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#CaseoftheWeek Episode 9: Duty to Preserve Video Evidence

Kelly Twigger dives into the duty to preserve video evidence, the standard for spoliation and whether an adverse inference was an appropriate sanction in Easterwood v. Carnival Corp., 2020 WL 6781741 (S.D. Fla. 2020) presided over by United States District Judge Beth Bloom in episode 9 of #CaseoftheWeek.

Good morning and welcome to our #CaseoftheWeek for January 19, 2021. I’m Kelly Twigger, CEO and founder of eDiscovery Assistant and the Principal at ESI Attorneys. We’ve teamed up with ACEDS to bring you this weekly video cast on eDiscovery case law to keep you up to date on how courts are treating ESI and also to discuss the practical implications of decisions for your practice and what your clients need to think about. Each week, we select a case to discuss and highlight key issues in eDiscovery and how courts are assessing parties’ obligations in eDiscovery and what those decisions might mean for you and your clients.

Our decisions are drawn directly from our database of eDiscovery decisions at eDiscovery Assistant. Each of the more than 14,500 cases in that database are manually tagged by our content team with a list of eDiscovery issues. This week includes the following issues. Previous weeks we covered proportionality and sanctions and TAR. This week we’re covering failure to preserve video, adverse inference, spoliation, sanctions and bad faith as tags in our database.

Video evidence has become a much more prevalent source of ESI over the past few years, with more than 150 cases addressing video evidence in 2020 alone. Our database includes over a thousand cases that deal with video evidence. The law on video evidence and preservation is particularly well developed in the Florida district courts in the 11th Circuit. That’s where our case from today comes from. Our decision is titled Easterwood v. Carnival Corp. This is a decision from November 18th, 2020, authored by Judge Beth Bloom.

This is one of 17 decisions from Judge Bloom in our discovery database. Because of the prevalence of Florida cases, there are more than 737 cases just from Florida district courts alone. 126 of those are from 2020. You can view the public link to the Easterwood decision that we’re going to discuss today in the comment section on the LinkedIn live page. If you’re watching this video on another platform, you want to pop over to the LinkedIn live page. You’ll also be able to view the link in our blog post for this decision that’ll come out on Friday this week, but normally Thursday due to the holiday. So we’re going to push that to Friday this week, and in that blog post that will go out to all of our blog subscribers. If you’re interested in receiving the blog post on the case of the week, you can sign up for that at eDiscoveryAssistant.com/blog.

Also, in the links for our event today, you’ll find the sign up to the University of Florida’s E-Discovery Conference. That event is an all-day eDiscovery conference to take place on March 18th, 2021. It is a free event. I’m proud to be part of the planning committee for that event, and our theme this year is Work Smarter, Not Harder. We’ve been working hard on getting that content and that agenda finalized for you. If you sign up at that link, you’ll receive information on how to register as soon as it becomes available.

OK, let’s get into our case for this week. As I mentioned, Easterwood vs Carnival Corp., our site is 2020 Westlaw 6781742. It’s from the Southern District of Florida in 2020, and this decision is from November 18, 2020.

What are our facts here? The plaintiff, Easterwood, was a passenger on a Carnival cruise ship, and while walking on the pool deck, she slipped and fell on what she deemed to be mechanical grease and sustained serious injuries. There’s no other information in the case about the depth of those injuries, just that they were serious injuries. The plaintiff brought an action against Carnival for maritime negligence, alleging that Carnival had breached its duty of care by not providing a safe environment for her as a passenger. During discovery, the plaintiff sought and received the closed-captioned TV or CCTV video footage that was maintained by Carnival, and that was preserved and provided to the plaintiff of the time frame of her incident on the deck.

This particular case is about a motion for sanctions, for failure to provide video evidence of another incident that occurred on the exact same day. It’s important to note that this incident occurred in July of 2019. At some point, in December of 2019, the plaintiffs made a request to Carnival for video footage of another incident that had occurred on the same day an hour before the plaintiff fell on the grease and was injured. The facts in the case state that there was another passenger named Baker who slipped on grease in the same spot on the ship in the same day, and that Baker immediately went to the ship’s medical center and was met by the on-call nurse. The center itself was closed, but the on-call nurse met with Baker. The nurse examined Baker and applied a bandage to her wrist after finding no obvious deformities or swelling. And the nurse told Baker to come back at 3:00 p.m. when the doctor was in and the medical center would be open. Baker did not return, and the medical report notes indicated that Miss Baker’s incident was non-urgent. Baker never saw a doctor in the medical center to report her injuries.

Similarly, Baker did not report the incident to security and was not questioned by any security personnel regarding the location of the incident. No official report was made about her incident. All of this is really important to determining the protocols at Carnival for preserving video evidence. Again, just to confirm what we’re talking about, the CCTV coverage of the plaintiff’s actual incident was preserved and produced, we’re talking about a separate incident that occurred on the same day. Keep those facts in mind that we’re talking about someone separate from the plaintiff.

The testimony of the medical staff related to Baker’s incident was that protocols for reporting injuries to security require that after examining a passenger, the doctor should call security to create an incident report and investigate the incident if the injury requires more than first aid. A couple of key factors there. The protocol was that after a doctor examines an injured passenger, the doctor should call security to create an incident report and then the investigation occurs if the injury requires more than first aid.

The testimony also stated that in conducting an investigation relating to a passenger injury, security would pull the CCTV footage at the time of the incident to see how the incident occurred and would preserve the portion of the CCTV footage depicting the incident. There was a declaration that Carnival submitted in opposition to the motion for sanctions, stating that because Baker’s injury was minor and did not require treatment beyond first aid, because Baker didn’t inform the ship personnel that she had sustained a severe injury, that the shipboard investigators did not create an accident report, take witness statements, have Miss Baker prepare a passenger injury statement, take photographs in order to assist legal counsel or preserve the CCTV footage of Miss Baker’s incident. Those are all steps that Carnival takes when it has knowledge of an incident that requires more than first aid according to their protocol. In this instance, because Miss Baker did not see the doctor and the incident was not reported and then did not require more than first aid, those protocols were not triggered and the CCTV footage for Miss Baker’s incident was not captured.

Carnival’s procedure was to overwrite CCTV footage automatically after 14 days, unless the video evidence was otherwise preserved, as we already discussed, the plaintiff here did receive the footage of her event and then subsequently requested footage of Miss Baker’s incident almost six months later in December of 2019. Obviously, as we just heard, that evidence would be long gone.

As a result, the plaintiff moved for sanctions, for spoliation and requested that an adverse inference be drawn against Carnival, that the CCTV video would have established that the defendant was on notice of the hazardous spot on the pool deck because Miss Baker’s fall occurred in the same location an hour prior to the plaintiff’s fall. Very important evidence for the plaintiff’s case to be able to establish per se notice of a hazardous condition on the part of Carnival. It’s understandable why this motion was brought, but as the facts play out and the analysis of the court shows, there was no duty to preserve the evidence of Miss Baker’s fall here. That’s the analysis that the court goes through. The defendant opposed the plaintiff’s motion for sanctions, arguing that there was no evidence on record that it knew of the location or cause of Miss Baker’s fall, and because the defendant’s accident protocol was not triggered regarding Miss Baker’s incident, it had no notice of the need to preserve pertinent CCTV footage and therefore had no duty to preserve.

Those are the facts. Let’s look at how the court undertook analysis of the case. They started by defining spoliation, which we know to be 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. You’re well and truly familiar with those terms about reasonably foreseeable, reasonable anticipation of litigation. Those are the phrases we look to when we’re looking at whether or not a duty to preserve has been established.

Now that we know the definition of spoliation, sanctions can be warranted for spoliation that might include dismissal of the case, exclusion of witness or expert testimony or a jury instruction on spoliation of evidence which we refer to as an adverse inference instruction and what has been requested by the plaintiff here. The court’s authority to sanction a party for spoliation stems from two different sources: the Federal Rules of Civil Procedure and the court’s inherent power. In this particular instance, the court looked at its ability to sanction under its inherent power versus its ability to sanction under federal rules and determined that Federal Rule 37(e), which addresses the failure to preserve ESI, is the proper analysis for it to undertake to consider whether sanctions are available here.

Under Rule 37(e), that language is very well stated and very well laid out in terms of the requirements of what a party bringing a motion for sanctions for failure to preserve ESI must show.

If electronically stored information that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, it cannot be restored or replaced. Through additional discovery the court can: 1) Upon finding prejudice to another party from loss of information, may order measures no greater than necessary to cure the prejudice. 2) Only upon finding that the party acted with the intent to deprive another party of the information’s use in litigation may presume that the last information was unfavorable to the party and instruct the jury that it may or must presume the information was unfavorable to the party or dismiss the action and enter a default judgment.

Reading that language, clearly you see that in order to get to an adverse inference instruction, you’ve got to show that there is prejudice, and you’ve got to find that the party acted with the intent to deprive another party of the information to use.

The court then points to the Advisory Committee notes under the rule 2015 amendments which make it clear that Rule 37(e), and I’m quoting, “forecloses reliance on inherent authority or state law to determine when certain measures would be used for the spoliation of evidence.” Taking that comment into account, the court stated that it would be inappropriate to analyze the spoliation sanctions motion concerning CCTV using common law, inherent power authority and instead rule 37(e) controls.

Now, why is that important? It’s very important because we’re going to see that the four-step analysis of rule 37(e) means that Carnival did not have a duty to preserve here. Under the court’s inherent authority, which we’ve discussed in previous cases, there may have been more of an opportunity for plaintiffs to prevail here but rule 37(e) precludes that by setting out specifically that failure to preserve ESI for spoliation must be considered under rule 37(e).

The party bringing the motion has the burden to show spoliation, and there are four factors that must be met. When and if those four factors are met, there are two ways for the court to provide relief. First, if the party finds prejudice to another party from the loss of ESI, that should have been preserved, then it can order measures no greater than necessary to cure the prejudice. That’s section one of rule 37(e). If the court finds the party intentionally destroyed the side, then the court can impose the harsher sanctions. That’s what we talked about with regard to the adverse inference. You’ve got to be able to show that bad faith, that there was mal intent to destroy the evidence.

So, what are those four factors to impose sanctions for spoliation? First, that the information sought constitutes ESI. Remember that this section rule 37(e), specifically applies to the failure to preserve ESI. So your first factor is that the information sought constitutes ESI. Second, that the ESI should have been preserved in anticipation of the litigation. Third, that the ESI is lost because the party failed to take reasonable steps to preserve it. And fourth, that the ESI cannot be restored or replaced in additional discovery. A lot of times that restored or replaced means there’s backup tapes means that the information might be available from a different source. If that’s the case, then obviously the ESI is not missing and we can provide it in discovery.

Going through the analysis of each of those four factors. On the first factor, the parties both agree that the information sought, the CCTV footage, was in fact ESI. So there was no analysis needed there. On the second factor, which was whether or not Carnival had a duty to preserve this information in anticipation of litigation. That’s where the largest analysis on this case comes in. That’s where the facts that we discussed earlier on Carnival’s protocol to identify and preserve CCTV footage really come into play.

The duty to preserve arises when a party’s on notice that litigation is reasonably foreseeable or that they reasonably anticipate litigation. Put another way, it could also be that the party should have known that the evidence would be relevant to future litigation. Notice can come in the form of a complaint. It can come in the form of a discovery request; it may also come in the form of a well-tailored preservation letter. One of the things that’s really important here on the duty to preserve is a quote from the court, which says that “A general concern over litigation does not trigger a duty to preserve evidence because there is no duty to preserve relevant documents or evidence until a potential claim is identified or future litigation is probable.”

We’ve had lots of cases in the past regarding, does a very general broad claim relating to an accident trigger a duty to preserve? In those cases, often we talk about whether or not the preservation letter is sufficiently factual to be able to put a party on notice of what information should be preserved. That’s not so much the issue here, but this quote from the court about a general concern over litigation is very key, because the issue of when the duty to preserve arises is the most important factor or usually the most controversial factor out of the four when it comes to determining spoliation.

Whether litigation was pending or reasonably foreseeable at the time of spoliation is the issue, and Rule 37 does not apply when information is lost before a duty to preserve attaches. So what plaintiff has to show here is that Carnival had a duty to preserve the CCTV footage for Baker’s incident at the time that it happened before the information was destroyed through the routine operation of the system. The plaintiff argued that the defendant did have a duty to preserve it and its failure to maintain it was evidence of bad faith. There are no other facts that the plaintiff argues in favor of bad faith, except that it had a duty to preserve, it didn’t do it, and that, in and of itself, is evidence of bad faith. As we’re going to see in a little bit, that’s not sufficient to allege bad faith. You have to have actual facts showing bad faith in order to meet that standard. The defendant contended that the facts of the case was distinguishable from an ordinary slip and fall case and that it was not reasonably foreseeable for the defendant to preserve the footage for her fall.

We always talk on our #CaseoftheWeek about the fact that we have to pay attention to the FACTS of the case. Every case has slightly different facts, which means that the analysis is going to change slightly every single time. There’s an important quote from the court here that I want you to focus on, and I’m going to read it to you simply because it really is important to see what the court’s thinking is here. We’ve got two layers here. First, does rule 37 apply versus the court’s inherent authority. We’ve also got video footage of another party slipping in the exact same place as the plaintiff, not sustaining very serious injuries, not really reporting her claim, and then the plaintiff having a subsequently much more serious incident in exactly the same place. So this quote from the court is really important.

The court would be remiss if it failed to differentiate between defendant’s general duty to preserve CCTV footage of plaintiff’s accident and the other evidence derived from its investigation into plaintiff’s injuries with which defendant complied and the narrower duty to preserve the CCTV footage of other passengers’ injuries, like the video of Miss Baker’s fall. Which is a more fact sensitive inquiry. It is undisputed that defendant did anticipate litigation of plaintiff’s claims and therefore took measures to preserve the evidence it collected, including the CCTV footage, medical records, photographs of the area where she fell, incident reports. Indeed, the CCTV video submitted in this case establishes that defendant preserve footage of the plaintiff’s incident and Carnival likewise testified that he preserved the video of plaintiff’s accident on the day it occurred and saved the portion of the CCTV footage immediately surrounding plaintiff’s fall. These immediate efforts clearly show defendant’s attempts to comply with his duty to preserve relevant evidence in anticipation of this litigation, thus undercutting any allegation of bad faith spoliation.

We’ve got to separate the facts here of the duty to preserve information about the plaintiff’s fall versus the duty to preserve information about Baker’s fall.

Following all of this analysis, the court was not persuaded that there was any duty to preserve the CCTV footage of Miss Baker’s incident, and plaintiff basically offered no additional evidence to contradict the defendant’s statement, of what its protocol was, how the protocol was implemented, and that it followed that protocol.

Really set out here is the analysis by the court of looking at the defendants protocol and all the steps that it took to be able to preserve the incident footage for the plaintiff and why it didn’t preserve that same footage for Miss Baker, that Miss Baker’s injury was minor and she was never examined by the doctor, who was responsible for reporting any incidents to security, that the defendant’s accident investigation protocols were not otherwise activated by the incident and that without knowledge of the incident or corresponding official investigation as to the cause, the defendant was unaware of the CCTV footage of Miss Baker’s fall or of its relevance to be able to preserve it. As such, the court found that the defendant did not have a duty to preserve. Because there’s no duty to preserve, that means that the plaintiff failed to meet the four-factor test for spoliation, and on that basis alone, the court could deny the motion for sanctions.

The court does go on to do an analysis of the last two steps of the process. Step three, whether the defendant took reasonable steps to preserve the ESI is important, and it’s a good analysis by the court. I would encourage you to read through this whole case simply because the way that the court lays out the analysis on the sanctions motion and the steps required for spoliation as well as the burden for the party, bringing the motion is very clear and succinct and will help you as you draft motions or respond to them in the future.

On step three, whether the defendant took reasonable steps to preserve ESI, the court lays out again a really nice quote that I think is important for us to look at. I can tell you that at eDiscovery Assistant, we get a number of folks who use our instant chat feature to say, “Hey, I’m looking for a case on this particular topic. Can you help me find what I need?” I’ve had it probably two or three times where our staff has said that someone’s looking for a case that says perfection is not the standard in preserving or providing ESI. This quote from the court really embodies the notion that perfection is not require so it’s important to pay attention to. From the court, “Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection and preserving all relevant electronically stored information is often impossible. As under the current rule, the routine good faith operation of electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation. The rule recognizes that reasonable steps to preserve suffice. It does NOT call for perfection.” That’s an important quote. It’s one that picks up on the original standard from Zubulake, back in the early 2000s and Judge Scheindlin, and it’s reiterated multiple times through case law in the last 15 years. It’s one that you need to pay attention to, whether you’re bringing a motion or responding to it.

The court goes on to state that the defendant did take reasonable steps here. We’ve covered most of them. That after the the plaintiff sought medical help, the doctor contacted security, an incident report was filed and CCTV footage was captured, medical records were captured, photographs were taken of the scene. All of the pieces that should have happened to record plaintiff’s injury and to provide evidence for the case were done. Defendant did take reasonable steps here.

The fourth step in the analysis of spoliation was whether or not the ESI could be restored or replaced. There was no argument by the parties that the fact that this CCTV footage of Baker’s incident was gone and could not be replaced. So that condition WAS satisfied, but the plaintiff satisfied only two out of the four conditions for spoliation and as such, the motion for sanctions was denied.

What are our takeaways from this case? First, you want to note that Carnival had a defined process for identifying when it reasonably anticipated litigation and to preserve video evidence, and it followed that process. Having the process is key. Following the process is the next step. If you’re not following the process, sometimes having that process in place will come back to bite you. So make sure that you’re doing an audit of and that process is being followed.

Had the video evidence of plaintiff’s incident not been preserved versus that of Baker, which is the issue here, this would have been a completely different story and likely a more successful motion for sanctions. When you’re thinking about whether your client has video evidence, you need to think about all of the facilities and places where video evidence might be captured, a lot of the times video evidence, CCTV, those kinds of video capturing is outsourced. They may not fall directly under your client’s purview, but they will fall under contracts that your client signs on to. One of the pieces in managing video evidence is to make sure that within those contracts with those providers, that your client has access to that video footage and knows and understands how long the retention is going to be and who to get in touch with to preserve that information. Get a process in place that works with the risk mitigation you need to have. Some stores we’ve seen incidents of video being at issue in cases with retail stores. So if your client operates retail stores, obviously your video issues are going to be more prevalent than, say, other clients who have corporate headquarters and will have video, but your incidents will be less subject to litigation than they would be in a retail environment.

Make sure you understand the difference between the inherent authority of the court and Rule 37 in seeking sanctions and what you have to show in order to be able to prove spoliation. Rule 37(e) was amended in 2015. It’s largely considered to be a much higher bar for seeking sanctions and that you have to show bad faith on spoliation. What you do need to argue is that prejudice. Even if you don’t have bad faith to be able to get to an adverse inference instruction or to a dismissal instruction, what you can do is show enough prejudice to be able to get exclusion of evidence or other sanctions that may cure that prejudice. Understand how to use rule 37(e) effectively.

The analysis here really turned on that second factor of whether or not there was a duty to preserve. It’s important when you are doing your analysis for your client in determining truly whether there was a duty to preserve, because that’s going to be one of the most key decisions on that four-factor analysis for spoliation.

I mentioned this earlier, but as you get to the end of this case and you see that because of the protocol that was in place for Carnival and the process that was followed with regard to providing the plaintiff’s video, that it seems, why would the plaintiffs bring this sanctions motion? In this particular instance, the fact that Carnival would have been on notice that grease existed in this space, where the plaintiff fell, would have been a hugely important part of the plaintiff’s case, and we’ll see how that plays out in subsequent decisions in this case, but they’ll have to come up with another way to bring that evidence in since the CCTV footage of Baker’s incident no longer exists. That’s where Rule 37 comes in, and that’s where Rule 37 says you can’t just have inherent authority of the court because that could lead to a different level of decision making. Here we have to be succinct. We have to look at this four-factor process as it deals with ESI because we have tremendous volumes of ESI, and we have to be able to determine whether a party actually has a duty to preserve that information or whether the spoliation of information is done through the good faith operation of a routine system. It is very important to know and understand where you’re falling in terms of your analysis when you’re bringing these sanctions motion and when you’re defending them.

Again, having defined duties on that protocol to preserve video evidence is key. If you’re bringing a case where video evidence is going to be key, you need to be thinking about the fact that that video evidence is going to be overwritten quickly. On the one hand, those keeping the video need to be cognizant that video should be kept for a reasonable amount of time. In this particular case, although it’s not discussed in the decision, generally cruises last between seven to 14 days, so keeping video for a 14-day period following an incident or following a day seems like a reasonable time for capture of video. There’s no question or analysis by the court in this decision as to whether or not that was a reasonable time. There are other decisions as to whether or not keeping video for a certain amount of time is reasonable. You’ll want to make sure as you’re drafting a policy that you’re taking that reasonable requirement into account.

That is our #CaseoftheWeek for this week. Thanks for joining me. I’ll be back next week with another edition of our #CaseoftheWeek. Remember to sign up to receive information to register for the UF Conference and to register on our blog if you’d like to receive the updates of the #CaseoftheWeek. Have a great week. Stay safe and healthy and we’ll see you next week.

Thank you.

 

 

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