Cruise Line’s Alleged Failure To Preserve Video Was No Basis For Spoliation Sanctions

9 Nov 2020

In Reed v Royal Caribbean Cruises, No. 1:2019cv24668 (S.D. Fla. Oct. 2, 2020), Plaintiff moved for spoliation sanctions on the grounds that Defendant failed to preserve videos of an alleged incident during a cruise.

Plaintiff was a passenger on a cruise operated by Defendant.  According to the complaint, during a Defendant organized dance party, an intoxicated male passenger grabbed Plaintiff without consent, forcibly spun and released her, which caused her to fall and sustain injuries including a fractured wrist. 

A month after the incident, Plaintiff sent Defendant an intent to sue letter and requesting preservation of, among others, any video recordings.  Plaintiff subsequently moved for sanctions about a year later over Defendant’s failure to preserve more than six minutes of CCTV footage.

As part of her motion, Plaintiff attested that she observed the male passenger acting intoxicated and unruly for approximately 10 to 15 minutes prior to the incident.  Defendant preserved approximately 6 minutes of CCTV footage – approximately 3 ½ minutes before, and 2 ½ minutes after Plaintiff’s fall.  Plaintiff argued, however, that Defendant had to duty to preserve at least 5 minutes before and 5 minutes after and that Defendant’s failure to preserve more than the 6 minutes warranted sanctions because the missing footage would have shown the male passenger’s intoxicated state putting Defendant on notice of the danger to Plaintiff. 

The Court went through the Rule 37(e) requirements for relief: “(1) the information sought constitutes ESI; (2) the ESI should have been preserved in anticipation of litigation; (3) the ESI is lost because a party failed to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.” 

The parties did not dispute that the CCTV footage constituted ESI meeting the first requirement. 

On the second prong, Plaintiff argued that based on testimony provided by Defendant’s corporate representative in a different case, that Defendant had a corporate policy of preserving video surveillance of 5 minutes before and after an incident.  Defendant countered with a declaration from the same corporate representative that such a formal policy did not exist.  In ruling on this prong, the Court cited to Incardone v. Royal Carribean Cruises, Ltd., No. 16-20924-CIV, 2019 WL 3779194, at *22, which stated that “[T]he mere fact that a party had the ability to preserve more ESI does not necessarily mean that a decision to preserve less is evidence of a breach of the duty to preserve.”  In reviewing the CCTV footage, which captured the lead-up and aftermath of Plaintiff’s fall, the Court found that what was preserved was sufficient, and that Plaintiff’s contention that additional footage would have shown the dangerousness of the male passenger’s behavior was speculative given the number of other passengers on the dance floor.  The second requirement was not met. 

Regarding the third prong, the Court found that Defendant preserved a reasonable amount of CCTV footage given Plaintiff’s and other witnesses’ description of the incident and that the portion of the CCTV footage that was not preserved was taped over during the normal course of operation.  Thus, the third requirement of Rule 37(e) was not met as well.

As to the fourth prong, the parties agreed that the missing portions of the CCTV footage could not be restored or replaced through additional discovery which met the fourth prong of Rule 37(e).   However, because not all the requirements of Rule 37(e) were present, Plaintiff’s motion for sanctions was denied.