WARRINGTON
v.
PATEL
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The court held that the plaintiff must prove impossibility of compliance with a discovery order and that an evidentiary hearing is necessary to determine spoliation.
Defendant moved for discovery sanctions against Plaintiff for failing to produce a PowerPoint presentation ordered by the court, claiming it was delet…
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Defendant Rocky Patel Premium Cigars, Inc. has moved to impose discovery sanctions against Plaintiff Brad Warrington. (Doc. 239.) The motion focuses on a PowerPoint presentation the Court ordered Warrington to produce. That has not happened because, according to Warrington, his expert deleted the PowerPoint and there are no other copies. Defendant thus seeks sanctions under Rule 37 (for failure to comply with the Court's order) and spoilation (for losing the PowerPoint).
The Court cannot issue a ruling on the current record. Warrington has admittedly not complied with the Court's order to produce the PowerPoint. Thus, to avoid sanctions, he must now “prove that it was impossible to comply.” Broad. Music, Inc. v. Bourbon St. Station, Inc., No. 3:09-CV-468-J-25MCR, 2010 WL 1141584, at *2 (M.D. Fla. Mar. 23, 2010). This requires more than
“mere assetion[s] of inability.” United States v. Hayes, 722 F. 2d 723, 725 (11th Cir. 1984). He must “satisfy his burden of production on the point by introducing evidence in support of his claim.” Id. The present record lacks any detail about Warrington’s efforts to comply with the Court’s order. Warrington has filed affidavits from counsel and his expert, but they do little more than say the PowerPoint is unavailable and they looked through their files. To allow Warrington an opportunity to “satisfy his burden of production,” the Court will schedule an evidentiary hearing. Id.
An evidentiary hearing is also needed on spoilation. Warrington was sent a preservation letter shortly after the PowerPoint was shown at the settlement conference. What actions were taken in response to the letter, and how the PowerPoint was lost, are issues the Court needs to resolve if it is determined that Warrington indeed had a duty to preserve such records. See, e.g., Waters v. AIG Claims, Inc., 608 F. Supp. 3d 1120, 1138 (M.D. Ala. 2022) (“Bad faith can be found when a party fails to preserve evidence that it knew or should have known was relevant to litigation.”).
Accordingly, it is now ORDERED:
1. On or before July 12, 2024, the parties must contact the
undersigned’s courtroom deputy, Courtney Ward, and provide three available dates for an evidentiary hearing in August. Ms. Ward’s email address is [email protected].
ENTERED in Fort Myers, Florida on July 3, 2024.
Kyle C. Dudek United States Magistrate Judge
Copies: All Parties of Record
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Citator
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Warrington v. Patel, 2010 WL 1141584 (M.D. Fla. 2024)…ecord. Warrington has admittedly not complied with the Court's order to produce the PowerPoint. Thus, to avoid sanctions, he must now “prove that it was impossible to comply.” Broad. Music, Inc. v. Bourbon St. Station, Inc., No. 3:09-CV-468-J-25MCR, 2010 WL 1141584, at *2 (M.D. Fla. Mar. 23, 2010). This requires more than “mere assetion[s] of inability.” United States v. Hayes, 722 F.2d 723, 725 (11th Cir. 1984). He must “satisfy his burden of production on the point by introducing evidence in support of his…
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Warrington v. Patel (M.D. Fla. 2025)…ed a discovery order and that the requested sanctions are appropriate. “[T]he nonmoving party must [then] prove that it was impossible to comply in order to avoid sanctions.” Broad. Music, Inc. v. Bourbon St. Station, Inc., No. 3:09-CV- 468-J-25MCR, 2010 WL 1141584, at *2 (M.D. Fla. Mar. 23, 2010). “To succeed on this defense, however, the respondent must go beyond a mere assertion of inability and satisfy his burden of production on the point by introducing evidence in support of his claim.” In re Chase & San…
Authorities Cited
- United States & Billy R. Majure v. Hayes, 722 F.2d 723 (11th Cir. 1984)
- Warrington v. Patel, 2010 WL 1141584 (M.D. Fla. 2024)