ("Courts must take care not to hold the prejudiced party
to too strict a standard of proof regarding the likely contents
of the destroyed or unavailable evidence, because doing so would
subvert the purposes of the adverse inference, and would allow
parties who have destroyed evidence to profit from that
destruction." (alterations omitted) (internal quotation marks
omitted))).
Moreover, even if the water puddle did not fully show up in
the photographs, the pictures would have shown the area that Mr.
Aguirre photographed and the "really shiny floor." See Dkt. No.
29,

p. 36. Plaintiff could have used this evidence to

demonstrate that the water was in the area of the cooler as she
contends rather than further away as Defendant's witnesses
appear to maintain. In sum, Mr. Aguirre's photographs may have
been the best evidence of the condition of the scene at the time
of Plaintiff's fall. Thus, the first factor weighs strongly in
favor of Plaintiff's request for spoliation sanctions.
2. ability to Cure any Prejudice to Plaintiff

Plaintiff avers that because Defendant has lost or
destroyed the photographs, she has no means of obtaining
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photographs of the scene immediately after the incident. Dkt.
No. 33, p. 14. Plaintiff further contends that even if
Defendant were to locate the photographs, Plaintiff still would
have been deprived of meaningful opportunities to use the
photographs in depositions already taken in this case. See id.
Defendant has not specifically proposed any alternative to
sanctions that would cure Plaintiff's disadvantage. See Dkt.
No. 37, p. 2 n.l. Defendant does argue that Plaintiff may rely
on the testimony of

"[m]ultiple witness, including [herself],

[eyewitness] Tim Overstreet, and Aguirre, [to] describe[ ] the
puddle from memory without reference to the photographs." Id.
at p. 3. However, the photographs could have preserved details
that these witnesses are now unable to recollect. See Reedy v.
Lull Eng'r Co., 137 F.R.D. 405, 407-08 (M.D. Fla. 1991) (finding
it "doubtful" that the deposed witnesses would be able to recall
the same detailed information about the condition of a site at
the time of the accident that a photograph would provide).
Moreover, there appear to be discrepancies in these witnesses'
testimonies, including on the crucial issue of the water
puddle's location. See Dkt. No. 29,

pp. 31-35, 70. The

pictures of the puddle could have resolved these discrepancies.
Consequently, while the witnesses' testimonies slightly
alleviate the prejudice caused by Defendant's spoliation, they

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do not cure it, and this factor also weighs in favor of
sanctions.
3. Practical Importance of the Evidence

Photographs depicting the scene of Plaintiff's fall
immediately after it occurred have practical importance in this
action. As Plaintiff contends, the missing photographs are
"highly probative" and "may have given support for Plaintiff's
contention that the water originated from the nearby cooler."
Dkt. No. 33, pp. 2, 14. Defendant contends that the photographs
have no practical importance, based on the testimony of Aguirre
and other witnesses. Dkt. No. 37,

p. 3. As explained above,

the testimony of these witnesses is not a substitute for the
information captured by photographs. While it is true that
photographs are not necessary for Plaintiff to prove the
conditions of the floor, evidence need not be crucial to the
litigation to be of practical importance. It is enough that the
photographs could have been helpful to Plaintiff and that the
absence of this evidence places the parties on unequal footing.
Defendant further states that the photographs have no
practical importance, because "it is at least debatable whether
Plaintiff ever would have had access to the photographs or
whether they were covered by the work product privilege." Dkt.
No. 49, pp. 4-5. Defendant does not offer any support for this
contention, and it did not claim any work product protection as

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to photographs in response to Plaintiff's Motion to Compel. See
Dkt. No. 12. Accordingly, the Court need not resolve whether
the photographs would have been protected by the work product
protection. Moreover, regardless of the protection, courts
routinely order the production of post-accident photographs
under Federal Rule of Civil Procedure 26(b) (3) because parties
have a substantial need for the information in the photos which
they cannot obtain through other means. See, e.g., Sorrels v.
NCL (Bahamas) Ltd., 291 F.R.D. 682, 683 (S.D. Fla. 2013);
Hamilton v. Great Lakes Dredge & Dock Co., No. 05-CV-3862, 2006
WL 2086026, at

*1 (E.D.N.Y. July 25, 2006) ("[A]ccording to a

leading treatise, photographs of an accident scene, taken
immediately after an accident has occurred, are a common example
of material for which there is a substantial need sufficient to
overcome work product protection." (citing 6 Moore's Federal
Practice § 26.70[5](c] (Matthew Bender & Co. 3d ed.)))
For these reasons, the practical importance of the
spoliated photographs also weighs in favor of sanctions.
4. Defendant's Good or Bad Faith

Defendant is at least culpable for failing to preserve the
incident scene photographs. Plaintiff argues that Defendant
acted in bad faith based on circumstantial evidence. Dkt. No.
33,

pp. 15-19. Specifically, Plaintiff alleges the following:

that Defendant has produced copies of the incident report and
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surveillance video that were 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 Plaintiff's deposition of
Aguirre; and that Defendant allegedly failed to cooperate in
discovery on many occasions. Id. Defendant responds that there
is no basis for bad faith, because Plaintiff's circumstantial
evidence fails to show that Defendant engaged in an affirmative
act to cause the loss or destruction of the photographs. Dkt.
No. 37, p. 4.
Consistent with the principles in Flury discussed supra,
this Court need not find malice to determine that Defendant
acted in bad faith when failing to preserve the photographs.
427 F.3d at 946. In Flury, the Court found that because the
plaintiff was the only party who knew of the spoliated
evidence's location and, thus, was the only party able to
preserve that evidence, the culpability for the loss of the
evidence rested solely on the plaintiff. Id.;Nat'l Grange Mut.
Ins. Co. v. Hearth & Home, Inc., No. CIV.A. 2:06CV54WCO, 2006 WL
5157694, at *5 (N.D. Ga. Dec. 19, 2006) (fourth factor weighed
in favor of sanctions where "plaintiff had access to and control
over the evidence and failed to preserve it")
There is no evidence that Defendant maliciously destroyed
Mr. Aguirre's photographs. However, similar to the spoliator in
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Flury, Defendant was the only party to possess the photographs
and the only party who could preserve them. According to the
uncontroverted testimony of Mr. Aguirre, the photographs existed
on Defendant's digital camera and its computer and were uploaded
to Defendant's claims management company but have now
inexplicably disappeared. Thus, at the least, Defendant failed
to safeguard evidence which it unquestionably had a duty to
preserve. This culpability, while not rising to the level of
malice, also favors sanctions for Defendant's spoliation.
5. Potential for Abuse Without the Exclusion of Expert
Testimony

The fifth Flury factor is irrelevant where, as here, the
spoliated evidence is not the subject of expert testimony. As
one district court noted,

"[tihe fifth factor is more suited to

a products liability case, where one side might seek to
introduce expert testimony about an allegedly defective product
that was lost or destroyed before the other side could inspect
it." Woodard v. Wal-Mart Stores East, LP, 801 F. Supp. 2d 1363,
1371 n.4 (M.D. Ga. 2011). Indeed, the parties seem to agree
that this factor weighs neither for nor against sanctions.
6.

Level of Spoliation Sanctions

In sum, the multifactorial analysis required by Flury leads
to the conclusion that spoliation sanctions are appropriate in
this case. However, in determining the level of sanctions, the

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Court must weigh the degree of Defendant's culpability against
the prejudice to Plaintiff. In addition, the Court must bear in
mind that Plaintiff's requested sanctions of irrebuttable
findings in her favor should be reserved for only the most
egregious cases of spoliation. Therefore, the Court

GRANTS

Plaintiff's Motion to Find Spoliation insofar as Plaintiff
requests the sanction of a jury instruction on spoliation and
DENIES the portions of Plaintiff's Motion asking the Court to

find against Defendant on the issues of negligence and causation
and forbid further argument on those elements.
The Court will instruct the jury that Defendant's failure
to preserve the photographs taken of the incident scene raises a
rebuttable inference that the photographs contained evidence
that water was present on the floor and that the source of the
water was a leaking freezer cooler. The Court also will
instruct that Defendant is free to introduce evidence to rebut
that adverse inference. This solution strikes the proper
balance of alleviating the prejudice to Plaintiff without
providing either party with an unfair advantage with regard to
the evidence presented at trial.

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III. Conclusion

For these reasons and the manner set forth above,
Plaintiff's Objections are SUSTAINED,

and the Magistrate Judge's

Order dated January 13, 2015, is VACATED.

Plaintiff's Motion to

Find Spoliation is GRANTED IN PART and DENIED / IN PART.
SO ORDERED,

this

Z7 d

f

, 2015.

SP,/GODBEY WOOD, CHIEF JUDGE
VtED STATES DISTRICT COURT
UTHERN DISTRICT OF GEORGIA

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