Sosa v. Carnival Corp.

The plaintiff was injured in on a cruise ship. She brought a motion for sanctions alleging the spoliation by Carnival Cruise of closed-circuit television video of her fall. The issues presented to the court was whether the court should issue an order or a report and recommendation, whether the CCTV footage is ESI covered by Rule 37 and whether Carnival failed to take reasonable steps to preserve it, and whether the lost footage cannot be restored or replaced through additional discovery, and whether prejudice requires the loss of “crucial” evidence. The court also addressed whether the issue of intent to deprive should be determined by the court or a jury.

The court recited a complicated factual background regarding the “lost” CCTV footage. The footage was originally viewed by Carnival’s security team which reported the video did not show the actual slip and fall. When the video was requested in discovery, Carnival could not locate the video and surmised it was lost as the video was transferred from one storage location to another. A critical witness deposition was not taken because the witness had been transferred to India. The parties contested the reasons for the transfer.

The court, as a preliminary matter, determined that the court could issue an order if sanctions were denied, rather than a report and recommendation. Next, the court determined that Rule 37(e), not the court’s inherent authority, governed the issue of spoliation sanctions for the loss of ESI.

The court next discussed whether CCTV footage is ESI. The court found that CCTV footage is ESI because the question was whether Carnival should have stopped the automatic overwriting process of the CCTV footage. Thus, the court’s inherent authority is not triggered.

The court next addressed whether Carnival took reasonable steps to preserve the CCTV video. The court determined that the plaintiff had the burden to establish that Carnival did not take reasonable steps to produce the CCTV. The court determined that Carnival had failed to provide any evidence beyond suggesting various hypotheticals and speculations as to what had happened to the video. The court concluded that Carnival did not take reasonable steps to preserve the CCTV footage.

The court then addressed whether the lost footage could be restored or replaced through additional discovery. The issue is not whether the footage is “crucial” to the plaintiff’s case. The court noted there is no other video and deposition answers from eyewitnesses are not an adequate substitute. Nor does Rule 37 require great prejudice, only prejudice.

The court then crafted a creative remedies solution. The plaintiff could have all the evidence about the CCTV video presented to the jury and argue that Carnival had an intent to deprive Plaintiff of the use of the video. If the jury so determined, then a presumption would be appropriate.

Alternatively, the plaintiff would be permitted to prevent Carnival witnesses from testifying about the contents of the lost video and have the court advised the jury that the video was once available but no longer.

Plaintiff’s Motion for Sanctions Due to Spolialtion of Evidence

Defendant’s Response in Oppositon to Plaintiff’s Motion for Spoliation Sanctions

Order on Plaintiff’s Spoliation Sanctins Motion