In WILSON v. HH SAVANNAH, LLC. TRS SAVANNAH, LLC., and HYATT CORP., No. CV420-217 (S.D. GA, July 28, 2022), before the court was Plaintiff’s request to present evidence to the jury concerning the loss of relevant ESI.
Plaintiff alleged she slipped and fell while exiting a guestroom shower at a Hyatt hotel that was owned, leased, managed, operated, and occupied by Defendants. Plaintiff moved for sanctions against all three Defendants under Fed. R. Civ. P. 37(e) and argued that they allowed relevant room cleaning and inspection data stored in a computerized system called “HotSOS” to spoliate.
The Court denied Plaintiff’s motion to the extent it sought sanctions against HH and HHC because Plaintiff did not show the entities had sufficient “possession, custody, or control” of the data to trigger a duty to preserve it. But the Court did grant the motion as to Hyatt because it had a duty to preserve the data and did not take reasonable steps to do so. Although Plaintiff was prejudiced by the deletion, the Court found she did not show Hyatt “acted with the intent to deprive” her of the data.
Under Fed. R. Civ. P. 37(e), the Court determined that it may impose sanctions “no greater than necessary to cure the prejudice,” Fed. R. Civ. P. 37(e)(1), since it may not impose the more severe sanctions listed in Rule 37(e)(2) absent a showing of intentionality. See Fed. R. Civ. P. 37(e)(2)(A)-(C). Unfortunately, the parties’ briefing was inadequate for the Court to discern what sanctions was “no greater than necessary” to cure the deletion, so it directed them to file supplemental briefing on the issue.
The Court drew direction from both Fed. R. Civ. P. 37(e) as well as general spoliation case law since the pertinent analyses were the same.
The Court has a “wide range of discretion in crafting remedies under [Rule 37(e)(1)], including measures ‘such as forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or giving the jury instructions to assist in its evaluation of such evidence or argument.” Muhammad v. Mathena, 2016 WL 8116155, at *9 (W.D. Va. Dec. 12, 2016) (quoting Fed. R. Civ. P. 37(e)(1) advisory committee’s note to 2015 amendment).
Both parties proposed that they be permitted to present evidence and argument at trial about the circumstances of the data’s deletion, and the information it would have contained. The parties also proposed instructions that would guide the jury’s consideration of this evidence.
The Court agreed the appropriate sanction in this case was to “allow the parties to present evidence to the jury concerning the loss and likely relevance of information and instructing the jury that it may consider the evidence, along with all the other evidence in this case, in making its decision.” Fed. R. Civ. P. 37(e)(2). Other courts have imposed similar sanctions when the non-spoliating party cannot show an “intent to deprive.” This measure also satisfied Plaintiff’s request that the jury determine “the weight and importance of what the data may have shown.”
The Court declined to rule on the precise scope of admissible evidence regarding the deletion, and the content of the jury instruction. Courts have noted that this approach “affords the district judge with flexibility to determine the scope of the spoliation of evidence to be presented at trial, including any argument that may be made to the jury on this issue, and to craft any related jury instructions on a full evidentiary record.”
Plaintiff also proposed that the Court limit Hyatt’s ability to assert certain affirmative defenses. Specifically, Plaintiff noted that Hyatt’s pending Motion for Summary Judgment argued it “had no notice that water was leaking over the shower glass doors,” and that Plaintiff had superior knowledge of the shower’s alleged defect.
Plaintiff broadly requested that the Court:
preclud[e] the Defendants from presenting any evidence or argument as to those issues, including circumstantial arguments suggesting that hotel staff or contractors may have inspected the shower prior to the fall, that a hotel employee or contractor would have taken corrective action if a problem with the shower had been malfunctioning, as well as any evidence of habit, procedure, or practice to that effect.
As an alternative remedy, Hyatt proposed that “discovery could be re-opened for the limited purpose of discovering the information that would have been preserved in the RMI and Flash Inspection documents – i.e. the identities of the Hospitality and engineering staff whose duty it would have been to inspect the room and create those records.”
In this case, there was no indication that reopening discovery would clarify the content of the deleted data and the Court declined the request. Hyatt also requested that Plaintiff be precluded from making arguments to the jury which it contended are “unnecessary and prejudicial.” The Court found this issue would be more appropriately raised in a fully briefed motion in limine and denied to rule on the issue at this point.
In sum, the Court found that Plaintiff and Hyatt were permitted to present evidence to the jury about the loss and likely relevance of the deleted HotSOS data, and the jury, with appropriate instructions from the Court, could consider that evidence, along with all the other evidence in the case, in making its decision. The Court, however, reserved ruling on the scope of admissible evidence and the content of the jury instructions for the presiding judge at trial.