In Hoover v. NCL, No. 19-22906 (S.D. Fla. Aug. 5, 2020), the District Court denied Plaintiff’s spoliation sanctions motion. Plaintiff was a passenger on a cruise ship operated by Defendant and slipped while walking down an outdoor stairway sustaining injuries. After the cruise, Plaintiff contacted Defendant’s claims division about her fall and injuries but did not ask Defendant to preserve the stairway nor sought an inspection. Approximately a year later, Plaintiff filed suit.
As part of discovery, Plaintiff served a request to inspect the vessel and stairs. However, Defendant had placed black anti-slip strips on the edge of the stairs more than six months before the lawsuit was filed. Defendant also by then added grooves into the stairs and advised the Court that an extensive search for information and documents did not provide a precise date on which the grooves were added.
Plaintiff argued that her expert was unable to adequately inspect the stairs because of the anti-slip strips and grooves. Defendant pointed out that Plaintiff’s expert never asked for the strips to be removed and that video surveillance footage of Plaintiff’s fall demonstrated that she did not fall on the part of the steps which now contained the grooves.
Plaintiff subsequently filed a motion for spoliation sanctions claiming that Defendant’s alterations to the stairs were not subsequent remedial measures, but rather, were indicative of Defendant’s strategy to prevent Plaintiff from obtaining evidence in the case. Plaintiff’s motion was also based on the claim that Defendant destroyed communications regarding the “building, approving and/or inspecting [of] of the subject staircase” because, according to Plaintiff, “it is illogical in this highly technical world that NCL would not have any of the documents.”
As to Defendant’s repairs to the stairs, while the Magistrate Judge found that Defendant indisputably had anticipated litigation before it repaired the stairs, that fact alone did not justify spoliation sanctions because Plaintiff had not established bad faith by Defendant or that she would be significantly impaired in her ability to prove her case.
Regarding the purportedly destroyed email communications relating to the design of the stairway, the Magistrate Judge ruled that Plaintiff had not established all the required elements of FRCP 37(e). First, Plaintiff did not establish that Defendant ever had the purported ESI about the staircase design approval in its possession. Defendant explained that it actually retained another company to handle the day to day supervision of the ship construction. Moreover, the Magistrate Judge was not willing to assume that Defendant possessed and then destroyed the ESI. Second, Plaintiff did not establish that the ESI should have been preserved in anticipation of litigation. The Magistrate Judge reasoned that if Defendant was unaware of Plaintiff’s claim whenever it purportedly deleted or destroyed the ESI, there would be no anticipation of litigation. Finally, the Magistrate Judge also concluded that Plaintiff could not establish that Defendant intended to deprive Plaintiff of the ESI.