United States District Court, W.D. New York
DECISION & ORDER
MARIAN W. PAYSON, Magistrate Judge.
Linda Riley and James Riley (collectively, the "Rileys") have commenced this action against Marriott International, Inc. ("Marriott") asserting state law claims for negligence arising from a slip and fall accident suffered by Linda Riley at a Marriott hotel in Lahaina, Hawaii on January 10, 2011. (Docket # 1-1 at 5-6). Federal jurisdiction is based upon the diversity of citizenship of the parties, 28 U.S.C. § 1441. (Docket # 1).
Pursuant to 28 U.S.C. § 636(c), the parties have consented to have a United States magistrate judge conduct all further proceedings in this case, including the entry of final judgment. (Docket # 35). Currently before the Court is the Rileys' motion for summary judgment. (Docket # 31). In the motion, the Rileys also seek sanctions for Marriott's alleged spoliation of relevant evidence. ( Id. ). For the reasons discussed below, the Rileys' motion is granted in part and denied in part.
I. Motion for Sanctions
A. Factual Background
The Rileys' claims arise from Linda Riley's slip and fall accident that occurred at Marriott's Maui Ocean Club hotel (the "Hotel") located at 100 Nohea Kai Drive, Lahaina, Hawaii. (Docket # 1-1 at 5, ¶ 4). According to Linda Riley ("Linda"), she slipped and fell on the floor of the Hotel's parking garage after exiting an elevator. (Docket # 31-1 at ¶ 4). The Rileys contend that the floor was wet from rainwater that had been permitted to pool. ( Id. at ¶¶ 4, 9). According to the Rileys, Marriott failed to take reasonable precautions to prevent her fall by removing the accumulated water, providing a non-slip surface or providing warning signs. (Docket # 31-11 at 2-4).
The Rileys maintain that Marriott had a surveillance camera that monitored and recorded the area of Linda's accident twenty-four hours a day. (Docket ## 31-11 at 9; 33-4 at 21). Robert Romero ("Romero"), the loss prevention manager at the Hotel, testified that the area of Linda's accident is recorded continuously throughout the day and the recording is stored on a hard drive. (Docket # 33-4 at 6, 8, 21). The recordings are maintained for thirty days, at which time the stored recordings are overwritten by new recordings. ( Id. at 8). According to Romero, once he is notified of a potential claim against the Hotel, he is responsible for preserving information relating to that claim. ( Id. at 10-11).
Romero testified that he reviewed the security footage from the camera monitoring the area of Linda's fall after he learned of the accident. ( Id. at 9, 11-12). According to Romero, the video showed Linda's fall, her removal from the scene in a wheelchair, and hotel employees placing wet floor signs and sweeping up the water on the floor. ( Id. at 12-14). Romero also testified that because the camera records continuously throughout the day, the recording also depicted the area of Linda's accident prior to her accident. ( Id. at 20-21). Romero turned the recording over to the Hotel's liability insurance carrier. ( Id. at 11-13).
The Rileys maintain that Marriott failed to provide them with complete relevant footage recorded on the surveillance camera. (Docket ## 31-1 at ¶ 28; 31-11 at 9). According to the Rileys, Marriott has provided only approximately seven minutes of the footage, which begins about one minute before Linda's accident and ends before she is removed from the ground and placed in a wheelchair. ( Id.; Docket # 33, Exhibit ("Ex.") E (DVD Recording of January 10, 2011, Manually Filed with the Court)). The Rileys maintain that Marriott had a duty to preserve more of the footage both prior and subsequent to Linda's accident. (Docket ## 31-1 at ¶¶ 26-35; 31-11 at 9).
The Rileys contend that footage before the accident would be important to demonstrate the condition of the floor during the time preceding the accident, allowing them to establish when the water collected on the floor and how long the water was there before Linda's accident. (Docket # 34 at ¶¶ 15-17). In addition, the footage would reveal whether hotel employees had monitored the area or observed the wet floor conditions. ( Id. at ¶¶ 13-17). For example, Robert Burger, the security supervisor at the Hotel, testified that he had walked through the area of the fall approximately forty-five minutes prior to the accident. (Docket ## 34 at ¶ 14; 33-3 at 5, 23). According to the Rileys, they are unable to meaningfully challenge his testimony because the footage that would have verified whether or not Burger had walked through the area has been destroyed. (Docket # 34 at ¶¶ 15, 24).
Similarly, the Rileys maintain that footage of the scene after the accident would also be relevant to demonstrate how much water had collected on the floor. ( Id. at ¶¶ 17-19). According to the Rileys, Romero testified that the video he viewed depicted hotel staff placing wet floor signs and removing the water from the floor after the accident. ( Id. ). The recording, however, ends just as a hotel employee is observed entering the area with a sign and a broom. (Docket # 33, Ex. E). Thus, the Rileys are unable to determine how much water was removed from the location and how long it took the hotel staff to remove it. (Docket # 34 at ¶¶ 18-19).
In addition, the Rileys contend that the Hotel had a policy of maintaining "sweep sheets" or maintenance logs. (Docket ## 31-1 at ¶ 31). In support of this contention, the Rileys have provided a Marriott document that appears to set forth standards applicable to sweep logs (the "sweep log policy"). (Docket # 31-9 at 4). The purpose of the sweep log policy is to "ensure that floor cleaning is performed as scheduled, as well as, to provide a record of work completed in the event of accident claims due to wet or littered floors." ( Id. ). The sweep log policy requires that the logs contain the following information: (1) location; (2) date; (3) time cleaning started; (4) time cleaning ended; and, (5) name of associate completing that cleaning. ( Id. ). The policy requires that sweep logs be completed daily and be maintained for three months. ( Id. ). It also requires that all public areas be vacuumed or mopped every day "or more frequently as traffic volume dictates." ( Id. ). The Rileys maintain that the sweep sheets would be relevant in determining issues of Marriott's notice of the condition of the floor, its duty to warn and its duty to correct the condition. (Docket # 34 at ¶ 23). According to the Rileys, the sweep sheets for January 2011 were destroyed by Marriott. ( Id. at ¶ 22).
Marriott opposes the motion for sanctions solely on the grounds that the Rileys have failed to demonstrate prejudice resulting from the destruction of the sweep logs and portions of the video footage. (Docket ## 33 at ¶ 43; 33-5 at 7-10). Marriott does not dispute that the sweep logs and video footage existed or that it had a duty to preserve them. ( Id. ). Nor does Marriott offer any justification for or explanation of their destruction. ( Id. ). According to Marriott, the only portion of the video that was not produced is the footage of Linda being placed in a wheelchair and removed from the scene. (Docket # 33-5 at 9). Marriott contends that this footage is not relevant to the Rileys' claim and they thus have not been prejudiced by the destruction of the footage. ( Id. ).
"Spoliation is 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." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). "The right to impose sanctions for spoliation arises from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct which abuses the judicial process.'" Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d 456, 465 (S.D.N.Y. 2010), abrogated on other grounds by, Chin v. Port Auth. of New York & New Jersey, 685 F.3d 135 (2d Cir. 2012), cert. denied, 133 S.Ct. 1724 (2013); see also Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 106-07 (2d Cir. 2002) (citing DLC Mgmt. Corp. v. Town of Hyde Park, 163 F.3d 124, 135-36 (2d Cir. 1998)); Reilly v. NatWest Mkts. Grp. Inc., 181 F.3d 253, 267 (2d Cir. 1999) ("[w]hether exercising its inherent power or acting pursuant to Rule 37, a district court has wide discretion in sanctioning a party for discovery abuses"), cert. denied, 528 U.S. 1119 (2000).
A party bringing a spoliation motion must demonstrate that: (1) the party charged with destroying the evidence had an obligation to preserve it; (2) the records were destroyed with a "culpable state of mind"; and, (3) the destroyed evidence was relevant to the party's claim or defense. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d at 107 (citing Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 107-08 (2d Cir. 2001)); see also Arista Records LLC v. Usenet.com, Inc., 608 F.Supp.2d 409, 430 (S.D.N.Y. 2009); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 220 (S.D.N.Y. 2003).
1. Duty to Preserve
"Identifying the boundaries of the duty to preserve involves two related inquiries: when does the duty to preserve attach, and what evidence must be preserved?" Zubulake v. UBS Warburg LLC, 220 F.R.D. at 216 (emphasis in original). A party is obligated to preserve evidence when it has "notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation." Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 436 (2d Cir.), cert. denied, 534 U.S. 891 (2001); Creative Res. Grp. of New Jersey, Inc. v. Creative Res. Grp., Inc., 212 F.R.D. 94, 105 (E.D.N.Y. 2002). Once the duty to preserve has attached, a party should institute a litigation hold and "suspend its routine document and retention/destruction policy." Toussie v. Cnty. of Suffolk, 2007 WL 4565160, *7 (E.D.N.Y. 2007) (quoting Zubulake, 220 F.R.D. at 218). As discussed above, Marriott has not challenged the Rileys' contention that it had a duty to preserve the destroyed evidence. In any event, Romero testified that he was aware of his obligation to preserve evidence in the possession of the Hotel when a guest had an accident and that he became aware of Linda's accident the day after it occurred. (Docket # 33-4 at 10-11). Further, no genuine question exists that video footage depicting the scene of an accident and sweep logs reflecting maintenance performed at the scene of an accident is likely to contain relevant information. Accordingly, I easily conclude that Marriott had a duty to preserve both the sweep logs and the video footage from the day of the accident. Slovin v. Target Corp., 2013 WL 840865, *3 (S.D.N.Y. 2013) (obligation to preserve video footage of slip-and-fall accident arose at the time of the accident; "[defendant] had the duty to preserve an unedited version of the video, one that is continuous and certainly longer than two minutes, because the video would have shown the events leading up to and following [plaintiff's] accident, which might have been relevant").
"[A] finding of bad faith or intentional misconduct is not a sine qua non to sanctioning a spoliator." Reilly v. NatWest Mkts. Grp. Inc., 181 F.3d at 268. Rather, a finding of gross negligence will satisfy the "culpable state of mind" requirement, as will knowing or negligent destruction of evidence. Id .; Residential Funding Corp., 306 F.3d at 108 ("[t]he sanction of an adverse inference may be appropriate in some cases involving the negligent destruction of evidence because each party should bear the risk of its own negligence"); Zubulake, 220 F.R.D. at 220 ("a culpable state of mind' for purposes of a spoliation inference includes ordinary negligence").
When the duty to preserve arises, the failure to institute a litigation hold or suspend document destruction practices does not constitute per se gross negligence. Chin v. Port Auth. of New York & New Jersey, 685 F.3d at 162. Instead, "the better approach is to consider [the failure to adopt good preservation practices] as one factor in the determination of whether discovery sanctions should issue." Id. (internal quotation omitted) (alteration in original); see GenOn Mid-Atlantic, LLC, 282 F.R.D. 346, 357 (S.D.N.Y. 2012) (categorical approach is inappropriate because circumstances of case may warrant finding of negligence rather than gross negligence).
Here, Marriott has failed to offer any justification for its failure to preserve the evidence. Indeed, in its papers opposing the motion, Marriott failed to offer any facts concerning how or why the evidence was destroyed. During oral argument, the Court asked counsel for Marriott to explain the circumstances under which the materials were destroyed. Counsel for Marriott conveyed his belief that the sweep logs were destroyed in accordance with routine document destruction policy. He was unable to provide an explanation for the destruction of portions of the video footage.
Although facing a serious motion for sanctions with potentially significant consequences, Marriott apparently did not investigate the destruction of the relevant evidence or, if it did, explain the results of the investigation. Thus, the only information that this Court has concerning the destruction of the evidence are the assertions of Marriott's counsel made during oral argument. Even then, Marriott's counsel was unable to provide any facts concerning the circumstances under which the video footage was destroyed. The failure to provide the Court with any sworn facts from persons with knowledge of the destruction of the challenged evidence demonstrates such a lack of diligence that it suggests bad faith destruction. In any event, Marriott's failure to preserve the entire video footage relating to Linda's accident and the sweep logs for the day in question despite the Hotel's loss prevention employee's testimony that he knew that he had a duty to preserve relevant evidence constitutes, at a minimum, gross negligence. See Slovin v. Target Corp., 2013 WL 840865 at *5 (citing Zubulake, 220 F.R.D. 221 (finding gross negligence for permitting routine recycling of tapes after being " unquestionably on notice of its duty to preserve") and Doe v. Norwalk Cmty. Coll., 248 F.R.D. 372, 380 (D. Conn. 2007) (finding gross negligence where there was "no evidence that the defendants did anything to stop the routine destruction of the backup tapes after [their] obligation to preserve arose")).
3. Appropriate Sanctions
Under Rule 37 of the Federal Rules of Civil Procedure, courts have broad discretion to sanction a party for failing to produce or destroying relevant and discoverable evidence. West v. Goodyear Tire & Rubber Co., 167 F.3d at 779 (discussing court's authority to impose sanctions under Fed.R.Civ.P. 37 where party destroys evidence in violation of court order or under court's inherent power in absence of court order); Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d at 436; Residential Funding Corp., 306 F.3d 99 at 107. Available sanctions include, inter alia: (1) an adverse inference jury instruction; (2) a preclusion order; (3) an order striking all or part of the pleadings; and, (4) an order dismissing all or part of the action. Fed.R.Civ.P. 37(b)(2)(A)(i)-(vi); 37(c)(1)(c). In addition to the sanctions set forth under Rule 37(b), Rule 37(c) authorizes sanctions of attorney's fees or notice to the jury of a party's failure to provide information. Fed.R.Civ.P. 37(c)(1).
Although a finding that the moving party has been prejudiced is not a prerequisite to the imposition of sanctions, Metropolitan Opera Ass'n, Inc. v. Local 100, Hotel Emps. and Rest. Emps. Int'l Union, 212 F.R.D. 178, 229 (S.D.N.Y. 2003), adhered to on reconsideration by, 2004 WL 1943099 (S.D.N.Y. 2004), before awarding "more severe sanctions - such as dismissal, preclusion, or the imposition of an adverse inference - the court must consider... whether the innocent party has suffered prejudice as a result of the loss of [relevant] evidence.'" Williams v. New York City Transit Auth., 2011 WL 5024280, *8 (E.D.N.Y. 2011) (quoting Pension Comm. of the Univ. of Montreal Pension Plan v. Banc of Am. Sec., 685 F.Supp.2d at 467). Proof of prejudice in this context refers to evidence from which a "reasonable trier of fact could infer that the... unavailable evidence would have been of the nature alleged by the party affected by its destruction." See Residential Funding Corp., 306 F.3d at 109; Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 178 (E.D.N.Y. 2009) ("where more severe sanctions are at issue[, ]... the moving party must show that the lost information would have been favorable to it") (quoting Chan v. Triple 8 Palace, Inc., 2005 WL 1925579, *7 (S.D.N.Y. 2005). When conducting this analysis, "[c]ourts must take care to not hold the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed [or unavailable] evidence, because doing so would subvert the... purposes of the adverse inference, and would allow parties who have... destroyed evidence to profit from that destruction." Residential Funding Corp., 306 F.3d at 109 (internal quotations omitted). Where the evidence has been destroyed or lost through bad faith or "egregious" gross negligence, an inference may be drawn that the missing evidence was unfavorable to the culpable party. Orbit One Commc'ns, Inc. v. Numerex Corp., 271 F.R.D. 429, 438-39 (S.D.N.Y. 2010) (citing Residential Funding Corp., 306 F.3d at 109; other citations omitted).
I easily conclude that the Rileys have demonstrated that the destruction of the sweep logs and the video footage prejudiced them. As an initial matter, I find that Marriott's failure to explain the circumstances of the destruction of the evidence supports a finding that the evidence was destroyed through gross negligence, thus permitting an inference that the missing evidence was unfavorable to Marriott. See Slovin, 2013 WL 840865 at *6 (defendant's act of editing video footage of accident, using footage as settlement leverage and failing to explain why it decided to preserve only a 41-second clip of the accident supported finding that video footage was relevant as a matter of law; "[defendant's] behavior throughout, from the record before me, was shocking, and sanctions are appropriate").
In any event, I agree with the Rileys that the video footage both prior and subsequent to Linda's accident would be relevant to demonstrate the conditions of the floor, how long those conditions persisted and whether Marriott employees had actual or constructive notice of the conditions. Similarly, the sweep logs could demonstrate whether and when Marriott employees had been in the vicinity of the accident on the day in question, which would also be relevant to the issues of actual or constructive notice. Of course, the precise contents of the destroyed evidence will never be known to the Rileys or the Court. Under such circumstances, a finding of prejudice is warranted. Rodgers v. Rose Party Functions Corp., 2013 WL 6002375, *4 (E.D.N.Y. 2013) (video footage of plaintiff's accident could have shown the condition of the stairs, whether they were wet and whether defendant's employees had cleaned them or observed their condition; "bearing in mind the concern expressed by the Second Circuit... that plaintiffs not be held to too high a burden of proof, I conclude that the video recording destroyed by defendants would have been relevant, and that sanctions are therefore warranted"); Essenter v. Cumberland Farms, Inc., 2011 WL 124505, *7 (N.D.N.Y. 2011) (plaintiff provided evidence of weather conditions on the day of the accident that tended to show that the video footage would have been favorable; "it is clear that a video showing the time before, during, and after an incident is relevant to determine what actually happened at the moment the injury occurred"); Disler v. Target Corp., 2005 WL 2127813, *27 (E.D. Tenn. 2005) (contents of destroyed footage, ...