AIDA M. DELGADO-COLÓN, United States District Judge
There are several pending matters before the Court in this case. Defendant Wal-Mart of Puerto Rico, Inc., d/b/a Sams Club Humacao (Wal-Mart) filed a motion for summary judgment. ECF No. 37 . Plaintiff Lainey Ann Rivera (plaintiff) filed a response in opposition. ECF No. 48 . Wal-Mart filed a surreply after seeking leave of the Court. ECF No. 55 . Plaintiff also filed a motion for sanctions due to spoliation of evidence simultaneously with her opposition to summary judgment. ECF No. 47 . Wal-Mart opposed the motion for sanctions. ECF No. 54 .
Prior to ruling on summary judgment, the Court referred the spoliation matter to a Magistrate Judge for mediation, evaluation, and adjudication as deemed appropriate. ECF No. 57 . The Court subsequently referred the summary judgment motion for a report and recommendation (R&R) based on the interrelationship of issues between the two motions. ECF No. 68 . The Magistrates R&R recommends granting summary judgment in favor of Wal-Mart, which would moot plaintiffs spoliation motion. ECF No. 69 . Plaintiff timely objected to the R&R. ECF No. 70 . Wal-Mart filed a response to plaintiffs objection. ECF No. 71 .
For the reasons explained below, the Court hereby REJECTS the R&R. ECF No. 69 . The motion for summary judgment at ECF No. 37 is DENIED and the motion for sanctions based on spoliation of evidence at ECF No. 47 is GRANTED .
I. Background
The question at the heart of this negligence case is how plaintiffs father, Roberto Eric Rivera-Mojica (Roberto ), fell while visiting a Sams Club warehouse in Humacao, Puerto Rico. Upon returning home from Sams Club, Roberto experienced several seizures and lost consciousness. Two days later, he died in a hospital from a cerebral hemorrhage. ECF No. 1.
A. Undisputed Facts
1. Wal-Mart of Puerto Rico, Inc. is a domestic corporation that does business as Sams Club in Puerto Rico, which is one of the several business formats that Wal-Mart uses in Puerto Rico. ECF Nos. 37-9 at 1; 48 at 6.
2. Wal-Mart owns and operates the Sams Club warehouses in Puerto Rico, including the one located at the Humacao Plaza in Humacao. ECF Nos. 37-9 at 2; 48 at 6.
3. Roberto and his mother, plaintiffs grandmother, Ada Mojica (Ada), visited the Sams Club in Humacao Plaza on Tuesday, July 14, 2015, arriving around 2:00 p.m. ECF Nos. 37-9 at 11; 48 at 6. Plaintiff was not in Puerto Rico this day. ECF Nos. 37-9 at 7; 48 at 10.
4. Roberto drove Ada and himself to Sams Club. ECF No. 48 at 6.
5. Roberto and Ada were at Sams Club for about two hours. Id.
6. At Robertos behest, he and Ada looked at a patio swing on display in the front of the store, near the cash registers. That day was the first time Ada saw this swing. ECF Nos. 37-9 at 2; 48 at 6.
7. Roberto sat on the swing while Ada used the restroom. ECF Nos. 37-9 at 2-3; 48 at 6.
8. Ada did not notice anything abnormal about the swing, but she was not paying attention to whether there was anything abnormal about the swing. ECF Nos. 37-9 at 3; 48 at 6.
9. When Ada returned from the restroom, approximately five minutes later, Roberto was lying on the floor, face up, underneath the swing, with the seat of the swing hovering above his chest. Ada did not see Robertos fall. ECF Nos. 37-9 at 3; 48 at 7.
10. Yojaris Cruz-Castro (Supervisor) was a Front-End Supervisor at Sams Club working on the day of the incident. She did not see Robertos fall, but she ran to attend to him after she heard people yelling for her. ECF Nos. 37-9 at 5-6; 48 at 8-9.
11. Supervisor saw Roberto lying on the floor under the swing. She called a manager for assistance. ECF Nos. 37-9 at 6; 48 at 9.
12. Cashiers and customers moved the swing off of Roberto. Supervisor helped him to a chair and gave him rubbing alcohol to aid with his dizziness. ECF Nos. 37-9 at 6; 48 at 9.
13. Luis Robles (Assistant Manager) was an Assistant Store Manager for Sams Club working that day and he arrived at the scene of the incident in response to Supervisors call. ECF Nos. 37-9 at 5; 48 at 9.
14. Supervisor was not present when Assistant Manager spoke with Roberto and Ada. ECF Nos. 37-9 at 6; 48 at 9-10.
15. An incident report was not completed while Roberto and Ada were at the store. ECF Nos. 37-9 at 6; 48 at 10.
16. Ada did not talk about the condition of the swing to any of the people that she spoke to at Sams Club on the day of the incident. ECF Nos. 37-9 at 7; 48 at 10.
17. Ada paid for their items at Sams Club and the two left the store. Ada drove the car and stopped at a nearby Wal-Mart to conduct a brief errand, during which time Roberto stayed in the car. After that, they went home. ECF Nos. 37-9 at 4; 48 at 8.
18. Wal-Mart does not contest that Ada filed an incident report with the police on July 19, 2015. The report described a fall at Sams Club. ECF Nos. 37-9; 42-1 .
19. Wal-Mart does not contest that Ada filed an incident report at Wal-Mart within two weeks of Robertos fall. ECF Nos. 37-9 at 7; 47 at 8; 54 at 5.
20. Wal-Mart does not contest plaintiffs assertion that the Sams Club anticipated customers would engage with the display swing but had not placed any signs around the swing despite its obvious potential for injury. ECF Nos. 1; 47-3 at 21.
B. Disputed Facts
The parties dispute whether Supervisor or Assistant Manager ever offered Roberto an ambulance or an opportunity to complete a written statement ECF No. 48 at 10. They also dispute what visible signs of injury Roberto exhibited after his fall. In its proposed uncontested facts, Wal-Mart focused on Adas statement that she did not notice any visible injuries when she returned from the restroom. Plaintiff opposed, noting that Ada described Roberto as complaining of leg pain immediately after the incident, of needing to hold onto the shopping cart for walking-assistance, and of feeling too unwell to exit the vehicle during their brief errand before returning home. Plaintiff also noted that Supervisor described Roberto as limping, dizzy, and talking slowly after the fall, while both Supervisor and Assistant Manager observed a red welt on the back of Robertos head after the fall. ECF Nos. 37-4 at 13, 18; 47-1 at 19; 48 at 7-8. The Humacao Sams Club Store Manager, José I. Ayerdi-Santiago (Manager) recalled that Supervisor said Roberto was clutching his belly after his fall. ECF No. 48-1 at 4.
Wal-Mart also omits the completion of this narrative from its statement of uncontested facts. According to plaintiff, Roberto returned home and experienced severe pain in his left leg and hip, lightheadedness, disorientation, and several seizures before losing consciousness. ECF No. 1 at 4-5. An ambulance transported Roberto from his home to Ryder Memorial Hospital.
Id. at 5. The providers at Ryder Memorial Hospital transferred him to Puerto Rico Medical Center, where, two days after his fall, doctors diagnosed Roberto as brain dead and removed him from life support. Id. Upon learning of Robertos death, Supervisor and Manager visited Robertos family to pay their condolences and offer to help with the funeral, during which time Ada told them that the swing caused Robertos fall while another family member noted that Roberto had difficulty walking. ECF Nos. 48-1 at 9-11; 48-4 at 8, 12. Sometime after the incident, Ada returned to Sams Club to complete an incident report. ECF Nos. 37-5 at 8; 48-7 at 10.
C. Procedural Background
Plaintiff filed the underlying complaint based on diversity jurisdiction, seeking damages for Wal-Marts negligence on the theory that a defective swing caused Robertos fall and subsequent death. ECF No. 1 . Specifically, plaintiffs complaint alleges that co-defendants failed to exercise reasonable care to consider the foreseeable consequences of having a faulty manufactured or assembled swing exposed for use by customers, and/or encouraging its use, while having it [on] display without further warnings. Id. at 6. Wal-Mart answered the complaint and subsequently moved for summary judgment based on its assertion that plaintiff lacks admissible, non-hearsay evidence to prove the causation element of her negligence claim. ECF No. 37-1 at 21-23. Wal-Mart relies on the lack of eyewitness testimony, surveillance footage, and evidence establishing that the swing was defective or defectively assembled. Id. Plaintiff opposed the motion for summary judgment and concurrently filed a separate motion for sanctions due to spoliation of evidence, arguing that Wal-Mart intentionally destroyed relevant surveillance footage, the swing, and any documents it created in relation to an internal investigation of the incident. ECF Nos. 48 at 4; 47 .
II. Report & Recommendation Standard of Review
Magistrate judges are granted authority to make recommendations on summary judgment motions, but the ultimate resolution of dispositive motions remains at the discretion of the presiding judge. See Fed. R. Civ. P. 72 ; accord Loc. Civ. R. 72(a)(4). A party may object to the magistrates findings and recommendations within a specified timeframe. Fed. R. Civ. P. 72(b)(2). The presiding district judge must review de novo any part of the magistrate judges disposition that has been properly objected to. Id. R. 72(b)(3). In conducting this review, the district judge is free to accept, reject, or modify the recommended disposition. Id.
Plaintiff timely objected to the R&R, specifically challenging its findings of facts and the disposition of the intertwined summary judgment and spoliation issues, as well as the R&Rs conclusion that plaintiff lacks admissible evidence in support of causation. ECF No. 70 .
III. Summary Judgment Standard of Review
Summary judgment is appropriate if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). A genuine issue is one that could be resolved in favor of either party, and a material fact is one that has the potential of affecting the outcome of the case.
Calero-Cerezo v. United States Dept. of Justice , 355 F.3d 6, 19 (1st Cir. 2004). Facts not properly controverted in accordance with Local Civil Rule 56 shall be deemed admitted. See Puerto Rico Am. Ins. Co. v. Rivera-Vázquez , 603 F.3d 125, 130-31 (1st Cir. 2010). All reasonable inferences are drawn in favor of the non-moving party. Collazo-Rosado v. University of P.R. , 765 F.3d 86, 92 (1st Cir. 2014). [T]he burden on the moving party may be discharged by showing-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving partys case. Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotation marks omitted).
[T]o survive summary judgment a plaintiff is not required to rely only on uncontradicted evidence. Calero-Cerezo , 355 F.3d at 19 (emphasis omitted). When the record as a whole presents many inconsistencies, displaying perspectives that favor in some lights the defendants and in others the plaintiff, and plaintiffs evidence is both cognizable and sufficiently strong to support a verdict in her favor, the factfinder must be allowed to determine which version of the facts is most compelling. Id. It is black-letter law that hearsay evidence cannot be considered on summary judgment. Dávila v. Corporación De P.R. Para La Difusión Pública , 498 F.3d 9, 17 (1st Cir. 2007).
IV. Summary Judgment Analysis
Plaintiffs complaint asserts a single claim for recovery based on Wal-Marts alleged negligence. ECF No. 1 . It is a black-letter rule that state substantive law supplies the rules of decision for a federal court sitting in diversity jurisdiction. Lexington Ins. Co. v. General Accident Ins. Co. of Am., 338 F.3d 42, 46 (1st Cir. 2003).
Under Article 1802 of Puerto Ricos Civil Code, recovery of tort damages requires a showing that the defendant by an act or omission cause[d] damage to another through fault or negligence. P.R. Laws Ann. tit. 31, § 5141. In order to establish negligence under Puerto Rico law, a party must show: (1) the presence of a physical or emotional damage; (2) that the damage arose as a consequence of a negligent or intentional act or omission of the defendant; and (3) that there is a causal nexus between the damage suffered and said act or omission. Torres v. KMart Corp. , 233 F.Supp.2d 273, 277-78 (D.P.R. 2002) (citation omitted). [N]egligence for omission arises for not anticipating such damage that a reasonable, prudent person would rationally foresee if the duty was not fulfilled. Id. at 278.
Wal-Mart contends that plaintiff lacks any admissible evidence to prove that a defective swing caused Robertos fall because (1) no one witnessed Robertos fall, (2) there is no surveillance footage of the fall, and (3) there is no evidence that the swing was defective. ECF No. 37-1 at 8, 21. Wal-Mart argues that the only evidence that the swing was defective, thereby causing Robertos fall is Adas hearsay deposition testimony that Roberto told her that a problem with the swing caused his fall and plaintiffs double hearsay testimony of the same. Similarly, Wal-Mart asserts that plaintiff may not rely on a hospital file that states the swing caused Robertos fall because that statement also constitutes double hearsay; Roberto was not conscious at the hospital. Id. at 22.
Wal-Marts hearsay argument, which constitutes the crux of its motion for summary judgment, is conclusory and lacking in analysis under the applicable hearsay rules and exceptions. The Court is not convinced, based on the undisputed evidence, as well as the evidence Wal-Mart failed to specifically controvert, that Robertos statements to Ada after his fall necessarily constitute inadmissible hearsay. The Magistrate Judge also did not consider the applicable hearsay exceptions in the R&R. Based on the record available, the Court finds that Robertos statements to Ada would be admissible under either the present sense impression or excited utterance hearsay exceptions. See Fed. R. Evid. 803(1)-(2).
A present sense impression is [a] statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Id. R. 803(1). The underlying theory of [the present sense impression exception] is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation, and, when the witness is not the declarant, [s]he may be examined as to the circumstances as an aid in evaluating the statement. Id. (Advisory Committee Notes). In most situations, the declarant and the witness experience [the event or condition] under the same or nearly the same conditions; [t]he declarant makes a statement describing the event at or very near the time of the observation and that statement is heard by the witness. United States v. McElroy , 587 F.3d 73, 86 (1st Cir. 2009). There is no question that the declarant has firsthand knowledge of the occurrence and that the witness also experienced, at least to some degree, the situation under which the statement was made. Id. Moreover, because precise contemporaneity is not possible in many, if not most, instances, a slight lapse is allowable between the timing of the event and the statement. Fed. R. Evid. 803(1) (Advisory Committee Notes). See Kenney v. Floyd , 700 F.3d 604, 609 (1st Cir. 2012) (holding that one month after an incident is too removed in time to qualify as a present sense impression). [T]he appropriate inquiry is whether sufficient time elapsed to have permitted reflective thought. 2 McCormick On Evid. § 271 (7th ed.).
Similarly, the excited-utterance exception involves statements relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Fed. R. Evid. 803(2). The theory behind this exception is simply that circumstances may produce a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. Spontaneity is the key factor.... Id. (Advisory Committee Notes) (citation omitted). There is also a time element under this exception, wherein the standard of measurement is the duration of the state of excitement. Id. The time lapse in most excited utterance cases is usually a few seconds or a few minutes and, [i]n extreme circumstances, [courts] have accepted delay of a few hours. United States v. Taveras , 380 F.3d 532, 537 (1st Cir. 2004) (citations omitted) (rejecting an overnight delay as too long). Circumstances indicating a lack of spontaneity, which may be related to the self-serving character of the statement, are accordingly extremely important to the determination of admissibility.
2 McCormick On Evid. § 270 (7th ed.). There is also no requirement that the declarant of an excited utterance be available to testify, because the underlying rationale for the exception also suggests that testimony on the stand, given at a time when the powers of reflection and fabrication are operative, is no more (and perhaps less) reliable than the out-of-court statement. Id. § 272. Courts have also increasingly upheld admission of excited utterances where it constitutes the only evidence of the underlying startling event. Fed. R. Evid. 803(2) (Advisory Committee Notes) (collecting cases).
Ada stated in her deposition that Roberto said, I swung and I was alright, I dont know why the back immediately after I sw[u]ng for the first time the back threw me to the floor, ECF No. 37-3 at 5; that the swing had thrown him, ECF No. 37-2 at 20; that he said he fell like a breadfruit, and that the back rest threw him backwards, ECF No. 48-3 at 7-8. Robertos fall certainly constitutes a startling event of which he had firsthand knowledge and about which these statements pertain. See United States v. Bailey , 834 F.2d 218, 228 (1st Cir. 1987) (holding that a neighbors attempted bribe constituted a startling event under the excited utterance framework because [c]ommon sense suggests that a juror would be startled by it). The spontaneity and contemporaneity of these statements is also supported by the record currently available to the Court. The parties do not dispute that Roberto fell while Ada was in the restroom for a few minutes and that Ada came to his side immediately after exiting the restroom. Ada testified that Roberto made some, if not all, of the statements about the swing moments after his fall and while he remained splayed under the swing on the ground. And, even if Roberto made those statements sometime after he turned upright, the parties dispute how dazed Roberto remained after the incident, before he lost consciousness. In other words, it is disputed as to whether, at any time after Robertos fall and before he fell unconscious, the excitement of the incident sufficiently faded to allow him to engage in reflective thought, thereby undermining the applicability of these hearsay exceptions. When he made these statements would still be relevant and from the uncontroverted deposition testimony available, it appears he made them while he laid on the ground under the swing or shortly thereafter. Further, it appears that Roberto remained in distress while on the drive home from Sams Club and during the brief errand at Wal-Mart. Thus, it is likely that he never had an opportunity to engage in reflective thought after the incident, rendering all of his statements to Ada about the cause of his fall admissible as excited utterances or present sense impressions. ECF No. 48-3 at 13-16.
Wal-Mart is certainly welcome to object to the admissibility of these statements at trial and upon presentation of further information about the circumstances surrounding these statements. However, it has failed to properly controvert the evidence supporting these statements admissibility at this stage in the proceedings. See Puerto Rico Am. Ins. , 603 F.3d at 130-31.
Wal-Mart also argues that plaintiff cannot prove causation or damages because the undisputed evidence shows that Roberto was uninjured from his fall, behaved normally afterwards, declined Supervisor and Assistant Managers offers for an ambulance, and chose not to complete an incident report. ECF No. 37-1 at 8-9. Wal-Mart also attacks Adas credibility as to the role the swings construction or assembly played in Robertos fall by pointing out alleged inconsistencies in her actions after the incident. Id. at 9-10.
These arguments are also unavailing. The strength of plaintiffs case is not properly adjudicated at summary judgment when there are disputed issues of material fact in favor of plaintiffs case. Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions and not properly before the court on summary judgment. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; accord Carlson v. University of New England , 899 F.3d 36, 43 (1st Cir. 2018). The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor. Anderson, 477 U.S. at 255, 106 S.Ct. 2505.
Plaintiff properly disputed these facts. Plaintiff explicitly asserted that no Sams Club employee offered to call an ambulance or complete an incident report. She disputes the extent Ada and Roberto discussed the swings role in the incident with the employees that day and to what extent Roberto appeared injured after the fall. In fact, Wal-Marts employees testified in their depositions that they saw a welt on Robertos head after his fall and Supervisor testified that she treated him for dizziness after his fall.
Last, Wal-Mart argues that Robertos fall was caused by his compromised health condition, not a defect with the swing. Wal-Mart includes in its proposed statement of uncontested facts a cornucopia of health issues that Roberto allegedly had, including HIV, to suggest that these conditions must have caused his fall/death. This perfunctory assertion is both controverted by the record and constitutes an unsupported inference of a cause of death that this Court is neither willing nor medically qualified to make. ECF Nos. 37-7; 37-8; 48 at 12-13. This is simply Wal-Marts theory of the case, constituting neither evidence nor law. Moreover, Ada testified in her deposition that, despite living with HIV for approximately twenty-nine years, Roberto led an active and normal life; he attended church twice a week and enjoyed shopping, walking, going out, and doing chores around the house. ECF No. 37-2 at 9, 15. That a person has chronic health issues, without more, does not negate plaintiffs claim that Roberto fell when the backrest of the swung threw [him] backwards like a breadfruit. Plaintiff also points out that Wal-Mart supports this medical condition argument with seemingly unrelated emergency room records from eight years ago, as if they presented a self-explanatory explanation for Robertos death, while Wal-Mart failed to address the forensic report identifying cranial cerebral trauma as Robertos cause of death. ECF No. 48 at 12-13.
Additionally, as discussed below, see supra § IV, there is sufficient evidence in the record for a jury to infer that Wal-Mart acted in bad faith by failing to disclose/retain investigation documents, the swing, and all relevant surveillance footage from the day of Robertos fall. This reasonable inference of bad faith suggests that the evidence Wal-Mart failed to preserve was unfavorable to Wal-Mart. See Testa v. Wal-Mart Stores, Inc. , 144 F.3d 173, 177 (1st Cir. 1998) ; see also Schreane v. Beemon , 575 Fed.Appx. 486, 490 (5th Cir. 2014) (per curiam) (noting that the availability of [a]n adverse inference of spoliation can be relevant on summary judgment). All reasonable inferences must be drawn in favor of the non-moving party. Plaintiff has alleged sufficient admissible evidence to substantiate her claim, and there are material disputes of fact regarding much of that evidence. Thus, Wal-Marts motion for summary judgment is DENIED . ECF No. 37 .
V. Spoliation Motion
In both her opposition to summary judgment and in a separate, simultaneously-filed motion, plaintiff argues that Wal-Mart intentionally failed to preserve the surveillance footage relevant to the incident, the swing, and documents of its internal investigation of the incident. Plaintiff asserts that Wal-Mart seeks to benefit from its spoliation by moving for summary judgment based on her lack of this evidence. Plaintiff requests that the Court exercise its discretion to impose sanctions against Wal-Mart, including by permitting an adverse inference jury instruction and any other remedy the Court deems appropriate. ECF No. 47 at 16-17.
A. Spoliation Standard
Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for anothers use as evidence in pending or reasonably foreseeable litigation. Vélez v. Marriott PR Mgmt., Inc. , 590 F. Supp. 2d 235, 258 (D.P.R. 2008) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001) ). The party that puts forth the spoliation argument must proffer evidence sufficient to permit the trier to find that the target knew of (a) the claim (that is, the litigation or the potential for litigation), and (b) the [evidences] potential relevance to that claim. Testa , 144 F.3d at 177. The proponent of a spoliation claim need not offer direct evidence of a coverup to set the stage for the adverse inference. Circumstantial evidence will suffice. Blinzler v. Marriott Intl, Inc. , 81 F.3d 1148, 1159 (1st Cir. 1996). The critical aspect of the notice inquiry depends on institutional notice-the aggregate knowledge possessed by a party and its agents, servants, and employees. Testa , 144 F.3d at 178. See Micron Tech., Inc. v. Rambus Inc. , 645 F.3d 1311, 1320 (Fed. Cir. 2011) (This is an objective standard, asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.).
Upon a finding of spoliation, a district court has broad discretion in choosing an appropriate sanction. Sharp v. Hylas Yachts, LLC , 872 F.3d 31, 42 (1st Cir. 2017) (citation and internal quotation marks omitted). Sanctions for spoliation serve a prophylactic and punitive purpose. Nation-Wide Check Corp., Inc. v. Forest Hills Distrib., Inc. , 692 F.2d 214, 218 (1st Cir. 1982) (explaining that this rationale has a long history, citing Armory v. Delamirie, 1 Stra. 505, 93 Eng.Rep. 664 (K.B. 1722) ). [T]he applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine. Sharp , 872 F.3d at 42 (citation and internal quotation marks omitted). One available sanction is for a court to instruct the jury that it may, but need not, infer from a partys obliteration of [evidence] relevant to a litigated issue that the contents of the [evidence] were unfavorable to that party. Testa, 144 F.3d at 177 (1st Cir. 1998) ; accord Gómez v. Stop & Shop Supermarket Co. , 670 F.3d 395, 399 (1st Cir. 2012). [A]n adverse inference instruction may be allowed when a party fails to produce [evidence] that exists or should exist and is within its control.
Astro-Med, Inc. v. Nihon Kohden Am., Inc. , 591 F.3d 1, 20 (1st Cir. 2009). Although the adverse inference instruction usually makes sense only where the evidence permits a finding of bad faith destruction, a showing of bad faith is not necessarily a requirement. United States v. Laurent , 607 F.3d 895, 902-03 (1st Cir. 2010). Rather, above all else an instruction must make sense in the context of the evidence. Id. at 903.
B. Spoliation Analysis
1. Notice
Plaintiff identifies three ways that Wal-Mart received notice of Robertos fall and subsequent death to sufficiently put the company on notice of pending or reasonably foreseeable litigation: (1) when Sams Club employees assisted Roberto and observed his injuries moments after he fell; (2) when Sams Club management visited Robertos family days after his death to pay their respects and offer to help with the funeral; and (3) when Ada returned to Sams Club shortly after Robertos death to complete an incident report. ECF No. 47 at 8. See Vélez , 590 F. Supp. 2d at 258.
In opposition, Wal-Mart asserts that it was never put on notice because it did not receive a document retention letter from plaintiff or her counsel, noting that plaintiff was not involved in the incident until she filed the instant complaint. ECF No. 54 at 9. Wal-Mart also dismisses Adas return to Sams Club to complete an incident report as something she needed to complete for insurance purposes. Id. at 5. Last, Wal-Mart indicates that the employee responsible for the decommissioning of the swing around August 8 or 9, 2015 was unaware of Robertos accident, thereby absolving Wal-Mart of the responsibility to preserve the swing due to that employees lack of notice. ECF No. 48-1 at 14-15.
The Court finds that sufficient evidence supports plaintiffs assertion that Wal-Mart was put on institutional notice of pending or reasonably foreseeable litigation, within time to preserve the evidence at issue. The Court finds particularly convincing plaintiffs argument that Wal-Mart received the relevant notice when Sams Club management learned of Robertos death and offered to help with the funeral. See Testa , 144 F.3d at 178. It takes no leap of the imagination to consider litigation reasonably foreseeable upon learning that a patron died after sitting on, falling from, and landing underneath, a patio swing in one of Wal-Marts stores. Manager stated in his deposition, As a general manager, it was an incident that occurred in my club, and I thought that it was the right thing to go to them, and place myself at their disposal, if I could help them in any way. ECF No. 47-1 at 7. He recalled Ada telling him while he visited her home that the swing was defective and had caused Robertos fall. ECF No. 48-1 at 11. And, although Manager denied being able to establish a link of [Robertos] death with the fall[ ] ... at that time, he nonetheless recognized that the precipitating cause of Robertos death may have been the fall that occurred in his store. ECF Nos. 47-1 at 7, 18; 48-1 at 11. Whether, during Managers visit with Robertos family, the family spelled out their interest in pursuing litigation in unequivocal terms, while mourning their sudden and tragic loss, is not the standard for notice under this framework. Similarly, Adas intention in completing an incident report-for insurance purposes-after Robertos death hardly refutes plaintiffs assertion that it put Wal-Mart on notice under the spoliation standard. And, Wal-Marts attempt to blame the swings destruction on one employees purported lack of knowledge does not negate its institutional notice to ensure the swing is preserved from, i.e., an unaware employees routine destruction of the swing. See Testa, 144 F.3d at 177-78 (rejecting Wal-Marts defense that the employee responsible for the destruction of evidence was unaware of the plaintiffs injury as insufficient to dictate the resolution of the dispute). Wal-Marts retention-letter argument also rings hollow. It need not anticipate who in Robertos surviving family may file a lawsuit to be held to having notice of reasonably foreseeable litigation. Wal-Mart knew of Adas involvement at the scene of Robertos fall and her relationship to Roberto. Thus, from day one, it could have anticipated Ada filing a lawsuit, which, as it turns out, she did file in the Puerto Rico Court of First Instance in Humacao. See ECF No. 48-1 at 1.
2. Relevance
Wal-Mart raises several notable challenges to the relevance of the surveillance footage, swing, and investigation reports. The Court addresses each argument in turn.
a. The Surveillance Footage
Wal-Mart argues that it never possessed the surveillance footage at issue and therefore cannot be sanctioned for destroying evidence that did not exist. Wal-Mart explains that, there was no camera view of the area where Robertos fall occurred. ECF Nos. 48-1 at 4, 8, 10; 54 at 8. Plaintiff asserts that Wal-Marts explanation fails to account for footage from any other security cameras in the store that may have captured relevant evidence, e.g., of Robertos gait before and after his fall. ECF No. 48-1 at 5.
Manager explained during his deposition that he asked an employee by the name of Josué to investigate the surveillance footage shortly after Robertos fall. Manager stated that Josué concluded there was no footage of the accident because there were no cameras pointed in the direction of the swing. ECF No. 48-1 at 4-7. Manager described the store as having many surveillance cameras, some of which swivel, but he did not specify what type of cameras were installed in the area of the swing, how many, or where they were pointed except there was no view towards that area. Id. He noted that the swing was located in the seasonal area which was in front of the cash registers and near the entrance, and that the store maintains fixed cameras at the registers and some swiveling cameras in the parking area. Id. at 7. Manager also stated that he did not specifically ask Josué to look for footage depicting Robertos gait even though Manager knew that Roberto may have been limping and clutching his stomach after the fall. ECF Nos. 47-1 at 15; 48-1 at 4-5. He did not ask Josué to preserve any of the footage from the day of the fall because Josué said there was no camera view. ECF No. 48-1 at 11. He also suggested that the footage could have been lost in the process of Josué leaving and that he was unsure if anyone completed Josues investigation of the surveillance footage upon Josués departure. Id. at 6, 11. Additionally, Manager testified that there is a double file kept of the recordings, with one copy retained in the store and the other at CMI, but that he had no explanation as to why there was no footage, a backup copy or original copy, retained in this case in any location. Id. at 7-9. Manager also did not personally view or reexamine any footage, despite having access to the system. Id. at 4-5, 9. He explained that although the footage was now no longer available in the store, he could access a copy from CMI by submitting a request. Id. at 5-6. Later, he testified that there was no way he could access any footage. Id. at 7-9.
A factfinder could reasonably conclude that no footage of Robertos fall existed but that other footage relevant to plaintiffs claim, i.e., depicting Robertos injuries (or lack thereof), did exist and Wal-Mart failed to look for it or preserve it. Whether this failure was negligent versus intentional, remains to be seen. A jury could deem Wal-Marts inquiry sufficient and that it erased the remainder of the footage in accordance with its business practices. Managers testimony is, however, conflicting and unclear, leaving room for a fact finder to infer obfuscation and bad faith. See Blinzler , 81 F.3d at 1159 (When the evidence indicates that a party is aware of circumstances that are likely to give rise to future litigation and yet destroys potentially relevant records without particularized inquiry, a factfinder may reasonably infer that the party probably did so because the records would harm its case.).
b. The Swing
Wal-Mart argues that the swing cannot form the basis of plaintiffs spoliation claim because the swings relevance to Robertos fall is speculative; she does not know what caused the accident. ECF No. 54 at 1-2. According to Wal-Mart, plaintiff needs to successfully prove negligence before she is entitled to a spoliation argument. Id. at 2. Wal-Mart also suggests that because its inspection of the swing showed no signs of defect, the swing is not relevant to plaintiffs claim.
Wal-Marts interpretation of the spoliation rule swallows the purpose of the rule. Plaintiff must provide evidence sufficient for a fact finder to determine (1) notice of reasonably foreseeable litigation and (2) the spoiled evidences potential relevance to the claim. Plaintiff has a claim, as sustained above, and Wal-Marts attempt to gut the claim by relying on its failures to preserve is unpersuasive. Likewise, Wal-Marts assurances that the swing is not relevant because its employee(s) inspected it and found nothing wrong, is putting the cart before the horse. The relevance of the swing to plaintiffs claim is not contingent on Wal-Marts theory of the case or its self-serving assertions that the swing was fine.
Moreover, Wal-Marts inspection of the swing hardly inspires confidence, seemingly amounting to a proverbial kicking of its tires. Manager testified in his deposition that he inspected the swing around July 17, 2015, stating, I did not have the assembly instructions. I just checked to see if it was solid, and that it was in perfect condition. ECF No. 48-1 at 11, 13, 16. Manager also did not know who originally assembled the swing, as that is information Sams Club does not retain. ECF Nos. 48-1 at 13; 48-7 at 19-20. He also clarified that he has no specific skills in swing construction. ECF No. 47-1 at 22-23. Manager testified, There was no visible defect. It did not feel weird, there [were] no broken pieces of wood, the structure was completely functional and whole.
Id. at 23. Manager stated he was accompanied by Assistant Manager, an individual from Asset Protection, and Supervisor and that they concluded that the swing had worn paint and no other problems. ECF No. 48-7 at 16. Somewhat confusingly, he also testified that he reviewed the swing on his own. ECF No. 47-1 at 22-23. It is unclear if Manager inspected the swing once or twice or simply does not have a strong memory of it either way.
The swings relevance is glaringly obvious. Roberto died after sitting on and falling from the swing. He allegedly told Ada, apparently the last person he spoke to before dying, that a problem with the swing caused him to fall. Ada communicated that to Wal-Mart management when they visited her house to offer their condolences and to help with Robertos funeral. Thus, the relevance of the swing and Wal-Marts notice of its relevance were communicated to Wal-Mart within days of Robertos fall (if not earlier), and with ample time for Wal-Mart to secure the swing.
Wal-Mart next asserts that its decommissioning of the swing was, at the most, negligent. Therefore, plaintiff cannot show bad faith to warrant an adverse inference instruction. ECF No. 54 at 11. Wal-Mart explained that, after Robertos fall, the swing remained in place on the store floor, with the seat of the swing raised to prevent patrons from sitting on it. ECF No. 47-3 at 22. About three weeks after Robertos fall, on August 8 or 9, 2015, Waleska Calvo, an Overnight Assistant Shift Manager (Night Manager), decommissioned the swing in the exercise of her normal duties and discretion to determine when to change the stores displays. ECF No. 48-1 at 14-15. She apparently ordered the swings decommissioning in light of visible wear to its paint job, although she had the option of selling the display. Id. at 13-14. Wal-Mart offers no explanation as to why Night Manager chose to destroy the swing rather than sell it, other than she had the discretion to do so. Id. Wal-Mart notes that because Night Manager worked an overnight shift, she did not meet the people who work[ed] during the day, suggesting that she remained ignorant of Robertos fall. ECF No. 54 at 11, 13. Wal-Mart also submitted an affidavit signed by Night Manager, dated two-and-a-half years after Robertos fall, indicating that she remembered decommissioning the swing for aesthetic reasons and that she was unaware of Robertos accident at that time she decommissioned it. ECF No. 54-2 .
The Court finds there is sufficient evidence for a jury to find bad faith by Wal-Mart in relation to its treatment of the swing. Wal-Marts claim that Night Manager coincidentally decommissioned the swing within a month of Robertos fall and death is fairly inconceivable, and Night Managers assurances in an affidavit dated two-and-a-half years afterwards could be reasonably disregarded as unreliable. Id. Most importantly, however, Night Managers mental state at the time she decommissioned the swing does not negate Wal-Marts responsibility to preserve evidence upon notice of potential litigation. See Testa , 144 F.3d at 177-78. The institutional notice imputed to Wal-Mart requires it to ensure its left hand knows what its right hand is doing. Whether Wal-Mart opted to be discreet and not inform Night Manager of the incident, an argument Wal-Mart does not raise, also offers little explanation for why the swing remained on display in the storefront for weeks after the incident, subject to tampering by patrons and decommissioning by unwitting night managers. Indeed, this preservation requirement is squarely stated within Wal-Marts store policy, requiring that evidence of a claim be secured at store level in case the claim becomes litigated, and to store the evidence in a location that will ensure it is not be destroyed, damaged or tampered with. ECF No. 48-8
c. The Investigation Evidence
Wal-Mart characterizes plaintiffs argument that it failed to preserve documentation of its internal investigation as an attempt to impose on it the duty to collect evidence on plaintiffs behalf. ECF No. 54 at 9. Wal-Mart asserts that it did not conduct an investigation into Robertos fall because Ada and Roberto refused to complete an incident report on the day of the fall. Id. at 9-10. Thus, as with the surveillance footage, Wal-Mart concludes that it cannot be sanctioned for failing to preserve that which did not exist.
This argument is disingenuous. Ada did complete an incident report, albeit sometime after the fall, a distinction that Wal-Mart does not assert as relevant. And, Manager affirmatively stated at various points, that he participated in the investigation into Robertos fall. See, e.g., ECF Nos. 47-1 at 11; 47-3 at 9, 11, 14-16; 48-1 at 11; 48-7 at 9, 15. Whats more, he described the investigation in some detail in both his deposition and in answers to interrogatories, stating that he conducted the investigation as part of the ordinary process and regular course of business done at the store. ECF No. 48-7 at 15. Supervisor, Assistant Manager, and an individual from Asset Protection aided him in the investigation. Id. Manager indicated he spoke with Supervisor, Ada, and other individuals in conjunction with the investigation. ECF No. 47-1 at 4-6, 8-9, 14. His investigation included an inspection of the swing. ECF No. 48-7 at 15. His conclusions from the investigation were that Roberto had several medical conditions therefore he was weak and was not supposed to be left unattended at the store and that the Pergola Swing was not defective and had nothing to do with [Robertos] fall. Id. Additionally, Manager stated that he sent a memorandum by email summarizing his conversations with Ada, but Wal-Mart did not include the email in its case file or otherwise save it because it was just a follow-up. ECF No. 47-1 at 4-6. He also indicated that he prepared a report summarizing his investigation and other conversations he had in conjunction with Robertos fall. Id. at 9, 14.
In other words, Manager stated in a deposition and answers to an interrogatory that: (1) he and his staff conducted an investigation, and (2) he created at least two documents in relation to that investigation. Wal-Mart, on the other hand, argues in its opposition to spoliation sanctions that no investigation occurred and, in fact, its nonoccurrence is Ada and Robertos fault. The Court is not persuaded by Wal-Marts brazen double-talk. There is ample evidence for the fact finder to conclude that an investigation occurred, generating at least some documentation, all of which Wal-Mart was on notice to keep safely stored for reasonably foreseeable litigation. Likewise, there is ample evidence for the fact finder to conclude that Wal-Marts reasoning for failure to provide or preserve this information exhibits bad faith.
C. Spoliation Sanctions
A district court has wide discretion in choosing sanctions for discovery violations. Fernández-Salicrup v. Figueroa-Sancha , 790 F.3d 312, 320 (1st Cir. 2015) (citation and internal quotation marks omitted). A spoliation instruction, allowing an adverse inference, is commonly appropriate in both civil and criminal cases where there is evidence from which a reasonable jury might conclude that evidence favorable to one side was destroyed by the other. Laurent , 607 F.3d at 902. See Nation-Wide Check, 692 F.2d at 218 (The fact of destruction satisfies the minimum requirement of relevance: it has some tendency, however small, to make the existence of a fact at issue more probable than it would otherwise be. (citing Fed. R. Evid. 401 ) ).
This sanctioning authority arises from Rule 37 of the Federal Rules of Civil Procedure and the Courts inherent power to manage its own affairs. Fed. R. Civ. P. 37 ; In re Plaza-Martínez , 747 F.3d 10, 13 (1st Cir. 2014) ; Roadway Exp., Inc. v. Piper , 447 U.S. 752, 764, 100 S.Ct. 2455, 65 L.Ed.2d 488 (1980), superseded by statute on other grounds, as recognized in Morris v. Adams-Millis Corp , 758 F.2d 1352 (10th Cir. 1985). Rule 37 sanctions must be applied diligently both to penalize those whose conduct may be deemed to warrant such a sanction, [and] to deter those who might be tempted to such conduct in the absence of such a deterrent. Roadway Exp., 447 U.S. at 763-64, 100 S.Ct. 2455 (citation and internal quotation marks omitted). Likewise, a district courts inherent powers includ[e] the ability to do whatever is reasonably necessary to deter abuse of the judicial process R.W. Intl Corp. v. Welch Foods, Inc., 937 F.2d 11, 19-20 (1st Cir. 1991) (citation and internal quotation marks omitted). See Jamie S. Gorelick, et al., Destruction of Evidence § 3.5 (2018) (noting that the power to discipline for rude and contumelious behavior must necessarily be as ancient as the laws themselves. For laws without a competent authority to secure their administration from disobedience and contempt would be vain and nugatory (quoting 4 W. Blackstone, Commentaries 282 (1765) ) ). However, [b]ecause inherent powers are shielded from direct democratic controls, they must be exercised with restraint and discretion. Roadway Exp. , 447 U.S. at 764, 100 S.Ct. 2455 ; accord In re Plaza-Martínez , 747 F.3d at 14 (noting that sanctions are a badge of reprobation that can haunt an attorney throughout his or her career). The best practice for a court considering sanctions is to ensure the offending party has an opportunity to be heard before sanctions are imposed. In re Plaza-Martínez , 747 F.3d at 14.
In addition, [t]here are ample grounds for recognizing ... that in narrowly defined circumstances federal courts have inherent power to assess attorneys fees against counsel, such as when a party engages in abusive litigation practices, abuse [of] judicial processes, and [b]ad faith ... in the conduct of the litigation. Roadway Exp. , 447 U.S. at 765-66, 100 S.Ct. 2455 (collecting cases); see Chambers v. NASCO, Inc. , 501 U.S. 32, 45-46, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (upholding the imposition of sanctions when a court finds that fraud has been practiced upon it, or that the very temple of justice has been defiled, noting that [t]he imposition of sanctions in [that] instance transcends a courts equitable power concerning relations between the parties and reaches a courts inherent power to police itself, thus serving the dual purpose of vindicate[ing] judicial authority without resort to the more drastic sanctions available for contempt of court and mak[ing] the prevailing party whole for expenses caused by his opponents obstinacy (alterations in original) (citations and internal quotation marks omitted) ); F.A.C., Inc. v. Cooperativa De Seguros De Vida De P.R. , 563 F.3d 1, 6-7 (1st Cir. 2009) (recognizing that a court can impose sanctions if it finds that a party acted in bad faith, vexatiously, wantonly, or for oppressive reasons).
The Court believes that Wal-Marts conduct and arguments are not sound, bordering on disingenuous, and sanctions are accordingly warranted. Wal-Mart had an opportunity be heard, having responded to plaintiffs spoliation motion and plaintiffs spoliation arguments contained in her summary judgment opposition. ECF Nos. 54 , 55 . Plaintiff requested the spoliation sanctions of an adverse inference jury instruction, entry of default judgment, prohibition of Wal-Marts affirmative defenses, and any other relief that [the Court] deems just and proper. ECF No. 47 at 17.
The evidence presented to the Court shows that Manager and Supervisor, and therefore Wal-Mart, had notice of reasonably foreseeable litigation upon their visit with Robertos family shortly after Robertos death. Manager and Supervisor went to Robertos home to offer to help pay for his funeral, at which time Ada told them that she attributed Robertos death to a problem with the swing. Manager conducted an investigation and memorialized at least parts of his investigation in writing, such as his interviews with other employees and Ada. Wal-Mart now claims no investigation occurred and, remarkably, that its nonoccurrence is Roberto and Adas fault. Not only does this demonstrate that Wal-Mart failed to preserve/provide investigation evidence, but it also strongly supports that it did so deliberately.
Wal-Mart also affirmatively failed to preserve the swing. Indeed, Wal-Mart does not argue that it failed to preserve the swing, just that its failure is excusable. The Court disagrees and finds that Wal-Marts failure to preserve the swing is both inexcusable and strongly indicative of bad faith. Wal-Mart cannot abdicate itself of its duty to preserve the swing based on Managers cursory inspection of the swing or Night Managers purported ignorance of the incident. Night Managers ignorance is both inconceivable given the extraordinariness of the situation, and dubious in light of her unexplained decision to discard the swing, rather than sell it, within a few weeks of Robertos fall for something as superficial as worn paint.
The surveillance video issue is a closer call. Managers testimony was contradictory as to whether: (1) someone reviewed all of the relevant footage, (2) the footage review was completed and, (3) there is, or ever was, a backup copy of the footage somewhere, (a) why it was not retained or, (b) why it was not created. This confusion could support a conclusion of negligence or purposeful obfuscation. The Court is not willing to rule out the latter at this stage, particularly in light of the totality of the circumstances at hand. The fact that there are three categories of missing evidence at issue has somewhat of a synergistic effect. See Blinzler , 81 F.3d at 1159. The unavailability of so much evidence that was exclusively in Wal-Marts control, all of which bear upon the ultimate issue of what caused Robertos fall, suggests that the unavailability results from something more than a coincidence. See id. (involving the allegedly routine destruction of two important documents central to plaintiffs case).
The Court recognizes that Wal-Marts rejoinders-that all of the evidence at issue either did not exist or was destroyed in the ordinary course of business, pursuant to routine practice-are material to the factfinders inquiry. See Testa , 144 F.3d at 177. However, the mere introduction of [this explanation] neither removes the question from the jurys ken nor precludes the jury from drawing a negative inference. See id. ; accord Nation-Wide , 692 F.2d at 219.
The Court is also concerned by Wal-Marts apparent track record of having spoliation sanctions imposed on it with alarming frequency and under strikingly similar circumstances. See, e.g., Testa , 144 F.3d at 177-78 (spoliation sanction of adverse inference instruction upheld based on Wal-Marts failure to preserve relevant records); McAdoo v. Wal-Mart Stores East, L.P. , 2017 WL 3581096, at *3 n.2 (M.D. Tenn. Aug. 18, 2017) (noting plaintiff may be entitled to a spoliation instruction at trial for Wal-Marts alleged failure to preserve the gel that allegedly caused her fall but rejecting plaintiffs motion for more severe sanctions); Stedeford v. Wal-Mart Stores, Inc. 2016 WL 3462132, at *2, 9-10 (D. Nev. Jun. 24, 2016) (slip copy) (granting sanctions for spoliation based on Wal-Marts provision of video footage that abruptly ends before Plaintiffs fall, finding that Wal-Mart failed to preserve video surveillance evidence and destroyed the soap bottle [central to plaintiffs case] after it was on notice of [plaintiffs] reasonably foreseeable claim); Thaqi v. Wal-Mart Stores East, LP , 2014 WL 1330925, at *6, 10 (E.D. N. Y Mar. 31, 2014) (mem.) (holding that [b]ecause the record would allow a jury to draw an adverse inference against Wal-Mart concerning spoliation [of relevant video evidence], Wal-Marts summary judgment motion must be denied); Abdulahi v. Wal-Mart Stores East, L.P. , 76 F. Supp. 3d 1393, 1397-98 (N.D. Ga. 2014) (imposing an adverse inference jury instruction and attorney fees for spoliation based on Wal-Marts deletion of surveillance footage, and rejecting Wal-Marts assertion that its employee considered the video unhelpful as self-serving and not a sufficient replacement for the video itself); Mousa v. Wal-Mart Stores East, LP , 2013 WL 5352949, at *10-12 (E.D. Mich. Sept. 23, 2013) (deferring ruling on whether an adverse inference instruction is warranted based on Wal-Marts selective preservation of some relevant surveillance and CC-TV footage, but not all of it); Patton v. Wal-Mart Stores, Inc. , 2013 WL 6158467, at *6-9 (D. Nev. Nov. 20, 2013) (permitting an adverse inference jury instruction after concluding that Wal-Mart intentionally destroyed surveillance footage relevant to plaintiffs negligence claim); Pope v. Wal-Mart Stores East, LP , 2013 WL 12086325, at *11 (N.D. Ga. Nov. 12, 2013) (finding that a disputed issue of material fact precluded summary judgment in light of the adverse inference supported by Wal-Marts questionable disposal of relevant video surveillance); Woodard v. Wal-Mart Stores East, LP , 801 F. Supp. 2d 1363, 1368, 1376 (M.D. Ga. 2011) (allowing to go to the jury for a determination of bad faith the fact that Wal-Mart preserved the wrong video footage and its claims adjuster failed to review the tape until after Wal-Mart had recorded over the pertinent footage); Britton v. Wal-Mart Stores East, L.P. , 2011 WL 3236189, at *3, 5, 9, 14 (N.D. Fla. Jun. 8, 2011) (R&R) (recommending sanctions for spoliation of evidence, finding that Wal-Mart selectively and self-servingly preserved only defensive evidence, allowing other footage damaging to its defense to be overwritten, despite a responding police officers instruction on the day of the incident to preserve all surveillance video of the plaintiffs from that day and receipt of multiple preservation requests, including one hand-delivered, from plaintiffs attorney shortly after the incident); Gaffield v. Wal-Mart Stores East, LP , 616 F. Supp. 2d 329, 332-33, 340 (N.D. N.Y. 2009) (mem.) (imposing spoliation sanctions for failure to preserve bike pedal involved in plaintiffs injury, requiring Wal-Mart to pay all of the expert witness fees incurred by the moving party); Stoner v. Wal-Mart Stores, Inc. , 2008 WL 3876077, at *2-4 (C.D. Ill. Aug. 18, 2008) (describing plaintiff as adequately pleading a separate claim for the tort of negligent spoliation based on his allegation that Wal-Mart recorded over the footage of his fall, retaining only the footage of plaintiff on the ground after his fall, and failed to retain the sign plaintiff allegedly tripped on); McDonald v. Wal-Mart Stores East, LP , 2008 WL 153783, at *1, 4-7 (E.D. Va. Jan. 14, 2008) (mem.) (allowing an adverse inference instruction based on the courts finding that Wal-Mart intentionally destroyed the plastic wrap that allegedly caused plaintiffs fall); Turner v. Wal-Mart Stores East, L.P. , 2007 WL 2872419, at *6-7 (S.D. Miss. Sept. 26, 2007) (reserving for adjudication at trial plaintiffs allegation that she is entitled to a negative inference because Wal-Mart intentionally deleted relevant video footage); Welch v. Wal-Mart Stores, Inc., 2004 WL 1510021, at *4 (N.D. Ill. July 1, 2004) (holding that plaintiff adequately pleaded a tort claim for intentional spoliation against Wal-Mart in which she alleged that Wal-Mart purposefully disposed of relevant video footage); Stahl v. Wal-Mart Stores, Inc. , 47 F.Supp.2d 783, 784, 787 (S.D. Miss. 1998) (mem.) (ruling that genuine issues of material fact existed as to whether Wal-Mart exhibited bad faith when it disposed of the leaking bottle central to plaintiffs slip and fall claim, precluding summary judgment); Davis v. Wal-Mart Stores, Inc. , 93 Ohio St.3d 488, 756 N.E.2d 657, 658-60 (2001) (permitting adjudication of plaintiffs claims of spoliation that accused Wal-Mart of withholding evidence and its employees of falsifying testimony); Monroe Johnson v. Wal-Mart Stores, Inc. , 1999 WL 35238334 (Tex. Dist. Ct. Aug. 20, 1999) (permitting a spoliation charge where, days after five or six wooden reindeer that weighed five to ten pounds each fell on plaintiffs head, neck, and shoulders, Wal-Mart sold the reindeer and alleged that the reindeer were made of papier-mâché and weighed only ounces).
Regardless of this history of sanctions for similar misconduct, sanctions are warranted in this case based on the egregiousness of Wal-Marts actions described herein, i.e., failure to preserve the swing, video footage, and investigation documents.
Accordingly, the Court finds the following:
1) Wal-Mart had an opportunity be heard in this matter, having responded to plaintiffs spoliation motion and plaintiffs spoliation arguments contained in her summary judgment opposition. ECF Nos. 54, 55 . In re Plaza-Martínez , 747 F.3d at 14. Plaintiff requested spoliation sanctions including an adverse inference instruction and any other relief that [the Court] deems just and proper. ECF No. 47 .
2) Wal-Mart intentionally destroyed investigation evidence.
3) Wal-Mart intentionally destroyed the swing a short period after the accident and upon becoming aware of a possible legal claim.
4) Wal-Marts treatment of the surveillance footage supports a finding of bad faith.
5) An adverse inference instruction is an appropriate sanction for Wal-Marts treatment of all three pieces of unavailable evidence-the surveillance footage, the swing, and the investigation documents.
6) Wal-Marts reprehensible treatment of the investigation documents and the swing requires further sanctioning. The appropriate sanction is for Wal-Mart to pay plaintiffs attorney fees and costs associated with litigating the spoliation matter.
In light of the above, the Court ORDERS as follows:
1) Plaintiff shall propose an adverse inference instruction before trial.
2) Wal-Mart shall pay plaintiffs attorney fees and costs associated with litigating the spoliation matter. Plaintiff shall submit an itemized account of her relevant costs and attorney fees to the Court within 15 days from the date of this order.
3) The parties shall propose dates for a mandatory settlement conference with the Court. The parties shall submit these dates within 20 days of the date of this order.
VI. Conclusion
The R&R is REJECTED . ECF No. 69 . Wal-Marts motion for summary judgment is DENIED . ECF No. 37 . Plaintiffs motion for sanctions is GRANTED . ECF No. 47 . Plaintiff shall provide the Court with an accounting of its costs arising from litigating the spoliation matters within 15 days of the date of this order.
SO ORDERED .
Because several individuals in this case are related and share last names, the Court refers to those individuals by their first name. And, to ensure clarity, the Court refers to the Wal-Mart and Sams Club employees by their job titles, rather than their names.
The Court adopts most of the undisputed facts contained in the R&R and restates those facts here.
The R&R did not address the merits of plaintiffs spoliation motion based on the recommendation that summary judgment be granted, thereby mooting the spoliation issues. ECF No. 69 at 15-16.
Wal-Mart also suggests that plaintiffs case proposes a theory of res ipsa loquitor , which it asserts has been abrogated in Puerto Rico by Bacó v. Almacén Ramón Rosa Delgado Inc. , 151 D.P.R. 711 (2000). ECF No. 37-1 at 12 (no English translation provided). The Court finds this argument disingenuous. Plaintiff proposed a theory of negligence based on a defect in the swing and/or failure to warn. ECF No. 1 . To the extent her claim may now fall under the rubric of res ipsa loquitor , it is purely because of Wal-Marts actions. See supra § IV.
Interestingly, Wal-Marts store policy discourages employees from offering to call an ambulance. ECF No. 47-9.
The R&R did not reach the spoliation analysis or incorporate how these overlapping issues could affect the propriety of summary judgment.
An Asset Protection Manager confirmed Josués assessment in an affidavit appended to Wal-Marts opposition to plaintiffs motion for spoliation. ECF No. 54-1 . The Asset Protection Manager stated in her affidavit that she had viewed the surveillance footage sometime after Robertos fall. Id. She concluded that there was no recording of the accident area on July 14, 2015, and therefore no videos were preserved. Id. She executed this affidavit two-and-a-half years after the incident. Id.
Manager does not explain whether Josué left the company, left the department, left to work at a different Sams Club, etc., nor the date on which he left.
CMI appears to stand for Claims Management Inc. See ECF No. 47-10 at 1.
This inspection took place two days after Robertos accident.
The deposition identifies the recipient of the email communication as Mr. Juan Lozada. It is unclear from the partial deposition transcript available in the record what Mr. Lozadas relationship is to the case. ECF No. 47-1 at 3, 7.
Manager apparently did not learn of Robertos death until he received a text message on July 17, 2015, from the manager of the Ponce Sams Club, who worked with one of Robertos relatives. ECF No. 47-1 at 8-9.
Wal-Mart argues that the remedies plaintiff seeks under Rule 37(e) are inapplicable because that rule applies exclusively to electronically stored information. ECF No. 54 at 13. Wal-Mart does not clarify how the surveillance footage, emails generated, or investigation documents do not constitute electronically stored information. And, even if those items somehow did not constitute electronically stored information, like the swing, a federal court may sanction a litigant in accordance with the courts inherent powers. See Chambers v. NASCO, Inc. , 501 U.S. 32, 50, 111 S.Ct. 2123, 115 L.Ed.2d 27 (1991) (recognizing that simply because [bad] conduct could also be sanctioned under [a] statute or the [Federal] Rules does not divest the court of its inherent powers).