In Nguyen v. Costco Wholesale Corp., No. 9:19-cv-80393 (S.D. Fla. Jan. 27, 2020), a Florida Magistrate Judge denied plaintiff’s motion for sanctions for spoliation of a video allegedly showing a slip-and-fall by plaintiff on the grounds that defendant had no affirmative duty to preserve the video for the nearly two-year gap between the alleged accident and the filing of the lawsuit and further that plaintiff provided no evidence to support his assertion that the vide evidenced a slip-and-fall.
Prior to motion for sanctions at issue, plaintiff previously moved to compel defendant to produce two photos as well as in-store surveillance videos that defendant previously claimed were work-product privileged. Defendant failed to timely respond to plaintiff’s motion and the Court ordered defendant to show cause as to why plaintiff’s motion should not be granted. In response, defendant stated that it had inadvertently failed to respond to plaintiff’s motion and that defendant’s intent was always to produce the video and photographs to plaintiff. Based on defendant’s statement, plaintiff decided that their motion to compel was moot and the Court denied the motion accordingly.
However, defendant never produced the video and plaintiff argued that defendant improperly erased the video, resulting in “extreme irreversible prejudice” to plaintiff. Defendant, in response, stated that “there is no such video because no cameras in the store show this area” and since plaintiff never made a written request to preserve such video, defendant had no duty to preserve any videos at all. Defendant produced affidavits in support of its position while plaintiff produced no affidavits or evidence of any kind.
In considering the plaintiff’s motion, the Court stated: “Plaintiff originally brought her suit against Defendant in Florida state court on January 17, 2019…[Plaintiff’s] alleged slip-and-fall occurred on January 25, 2017, nearly two years prior to the filing of the Complaint.” Thus, the Court ruled that “Defendant did not have an affirmative duty to preserve the allegedly spoliated video from the date of the fall (January 25, 2017) to the date of the filing of this lawsuit (January 17, 2019), a period of nearly two years after Plaintiff’s alleged slip-and-fall. Plaintiff has provided no evidence that Defendant was given notice prior to the filing of this suit that Plaintiff intended to file an action against it related to the alleged slip-and-fall. Moreover, merely because Plaintiff fell at Defendant’s store, absent additional facts, does not mean that Defendant reasonably anticipated litigation on the date of the alleged fall. No duty to preserve arose until after this lawsuit was served on Defendant. Without a duty to preserve the allegedly spoliated video, Plaintiffs’ motion for sanctions necessarily fails.”
The Court also stated in denying plaintiff’s motion that “Even assuming Defendant did have a duty to preserve the allegedly spoliated video (which it did not), sanctions would still not be warranted unless the allegedly spoliated ESI was lost because Defendant failed to take reasonable steps to preserve it.” The Court also found that “Defendant did not fail to take reasonable steps to preserve the allegedly spoliated evidence because the video was not ‘unique, relevant evidence that might be useful to’ Plaintiffs.”