Add this to the list of things to worry about on cruise ships – once they resume sailing, that is…

In Reed v. Royal Caribbean Cruises, Ltd., No. 19-24668-CIV-LENARD/O’SULLIVAN (S.D. Fla. Oct. 2, 2020), Florida Magistrate Judge John J. O’Sullivan denied the plaintiff’s Motion for Sanctions for Spoliation of Evidence and Supporting Memorandum of Law for failing to preserve video beyond the six minutes of video it preserved of an incident that happened aboard the defendant’s cruise ship that resulted in injury to the plaintiff, finding the amount of video preserved “to be sufficient”.

Case Background

The plaintiff was a cruise ship passenger onboard a vessel operated by the defendant and participated in a dance party organized by the defendant during the cruise in April 2019.  During the party, an intoxicated passenger approached the plaintiff and attempted to twirl her, causing her to fall and suffer “traumatic” injuries that included a fractured wrist which required surgery.  Following the incident, the plaintiff provided both a written statement and an oral statement to defendant staff, which the plaintiff stated the defendant obtained her permission to record, but the defendant stated in an email later that it never did record the statement.

Approximately one month after the incident, the plaintiff’s counsel sent a certified letter of representation to the defendant, requesting that it preserve any video records at least one hour prior through one hour after the incident.  On September 3, 2020, the plaintiff filed the instant motion seeking spoliation sanctions over the defendant’s failure to preserve more than approximately six minutes of the video footage of the incident and the body camera footage of the plaintiff’s oral statement concerning the incident.  On September 22, the plaintiff sent an email to the Court (and opposing counsel) providing two videos of the approximately six minutes of the CCTV footage which was preserved.

Judge’s Ruling

Judge O’Sullivan noted that “the Court must find that four requirements are met before it may grant relief under Rule 37(e): ‘(1) the information sought constitutes ESI; (2) the ESI should have been preserved in anticipation of litigation; (3) the ESI is lost because a party failed to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.’”  Stating: “The parties do not dispute that the CCTV footage constitutes ESI”, Judge O’Sullivan moved to the second requirement.

Regarding the second requirement, the plaintiff argues that “the admission of RCCL’s corporate representative [Amanda Campos] that RCCL had a policy to record at least five minutes before, and five minutes after an incident…clearly shows that RCCL knew, or at least should have known, that this minimum amount of footage was important in plaintiffs’ personal injury cases.” 

However, Judge O’Sullivan stated that “’[t]here are no hard and fast rules establishing a specific cutoff point for how many minutes of CCTV [footage] must be preserved in order to be reasonable’” and that “the Court cannot find that the defendant violated its own policy when it failed to preserve more than the approximately six minutes of CCTV footage. Based on Ms. Campos’ declaration, the undersigned finds that the defendant did not have a policy requiring it to preserve a specific amount of CCTV footage following an incident. Notably, the plaintiff has not presented any written policy to counter Ms. Campos’ declaration… Here, the defendant preserved approximately six minutes of CCTV footage. These approximate six minutes captured, ‘approximately three and a half minutes before, and two and a half minutes after’ the plaintiff’s fall…The Court has closely reviewed the CCTV footage that was preserved and finds it to be sufficient. The CCTV footage captures the lead-up and immediate aftermath of the plaintiff’s fall. It shows the plaintiff and a male passenger dancing with each other at approximately 3:10. At approximately 3:32, the male passenger spins the plaintiff and the plaintiff falls.”

As a result, Judge O’Sullivan found that the second requirement had not been met.  He also found that the third requirement of Rule 37(e) was not met either and, as a result, denied the plaintiff’s motion.

So, what do you think?  Should the court have considered the plaintiff counsel’s early request for extended preservation more seriously?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant.

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