WAL-MART STORES EAST, LP

v.

ELIDA MARIA GARCIA PINEDA

Third District Court of Appeal State of Florida

Opinion filed March 12, 2025. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-0793 Lower Tribunal No. 20-26469 ________________

Wal-Mart Stores East, LP, Appellant,

vs.

Elida Maria Garcia Pineda, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

GrayRobinson, P.A., and Jack R. Reiter and Eric M. Yesner and Sydney Feldman D'Angelo, for appellant.

Rubenstein Law, P.A., and Gregory Deutch; Harris Appeals, P.A., and Andrew A. Harris and Grace Mackey Streicher (Palm Beach Gardens), for appellee.

Before EMAS, FERNANDEZ and BOKOR, JJ.

BOKOR, J.

Wal-Mart Stores East, LP (“Walmart”), appeals a final judgment entered in favor of Elida Maria Garcia Pineda. Pineda slipped and fell at a Walmart store, then filed suit for negligence. At the close of Pineda’s casein-chief, her counsel alleged, for the first time, an occurrence of spoliation of evidence that was at least two years old. The trial court expressed great concern with the conduct alleged and gave Walmart about twelve hours to prepare a response before granting an adverse inference jury instruction as sanctions. As explained below, we reverse on two grounds: first, no competent substantial evidence supported the trial court’s finding of spoliation, and second, the trial court abused its discretion in denying Walmart an opportunity to present evidence to the jury contesting the adverse inference.

BACKGROUND

On July 13, 2019, Pineda slipped outside the restroom of a Walmart store in Hialeah. Four days later, Pineda, through her counsel, sent Walmart a preservation of evidence letter that specified the date of the incident but not the time. Contacting Walmart’s claims manager, Pineda reported the time of the incident as 10:40 At some point in the three months following the accident, Walmart discovered that Pineda fell at 11:45 PM, which was outside the two-hour preservation window triggered by Pineda’s reports of the fall occurring at 10:40 PM.¹ Upon such discovery, and without being asked to do so by Pineda, Walmart preserved an additional five minutes of video beyond the scope of Pineda’s preservation request. These extra five minutes, documenting 11:42 PM to 11:47 PM, captured her fall. On December 10, 2020, Pineda requested all extant footage of the fall. In response, Walmart produced both the two-hour block preserved at her direction and the extra five-minute segment as one continuous, two-hourand-five-minute video with a gap from roughly 11:40 PM to 11:42 PM. A continuity break was readily observable at the 11:40 PM mark and timestamp metadata was embedded in the file.

2 The missing segment between the initial video footage ending at 11:40 PM and the additional, later-discovered footage beginning at 11:42 PM is two minutes and thirty-five seconds long. 3 This refers to the burden-shifting instruction contemplated by Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987), and Florida Standard Civil Jury Instruction 301.11(b).

Walmart requested an opportunity to present evidence against the inference, in accord with Florida law, but the trial court denied Walmart’s request. After a four-day trial, the jury found in favor of Pineda. Walmart moved for a new trial, which motion was denied. This appeal followed.

ANALYSIS

We review the grant of an adverse inference jury instruction on spoliation for abuse of discretion. Pena v. Bi-Lo Holdings, LLC, 304 So. 3d

Pena, 304 So. 3d at 1257 (cleaned up). The fact that Pineda waited until the middle of the trial to raise the issue of possible spoliation doesn’t relieve her of her burden of demonstrating a prima facie entitlement to relief under the factors identified above.⁴ The trial court got it backwards by requiring that

4 Diligent counsel would have recognized the two-minute gap shortly after production of the footage and sought further discovery or raised an

Walmart’s surveillance footage qualifies as electronically stored information under rule 1.380(f), but the record offers no explanation—and the trial court fails to identify—what “reasonable steps” Walmart “failed to take” toward preserving the two-minute gap or why the circumstances imply an “intent to deprive” her of it. In construing the nearly identical Federal Rule of Civil Procedure 37(e), the Eleventh Circuit held that intent to deprive a appropriate motion prior to the close of discovery given the video’s obvious continuity break and the embedded timestamp data, but that never occurred. Instead, Pineda’s counsel waited until after the close of its case to bring this issue to the court’s, and Walmart’s, attention for the first time.⁵ Effective January 2025, the Florida Supreme Court redesignated the former rule 1.380(e), Failure to Preserve Electronically Stored Information, as 1.380(f). In re Amends. to Fla. Rules of Civ. Proc., 49 Fla. L. Weekly S289, 2024 WL 4983566, at *21 (Fla. Dec. 5, 2024). The proceedings below and the appellate briefs use the now-obsolete 1.380(e) numeration, but this opinion uses 1.380(f), which is current and, for our purposes, interchangeable.

8 party of evidence is the “equivalent of bad faith.” Skanska USA Civil Se. Inc. v. Bagelheads, Inc., 75 F. 4th 1290, 1312 (11th Cir. 2023). Pineda argued, and the trial court concluded, that Walmart intentionally deleted the twominute gap based on nothing more than the bare fact that it wasn’t produced but the subsequent five minutes were. These facts don’t support a finding of negligent nonproduction of material evidence that Walmart had a duty to preserve and produce, much less intentional bad faith deprivation as the trial court found here. All factual findings must be supported by competent, substantial evidence. See Teffeteller v. Dugger, 734 So. 2d 1009, 1018 (Fla. 1999). The fact that footage cannot be produced, in and of itself, is not evidence that Walmart “failed to take reasonable steps to preserve it” as required by rule 1.380(f). To the contrary, the facts presented to the trial court show that Walmart complied with its preexisting record retention policy, communicated with Pineda’s counsel regarding the time of incident which Pineda inaccurately reported and confirmed, and even located and produced additional footage that showed the fall. Largely because Pineda delayed raising the issue until the middle of trial years later, the record is silent as to who discovered the extra material, or when, or how and why it was

9 discovered.⁶ Additionally, Pineda presented no evidence that the lost footage contained anything of relevance, or that Walmart failed to take reasonable steps to preserve it, or had a duty to preserve it at all. Based on this record, the trial court’s pronouncement that Walmart intentionally spoliated evidence lacked a factual basis and constituted an impermissible stacking of inferences.⁷ See Leftwich v. Wal-Mart Stores E., LP, 396 So. 3d 603, 609 (Fla. 5th DCA 2024); Broward Exec. Builders, Inc. v. Zota, 192 So. 3d 534, 537 (Fla. 4th DCA 2016) (“The purpose of this rule against stacking inferences is to protect litigants from verdicts based on conjecture and speculation.” (quotation omitted)). The trial court’s comments regarding the Watergate scandal also suggest that it prematurely formed an opinion as to Walmart’s “guilt,” which it then required Walmart to disprove even though Pineda had not made the requisite initial showing. Because the record contains no competent substantial evidence to support the trial court’s conclusion that Walmart either negligently failed to retain footage, or, more sinisterly, intentionally deleted and manipulated relevant footage, the trial court abused its discretion in giving the adverse inference instruction. See

6 There is no reason to assume that the facts would be probative of her case even if the record had been more fully developed on these points.⁷ It appears that “no good deed goes unpunished”: in Walmart’s apparently ongoing attempt to provide discoverable information, it was the very provision of extra footage that triggered Pineda’s motion for sanctions.

10 Hedvall v. State, 283 So. 3d 901, 918 (Fla. 3d DCA 2019) (“A trial court's factual findings must be supported by competent substantial evidence, and findings of law are reviewed de novo.”); see also Bath Club Ent., LLC v. Residences at the Bath Club Maint. Ass’n, Inc., 348 So. 3d 16, 20 (Fla. 3d DCA 2022) (finding that “the record contains competent substantial evidence to support the trial court’s findings regarding BCE’s noncompliance and the imposition of sanctions for such noncompliance”). This alone is a basis for reversal. The trial court further abused its discretion by denying Walmart an opportunity to present evidence opposing the jury’s adverse inference. “Lawyers are entitled to argue adverse inferences from the evidence as part of their closing arguments.” Jordan ex rel. Shealey v. Masters, 821 So. 2d 342, 347 (Fla. 4th DCA 2002). As the notes on the Florida Standard Civil Jury Instructions explain, the adverse inference instruction “is not intended to limit the trial court’s discretion to impose additional or other sanctions.” Fla. Std. Jury Instr. (Civ.) 301.11(a) n.1. But it stands to reason that any such additional sanctions would have to be supported by a sufficient factual predicate. Here, without such a predicate, the trial court imposed an additional sanction, denying Walmart its inherent right to present evidence rebutting the inference to the jury. The adverse inference instruction itself

11 “does not rise to the level of a presumption.” Id. at n.2. And while the court purported to observe this distinction, having informed the jury that it was “not required” to draw the inference and advising that the missing material could be considered “together with the other evidence,” by denying Walmart its right to argue against it the court turned a nominally permissive inference into a de facto adverse determination. See, e.g., Bechtel Corp. v. Batchelor, 250 So. 3d 187, 194 (Fla. 3d DCA 2018) (noting that adverse inferences are “strong medicine” with the inherent risk of invading the province of the jury); Fino v. Nodine, 646 So. 2d 746, 751 (Fla. 4th DCA 1994) (noting that both parties are generally entitled to argue an inference to the jury). An adverse inference arising out of alleged spoliation does not relieve the movant from its burden of proof. Pena, 304 So. 3d at 1257 (citing Golden Yachts, Inc. v. Hall, 920 So. 2d 777, 780 (Fla. 4th DCA 2006)). By denying Walmart an opportunity to present evidence in rebuttal, the court effectively shifted the burden of proof to the nonmovant. This was also an abuse of discretion and an independent basis for reversal.⁸ Reversed and remanded for new trial.