UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

Case No. 20-cv-22783-BLOOM/Louis

KATHRYN BIRREN and 

MANDY BIRREN,

Plaintiffs,

v.

ROYAL CARIBBEAN CRUISES, LTD.,

a Liberian corporation, 

Defendant.

_________________________________/

ORDER OVERRULING OBJECTIONS AND

DENYING MOTION FOR RECONSIDERATION

THIS CAUSE is before the Court upon Plaintiffs Kathryn Birren and Mandy Birren’s 

(“Plaintiffs”) Objections to the Honorable Magistrate Judge’s Order on CCTV Spoliation, ECF 

No. [83] (“Objections”), and Plaintiffs’ Motion for Reconsideration of This Court’s Order, ECF 

No. [82] (“Motion for Reconsideration”). To date, Defendant has not filed objections or a response 

in opposition to the Motion for Reconsideration.

On July 20, 2021, Plaintiffs filed a Motion for Sanctions for Spoliation of Evidence. See 

ECF No. [65] (“Motion for Sanctions”). On November 19, 2021, after reviewing the Motion for 

Sanctions, Defendant’s Response, and Plaintiffs’ Reply, Magistrate Judge Lauren Louis entered

an Order denying Plaintiffs’ Motion for Sanctions. See ECF No. [80] (“Order”). Plaintiffs filed 

timely objections. See ECF No. [83]. This Court has reviewed the Order in accordance with Fed. 

R. Civ. P. 72(a) to determine whether the Order is clearly erroneous or contrary to the law. See

also 28 U.S.C. § 636(b)(1)(A). For the reasons set forth below, following a comprehensive review, 

the Court determines that Plaintiffs’ Objections are without merit and that Judge Louis’ Order is

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well reasoned and correct. As such, the Court overrules Plaintiffs’ Objections and denies the 

Motion for Reconsideration as moot.

I. BACKGROUND

On July 7, 2020, Plaintiffs initiated this maritime personal injury action against Defendant. 

See ECF No. [1]. In discovery, Defendant produced a total of eleven (11) minutes and four (4) 

seconds of relevant video footage: eight (8) minutes and twenty-eight (28) seconds of pre-incident 

footage and two (2) minutes and thirty (30) seconds of post-incident footage. See ECF No. [80] at 

2. The video also shows the elevator doors closing abruptly multiple times before Plaintiffs’ 

incident. See id. Plaintiffs filed a Motion for Sanctions pursuant to Rule 37(e) because Defendant 

preserved less than ten (10) or fifteen (15) minutes of footage prior to Plaintiffs’ incident and failed 

to preserve five (5) minutes of footage after the incident. See generally ECF No. [65]. Judge Louis’ 

Order denied Plaintiffs’ Motion for Sanctions because two (2) prongs of Rule 37(e) were not 

satisfied: (1) Defendant did not have a duty to preserve additional video footage in anticipation of 

litigation; and (2) the additional footage was not lost because Defendant failed to take reasonable 

steps to preserve it. See generally ECF No. [80].

In the Objections, Plaintiffs argue that there is a “need to correct clear error or prevent 

manifest injustice.” ECF No. [83] at 2. According to Plaintiffs, Defendant had a legal duty to 

preserve enough video footage required to establish constructive notice of the dangerous condition 

and that the footage Defendant preserved was not sufficient to establish constructive notice. See 

ECF No. [83] at 3-4. Plaintiffs also argue thatJudge Louis’ analysis that Defendant took reasonable 

steps to preserve the footage was mistaken because it improperly relied on Reed v. Royal 

Caribbean Cruises, Ltd., No. 19-24668-CIV, 2021 WL 3557747, at *8 (S.D. Fla. Mar. 4, 2021). 

See ECF No. [83] at 4-5.

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II. LEGAL STANDARD

The Federal Rules of Civil Procedure Rule 72(a) states:

When a pretrial matter not dispositive of a party’s claim or defense is referred to a 

magistrate judge to hear and decide, the magistrate judge must promptly conduct 

the required proceedings and, when appropriate, issue a written order stating the 

decision. A party may serve and file objections to the order within 14 days after 

being served with a copy. A party may not assign as error a defect in the order not 

timely objected to. 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.

Fed. R. Civ. P. 72(a).

“A 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.” United States v. United States Gypsum Co., 68 S.Ct. 525, 542 (1948). “[A]n 

order is contrary to law when it fails to apply or misapplies relevant statutes, case law or rules of 

procedure.” Tolz v. Geico Gen. Ins. Co., No. 08-80663-CIV-JOHNSON, 2010 WL 384745, at *2 

(S.D. Fla. Jan. 27, 2010) (citing Pigott v. Sanibel Development, LLC, Case No. 07-0083, 2008 WL

2937804 at *5 (S.D. Ala. July 23, 2008)).

Further, courts may impose sanctions under Rule 37(e) only if four requirements are met: 

“(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.” Title Cap. Mgmt., LLC 

v. Progress Residential, LLC, No. 16-21882-CV, 2017 WL 5953428, at *3 (S.D. Fla. Sept. 29, 

2017) (citing Fed. R. Civ. P. 37(e)).

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III. DISCUSSION

A. Duty to Preserve Footage in Anticipation of Litigation

First, Plaintiffs argue that Judge Louis’ Order – that Plaintiffs’ cited cases fail to “provide 

a logical foundation for the 10-15 minute figure Plaintiff asserts should govern Defendant’s duty” 

– is mistaken. See ECF No. [83] at 3. Plaintiffs argue that Chiverton v. World Fresh Mkt., LLC, 69 

V.I. 129 (V.I. Super. 2017), a case from the Superior Court of the Virgin Islands, established that

the defendant had a legal duty to preserve enough video to establish constructive notice in 

anticipation of litigation. See ECF No. [83] at 3. Plaintiffs also cite several cases that indicate that 

ten (10) to fifteen (15) minutes of pre-incident footage are sufficient to establish constructive notice 

in Florida courts. See id. at 3-4 (citing Thomas v. NCL (Bahamas), Ltd., 203 F. Supp. 3d 1189, 

1193 (S.D. Fla. 2016); Lebron v. Royal Caribbean Cruises Ltd., 818 F. App’x 918, 921 (11th Cir. 

2020)).

However, the Court is not persuaded. First, as Plaintiffs concede, “Chiverton does not 

explicitly state that Defendants [sic] are legally required to preserve 10-15 minutes of CCTV prior 

to an incident.” ECF No. [83] at 3. Rather, the court in Chiverton held that the defendant had a 

duty to preserve sufficient video footage to establish constructive notice and that sixty-two (62) 

seconds of pre-incident footage were insufficient to establish constructive notice. See 69 V.I. at 

133-34. In contrast, Defendant in this case provided a video longer than eleven (11) minutes, which 

included eight (8) minutes and twenty-eight (28) seconds of pre-incident footage. 

Further, although Florida courts have determined that ten (10) to fifteen (15) minutes of 

pre-incident footage are sufficient to establish notice, none of Plaintiffs’ cited cases have 

determined that the eight (8) minutes and twenty-eight (28) seconds of pre-incident footage 

Defendant provided in this case are insufficient to establish constructive notice. See Thomas, 203 

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F. Supp. 3d at 1193; Lebron, 818 F. App’x at 921. In other words, the courts did not establish the 

minimum temporal threshold to establish constructive notice when determining that ten (10) to 

fifteen (15) minutes of pre-incident footage were sufficient. As such, Judge Louis’ Order on this 

matter is not contrary to law, and Defendant did not have a legal duty to preserve more footage.

B. Reasonableness of the Steps Taken to Preserve Footage

Second, Plaintiffs argue that Judge Louis’ analysis that Defendant took reasonable steps to 

preserve the pre-incident footage is mistaken because it improperly relies on Reed, 2021 WL 

3557747. See ECF No. [83] at 4-5. Plaintiffs argue that the instant case is more analogous to 

Samuel (and the aforementioned Chiverton) cited in Reed, as opposed to Reed itself, because 

similar to the defendant in Samuel, Defendant in this case did not preserve sufficient pre-incident 

footage and therefore did not take reasonable steps to preserve the necessary footage. See ECF No. 

[83] at 5.

The Court is not persuaded by Plaintiffs’ second argument. As noted above, Thomas and 

Lebron do not establish that eight (8) minutes and twenty-eight (28) seconds of pre-incident 

footage are insufficient to establish constructive notice. They merely establish that ten (10) to 

fifteen (15) minutes of pre-incident footage are sufficient. See Thomas, 203 F. Supp. 3d at 1193; 

Lebron, 818 F. App’x at 921. Further, as the court in Reed noted in regard to the defendant in

Samuel, the Samuel defendant’s “bad faith was palpable.” ECF No. [83] at 5 (quoting Reed, 2021 

WL 3557747, at *8, n.6). In Samuel, the defendant preserved only one (1) minute and twenty-one 

(21) seconds of pre-incident footage. See Samuel v. United Corp., 64 V.I. 512, 519 (V.I. 2016). 

The same cannot be said of Defendant in this case since Defendant provided a video that included 

eight (8) minutes and twenty-eight (28) seconds of pre-incident footage. As such, similar to the 

defendant in Reed, who provided a six (6) minute video that the Reed court considered sufficient, 

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see Reed, 2021 WL 3557747, at *8, Defendant here has provided sufficient footage, did not act in

bad faith, and took reasonable steps to preserve the necessary video footage.

IV. CONCLUSION

In sum, upon a comprehensive review, the Court finds Magistrate Judge Louis’ Order to 

be well reasoned and correct. As such, the Court agrees with the analysis in the Order and overrules 

the Objections. As such, the Motion for Reconsideration is denied as moot.

Accordingly, it is ORDERED and ADJUDGED as follows:

1. The Objections, ECF No. [83], are OVERRULED.

2. The Motion for Reconsideration, ECF No. [82], is DENIED AS MOOT.

DONE AND ORDERED in Chambers at Miami, Florida, on January 10, 2022.

_________________________________

BETH BLOOM

UNITED STATES DISTRICT JUDGE

Copies to: 

Counsel of Record

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