In BIRREN v. ROYAL CARIBBEAN CRUISES, LTD., No. 20-cv-22783-BLOOM/Louis (S.D. Fla. Jan. 10, 2022), before the Court were Plaintiffs’ objections to the Magistrate Judge’s order on CCTV spoliation, and Plaintiffs’ motion for reconsideration of the order.
On July 7, 2020, Plaintiffs initiated a maritime personal injury action against Defendant. In discovery, Defendant produced a total of eleven minutes and four seconds of relevant video footage. The video provided showed pre-incident footage and post-incident footage. The video also showed the elevator doors closing abruptly multiple times before Plaintiffs’ incident.
Plaintiffs filed a motion for sanctions pursuant to Rule 37(e) arguing that Defendants failed to preserve sufficient footage from before and after the incident. The Magistrate Judge denied Plaintiffs’ motion because: (1) Defendant did not have a duty to preserve additional footage in anticipation of litigation; and (2) the additional footage was not lost because Defendant failed to take reasonable steps to preserve it.
Plaintiffs contended that Defendant had a legal duty to preserve enough video footage to establish the dangerous condition, and that the Defendant preserved footage that was not sufficient to establish constructive notice.
The Federal Rules of Civil Procedure 72(a) states: “When a pretrial matter not dispositive of a party’s claim or defense is referred to a magistrate judge to hear and decide, the magistrate judge must promptly conduct the required proceedings and, when appropriate, issue a written order stating the decision . . . The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”
A finding is clearly erroneous when “although there is evidence to support it, the reviewing Court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.”
First, the Court found that Plaintiffs’ argument that Chiverton v. World Fresh Mkt., LLC, 69 V.I. 129 (V.I. Super. 2017) was applicable was not persuasive. The Court in Chiverton held that the Defendant had a duty to preserve sufficient video footage to establish a constructive notice and that sixty-two seconds of pre-incident footage was insufficient to establish constructive notice. In this case, Defendant provided a video longer than eleven minutes, which included eight minutes and twenty-eight seconds of pre-incident footage.
Further, although Florida courts have determined that ten to fifteen minutes of pre-incident footage are sufficient to establish notice, none of the cases Plaintiffs relied on determined that the eight minutes and twenty-eight seconds Defendant provided in the current case were insufficient to establish constructive notice.
Moreover, as the Court noted, courts have not established a minimum temporal threshold to establish constructive notice, and therefore the Magistrate Judge’s order on the matter was not incorrect, and Defendant did not have a legal duty to preserve more footage.
Plaintiffs also argued that the Magistrate Judge’s analysis that Defendant did take reasonable steps to preserve pre-incident footage was mistaken because the Magistrate Judge relied on Reed, 2021 WL 3557747. Plaintiffs argued that the instant case is more analogous to the Samuel and Chiverton cases cited in Reed, because like defendant in Samuel, Defendant in the instant case failed to preserve sufficient pre-incident footage and therefore did not take reasonable steps to preserve necessary footage.
The Court, however, was not persuaded by Plaintiffs’ reasonableness argument because, as mentioned, prior cases do not establish that eight minutes and twenty-eight seconds of pre-incident footage is sufficient to establish constructive notice. The cases merely establish that ten minutes to fifteen minutes of pre-incident footage are sufficient.
Accordingly, the Magistrate Judge’s Order was found to be reasoned and correct and, as such, Plaintiffs’ objections were overruled and motion for reconsideration denied as moot.