Walmart Stores East v. Pineda, 50 Fla. L. Weekly D611 (Fla. 3d DCA Mar. 12, 2025):

The plaintiff fell at Walmart and sued for negligence. After the plaintiff concluded her case-in-chief at trial, her counsel alleged for the first time that Walmart had spoliated evidence that was at least two years old.

The trial court expressed concern about the conduct alleged (missing store surveillance video) and gave Walmart 12 hours to prepare a response before granting the adverse jury instruction as a sanction.

Two years before, when the plaintiff fell, her counsel sent a preservation letter specifying the date of the incident but not the time. The plaintiff had reported to the claims manager that the incident had occurred at 10:40 p.m., and Walmart, in accordance with the reported time and its internal policy, preserved surveillance footage from 9:40 p.m. to 11:40 p.m.

However, the saved footage did not show the incident. Recognizing the anomaly, Walmart reached out to plaintiff’s counsel several times over three months to confirm that the reported time of the fall was accurate. Finally, the plaintiff’s counsel confirmed that the fall had occurred at 10:40 p.m.

Several months after the fall, Walmart discovered that the plaintiff had actually fallen at 11:45 p.m. and preserved an additional five minutes of video beyond the scope of the preservation request, from 11:42 p.m. to 11:47 p.m. However, there were two minutes missing: from 11:40 – 11:42 p.m. The break in the continuity was apparent.

The case went to trial two years after the fall. The plaintiff never raised an issue about spoliation. For the first time, at the conclusion of the plaintiff’s case-in-chief, her counsel raised the issue about the two-minute gap, explaining she was looking for guidance from the court as to how to handle it. The trial court said it was inclined to give a Valcin instruction and compared the missing chunk to Richard Nixon’s Watergate tapes.

While Walmart objected that the issue should have been raised before the close of discovery and argued that plaintiff had abandoned it by not filing a substantive motion before trial (claiming that plaintiff had missed the deadline to do so by bringing the matter up at trial),  the trial court issued an order to show cause to Walmart to produce by 7:00 a.m. the next morning a reason why it should not impose sanctions for the loss of the two-minute gap in the video.

Walmart could not explain or produce witnesses but argued against the spoliation instruction. The court ultimately found (without factual support) that the footage was edited with the intent to deprive the plaintiff of the missing two-minute segment and granted the adverse inference instruction.

As the court noted, prior to exercising any leveling mechanism due to spoliation of evidence, the court must address a three-part threshold inquiry: (1) whether the evidence existed at one time, (2) whether the spoliator had a duty to preserve the evidence, and (3) whether the evidence was critical to an opposing party being able to prove a prima facie case or defense.

There is no duty to preserve at common law. Therefore, the court explained, the duty must originate in a contract, statute, or discovery request, but does not relieve a party from its burden of proof. The plaintiff has the burden of proving the factors that lead to an adverse inference instruction.

Even though the plaintiff waited until the middle of trial to raise the issue, she still had the burden of demonstrating a prima facie entitlement to relief under the factors. The trial court got it backwards by requiring Walmart, without any initial showing by the movant, to prove the nonexistence of the required elements.

The record offered no explanation as to what reasonable steps Walmart failed to take toward preserving the two-minute gap or why the circumstances implied an intent to deprive the plaintiff of it. The plaintiff argued, and the trial court agreed, that Walmart intentionally deleted the two-minute gap based on nothing more than the fact that it wasn’t produced (but the subsequent five minutes were).

Those facts, according to the court, did not support a finding of negligent non-production of material evidence that Walmart had a duty to preserve and produce, much less intentional bad faith deprivation, as the trial court found.

The court concluded that the trial court abused its discretion in finding that Walmart intentionally spoliated the evidence without any factual basis, therefore constituting an impermissible stacking of inferences.

Additionally, the trial court abused its discretion by denying Walmart an opportunity to present evidence to oppose the jury’s adverse inference.

By denying Walmart an opportunity to present evidence in rebuttal, the court effectively shifted the burden of proof to the non-movant, which was impermissible and necessitated reversal.