Third District Court of Appeal
State of Florida
Opinion filed September 14, 2022.
Not final until disposition of timely filed motion for rehearing.
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No. 3D22-674
Lower Tribunal No. 17-2962
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Seaway Biltmore, Inc., et al.,
Petitioners,
vs.
Grace Abuchaibe,
Respondent.
On Petition for Writ of Certiorari from the Circuit Court for Miami-
Dade County, Pedro P. Echarte, Jr., Judge.
Jackson Lewis P.C. and Pedro J. Torres-Díaz and Shayla N. Waldon,
for petitioners.
Law Offices of Sina Negahbani and Sina Negahbani, for respondent.
Before LINDSEY, HENDON and LOBREE, JJ.
HENDON, J.
Petitioners Seaway Biltmore, Inc. (“Seaway”) and The Biltmore
Limited Partnership (“Biltmore”) (collectively, the “Petitioners” or
“Defendants”), file this petition for certiorari seeking to quash the trial
court’s non-final order adopting the special magistrate’s report and
imposing discovery sanctions on the Petitioners. We dismiss the petition
for lack of certiorari jurisdiction.
Facts
Grace Abuchaibe (“Respondent” or “Plaintiff”) was a reservations
agent at the Biltmore from 2005 through 2011. In 2011, she was fired and
filed a complaint with the EEOC for age-based discrimination and
retaliation. In March 2012, the parties signed a negotiated settlement
agreement (“NSA”) resolving all of the claims. The NSA required the
Biltmore to reinstate her to her former position, provide her with access to
training, among other things, and also contained an anti-retaliation clause.
In 2015, Respondent allegedly committed misconduct by engaging in a
public argument with the Biltmore’s chief information officer about an issue
she was having with her computer. Citing prior episodes of misconduct, the
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Biltmore terminated her. 1 The Respondent then filed a two-count complaint
against the Petitioners.
In her original complaint, the Respondent included claims for breach
of contract based on the NSA and for unlawful retaliation under Title VII of
the Civil Rights Act (“Title VII”). Her amended complaint included
allegations that the Petitioners failed to consider her for, or outright rejected
her for, multiple promotions or job transfer opportunities and issued her
sham warnings. Respondent also alleged for the first time, in paragraph 14
of the amended complaint, that the Petitioners failed to provide her with, or
disregarded her requests for, a parking space in the covered garage and
failed to timely/properly assist her with computer issues and/or intentionally
caused work problems for her.
The Respondent asked for various records and documents during
discovery. The Petitioners responded with objections, and failed to timely
produce, or produce at all, several classes of discovery items. Further, the
Respondent alleged that the Petitioners had deliberately failed to preserve
certain records, which the Petitioners allege have been lost or inadvertently
1
The Respondent then filed a complaint with the EEOC for age
discrimination and retaliation. In 2016, the EEOC issued a notice of right to
sue, but was unable to conclude that the Respondent established statutory
violations.
3
deleted. After an unsatisfactory response to a second request for
production, which contained unproduced material that overlapped with the
first request, the Respondent filed a motion to compel production.
After hearings on the Respondent’s motion to compel production, the
trial court granted the Respondent’s motion and ordered the Petitioners to
comply by producing all responsive documents. The trial court specifically
found that the Petitioners had hindered and delayed discovery. The trial
court appointed a special magistrate to consider all further discovery
matters and to issue a report and recommendation on the imposition of
sanctions. 2
The special magistrate heard testimony over four days. The special
magistrate found that some of the discovery not supplied by the Petitioners
was not intentional, but rather a result of the application of existing
document retention policies and, under the circumstances, sanctions were
not warranted. On the other hand, the special magistrate concluded that
2
In its order, the trial court stated:
The Court specifically again finds that the Defendants have
played games with discovery, and failed to produce clearly
relevant items. The Court is not amused by Defendant’s [sic]
arguments and responses, and the ongoing efforts by the
Defendants to hinder and delay Plaintiff’s legitimate and long
outstanding discovery.
4
the Petitioners’ outright deletion of, or failure to maintain, other materials
was troublesome. The magistrate recommended imposition of sanctions for
spoliation of evidence, finding:
With respect to the IT tickets and related emails requested by
Plaintiff that were not produced because of their unavailability
due to the June, 2016 change in computer software and
permanent deletion of such records by Defendants, the Special
Magistrate specifically finds that (1) the evidence existed at
one time; (2) Defendants had a duty to preserve the
evidence; and (3) the evidence was crucial to the Plaintiff’s
prima facie case in this matter.
The undersigned also finds that Defendants were well-aware
of their obligation to preserve such evidence and that
Defendants’ destruction of these IT records in 2016 was with
knowledge of its consequences to Plaintiff in proving her
claims. The Special Magistrate finds that such actions by
Defendants were done, in whole or in part, with the intent
to deprive Plaintiff of the information lost. Accordingly, the
Special Magistrate finds and recommends that the Court,
pursuant to Fla. R. Civ. P. 1.380(e) and Florida law regarding
spoliation of evidence, presume that the lost IT information
was unfavorable to Defendants and instruct the jury that it
must presume that the absent information was unfavorable
to Defendants.
(emphasis added). The special magistrate also recommended imposing
sanctions against the Petitioners for their violation of the trial court’s orders
to timely produce all the documents ordered by certain deadlines. The
recommended sanctions included charging the Petitioners with the costs
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and fees of the special magistrate, and half of the Respondent’s legal fees
for the four days of hearings before the special magistrate.
The Petitioners filed their objections to the report, the sanctions
imposed, and specifically to the recommendation that the trial court instruct
the jury that it should presume the Petitioners intentionally destroyed IT
records to deprive the Respondent of relevant information. After due
consideration, the trial court approved, ratified, and adopted the special
magistrate’s report and recommendation.
On petition for certiorari, the Petitioners contend that instructing the
jury that it must presume that the unproduced emails and IT documentation
was unfavorable to the Respondent creates an unrebuttable presumption,
and that such a jury instruction will preclude the Petitioners from offering
material evidence, causing irreparable injury to the Petitioners that cannot
be remedied on appeal. We disagree.
“When the trial court reviews the magistrate's report to resolve an
exception, . . . a trial court must accept the magistrate's findings of fact if
they are supported by competent, substantial evidence.” Coriat v. Coriat,
306 So. 3d 356, 358 (Fla. 3d DCA 2020) (citing In re Drummond,
69 So. 3d
1054, 1056 (Fla. 2d DCA 2011)); Martinez-Olson v. Est. of Olson,
328 So.
6
3d 14, 18 (Fla. 3d DCA 2021) (holding a trial court's decision to accept or
reject a general magistrate's report and recommendations is reviewed for
an abuse of discretion). Thus, this Court's certiorari review of the trial
court's non-final order is limited to whether the trial court departed from the
essential requirements of law in conducting its review of the special
magistrate's report and recommendations, resulting in irreparable harm to
the petitioner that cannot be remedied on direct appeal. S.V. v. Dep't of
Child. & Fams.,
178 So. 3d 421, 423 (Fla. 3d DCA 2015). The
establishment of irreparable harm is a condition precedent to invoking
certiorari jurisdiction. Miami–Dade Cnty. v. Dade Cnty. Police Benevolent
Ass’n,
103 So. 3d 236, 238 (Fla. 3d DCA 2012).
We consider whether the trial court’s adoption of the special
magistrate’s recommendation – that the jury be instructed to presume the
missing documentation was intentionally destroyed – constitutes
irreparable injury that cannot be remedied on appeal. We conclude it does
not.
In Public Health Trust of Dade County v. Valcin,
507 So. 2d 596, 599
(Fla. 1987), the Florida Supreme Court struck down the conclusive
presumption of liability when records are shown to be missing due to
deliberate acts or omissions of the defendant. Valcin adopted a rebuttable
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presumption of negligence in a medical malpractice action premised on a
showing that missing documents hindered the plaintiff's “ability to establish
a prima facie case.”
Id. at 599. According to Valcin, where evidence
necessary to prove a prima facie case is missing due to actions of a party,
an essential element of a claim may be presumed, shifting the burden to
the opposing party to dis-prove that element. Compare, Palmas Y Bambu,
S.A. v. E.I. Dupont De Nemours & Co.,
881 So. 2d 565, 581–82 (Fla. 3d
DCA 2004) (finding Valcin inapplicable where defendants’ ability to
establish a prima facie case was not hindered by the loss of the
documentation). “In those extremely rare instances that the evidence
establishes an intentional interference with a party's access to critical . . .
records, a wide range of sanctions is available to the trial court under
Florida Rule of Civil Procedure 1.380(b)(2). Valcin,
507 So. 2d at 599; see
also Mercer v. Raine,
443 So. 2d 944 (Fla.1983).
In Martino v. Wal–Mart Stores, Inc.,
908 So. 2d 342, 346 (Fla. 2005),
the Florida Supreme Court further explained that the presumption only
applied when “the absence of the records hinders [the plaintiff's] ability to
establish a prima facie case.”
Id. This rebuttable presumption shifted the
burden of proof under section 90.302(2) so that the presumption “is not
overcome until the trier of fact believes that the presumed [negligence] has
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been overcome by whatever degree of persuasion is required by the
substantive law of the case.”
Id. at 600–01 (quoting Caldwell v. Div. of Ret.,
372 So. 2d 438, 440 (Fla. 1979)).
In Pena v. Bi-Lo Holdings, LLC,
304 So. 3d 1254 (Fla. 3d DCA 2020),
the plaintiff claimed spoliation because she made a pre-suit request to
preserve surveillance footage and the defendant neglected to preserve the
relevant physical evidence captured by the cameras. This Court ultimately
affirmed the lower court’s dismissal of the spoliation claim, but
acknowledged that “there is some precedent supporting the proposition that
notification of potential litigation triggers the obligation to preserve crucial
evidence.” Id. at 1258; see Nationwide Lift Trucks, Inc. v. Smith,
832 So.
2d 824, 826 (Fla. 4th DCA 2002) (stating that “[c]ases in which evidence
has been destroyed, either inadvertently or intentionally, are discovery
violations” that may be subject to sanctions). Even in the absence of a
legal duty, the spoliation of evidence may result in an adverse inference
against the party that discarded or destroyed the evidence. League of
Women Voters of Fla. v. Detzner,
172 So. 3d 363, 391 (Fla. 2015). If the
evidence was negligently destroyed, a rebuttable presumption of liability
may arise. Id. at 347; see also Golden Yachts, Inc. v. Hall,
920 So. 2d 777,
781 (Fla. 4th DCA 2006) (“[A]n adverse inference may arise in any situation
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where potentially self-damaging evidence is in the possession of a party
and that party either loses or destroys the evidence.”) (quoting Martino at
1257)). (emphasis added).
In the Petitioners’ case, the trial court found competent, substantial
evidence in the record that the Petitioners were aware of potential litigation
via the NSA, and had a duty to preserve the relevant IT information. The
trial court found the record sufficient to support the presumption3 that the
3
As explained in Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co.,
881 So. 2d 565, 582 (Fla. 3d DCA 2004):
A presumption differs from an inference. An inference is a
logical deduction of fact that the trier of fact draws from
existence of another fact or group of facts. Whether the inferred
fact is found to exist will be decided by the trier of fact. A
presumption is stronger; it compels the trier of fact to find the
presumed fact if it finds certain basic facts to be present. Even if
a court finds that a presumption is not present in a particular
situation, an inference of the same fact can be drawn if it is
supported logically by the evidence.
Charles W. Ehrhardt, Florida Evidence § 301.1, at 89–90 (2003)
(footnotes omitted) (emphasis added); see also 2 J. Wigmore,
Evidence § 285, at 192 (James H. Chadbourn rev., 1979).
Unlike a Valcin presumption, an inference generally will not
support a jury instruction:
It is important to note that an adverse inference from the
failure to produce evidence is different than the Valcin
[Public Health Trust of Dade County v. Valcin,
507 So. 2d
596 (Fla. 1987)] rebuttable presumption. If the actions of the
opposing party cause evidence to be lost that is necessary
to prove a prima facie case, the Valcin presumption shifts
the burden of proof to ensure that a jury decides the issue of
negligence. In essence, the Valcin presumption supplies an
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Petitioners intended to deprive the Respondent of relevant information, and
the trial court did not abuse its discretion by adopting the special
magistrate’s report and recommendation. Nothing in the case law indicates
that at this point, a negative presumption instruction will preclude the
Petitioners’ ability to present evidence and argument against the
presumption that the loss of IT records was intentional; certainly, the trial
court has not barred the Petitioners from countering the presumption at
trial. 4 As there is no indication that the negative presumption will cause
essential element of the case—negligence—and shifts to the
defendant the burden of proving that he or she was not
negligent. The adverse inference merely allows counsel to
argue to the jury the inference that the evidence was lost
because it was damaging to the opposing party's case. The
jury may accept or reject the inference as it sees fit.
6 Florida Practice, Personal Injury & Wrongful Death Actions §
26.6 (2004 ed.)
4
The Petitioners rely on cases that are not factually applicable, cases in
which an adverse presumption was not an issue or instruction, but in which
the trial court outright barred presentation of critical testimony or evidence.
See, e.g., Solonina v. Artglass Int'l, LLC,
256 So. 3d 971, 972 (Fla. 3d DCA
2018) (finding irreparable harm where trial court barred the plaintiff from
taking depositions of key witnesses, and to be present at her own trial);
Marrero v. Rea,
312 So. 3d 1041, 1048 (Fla. 5th DCA 2021) (finding
irreparable harm where trial court barred party from critical discovery);
Beekie v. Morgan,
751 So. 2d 694, 698 (Fla. 5th DCA 2000) (finding error
was not remediable on appeal since there was no practical way to
determine after judgment how denial of opportunity to depose defendant
affected outcome of trial).
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irreparable injury that cannot be remedied on appeal, the Petitioners have
not met their burden on petition for certiorari.
Finally, the trial court’s ratification and acceptance of the special
magistrate’s fees and costs recommendations does not amount to
irreparable injury. The determination that an award of fees as a discovery
violation sanction is appropriate does not in itself demonstrate material
harm or irreparable injury. Rydell v. Rutter,
834 So. 2d 883, 884 (Fla. 5th
DCA 2002). A partial award of costs and fees as sanctions (especially
where there was clear warning that severe sanctions could be imposed) for
the failure to timely and fully comply with the court’s discovery orders is not
an abuse of discretion. See Malone v. Costin,
410 So. 2d 569 (Fla. 1st
DCA 1982). In Malone, the First District Court of Appeal held that an
interlocutory order granting attorney's fees and costs on a motion to compel
discovery was not a non-final order which could be reviewed by appeal or
certiorari. The First District noted that when seeking a writ of certiorari,
petitioner has a heavy burden of showing that there was a clear departure
from the essential requirements of law which would result in irreparable
harm. The First District stated that even if compliance with a court order is
costly, that, in and of itself, would not provide a basis for certiorari review.
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Indeed, as the fees and costs in this case have not yet been reduced to a
fixed amount, the Petitioners have shown no irreparable injury at this point.
We therefore dismiss the petition for certiorari based on the
Petitioners’ failure to prove the threshold element of irreparable injury on
either of the grounds presented.
Petition dismissed.
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