United States District Court, S.D. Georgia, Augusta Division
LISA GODBEY WOOD, Chief Judge.
Presently before the Court are Plaintiff's Objections to Magistrate Judge James E. Graham's January 13, 2015 Order denying Plaintiff's Motion to Find Spoliation. Dkt. No. 43. For the reasons set forth below, Plaintiff's Objections are SUSTAINED. The Magistrate Judge's January 13, 2015 Order is hereby VACATED, and the Court GRANTS IN PART and DENIES IN PART Plaintiff's Motion to Find Spoliation. Dkt. No. 33.
On July 18, 2012, Plaintiff slipped and fell in the frozen food section of Defendant's grocery store in Brunswick, Georgia. Dkt. No. 1, p. 7. Plaintiff contends that her fall was caused by a puddle of water that had leaked from a freezer cooler. Id . Plaintiff filed this action against Defendant seeking recovery for injuries that she allegedly suffered as a result of her fall. Id. at p. 7-9.
During discovery, Plaintiff served Defendant with requests for photographs of the scene of Plaintiff's fall taken around the time that it occurred. See Dkt. No. 43, p. 2 & n.1. Defendant responded that "[p]hotographs were taken at the time of... investigation" but withheld the photographs on the basis of privilege. Id. at pp. 2-3 & n.3. Plaintiff then filed a Motion to Compel seeking the production of, among other items, any photographs taken at or about the time of the subject incident. Dkt. No. 11, p. 16.
In response to Plaintiff's Motion to Compel, Defendant stated that it provided amended initial disclosures "confirming here are no photographs of the incident scene in Defendant's possession." Dkt. No. 12, p. 7. Defendant stated that the "only photographs, " four photos of various forms and a photo of a diagram showing the accident location, had been produced to Plaintiff. Id . The Magistrate Judge then dismissed Plaintiff's Motion to Compel as moot, relying on Defendant's representations that "there are no photographs of the incident scene itself" and that Defendant had since "provided to Plaintiff all previously undisclosed photographs in [its] possession." Dkt. No. 18, p. 1 (citing Dkt. No. 12, pp. 7-8)
Subsequently, Plaintiff deposed Defendant's former employee, Francisco Javier Aguirre ("Mr. Aguirre"). Dkt. No. 29. At the time of the incident, Mr. Aguirre worked as a manager at Defendant's store where Plaintiff fell. Id. at pp. 6-7. Mr. Aguirre testified that he used the store's digital camera to take two or three photographs of the scene of Plaintiff's fall directly after the incident. Id. at pp. 23, 25-27, 31, 33, 35-37. The water that allegedly caused Plaintiff's fall was included in these pictures. Id. at pp. 25-27, 31, 33, 36-37. Mr. Aguirre further testified that he uploaded the pictures of the incident scene to Defendant's computer and sent the pictures to Defendant's claims management company. Id. at pp. 23-24, 33, 35-37, 50-52.
Plaintiff also deposed Defendant's employee Cindy Howard ("Ms. Howard"). Dkt. No. 27. Ms. Howard testified as the corporate representative of Defendant pursuant to Federal Rule of Civil Procedure 30(b) (6). Id. at p. 1. Ms. Howard explained that Defendant's policy for incidents in its stores requires an employee to, among other things, photograph the incident scene, upload the photographs to a store computer, and send all of the investigative materials to Defendant's home office and claims management company. Id. at pp. 16-27. At Mr. Aguirre's deposition, he testified that he strictly adhered to this policy in documenting Plaintiff's fall. Dkt. No. 29, PP. 23, 33, 35-37, 50-52.
Plaintiff then filed a Motion to Find Spoliation alleging that photographs of the incident scene once existed and that Defendant's apparent failure to preserve those photographs warrants sanctions for the spoliation of evidence. Dkt. No. 33, pp. 1, 6-7, 19. Noting that Defendant had a duty to preserve all evidence of the incident,  Plaintiff emphasized that Defendant has been able to produce other investigative materials including the incident report and video footage but has seemingly lost the incident-scene photographs that were transmitted along with those materials. Id. at pp. 8, 15-16. Plaintiff argued that the Court should impose spoliation sanctions, based on the incurable prejudice to Plaintiff, the probative nature of the photographs, and the circumstantial evidence of Defendant's bad faith. See id. at pp. 13-19. Specifically, Plaintiff requested sanctions in the form of a jury instruction on Defendant's spoliation, findings against Defendant on the issues of negligence and causation, and prohibiting Defendant from further contesting those elements of Plaintiff's claim. Id. at pp. 1-2, 15-16.
The Magistrate Judge denied Plaintiff's Motion to Find Spoliation in the January 13, 2015 Order. Dkt. No. 41, P. 7. The Magistrate Judge determined that the Court could not impose sanctions based on Plaintiff's allegations, because "Plaintiff ha[d] failed to offer sufficient evidence to establish that Defendant acted in bad faith in failing to preserve the photographs." Id. at pp. 6-7. In order to prove bad faith, according to the Magistrate Judge, Plaintiff needed to show that "the loss or destruction of the photographs was, or could only be, due to a deliberate, intentional act of Defendant or its agent." Id. at p. 6. The Magistrate Judge concluded that the absence of bad faith precluded the imposition of spoliation sanctions and, therefore, was fatal to Plaintiff's Motion. Id. at pp. 6-7.
Plaintiff filed the instant Objections on January 14, 2015, asking the Court to set aside the Magistrate Judge's Order. Dkt. No. 43, P. 13. Specifically, Plaintiff contends that the Magistrate Judge erred in failing to find that the spoliation has prejudiced Plaintiff and in finding that there was no evidence that Defendant acted in bad faith. See id. at pp. 9-13. Defendant filed a Response on January 28, 2015, which urges the Court to deny Plaintiff's Objections and to affirm the Magistrate Judge's decision. Dkt. No. 49, p. 7.
A. Standard of Review
Federal Rule of Civil Procedure 72(a) ("Rule 72(a)") permits a party to file objections to a magistrate judge's order on a nondispositive pretrial matter. Fed.R.Civ.P. 72(a). Rule 72(a) also provides the standard of review in the district court for ruling on those objections: "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." Id . Given that the parties have timely filed their respective Objections and Response, the undersigned must ...