UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

MIAMI DIVISION

CASE NO. 20-23463-CIV-COOKE/GOODMAN

MARIA PEREZ-SERA, 

Plaintiff,

v.

CARNIVAL CORP.,

Defendant.

______________________/

POST-DISCOVERY HEARING ADMINISTRATIVE ORDER

On November 1, 2021, the Undersigned held a Zoom teleconference hearing on 

the parties’ discovery dispute. [ECF Nos. 27-32]. At the hearing, the Undersigned

discussed Defendant Carnival’s failure to produce CCTV of the subject incident, its loss 

of the CCTV footage after a security officer viewed it and supposedly downloaded it, and 

its initial, cryptic response that there was no CCTV footage (without explaining that there 

had been footage, but it had been lost, destroyed, or rendered unretrievable). 

Based on those discussions, the Undersigned ordered as follows:

I. Defendant’s Incomplete Response to Discovery 

This is not the first time that I have encountered a similar situation where a ship

security officer has reviewed CCTV video footage for an incident onboard a Carnival ship 

and then the video is no longer available or compatible for subsequent viewing.

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Accordingly, I permit Plaintiff to take additional discovery on the circumstances 

under which the video at issue was initially preserved, when it became unavailable, how 

it became unavailable, and why Carnival gave an incomplete explanation when it said

there was no video footage in its earlier discovery responses. In addition, Plaintiff may 

obtain discovery on Carnival’s history of losing, destroying, or not preserving CCTV on 

its ships in the three years preceding the filing of this lawsuit. 

Plaintiff may, after taking that discovery (if Plaintiff still wants to seek an adverse 

inference), seek that remedy (and perhaps others) in a separate sanctions/spoliations 

motion. 

Under the applicable electronic discovery federal rule (i.e., Federal Rule of Civil 

Procedure 37(e)), the only way for a party to obtain an adverse inference at trial for 

spoliation of electronically stored information (“ESI”) is to demonstrate, among other 

requirements, that the circumstances are tantamount to bad faith. Therefore, mere 

negligence would not support an adverse inference instruction. Consequently, I am 

giving Plaintiff the opportunity to take additional discovery on issues relating to Rule 

37(e).

The parties shall try to schedule the Rule 30(b)(6) deposition and a list of 

appropriate Rule 30(b)(6) topics without judicial intervention.

II. Discovery Deadlines

As discussed at the hearing, the current discovery cutoff is November 4, 2021. I do 

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not have authority to extend a discovery deadline by two or three weeks (or longer), so 

that Plaintiff can obtain the deposition testimony and other discovery she would need to 

pursue Rule 37(e) sanctions. Plaintiff will need to file a motion before Judge Cooke and

succinctly explain the background of the discovery issue and the fact that I have given

Plaintiff authority to take the additional discovery (if permitted). 

DONE AND ORDERED in Chambers, in Miami, Florida, on November 2, 2021.

Copies furnished to:

The Honorable Marcia G. Cooke

All Counsel of Record

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