1 

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 22-22782-CIV-ALTONAGA/Torres

DORIS AGATHA MAYLOR, 

Plaintiff,

v. 

WAL-MART STORES EAST, LP, 

Defendant.

_______________________________/ 

ORDER

THIS CAUSE came before the Court on Plaintiff, Doris Agatha Maylor’s Motion for 

Spoliation Sanctions [ECF No. 31], filed on May 16, 2023. Defendant, Wal-Mart Stores East, LP, 

filed a Response [ECF No. 47], to which Plaintiff filed a Reply [ECF No. 57]. The Court has 

carefully considered the record, the parties’ written submissions, and applicable law. For the 

following reasons, the Motion is denied. 

I. BACKGROUND

This case arises from an incident that occurred at one of Defendant’s stores on June 13, 

2020. (See Index of State Court Docket Entries, Ex. 3, Compl. [ECF No. 11-3] ¶ 7). Plaintiff

tripped and fell as the result of a piece of tape or plastic wrapping (the “debris”) that had been

discarded on an aisle floor of the store. (See Mot. 1).1

 The debris is now missing, and Plaintiff 

accuses Defendant of evidence spoliation. (See generally id.). 

The parties argue extensively over the exact circumstances of Plaintiff’s fall, which was 

partially captured on the store’s surveillance footage. (See generally Mot., Ex. 1, Footage [ECF 

1 The Court relies on the pagination generated by the Case Management/Electronic Case Files system, 

which appears in the header on all filings. 

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No. 31-1]; Notice of Conventional Filing [ECF No. 44]).

2

 Suffice it to say that: (1) it appears an 

unidentified customer dropped the debris on the aisle floor (see Footage 5:25:10–12); (2) over the 

course of the next two minutes, multiple other unidentified customers — and two of Defendant’s 

employees — passed through the area and over the debris (see id. 5:25:12–5:27:37);

3 and (3) 

Plaintiff then walked along the aisle, passed over the debris, and fell (see id. 5:27:37–42). Neither 

side disputes the debris’ existence, although Defendant disputes that it was the cause of Plaintiff’s 

injury. (See Resp. 5). 

After Plaintiff’s fall, other customers rushed to the scene, including two who were deposed: 

Charles Lee and Zandra Randall. (See Mot. Ex. 5, Lee Dep. [ECF No. 31-5]; id., Ex. 6, Randall 

Dep. [ECF No. 31-6]). One of Defendant’s employees, Nyron Baker, also arrived at the scene, 

promptly collected the debris, left the scene, and disposed of the debris. (See id. 5:27:45–5:28:24; 

see also Mot. 2; Resp. 2–3). He clocked out of work only a few minutes later, at 5:31 p.m., after 

having worked a nine-hour shift. (See Mot., Ex. 7, Timesheets [ECF No. 31-7] 2). Both Lee and 

Randall testified that Baker took the debris despite their protestations. (See Resp. 2–3 (describing 

testimony)). 

Eventually, store manager Betsaida Ramos arrived and assisted Plaintiff. (See Mot. 3; see 

generally id., Ex. 2, Ramos Dep. [ECF No. 31-2]). Ramos agreed that Baker had quickly picked 

up the debris and left the scene, but she also remembers that Baker described being yelled at by 

customers as he walked away. (See Ramos Dep. 46:17–47:6). She also noted that the store in 

question has “pretty rough” customers; this may have been “why he would have been walking 

2 The Footage contains a running clock showing the time of day. (See generally Footage). When describing 

and citing the video, both parties refer to the time of day displayed on the video, rather than the video file’s 

internal time stamps. (See generally Mot.; Resp.; Reply). The Court does the same. The Footage has no 

audio. 

3 One customer even appears to kick and move the debris in question. (See Footage 5:26:10–15).

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away with customers yelling at him.” (Id. 59:20–60:1). Baker, who was not deposed, has since 

passed away. (See Resp. 9).

Ramos also testified about Defendant’s internal procedures regarding employees’ 

responsibility to clean up spills and debris when employees come upon them in the store (see 

Ramos Dep. 12:24–13:13), as well as the responsibility to leave “accident” scenes undisturbed (id. 

20:17–25). Regarding the latter, Ramos stated that it was policy to not “remove anything that 

caused the accident[,]” and to take pictures of the incident and area. (Id. (alteration added)).4

 

Ramos also described Defendant’s guidelines on employees’ responsibility to secure any evidence

or items that were involved in or caused an incident. (See id. 22:11–24). 

Because the debris is no longer available as evidence, Plaintiff accuses Defendant of 

spoliation and asks the Court to impose a sanction of either striking Defendant’s affirmative 

defense of comparative negligence or instructing the jury to draw an adverse inference regarding 

the debris. (See generally Mot.).

II. STANDARD

“Spoliation is the destruction or significant alteration of evidence, or the failure to preserve 

property for another’s use as evidence in pending or reasonably foreseeable litigation.” Graff v. 

Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir. 2009) (citation and quotation marks omitted). 

To show spoliation occurred, Plaintiff must demonstrate: “first, that the missing evidence existed 

at one time; second, that the alleged spoliator had a duty to preserve the evidence; and third, that 

the evidence was crucial to the movant being able to prove its prima facie case or defense.” 

Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1322 (S.D. Fla. 2010)

(citations and quotation marks omitted). Plaintiff, “as the moving party, has the burden of proof.” 

4 Plaintiff also claims that these policies are repeated “in numerous sections of Defendant’s policies and 

procedures.” (Mot. 3). The policies and procedures have not been filed with the Court.

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Id. 

Even if all three elements of spoliation are met, the failure to preserve evidence is only 

sanctionable upon a showing of bad faith. See Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th 

Cir. 2009). Put another way, “mere negligence in losing or destroying records” is not enough. Id.

(citation omitted); see also Penick v. Harbor Freight Tools, USA, Inc., 481 F. Supp. 3d 1286, 1292 

(S.D. Fla. 2020) (explaining that bad faith exists “where a party purposely loses or destroys 

relevant evidence” (citations and quotation marks omitted)); Tesoriero v. Carnival Corp., 965 F.3d 

1170, 1184 (11th Cir. 2020) (noting that “bad faith in the context of spoliation[] generally means 

destruction for the purpose of hiding adverse evidence” (alteration added; citation and quotation 

marks omitted)).

“If direct evidence of bad faith is unavailable, the moving party may establish bad faith 

through circumstantial evidence.” Managed Care Sols., Inc., 736 F. Supp. 2d at 1322 (citations 

omitted). Circumstantial evidence of bad faith may be demonstrated when

(1) evidence once existed that could fairly be supposed to have been material to the 

proof or defense of a claim at issue in the case; (2) the spoliating party engaged in 

an affirmative act causing the evidence to be lost; (3) the spoliating party did so 

while it knew or should have known of its duty to preserve the evidence; and (4) 

the affirmative act causing the loss cannot be credibly explained as not involving 

bad faith by the reason proffered by the spoliator.

Id. at 1323 (citation omitted).

III. DISCUSSION

Plaintiff attempts to show that Defendant is responsible for the spoliation of evidence. (See 

Mot. 5–6). According to Plaintiff, the circumstances here are sufficient because the debris existed 

at one time, Defendant had a duty to preserve it after it caused her to fall, and it is crucial in the 

case. (See id. (citing Managed Care Sols., Inc., 736 F. Supp. 2d at 1322)). Plaintiff also argues 

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that sanctions are warranted because Defendant destroyed the evidence in bad faith. (See id. 6–8).

As noted, neither party disputes that the debris previously existed. (Resp. 5 (citations 

omitted)). Further, Plaintiff demonstrates that Defendant had a duty to preserve the debris and the 

debris is — or rather, would have been — crucial to her case. See Managed Care Sols., Inc., 736 

F. Supp. 2d at 1322. Nevertheless, no sanctions are warranted because Plaintiff has not shown the 

loss of the debris was “predicated on bad faith.” Mann, 588 F.3d at 1310 (citation and quotation 

marks omitted). The Court addresses each issue in turn. 

To start, Plaintiff has minimally established that Defendant had a duty to preserve the 

debris. Parties have “an obligation to retain relevant [evidence] where litigation is reasonably 

anticipated.” Managed Care Sols., Inc., 736 F. Supp. 2d at 1324 (alteration added; citations 

omitted). Arguably, Defendant had a duty to preserve the evidence as soon as it became aware the 

debris’ presence on the floor was likely the cause of an incident at the store. See Siciliano v. Target 

Corp., No. 9:14-cv-80459, 2015 WL 11348279, at *4 (S.D. Fla. Apr. 24, 2015) (noting that 

“litigation was reasonably anticipated as early as [the date] when Plaintiff reported her fall to 

Target store employees” (alteration added)). 

Defendant claims that “[t]he mere occurrence of an incident is not sufficient to immediately 

place Defendant aware [sic] of an anticipated litigation.” (Resp. 5 (alteration added)). This is 

difficult to reconcile with Defendant’s own policies — which Ramos herself 

described — instructing employees to leave accident scenes undisturbed as well as collect and 

preserve all items involved in any incident. (See Ramos Dep. 20:17–22:24). Numerous employees

were aware that the incident occurred, and the debris, at minimum, had some involvement in the 

incident. (See, e.g., Footage 5:27:37–5:28:15; Ramos Dep. 43:7–44:21 (acknowledging Baker and 

another employee were on the scene)).

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Plaintiff also establishes that the debris is crucial to her case, because “it is the very 

condition that caused Plaintiff’s fall and subsequent injuries.” (Mot. 6). Defendant argues that 

“Plaintiff has not shown that the piece of plastic is crucial” because “[e]vidence can be relevant to 

a dispute without being crucial to the claim or defenses.” (Resp. 5 (alteration added; citing Floeter 

v. City of Orlando, No. 6:05-cv-400, 2007 WL 486633, at *6 (M.D. Fla. Feb. 9, 2007))). 

Admittedly, evidence must be more than just “relevant” to be considered crucial. Managed Care 

Sols., Inc., 736 F. Supp. 2d at 1327. But courts “must not hold the prejudiced party to too strict a 

standard of proof regarding the likely contents of the destroyed evidence because doing so allows 

the spoliators to profit from the destruction of the evidence.” In re Bos. Boat III, L.L.C., 310 

F.R.D. 510, 521 (S.D. Fla. 2015) (citations and quotation marks omitted). Here, it strains credulity

to argue that the debris which Plaintiff maintains was responsible for her fall is not critical to her 

case — its composition, texture, appearance, and likely source. (See Compl. ¶¶ 9–11 (alleging 

negligence against Defendant based on the “hazardous and dangerous condition”)). 

Defendant seeks to undercut this unremarkable conclusion by arguing that the debris would 

only “be cumulative[,]” and the dangerous condition allegedly causing Plaintiff’s fall can be 

proved by otherwise available evidence — such as deposition testimony and the store’s camera 

footage. (Resp. 5–6 (alteration added; discussing Floeter, 2007 WL 486633)). For one thing, 

Defendant’s reliance on Floeter is inapposite. The plaintiff in Floeter accused the defendant of 

deleting certain emails containing statements which would have supported the plaintiff’s hostilework-environment claims. See 2007 WL 486633, at *1–2. While the court in Floeter agreed those 

emails “may be relevant[,]” it determined they were not “crucial” because the plaintiff already had 

access to numerous other emails containing similar statements. Id. at *6 (alteration added). There 

is no other debris present here which Plaintiff might be able to rely on to prove her claim.

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Regardless, the Court does not agree with Defendant that the debris would be cumulative

of other evidence in the record, because nothing in the record conclusively establishes what the 

debris was. The Footage is indeterminate at best. (See Footage 5:25:10–5:27:38). Deposition 

testimony is similarly inconclusive, with witnesses alternatively describing the debris as, among 

other things: “a tape or something” (Lee Dep. 11:6–10), “the object” (Randall Dep. 8:10–16), 

“plastic” (Ramos Dep. 28:10–21), and “clear crumpled plastic wrap” (Mot., Ex. 4, Maylor Dep.

[ECF No. 31-4] 45:23-46:2). Certainly, it would not be “cumulative” to have evidence on hand 

which would definitively establish the character of the actual condition which Plaintiff states

caused her fall. (See Compl. ¶¶ 9–11). Indeed, determining the character of the debris — for 

example, how visible it might appear while on the floor — is crucial proof for Plaintiff’s claims 

(see id.), and certain of Defendant’s defenses, such as comparative negligence (see Index of State 

Court Docket Entries, Ex. 12, Answer [ECF No. 1-12] 3).

In short: “[w]hile [Defendant] is correct that the [debris] is not the only evidence that could 

corroborate or refute [Plaintiff’s] allegations, it undoubtedly is one of the main pieces of evidence 

that could be used to help resolve the underlying matters in this [negligence] case.” Penick, 481 

F. Supp. 3d at 1293 (alterations added). Thus, the Court agrees with Plaintiff that the debris is 

crucial.

Nevertheless, and again, evidence spoliation is only sanctionable when loss of the evidence 

is “predicated on bad faith.” Mann, 588 F.3d at 1310 (citation and quotation marks omitted); see 

Bos. Boat III, L.L.C., 310 F.R.D. at 516 (noting that “even grossly negligent conduct would not 

justify [sanctions] when it is not accompanied by bad faith” (alteration added; citation and footnote 

call number omitted)). Plaintiff argues that both “clearly sufficient direct evidence” and 

“circumstantial evidence” exist to demonstrate Defendant’s bad faith. (Mot. 7). The Court is not 

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persuaded.

First, Plaintiff’s confident assertion of “clearly sufficient direct evidence” is untethered 

from the record and any supporting authority. (Id.). Plaintiff fails to identify any of the direct 

evidence she believes exists to support this claim, instead relying on a general reference to “the 

evidence in this case[.]” (Id. 6–7 (alteration added)). The Court is left to wonder what evidence 

she is referring to. 

Perhaps recognizing this deficiency, Plaintiff quickly pivots to an attempt to prove bad 

faith with circumstantial evidence. (See id. 7–8). The first three prongs of the circumstantial bad 

faith analysis largely follow the three elements of proving spoliation, and so the Court does not 

repeat them here. See, e.g., Penick, 481 F. Supp. 3d at 1293 (finding spoliation and then 

proceeding to the final element of the circumstantial test). For the last prong, Plaintiff must 

demonstrate that “the affirmative act causing the loss cannot be credibly explained as not involving 

bad faith[.]” Calixto v. Watson Bowman Acme Corp., No. 07-60077-Civ, 2009 WL 3823390, at 

*16 (S.D. Fla. Nov. 16, 2009) (alteration added). She fails to do so, because Baker’s disposal of 

the debris can be credibly explained without inferring any nefarious purpose. 

To her credit, Plaintiff admits that no party has been able to speak with Baker “to discuss 

why he did what he did.” (Mot. 8). Instead, Plaintiff points to the crowd shown in the Footage 

and the yelling customers described by the witnesses. (See id.). According to Plaintiff, this 

evidence demonstrates that Baker had knowledge the debris was involved in the incident, yet 

removed and destroyed it anyway — in fact, Plaintiff insists “[t]here is simply no logical reason” 

for Baker’s actions otherwise. (Id. (alteration added)). 

Plaintiff’s hyperbole aside, the record provides other credible reasons for Baker’s conduct. 

For example, Ramos herself testified regarding the “rough” character of the store’s usual 

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customers(Ramos Dep. 59:20–60:1), and Lee confirms he attempted to follow and harangue Baker 

as he walked away (see Lee Dep. 15:14–16:12). As Ramos noted, it would certainly be sensible 

for Baker to attempt to extricate himself from a situation involving angry, shouting customers. 

(See Ramos Dep. 59:20–60:1). This innocuous conduct would not rise to the level of the bad faith 

required for a finding of spoilation. See Flury v. Daimler Chrysler Corp., 427 F.3d 939, 945 (11th 

Cir. 2005) (finding bad faith when company ignored “unambiguous” written request to inspect 

defective vehicle and instead “allowed the vehicle to be sold for salvage without notification”). 

Also, there is a credible explanation for why Baker promptly left the scene and the store: he clocked 

out after working a nine-hour shift. (See Timesheets 2).

Nor does the fact that Baker ultimately disposed of the evidence — despite Defendant’s 

evidentiary preservation policies — demonstrate the requisite bad faith. While Ramos described

these policies (see Ramos Dep. 20:17–22:24), there is no evidence that Baker was even aware of 

the policies and actively chose to violate them (see generally Mot.). Too, there is no evidence he 

did so with the hope of complicating future litigation. See Penick, 481 F. Supp. 3d at 1294 (finding 

bad faith existed because the spoliator “voluntarily and personally took [the lost evidence] to a 

scrap yard after he had retained counsel and anticipated filing suit” (alteration added)); see also 

Bos. Boat III, L.L.C., 310 F.R.D. at 522. 

At most, one might describe Baker’s failure to preserve the debris as “an act of mere 

negligence.” Tesoriero, 965 F.3d at 1185. Bad faith does not exist when “some of Defendant’s

employees . . . [are] negligent in their preservation efforts.” Butterworth v. Lab’y Corp. of Am. 

Holdings, No. 08-cv-411, 2012 WL 12864185, at *23 (M.D. Fla. Apr. 23, 2012) (alterations 

added), aff’d, No. 08-cv-411, 2012 WL 12898848 (M.D. Fla. Aug. 27, 2012). Consequently, the 

Court finds no sanctions are warranted here.

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IV. CONCLUSION

For the foregoing reasons, it is

ORDERED AND ADJUDGED that Plaintiff’s Motion for Spoliation Sanctions [ECF 

No. 31] is DENIED. 

DONE AND ORDERED in Miami, Florida, this 16th day of July, 2023. 

 _______________________________________

 CECILIA M. ALTONAGA

 CHIEF UNITED STATES DISTRICT JUDGE

cc: counsel of record

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