DEBORAH REED, Plaintiff, v. ROYAL CARIBBEAN CRUISES, LTD., Defendant CASE NO. 19-24668-CIV-LENARD United States District Court, S.D. Florida Entered on FLSD Docket March 04, 2021 Counsel Abby Hernandez Ivey, Matthias Masayasu Hayashi, Spencer Marc Aronfeld, Aronfeld Trial Lawyers, Coral Gables, FL, for Plaintiff. Alina Nicole Yaniz, David James Horr, Joshua Roger Lopez, Juan Carlos Perez, Jr., Justin Michael Henning, Horr Novak & Skipp, P.A., Bryan Edward Probst, Royal Caribbean Cruises, Ltd., Miami, FL, for Defendant. Lenard, Joan A., United States District Judge ORDER OVERRULING OBJECTIONS TO THE HONORABLE MAGISTRATE JUDGE'S ORDER (D.E. 71) *1 THIS CAUSE is before the Court on Plaintiff Deborah Reed's Objections to Magistrate Judge John J. O'Sullivan’s Order (D.E. 66) denying her Motion for Sanctions for Spoliation of Evidence, filed October 9, 2020. (“Objections,” D.E. 71.) Defendant Royal Caribbean Cruises, Ltd. filed a Response on October 23, 2020, (“Response,” D.E. 77), to which Plaintiff filed a Reply on November 6, 2020, (“Reply,” D.E. 78). Upon review of the Order, Objections, Response, Reply, and the record, the Court finds as follows. I. Background Because Plaintiff does not object to Judge O'Sullivan’s recitation of the relevant facts, the Court repeats it here for consistency: On April 12, 2019, Deborah Reed (hereinafter “plaintiff” or “Ms. Reed”) was a cruise ship passenger onboard a vessel operated by defendant Royal Caribbean Cruises, Ltd. (hereinafter “defendant” or “RCCL”). See Second Amended Complaint for Damages and Demand for Trial by Jury (DE# 35 at ¶¶ 11-12, 5/26/20) (hereinafter “SAC”); Answer and Affirmative Defenses to Plaintiff's Second Amended Complaint (DE# 37 at ¶¶ 11-12, 6/5/20). The plaintiff alleges that: 13. On or about April 12, 2019, Plaintiff participated in a RCCL-organized dance party. During the dance party, besides a[ ] RCCL DJ playing 70's music, the RCCL Cruise Director staff [was] teach[ing] passengers “The Hustle” line dance. 14. As Plaintiff participated in the RCCL organized dance party, a fellow intoxicated male passenger, JOHN DOE, approached Plaintiff. JOHN DOE was not known to Plaintiff and was not one of her travelling companions. 15. Plaintiff initially consented to dancing with JOHN DOE, but Plaintiff did not consent to any touching between the two. Nonetheless, JOHN DOE grabbed Plaintiff's hand and despite her pleas that he not twirl her, JOHN DOE refused to comply with Plaintiff's requests. Suddenly, ... JOHN DOE spun Plaintiff and forcefully released her causing Plaintiff to fall and land on the marble floor. As a result of the fall, Plaintiff suffered traumatic injuries that included, but [were] not limited to, a fractured wrist which required surgery. SAC at ¶¶ 13-15.[1] Following the incident, the plaintiff provided both a written statement (DE# 57-1) and an oral statement to RCCL staff.[2] See Declaration of Deborah Kay Reed (DE# 57-2 at ¶ 6, 9/3/20) (hereinafter “Plaintiff's Decl.”). In the written statement, the plaintiff described the incident as follows: “some man grabbed me [and] twirled me.... I was about to walk away [and] he twirled me [and] I fell.” Guest Injury Statement (DE# 57-1 at 2, 9/3/20). According to the plaintiff, RCCL staff obtained the plaintiff's permission to record her oral statement. Plaintiff's Decl. at ¶ 6. In her oral statement, the plaintiff told RCCL staff that John Doe was intoxicated. Id. at ¶ 7. On May 15, 2019, approximately one month after the incident, the plaintiff's counsel sent a certified letter of representation to the defendant. See Exhibit 4 (DE# 57-4, 9/3/20). The letter advised the defendant of the plaintiff's intent to file a lawsuit and asked that the defendant preserve certain evidence: *2 We request that you maintain and preserve the area and materials involved in the incident so that we may inspect the same. Do not change or alter the area and materials involved in the incident. Be advised that any such alterations may constitute spoliation of evidence, which will necessitate appropriate legal action. We likewise request that you preserve any video records (including, but not limited to, any and all CCTV footage of our client taken at any and all times during the entire cruise, and CCTV footage of the area where the incident occurred, and where alcohol was served to the intoxicated passenger who may have been involved in the incident, at least one hour prior through one hour afterwards), photographs, accident/incident reports, and any and all other records produced by your cruise line as a result of, or relevant to, the incident. We also request that you keep records and contact information of any and all individuals who were involved in any way with the incident. Id. (emphasis added).[3] On September 3, 2020, the plaintiff filed the instant motion seeking spoliation sanctions over the defendant's failure to preserve more than approximately six minutes of the CCTV footage of the incident and the body camera footage of the plaintiff's oral statement concerning the incident. See Plaintiff's Motion for Sanctions for Spoliation of Evidence and Supporting Memorandum of Law (DE# 57 at 4-5, 9/3/20) (hereinafter “Motion”). The defendant filed a response in opposition on September 17, 2020. See Defendant's Response to Plaintiff's Motion for Sanctions for Spoliation of Evidence (DE# 64, 9/17/20) (hereinafter “Response”). The plaintiff filed her reply on September 22, 2020. See Plaintiff's Reply in Support of Her Motion for Sanctions for Spoliation of Evidence and Supporting Memorandum of Law (DE# 65, 9/22/20) (hereinafter “Reply”). On September 22, 2020, the plaintiff sent an email to the Court (and opposing counsel) providing two videos of the approximately six minutes of the CCTV footage which was preserved. (“Order,” D.E. 66 at 1-4 (footnotes in original).) In Response to Plaintiff's Motion, Defendant submitted the Declaration of Amanda Campos, the Director of Guest Claims and Litigation for Royal Caribbean Cruises. (D.E. 64-3.) In her Declaration, Ms. Campos explained under penalty of perjury: 6. It is the policy of Royal Caribbean Cruises to investigate claims of passenger injuries in anticipation of litigation as described above. When a passenger reports an incident resulting in injury, the ship's security department will investigate the incident in anticipation of litigation. This procedure is provided in Royal Caribbean's internal procedures as 7.05 Personal Injury Investigations. *3 7. It is Royal Caribbean's experience that passengers who claim injuries often bring a lawsuit against Royal Caribbean. Because of these instances, Royal Caribbean anticipates litigation will arise from incidents where an injury occurs. As a result, Royal Caribbean's shipboard security department follows instruction from Royal Caribbean's legal department in creating a Guest Incident Report, take witness statements, take photographs, and preserve CCTV footage in order to assist legal counsel because it is anticipated litigation will ensue. 8. At my deposition, I was asked questions about Procedure 7.05 Personal Injury Investigations. I testified to the best of my recollection regarding 7.05 but stated that “I have to review it” to be certain of specific guidelines regarding the storage of CCTV footage within the procedure. 9. I have since reviewed Procedure 7.05. The Procedure indicates that shipboard personnel should store CCTV footage of an injury; however, it does not indicate a specific amount of video that should be preserved. Procedure 7.05 indicates that “Footage leading up to the injury, the actual injury and any response to the injury” should be preserved. 10. I have reviewed the CCTV footage in this case and Royal Caribbean's shipboard personnel followed the requisite procedures in storing CCTV footage. The footage shows Plaintiff dancing prior to the incident, it shows Plaintiff approach a gentleman and begin dancing with him, it shows Plaintiff fall down after losing her balance while dancing, and it shows the subsequent response to the injury. 11. The CCTV cameras on Royal Caribbean's ships have 24-hour monitoring. If CCTV footage is not specifically saved, it is taped over due to storage capabilities based on the 24-hour monitoring. The footage of Ms. Reed's incident would have been taped over well before Plaintiff's counsel's letter of May 15, 2019 requesting Royal Caribbean preserve at least one hour prior and one-hour subsequent Plaintiff's incident. (Id. ¶¶ 6-11.) On October 2, 2020, Judge O'Sullivan issued an Order denying Plaintiff's Motion. (D.E. 66.) Initially, he noted that the Parties agree that Rule 37(e) applies. (Id. at 4.) Next, Judge O'Sullivan summarized the issues presented by the Motion and the Parties’ arguments as follows: A. Spoliated Evidence (1) Incomplete CCTV Footage The plaintiff attests that she observed John Doe's erratic behavior approximately ten to 15 minutes[4] prior to the incident: 4. [The plaintiff] had observed [John Doe] approximately ten to fifteen minutes before he accosted [the plaintiff], but [she] assumed that RCCL was also aware of his unruly, erratic, intoxicated, and dangerous behavior, and [she] assumed that RCCL had security ready that would have protected [the plaintiff] if [John Doe] started to accost [her].” 5. [The plaintiff] observed [John Doe] stumbling, not keeping his balance well, and not keeping proper distance with his fellow passengers. Plaintiff's Decl. at ¶¶ 4-5 (emphasis added). The defendant preserved approximately six minutes of CCTV footage of the subject incident, “approximately three and a half minutes before, and two and a half minutes after” the plaintiff's fall. Motion at 3. The plaintiff argues that the defendant “had a duty to at least preserve a minimum of five minutes of CCTV footage before Ms. Reed's incident and five minutes after.” Motion at 7. The plaintiff asserts that the defendant's failure to preserve more than approximately six minutes of CCTV footage warrants sanctions because the missing footage “would have clearly show[n] John Doe in a dangerous and intoxicated state” and would have “clearly show[n] that RCCL was on notice of his danger to Ms. Reed.” Id. at 2. *4 (2) Allegedly Missing Body Camera Footage The plaintiff attests that following the incident, the plaintiff provided both a written statement (DE# 57-1) and an oral statement to RCCL staff. See Plaintiff's Decl. at ¶ 6. According to the plaintiff, RCCL staff obtained the plaintiff's permission to record her oral statement. Id. In her oral statement, the plaintiff told RCCL staff that John Doe was intoxicated. Id. at ¶ 7. RCCL staff also obtained an oral statement from the plaintiff's travel companion, Tracey Powell. See Plaintiff's Decl. at ¶ 9. Ms. Powell, who had been near the plaintiff when the incident occurred, also told RCCL staff that John Doe was “in an intoxicated state before he accosted [the plaintiff].” Id. at ¶¶ 8-9. The defendant does not address the missing body camera footage in its Response. However, the plaintiff has filed an email from the defendant which asserts that no recording of the plaintiff's oral statement was made. Exhibit 3, Email dated 8/20/2020 (DE# 57-3 at 1, 9/3/20) (asserting that “there was never any body camera footage of the plaintiff's statement after the subject incident.”). The plaintiff argues that the “body camera footage of [the plaintiff's] oral report ... would have made it clear that she had believed John Doe was intoxicated long before deciding to file suit.” Motion at 5. (Id. at 6-7 (footnote in original).) Next, Judge O'Sullivan found that Plaintiff satisfied two of the four requirements for granting a Rule 37(e) motion—specifically, he found that (1) the information sought constitutes electronically stored information (“ESI”), (id. at 8), and (2) the ESI cannot be restored or replaced through additional discovery, (id. at 17). However, Judge O'Sullivan found that Plaintiff failed to satisfy two of the requirements for granting a Rule 37(e). First, with regard to the duty to preserve, Judge O'Sullivan found that (1) Defendant did not have a duty to preserve more than the approximately six minutes of CCTV footage that it did preserve, (id. at 9-15), and (2) there was no prejudice to Plaintiff stemming from the allegedly missing body camera footage, (id. at 15). Second, he found that Defendant “preserved a reasonable amount of the CCTV footage given the plaintiff and other witnesses’ descriptions of the incident, including the plaintiff's oral statement that John Doe was intoxicated.” (Id. at 17.) Plaintiff filed her Objections on October 9, 2020. (D.E. 71.) II. Legal Standards a. Review of magistrate judge's order A district court must set aside a magistrate judge's order on a nondispositive pretrial matter “where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A). See also Fed. R. Civ. P. 72(a) (“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.”) A “factual finding is clearly erroneous when, ‘although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.’ ” Univ. of Ga. Athletic Ass'n v. Laite, 756 F.2d 1535, 1543 (11th Cir. 1985) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)). “An order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of procedure.” Matter of Application of O'Keefe, 184 F. Supp. 3d 1362, 1366 (S.D. Fla. 2016) (citation omitted). b. Rule 37(e) *5 Rule 37(e)—which the Parties agree governs Plaintiff's Motion, (see Order at 4)—“significantly limits a court's discretion to impose sanctions for ESI spoliations.” Williford v. Carnival Corp., CASE NO. 17-21992-CIV-COOKE/GOODMAN, 2019 WL 2269155, *5 (S.D. Fla. May 28, 2019). That Rule provides: (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Fed. R. Civ. P. 37(e). Thus, Rule 37(e) “has two categories of relief: those in subsection (1) and the more-consequential ones in subsection (2). The sanctions available in subsection (2) require bad faith (i.e., the ‘intent to deprive’).” Williford, 2019 WL 2269155, at *5. Under both categories of relief, the Court may only impose sanctions if these four requirements are satisfied: “(1) the information sought constitutes ESI; (2) the ESI should have been preserved in anticipation of litigation; (3) the ESI is lost because a party failed to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.”[5] Title Cap. Mgmt., LLC v. Progress Res., LLC, CASE NO. 16-21882-CV-WILLIAMS/TORRES, 2017 WL 5953428, at *3 (S.D. Fla. Sept. 29, 2017) (citing Fed. R. Civ. P. 37(e)); Eshelman v. Puma Biotechnology, Inc., No. 7:16-CV-18-D, 2017 WL 2483800, at *4 (E.D.N.C. June 7, 2017)); see also Williford, 2019 WL 2269155, at *5 (observing that “both categories of relief ... require that the preliminary four factors be established”). If any of these requirements are not met, “then the Court ‘need proceed no further’ in its analysis under Rule 37(e), ‘and a motion for spoliation sanctions or curative measures must be denied.’ ” Chi Nguyen v. Costco Wholesale Corp., Case No. 9:19-cv-80393-Marra/Matthewman, 2020 WL 413898, at *2 (S.D. Fla. Jan. 7, 2020) (quoting Living Color Enters., Inc. v. New Era Aquaculture, Ltd., Case No. 14–cv–62216–MARRA/MATTHEWMAN, 2016 WL 1105297, at *5 (S.D. Fla. Mar. 22, 2016)). However, if all of these requirements are met, “then the Court must proceed with its analysis of the (e)(1) and (e)(2) factors.” Id. (citing Living Color Enters., 2016 WL 1105297, at *5). *6 “The rule ‘does not place a burden of proving or disproving prejudice on one party or the other.’ ” Williford, 2019 WL 2269155, at *6 (quoting Fed. R. Civ. P. 37(e) advisory committee's notes (2015)). However, some “courts have concluded that the party accused of spoliating evidence, not the party moving for spoliation sanctions, bears the burden of showing the lack of prejudice.” Coward v. Forestar Realty, Inc., No. 4:15-CV-0245-HLM, 2017 WL 8948347, at *8 (N.D. Ga. Nov. 30, 2017)).) III. Discussion Plaintiff objects to Judge O'Sullivan’s findings that the second and third requirements of a Rule 37(e) motion were not satisfied. As to the second requirement—i.e., whether the ESI should have been preserved in anticipation of litigation—Plaintiff argues that defendants should be required to preserve a minimum of five minutes of CCTV footage prior to an incident and five minutes of CCTV footage after an incident. (See generally D.E. 71 at 4-7.) She further argues that Defendant had a duty to preserve body camera footage of her oral statement to RCCL staff following the incident. (Id. at 7-8.) As to the third requirement—i.e., whether the ESI was lost because a party failed to take reasonable steps to preserve it—Plaintiff argues that Defendant should have known to preserve at least five minutes of CCTV footage prior to her incident, and because it failed to do so Judge O'Sullivan should have found that Defendant failed to take reasonable steps to preserve the ESI. (Id. at 4-7.) She further argues that Judge O'Sullivan improperly placed the burden of proving prejudice on her. (Id. at 8.) However, the Court summarily rejects this argument. In his recitation of the standard of review, Judge O'Sullivan correctly observed that Rule 37(e) “does not place a burden of proving or disproving prejudice on one party or the other.’ ” Williford v. Carnival Corp., No. 17-21992-CIV, 2019 WL 2269155, at *6 (S.D. Fla. May 28, 2019) (citing Fed. R. Civ. P. 37(e) advisory committee's notes (2015)). Nonetheless, some “courts have concluded that the party accused of spoliating evidence, not the party moving for spoliation sanctions, bears the burden of showing the lack of prejudice.” Coward v. Forestar Realty, Inc., No. 4:15-CV-0245-HLM, 2017 WL 8948347, at *8 (N.D. Ga. Nov. 30, 2017). (Id. at 4-5.) Plaintiff does not explain where or how Judge O'Sullivan placed the burden of proving prejudice on her, and the Court finds that he did not place the burden of prejudice on Plaintiff. The only finding regarding prejudice that Judge O'Sullivan made was that Plaintiff did not suffer prejudice stemming from the allegedly missing body camera footage. (See id. at 15.) For reasons explained in the next section, the Court agrees with that finding. a. Whether the ESI should have been preserved The issue of whether ESI should have been preserved “can also be framed with another question: was the party under a duty to preserve?” Incardone v. Royal Caribbean Cruises, Ltd., CASE NO. 16-20924-CIV-MARTINEZ/GOODMAN, 2019 WL 3779194, at *20 (S.D. Fla. Aug. 12, 2019). “ ‘Once a party reasonably anticipates litigation, it has an obligation to make a conscientious effort to preserve electronically stored information that would be relevant to the dispute.’ ” Chi Nguyen, 2020 WL 413898, at *3 (quoting U.S. ex rel. King v. DSE, Inc., No. 8:08–CV–2416–T–23EAJ, 2013 WL 610531, at *7 (M.D. Fla. Jan. 17, 2013), report and recommendation adopted, 2013 WL 608541). *7 Judge O'Sullivan found (and it appears undisputed that) Defendant anticipated litigation as of the date of the incident, as evidenced by the fact that “it has asserted the work product doctrine over a guest incident report prepared on the day of the incident or shortly thereafter.” (Report at 9 (citing Hoover v. NCL (BAHAMAS) Ltd., CASE NO. 19-22906-CIV-COOKE/GOODMAN, 2020 WL 4505634, AT *3 (S.D. Fla. Aug. 5, 2020)).) Judge O'Sullivan then observed that in this case Defendant did preserve CCTV footage of the incident—approximately six minutes of it, consisting of three-and-a-half minutes prior to the incident, the incident itself, and two-and-a-half minutes following the incident. (Id.) Thus, the precise issue before the Court “is whether the defendant had a duty to preserve more than the approximately six minutes it did preserve.” (Id.) Judge O'Sullivan found that Defendant did not have such a duty. (Id. at 12-14 (relying on Incardone, 2019 WL 3779194, at *23-24).) As such, he found that “[w]ith respect to the CCTV footage, the second requirement of Rule 43(e) has not been met.” (Id. at 14.) Judge O'Sullivan then observed that the Parties dispute whether a body camera recording of the plaintiff's oral statement was ever made. (Id.) He stated that ordinarily this dispute would have required an evidentiary hearing to resolve, but in this case an evidentiary hearing was not required because “the record here does not evidence any prejudice to the plaintiff from the allegedly missing body camera footage.” (Id. at 14-15.) Specifically, he found: The plaintiff seeks to use the body camera footage to show that the plaintiff told the defendant, shortly after the incident, that John Doe was intoxicated. See Motion at 5 (stating that “body camera footage of [the plaintiff's] oral report ... would have made it clear that she had believed John Doe was intoxicated long before deciding to file suit”). Both the plaintiff and her travel companion, Tracey Powell, witnessed John Doe's intoxicated behavior and reported this information to RCCL staff. Assuming the Court will allow it, the plaintiff or Ms. Powell may testify at trial that they told RCCL staff on the day of the incident that they believed John Doe was intoxicated. The missing body camera footage (assuming it existed) does not prejudice the plaintiff. If there is no prejudice to the plaintiff, “then no remedial measures may be ordered” under Rule 37(e). (Order at 15 (quoting Williford, 2019 WL 2269155, at *12, and citing Incardone, 2019 WL 3779194, at *25).) Because he found no prejudice to Plaintiff stemming from the allegedly missing body camera footage, Judge O'Sullivan found that he need not address that footage any further. (Id.) The Court finds that Judge O'Sullivan’s findings and conclusions on these issues are not clearly erroneous or contrary to law. First, there is no controlling law requiring a defendant to preserve five minutes of CCTV footage prior to an incident and five minutes of CCTV footage after an incident. In fact, other divisions of this Court have specifically found that “deciding the issue of whether RCCL preserved a sufficient representative sample of the CCTV video is not dependent on the specific number of minutes which were preserved. Instead, it focuses on the nature and significance and proportionality of the portions preserved.” Incardone, 2019 WL 3779194, at *23. “There are no hard and fast rules establishing a specific cutoff point for how many minutes of CCTV must be preserved in order to be reasonable.” Id. at *24. Plaintiff's attempt to distinguish Incardone on the ground that “the plaintiff in that case wasn't even trying to argue for a bright line minimum amount of CCTV footage that needed to be preserved” is unavailing. (Obj. at 7.) As recognized by the Incardone court and Judge O'Sullivan in this case, “ ‘[i]t would be difficult, if not impossible, to come up with some specific number because the reasonableness also depends on the quality and fairness of the clips.’ ” (Order at 12 (quoting Incardone, 2019 WL 3779194, at *24).) *8 Here, Judge O'Sullivan reviewed the approximately six minutes of CCTV footage that was preserved and found it to be sufficient, noting that it “captures the lead-up and immediate aftermath of the plaintiff's fall. It shows the plaintiff and a male passenger dancing with each other at approximately 3:10. At approximately 3:32, the male passenger spins the plaintiff and the plaintiff falls.” (Id. at 13.) “While the plaintiff would have liked more than the three and a half minutes of footage preceding the incident in the hopes that it would have captured John Doe's erratic behavior,” (id. at 13-14), Judge O'Sullivan’s finding that Defendant did not have “a duty to preserve more CCTV footage under the circumstances of the instant case given the nature of the incident and the witnesses’ descriptions of the incident, including the plaintiff oral statement that John Doe was intoxicated” is not clearly erroneous or contrary to law. Stated differently, the Court finds that Judge O'Sullivan did not misapply relevant statutes, case law, or rules of procedure, Matter of Application of O'Keefe, 184 F. Supp. 3d at 1366, and after thoroughly reviewing the Parties’ submissions and the record, the Court is not “left with the definite and firm conviction that a mistake has been committed[,]’ ” Laite, 756 F.2d at 1543 (quoting U.S. Gypsum Co., 333 U.S. at 395).[6] *9 Next, Plaintiff objects to Judge O'Sullivan’s finding that the “missing body camera footage (assuming it existed) does not prejudice the plaintiff” because, assuming the Court will allow it, Plaintiff or her traveling companion “may testify at trial that they told RCCL staff on the day of the incident that they believed John Doe was intoxicated.” (Order at 15.) Specifically, she argues that “this missing body camera footage does prejudice plaintiff since, as previously explained, whether Plaintiff informed RCCL's security that John Doe was intoxicated is now her word against RCCL's, whereas it would not have been had RCCL preserved this footage.” (Id. at 11.) The Court finds that Judge O'Sullivan’s findings on this issue are not clearly erroneous or contrary to law. Although evidence that RCCL had knowledge of John Doe's alleged intoxication prior to the incident may be relevant to establishing Plaintiff's claims, evidence that Plaintiff and Ms. Powell told RCCL that John Doe was intoxicated after the incident appears to be unimportant, if not irrelevant to her claims. To the extent that RCCL's after-the-fact knowledge of John Doe's intoxication is relevant at all, it can be established by Plaintiff and Ms. Powell's trial testimony. For these reasons, Judge O'Sullivan’s findings on this issue are not clearly erroneous or contrary to law. See Romero v. Regions Fin. Corp./Regions Bank, CASE NO. 18-22126-CV-WILLIAMS/TORRES, 2019 WL 2866498, at *7 (S.D. Fla. July 3, 2019) (“Because we are unconvinced that the missing video footage is important, Plaintiff cannot establish she will suffer prejudice as a result of Regions’ failure to preserve.”); Living Color Enters., 2016 WL 1105297, at *5-6 (finding “the Court sees no prejudice suffered by Plaintiff. And, if there was any prejudice to Plaintiff at all, it was so minimal that the Court does not find it necessary to order measures to cure the alleged prejudice” where missing text messages “appear to be unimportant, and the abundance of preserved information appears sufficient to meet the needs of Plaintiff”); Centrifugal Force, Inc. v. Softnet Commc'n, Inc., 783 F. Supp. 2d 736, 750 (S.D.N.Y. 2011) (“[A] discovery sanction cannot be based on a failure to preserve irrelevant evidence.”) (citing Fujitsu Ltd. v. Fed. Express Cor., 247 F.3d 423, 436 (2d Cir. 2001) (“The obligation to preserve evidence arises when the party has notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.”)). Because there is no prejudice to Plaintiff stemming from the allegedly missing body camera footage, the Court need not address it further. Because the second requirement for a Rule 37(e) Motion is not satisfied in this case, “the Court ‘need proceed no further’ in its analysis ... ‘and [Plaintiff's] motion for spoliation sanctions or curative measures must be denied.’ ” Chi Nguyen, 2020 WL 413898, at *2 (quoting Living Color Enters., 2016 WL 1105297, at *5). However, even assuming arguendo that Plaintiff could satisfy this requirement, the Motion must be denied because, for reasons explained in the next section, the third requirement for granting a Rule 37(e) motion is not satisfied. b. Failure to take reasonable steps to preserve “Amended Rule 37(e) does not define the ‘reasonable steps’ necessary to preserve ESI, nor does it explain what a party must show to meet its burden to establish that a party failed to take those reasonable steps.” Sosa v. Carnival Corp., CASE NO. 18-20957-CIV-ALTONAGA/GOODMAN, 2019 WL 330865, at *5 (S.D. Fla. Jan. 25, 2019). However, the Advisory Committee Notes “enumerate several specific factors that courts should consider when determining whether the specific steps taken in a particular case were ‘reasonable.’ ” Id. Specifically, the Notes provide that the “court should be sensitive to the party's sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.” Fed. R. Civ. P. 37 advisory committee's notes (2015). “This rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection.” Id. “ ‘[E]ven when litigation is reasonably foreseeable, ‘a corporation under a duty to preserve is not required to keep every shred of paper, every e-mail or electronic document, and every backup tape. In essence, the duty to preserve evidence extends to ... unique, relevant evidence that might be useful to the adversary.’ ” Chi Nguyen, 2020 WL 413898, at *3 (quoting Ala. Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 740-41 (N.D. Ala. 2017) (quoting In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 517-18 (S.D. W. Va. 2014))). *10 Judge O'Sullivan found that Defendant “preserved a reasonable amount of the CCTV footage given the plaintiff and other witnesses’ descriptions of the incident, including the plaintiff's oral statement that John Doe was intoxicated. The portion of the CCTV footage that was not preserved was taped over during the normal course of operation.” (Order at 17 (citing Campos Decl. ¶ 11).) As such, he found that the third requirement for granting a Rule 37(e) motion was not met. (Id.) Plaintiff argues that Judge O'Sullivan “did not adequately address whether RCCL should have known that at least five minutes of CCTV footage before and after a personal injury plaintiff's incident was important.” (Obj. at 4.) She argues that Defendant should have known that at least five minutes of CCTV footage prior to her fall was important because another division of this Court found that a cruise line's CCTV footage showing that a Norwegian Cruise Line employee was cleaning the area where the plaintiff slipped and fell five minutes prior to the plaintiff's incident could establish constructive notice of a dangerous condition. (Id. at 5 (citing Thomas v. NCL (Bahamas), Ltd., 203 F. Supp. 3d 1189, 1191 (S.D. Fla. 2016)).) She further argues that Defendant should have known that at least five minutes of CCTV footage prior to her fall was important because in August 2017, Defendant's Director of Guest Claims and Litigation, Amanda Campos, gave deposition testimony in a different case stating that at the time of the incident in that case, she believed Defendant had a policy of preserving five minutes of CCTV footage before and after an incident. (Id. at 6 (citing D.E. 57-5, Dep. of Amanda Campos in Lebron v. Royal Caribbean Cruises LTD, Case No. 16-24687-Civ-Williams).) As such, Plaintiff argues that Judge O'Sullivan should have found that Defendant failed to take reasonable steps to preserve at least five minutes of CCTV footage before and after her fall. (Id. at 6-7.) Defendant argues that “CCTV was saved sufficient to identify the nature and cause of Plaintiff's incident based upon the information, assertions, and evidence available to the security department at that time.” (Resp. at 10 (citing Incardone, 2019 WL 3779194, at *24).) It argues that it took reasonable steps to preserve CCTV because it relied upon the known facts, policies/procedures and contentions made at the time of assessing the relevant CCTV. Plaintiff engaging in an organized dance, then subsequently dancing with the gentleman are depicted on the CCTV. The incident, as well as the immediate aftermath are also depicted. (Id. at 11.) Defendant asserts that the preserved CCTV footage does not show John Doe exhibiting signs of intoxication, and argues that for Plaintiff to say that “more” video would reveal such behavior is based on nothing more than speculation. There is no evidence to support this assertion. Plaintiff's position is a puzzling one. Why would this allegedly unruly, belligerent passenger have completely and suddenly cease[d] any such behavior for the minutes prior to Plaintiff's incident? Without more, Plaintiff's assertion that insufficient evidence was stored is baseless and based upon speculation. (Id.) Finally, as previously discussed, Ms. Campos, Defendant's Director of Guest Claims and Litigation, executed a Declaration in this case stating that Defendant's Procedure 7.05 Personal Injury Investigations “does not indicate a specific amount of time that [CCTV] video should be preserved. Procedure 7.05 indicates that ‘Footage leading up to the injury, the actual injury and any response to the injury’ should be preserved.” (Campos Decl., D.E. 77-3 ¶ 9.) *11 In her Reply, Plaintiff argues that the fact that Defendant previously had a policy of preserving CCTV footage for at least five minutes before and five minutes after an incident shows that it knew or should have known to preserve at least that much footage in this case. (D.E. 78 at 5.) She attaches to her Reply discovery produced in Lebron, Case No. 16-24687-Civ-Williams, including RCCL's Procedure 7.05 which, at the time of the incident in that case, provided that “[a] Basic Investigation will include ... CCTV: 5 minutes before the incident; the incident (however long it may be); and 5 minutes after the incident.” (D.E. 78-1 at 7 (emphasis in original).) Plaintiff faults Defendant for “inexplicably chang[ing] its policy, without explaining why it did so ....” (Id.) Plaintiff further argues that Defendant had a duty to preserve at least five minutes of CCTV footage prior to the incident because, according to her, she told RCCL staff that John Doe was intoxicated in her post-incident oral statement. (Id. at 5-6.) She further argues that John Doe did not cease his unruly behavior in the three-and-a-half minutes before her incident (for which the CCTV footage was preserved), “just that it is not as easy to see this behavior from the preserved CCTV, since the jury, for example, will not be able to smell the alcohol on this man's breath, or see what he looked like up close.” (Id. at 6.) Finally, she argues that if five minutes of CCTV footage prior to the incident had been preserved, it would have shown that John Doe was “stumbling, not keeping his balance well, and not keeping proper distance with his fellow passengers.” (Id.) However, the jury would not be able to smell the alcohol on John Doe's breath or see what he looked like up close even if Defendant had preserved a minimum of five minutes of CCTV footage prior to the incident. Also, if, as Plaintiff argues, John Doe was acting unruly in the three-and-a-half minutes prior to the incident and it is still not visible on the preserved video, it is unclear why Plaintiff believes an extra minute-and-a-half of video would have shown John Doe acting disorderly. Indeed, Judge O'Sullivan noted that the CCTV footage that was preserved shows a crowded dance floor, with many passengers constantly moving around. If any one passenger were “stumbling, not keeping [his or her] balance well, and not keeping proper distance with ... fellow passengers,” it would have been difficult to tell given the number of passengers on the dance floor and their constant movement. (Id. at 14.) Ultimately, Judge O'Sullivan found that Defendant took reasonable steps to preserve a reasonable amount of CCTV footage under all the relevant circumstances, “including plaintiff's oral statement that John Doe was intoxicated.” (Order at 17 (emphasis added).) “The portion of the CCTV footage that was not preserved was taped over during the normal course of operation.” Id. at 17 (citing Campos Decl. ¶ 11). The Court finds that Judge O'Sullivan’s findings on these issues are not clearly erroneous or contrary to law. See Easterwood v. Carnival Corp., Case No. 19-cv-22932-BLOOM/Louis, 2020 WL 6781742, at *8 (S.D. Fla. Nov. 18, 2020) (finding that the defendant took reasonable steps to preserve the relevant ESI surrounding the plaintiff's slip and fall even though it did not preserve CCTV footage of another passenger's slip and fall in the exact same spot one hour prior to the plaintiff's fall, finding that the “Defendant's failure to preserve all relevant ESI is not fatal where it has undertaken reasonable steps and adequately preserved the most pertinent CCTV footage—i.e., that of Plaintiff's incident[,]” and further finding that “in light of the specific facts and circumstances presented, ... the loss of [the other passenger's slip-and-fall] CCTV footage was not due to Defendant's failure to take reasonable steps to preserve the video, but rather was due to ‘the routine, good-faith operation of an electronic information system’ that automatically taped over prior footage”). Stated differently, the Court finds that Judge O'Sullivan did not misapply relevant statutes, case law, or rules of procedure, Matter of Application of O'Keefe, 184 F. Supp. 3d at 1366, and after thoroughly reviewing the Parties’ submissions and the record, the Court is not “left with the definite and firm conviction that a mistake has been committed[,]’ ” Laite, 756 F.2d at 1543 (quoting U.S. Gypsum Co., 333 U.S. at 395). Because the third requirement for a Rule 37(e) Motion is not satisfied in this case, “the Court ‘need proceed no further’ in its analysis ... ‘and [Plaintiff's] motion for spoliation sanctions or curative measures must be denied.’ ” Chi Nguyen, 2020 WL 413898, at *2 (quoting Living Color Enters., 2016 WL 1105297, at *5). IV. Conclusion *12 Accordingly, it is ORDERED AND ADJUDGED that Plaintiff's Objections to the Honorable Magistrate Judge's Order (D.E. 71) are OVERRULED. DONE AND ORDERED in Chambers at Miami, Florida this 4th day of March, 2021. Footnotes [1] The defendant states that John Doe “has since been identified and disclosed to Plaintiff.” Response at 1. [2] The plaintiff's declaration uses the terms “RCCL security/safety officers,” “RCCL staff members” and “RCCL security/safety staff members” interchangeably. See Plaintiff's Decl. at ¶¶ 6-7, 9. To avoid confusion, the undersigned will use the term “RCCL staff.” [3] The defendant has filed a declaration attesting that: The CCTV cameras on Royal Caribbean's ships have 24-hour monitoring. If CCTV footage is not specifically saved, it is taped over due to storage capabilities based on the 24-hour monitoring. The footage of Ms. Reed's incident would have been taped over well before Plaintiff's counsel's letter of May 15, 2019 requesting Royal Caribbean preserve at least one hour prior and one-hour subsequent [to] Plaintiff's incident. Declaration of Amanda Campos (DE# 64-3 at ¶11, 9/17/20) (hereinafter “Campos’ Decl.”) (emphasis added). [4] In a different paragraph of her declaration, the plaintiff attests that John Doe was behaving erratically approximately “five to fifteen minutes before accosting [her].” Plaintiff's Decl. at ¶10 (attesting that the plaintiff “believe[d] that the additional CCTV footage that RCCL's cameras captured showed that [John Doe] was in a state of visible intoxication, and was exhibiting unruly, erratic, and dangerous behavior at least five to fifteen minutes before accosting [the plaintiff]”). [5] As Judge O'Sullivan noted: Some cases group or number the requirements of Rule 37(e) differently. See, e.g., In re Abilify (Aripiprazole) Prod. Liab. Litig., No. 3:16-MD-2734, 2018 WL 4856767, at *2 (N.D. Fla. Oct. 5, 2018) (listing the four requirements of Rule 37(e) as follows “First, the ESI should have been preserved in the anticipation or conduct of the litigation. Second, the ESI is lost or destroyed. Third, the loss of the ESI is due to the party's failure to take reasonable steps to preserve the ESI. Last, the ESI cannot be restored or replaced through additional discovery.”); Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *4 (S.D. Fla. Mar. 22, 2016) (describing the requirements of Rule 37(e) as three requirements because it considered the question of whether the spoliated evidence was ESI to be a threshold issue). However, the requirements of Rule 37(e) are essentially the same. (Order at 5 n.4.) [6] In her Reply, Plaintiff argues for the first time that there is authority establishing a minimum standard for preservation of video footage, and cites to Samuel v. United Corp., a case in which the Supreme Court of the Virgin Islands held that the plaintiff was entitled to a spoliation inference jury instruction because the defendant grocery store only preserved 1 minute and 21 seconds of video footage prior to the plaintiff's slip-and-fall. 64 V.I. 512, 517-18 (V.I. 2016). The court found that the case was governed by a prior case from the same court involving the exact same defendant, Bright v. United Corp., in which the court held that the defendant was required to preserve video footage for “a reasonable period of time preceding and following the accident.” 50 V.I. 215, 230 (V.I. 2008). The Samuel court rejected the defendant's argument that “a reasonable period of time” is ambiguous and therefore that the court should defer to the trial court's finding that 1 minute and 21 seconds was reasonable in this instance. 64 V.I. at 519. The Supreme Court of the Virgin Islands found that “under any standard” the trial court's conclusion was erroneous. Id. The deleted video footage was the only evidence that could have established whether United had constructive notice of the spill, and unless the 1 minute and 21 seconds of video showed the spill occurring—which would constitute strong evidence against a finding of constructive notice—such a short video could not establish whether United had constructive notice of the spill. Id. (citing Bright, 50 V.I. at 231). Accordingly, the court held that the plaintiff was entitled to a spoliation inference instruction, and reversed and remanded for a new trial. Id. at 520. Initially, the Court notes that Judge O'Sullivan did not have occasion to consider Samuel because Plaintiff did not cite it in her Motion for Sanctions or her Reply in support of her Motion for Sanctions, and Defendant did not have an opportunity to respond to Plaintiff's reliance on Samuel because Plaintiff did not cite it in her Objections. Because Plaintiff did not argue Samuel in either of its briefs to Judge O'Sullivan or in its Objections to the undersigned, the Court exercises its discretion not to consider the argument here. See Williams v. McNeil, 557 F.3d 1287, 1292 (11th Cir. 2009) (holding that “a district court has discretion to decline to consider a party's argument when that argument was not first presented to the magistrate judge”); Herring v. Sec'y, Dep't of Corrs., 397 F.3d 1338, 1342 (11th Cir. 2005) (“As we repeatedly have admonished, ‘[a]rguments raised for the first time in a reply brief are not properly before a reviewing court.’ ”) (quoting United States v. Coy, 19 F.3d 629, 632 n.7 (11th 1994)); However, the Court notes that Samuel is not binding on this Court and, in any event, does not establish a minimum temporal standard for preservation of video footage. Additionally, the Court finds Samuel to be distinguishable on the facts. First, there is the obvious distinction that, in this case, RCCL preserved over two minutes more video footage prior to the incident than the defendant in Samuel. Second, there are obvious differences between a slip-and-fall at a grocery store and a crowded dance floor on a cruise ship. In Samuel, more video footage almost certainly would have “showed the spill occurring” or otherwise provided evidence regarding the defendant's constructive notice of the condition. Id. at 519. As such, the defendant's bad faith was palpable. See id. In this case, however, it is questionable whether more video footage would have revealed evidence of John Doe's intoxication. Indeed, after watching the video, Judge O'Sullivan found that “the CCTV footage that was preserved shows a crowded dance floor, with many passengers constantly moving around. If any one passenger were ‘stumbling, not keeping [his or her] balance well, and not keeping proper distance with ... fellow passengers,’ it would have been difficult to tell given the number of passengers on the dance floor and their constant movement.” (Order at 14.)