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Filing # 166841986 E-Filed 02/15/2023 11:24:36 AM
IN THE CIRCUIT COURT, FOURTH
JUDICIAL CIRCUIT IN AND FOR
DUVAL COUNTY, FLORIDA
CASE NO.: 162022CA000685XXXXMA
DIV.: CV-C
ANTOINETTE NORELIA,
Plaintiff,
vs.
VYSTAR CREDIT
UNION,
Defendant.
_________________________________/
PLAINTIFF’S MOTION FOR SPOLIATION INSTRUCTION AND SANCTIONS DUE
TO DEFENDANT’S FAILURE TO PRESERVE EVIDENCE
COMES NOW Plaintiff, ANTOINETTE NORELIA, by and through the undersigned
counsel, moves the Court for an order seeking sanctions against Defendant in the form of a
default judgment or spoliation jury instructions. In support of this motion Plaintiff avers the
following:
1. On June 30, 2020, while on Defendant’s, VYSTAR CREDIT UNION, premises
located at 7802 Atlantic Blvd., Jacksonville, Florida 32211, Mrs. Norelia was injured by
Defendant’s employee-branch manager, Charaynea Latimore. The employee struck Mrs.
Norelia’s head with the entrance/exit door of the premises which injured Mrs. Norelia.
2. On July 21, 2020, Plaintiff’s counsel mailed Defendant two (2) certified mail
correspondence to the subject premises which requested Defendant to preserve all video from
the surveillance systems/cameras located on the premises. Plaintiff received postal certified
mail return receipts which proved the Defendant accepted and, therefore, had knowledge of the
preservation letters were Plaintiff requested the Defendant to preserve sixteen (16) total hours of
video surveillance (8 hours before and 8 hours after the incident. See the following:
• Exhibit “A”, correspondence with certified mail return receipt (Bates stamped
000001-000003); and
ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 02/15/2023 11:41:04 AM
• Exhibit “B”, correspondence with certified mail return receipt (Bates stamped
000004-000005).
3. On July 21, 2020, Plaintiff’s counsel also sent Defendant’s risk management
representative, three (3) preservation correspondence which requested Defendant to preserve all
video from the surveillance systems/cameras located on Defendant’s premises; Plaintiff received
postal certified mail return receipts which proved all the letters were accepted on behalf of
Defendant. See the following:
• Exhibit “C”; correspondence with certified mail return receipt (Bates stamped
000006-000008);
• Exhibit “D”, correspondence with certified mail return receipt (Bates stamped
000009-000010); and
• Exhibit “E”, correspondence with certified mail return receipt (Bates stamped
000011-000012).
4. On September 8, 2022, Defendant’s employee, Charaynea Latimore, was deposed;
Ms. Latimore was the branch manager of the subject premises located at 7802 Atlantic Blvd.,
Jacksonville, Florida 32211. See attached hereto: Exhibit “F”, Condensed Videotaped Deposition
transcript of Charaynea Latimore (Bates stamped 000013-000048).
5. During the deposition of Ms. Latimore, she was shown and then questioned on the
surveillance video of Defendant’s premises. See Deposition transcript of Charaynea Latimore,
page 11, lines 6-9; page 15, lines 10-25; page 37, lines 6-9.
6. Ms. Latimore noted that the video she viewed in the deposition showed one video
screen of two (2) camera frames that captured simultaneous footage of the incident from two (2)
locations:
22 Q Okay. And these frames, can you describe what
23 they are frames of?
24 A So, the frame to the far right is an overview
25 of the lobby itself. It captures a little bit of
1 everything. It can kind of see the teller line, the
2 lobby, the front desk areas and the walkway to the door.
3 You can also see a few offices from that view.
4 Q So, is this camera pointed position on a
5 ceiling and facing the floor of the interior of this
6 building?
7 A Yes.
8 Q And we're talking about the right frame,
9 correct?
10 A Right to my right, yes. As I'm -- as you're
11 viewing the -- as you're viewing it, it would be on the
12 right side.
13 Q Okay. And the frame on the left, what does
14 that show?
15 A So, the frame on the left is our front desk
16 view. It gives us a view of what we had at that time,
17 was our front desk and it also gives a view of the front
18 door. You can also see a few offices as well.
19 Q Okay. Do you see yourself in any of these two
20 frames?
21 A I can see myself in the left view, I am
22 wearing a orange top walking -- orange and cream top
23 walking towards the front door.
Page 15, line 22 to page 16, line 23.
7. Out of the sixteen (16) hours of videos requested by Plaintiff, Defendant only
preserved approximately one (1) minute and fifteen (15) seconds of video from the day of the
incident. See Deposition transcript of Charaynea Latimore, page 21, line15 to page 22, line 1.
8. Ms. Latimore admitted that the two (2) videos were not continuous footage and
there were missing video frames of the incident. See Deposition transcript of Charaynea Latimore,
page 31, line 1 to page 33, line 25; page 37, line 11 to page 40, line 18.
9. Ms. Latimore could feel the door make contact with Mrs. Norelia, but she could not
see when the door contact Mrs. Norelia.
2 Q So, you're not disputing that the door made
3 contact with some part of her body?
4 A Okay.
5 Q No, I'm asking you.
6 A No, I couldn't see it hit her, but I felt it.
7 Q Okay.
8 A She said it hit her in the head. I had no
9 reason to believe that she would be dishonest.
See Id., page 15, lines 2-9.
10. Ms. Latimore admitted that the portion of the video – approximately four (4)
seconds, 12:27:21pm to 12:27:25pm– is missing, and although Ms. Latimore felt the door touch
Plaintiff’s person, the video surveillance did not record the actual incident. Id. page 25, line 14 to
page 26, line 12; page 27, lines 2-5; page 28, line 15 to page 29, line 21.
11. The following was stated Deposition transcript of Charaynea Latimore:
2 Q Okay. Does he appear to be in the same spot
3 as when I initially stopped it at 12:27:47 seconds?
4 A As far as I can tell, yes.
5 Q So, in seven -- I am sorry to cut you off.
6 So, seven seconds, it appears that he's stationary in
7 one spot?
8 A Yes, he's still in that same spot.
9 Q Okay. I'm going to roll it again here,
10 continue to play. Okay. So, we just stopped it at --
11 I'm going go back a little bit. So, I stopped it at
12 12:27:54, can you see that at the bottom?
13 A I do see that.
14 Q Okay. Is he still in that same spot?
15 A Yes, he is.
16 Q Okay. Now, once I play it here from that 54
17 seconds, does he appear to move after?
18 A Yes.
Id. page 40, lines1-18. Emphasis added.
12. Ms. Latimore noted that after Mrs. Norelia was struck by the door, but none of the
following five (5) material acts were preserved on surveillance:
(a) Ms. Latimore and Mrs. Norelia interaction outside of the building of the premises;
(b) Mrs. Norelia return to the lobby with her husband;
(c) Ms. Latimore conversation with Mrs. Norelia and Mr. Norelia;
(d) When Ms. Latimore provided Mrs. Norelia with a seat to sit in the lobby,
(e) emergency medical personnel arrived and examined Mrs. Norelia in the lobby,. Page
41 line 19 to page 42, line 16.
13. Ms. Latimore noted that Mrs. Norelia and her husband, Mr. Norelia, returned to the
lobby but she does not know if they returned immediately or if there was a lapse of time after the
incident or not. Page 42, lines 17-25.
14. Ms. Latimore was shown two (2) certified mail correspondence which requested
Defendant to preserve all video from the surveillance systems/cameras located on Defendant’s
premises for eight hours before and after the incident and which were also attached as exhibits to
the deposition transcript of Charaynea Latimore. Id. at page 49 line 1 to page 51 line 3. See also
Exhibits A and B herein.
15. Ms. Latimore admitted that the correspondences had the correct address for
Vystar’s premises were the incident occurred and that although she did not recall if she received
the letters, she stated that the documents would have been forwarded to Vystar’s “legal team or
possibly [Vystar’s] security team.” Page 48 lines 7-15; page 49 lines 10-14.
16. At the time of the taking of her deposition, Ms. Latimore did not know how the
surveillance video system for the premises operated, and she testified that Vystar’s Security team
would be the proper department to discuss the video surveillance system.
15 Q Yes, ma'am, just a few more things. Do you
16 know how the video at that kind of surveillance video
17 that is, how's that maintained?
18 A I don't know how it's maintained. I do know
19 there is a system that we use to pull video, but I know
20 that that video is only, I think, it's -- unless it's
21 recorded, it's only there for so long. And that would
22 be a question for our security team. I'm so sorry. I
23 don't really know how that works.
Id. Page 44, lines 15-23. Emphasis added.
17. Ms. Latimore stated that Vystar’s “in house security team” monitors or review
video, and the team periodically checks in and looks at different cameras as a safety procedure for
people at the branch. Page 47, lines 3-9.
18. Ms. Latimore testified that an outside vendor Stanley (a business), maintenances
the video surveillance system on the premises, and if she has technical issues she will have the
vendor to come out to address the issue. Page 46, lines 1-5.
19. Although she noted that she could retrieve video surveillance footage, she did not
know who retrieved the video surveillance of the incident which was requested on behalf of the
Plaintiff. Page 47 line19- Page48 line 1.
20. When Ms. Latimore was questioned about the number of outdoor video
surveillance cameras on the premises, she could not provide a definitive answer.
11 Q I remember when you told me earlier and I
12 don't like to ask questions twice. But how many cameras
13 do you have located outside of this building, five?
14 A Again, I don't know the exact number, but if
15 I'm just going off the top of my head, I would say about
16 five. But they're located throughout the outside of the
17 building. So, they're in different places on the
18 premises.
Page 46, lines 11-18.
21. Approximately twenty-two (22) minutes after the deposition of Charaynea
Latimore concluded, Ms. Latimore appeared a second time - this time in her capacity as the
corporate representative for Defendant taken on September 8, 2023. See attached hereto: Exhibit
“G”, Condensed Videotaped Deposition transcript of Charaynea Latimore, Defendant’s Corporate
Representative (Bates stamped 000049-000065).
22. Ms. Latimore stated that Defendant designated her to speak about the surveillance
system located at the subject premises and the location of cameras. See Exhibit G. Deposition
transcript of Charaynea Latimore, Defendant’s Corporate Representative, page 6, line 21 to page
7, line 1.
23. However, Ms. Latimore admitted that Defendant had a person with more
knowledge than her about the surveillance system located at her branch; which would be anyone
in Defendant’s security department.
17 Q So, again, ma'am, is there a person in your
18 company who has more knowledge about the surveillance
19 system located at your branch?
20 MS. DUNHAM: Same objection.
21 THE WITNESS: Yes.
22 BY MR. SAUNDERS:
23 Q Okay. Who would that person be?
24 A I would say anyone in our security department.
25 I would have to pull their -- I would have to pull up
1 our security team to give you their names. But anyone in
2 that area who manages or who looks over that, who works
3 in that area or who manages that area.
Id. page 10, Line 17 to page 11, line 3.
24. For the subject incident, Ms. Latimore typed up or completed an incident report and
forwarded the incident report to Defendant’s security team. Exhibit F. page 43, lines 11-21.
25. Ms. Latimore included in the report, Mrs. Norelia’s allegations that she was struck
by the door.
22 Q In this internal document, do you make any
23 mentioning of remarks that Mrs. Norelia made?
24 A I said that she said I hit her with the door.
Id. page 43, lines 22-24
26. Ms. Latimore testified that during the break between her first deposition taken
within thirty (30) minutes of her second deposition that day, that she learned that there are thirteen
(13) cameras located outside the Defendant’s subject premises, but noted that she is not an expert
on how the surveillance is stored at that location.
4 Q Okay. And from your prior testimony today,
5 you stated you didn't know the exact number of exterior
6 cameras at your building?
7 A Not off the top of my head, but I do have
8 access to that, and so, I pulled it up for you.
9 Q That's not the question I'm asking you,
10 though, ma'am. I'm just asking you, it's a yes or no
11 question. Do you know exactly how many cameras are
12 located outside?
13 A Yes.
14 Q You do? What is it, how many?
15 A 13.
16 Q There's 13 cameras located outside?
17 A Yes.
18 Q Do you recall me asking you the same question
19 in our deposition less than 30 minutes ago?
20 A Yes.
21 Q Okay. And when did you acquire that
22 information?
23 A On our break, I pulled it up to look at it.
24 Q Okay. You understand how the surveillance is
25 stored at that location?
1 A No, I'm not an expert in how it is stored.
Exhibit G, Page 11, line 4 to page 12, line 1.
27. Based on the foregoing, Plaintiff avers that the Defendant, being on notice of the
potential for litigation and the pending claim, and being duly advised to preserve the evidence,
was required to preserve the evidence.
28. Defendant anticipated litigation based on the following actions;
(a) Defendant’s employee was aware of Mrs. Norelia’s allegation that Ms. Latimore struck
her with the building entrance/exit door;
(b) Defendant created an incident report of Mrs. Norelia’s allegation that she was struck
by the door;
(c) Defendant and Defendant’s risk management carrier (and the carrier’s claim
representative) were all provided with preservation letters that requested Defendant
preserve sixteen (16) hours of video surveillance from all cameras on the premises; and
(d) Defendant preserved one (1) minute and fifteen (15) seconds of video surveillance of
part of the incident.
29. This failure to preserve video evidence as described in the paragraphs above have
significantly impaired Plaintiff’s ability to establish a prima facie case against the Defendant for
negligence because this important evidence was destroyed and/or not preserved by Defendant.
30. Plaintiff respectfully moves the Court for an entry of an order entering a default
judgment on liability.
31. If that request is denied, in the alternative, Plaintiff moves for a jury instruction in
which the presumption of negligence is in favor of Plaintiff and against Defendant for intentional
or, in the alternative, negligent spoliation as a matter of law. A presumption of negligence should
arise from the Defendant’s failure to permanently retain evidence of the cause of Plaintiff’s injury
and subsequent material actions thereafter. The presumptions much be given as a matter of law
for the Plaintiff to achieve justice in the jury's determination of this case.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been furnished to DEANA N.
DUNHAM, ESQUIRE, Luks, Santaniello, Petrillo & Jones, 301 W Bay St Ste 1010, Jacksonville,
FL 32202-5139, by Florida e-Filing portal/email delivery, this 15th day of February 2023.
FARAH & FARAH, P.A.
/s/ Xavier T. Saunders
________________________
Xavier T. Saunders, Esq.
Florida Bar No.: 447798
10 West Adams Street
Jacksonville, FL 32202
(904) 586-3060 (Tel. & Fax.)
Primary: xsaunders@farahandfarah.com
Secondary: tedwards@farahandfarah.com
Attorney for Plaintiff
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Filing # 166841986 E-Filed 02/15/2023 11:24:36 AM IN THE CIRCUIT COURT, FOURTH JUDICIAL CIRCUIT IN AND FOR DUVAL COUNTY, FLORIDA CASE NO.: 162022CA000685XXXXMA DIV.: CV-C ANTOINETTE NORELIA, Plaintiff, vs. VYSTAR CREDIT UNION, Defendant. _________________________________/ PLAINTIFF’S MOTION FOR SPOLIATION INSTRUCTION AND SANCTIONS DUE TO DEFENDANT’S FAILURE TO PRESERVE EVIDENCE COMES NOW Plaintiff, ANTOINETTE NORELIA, by and through the undersigned counsel, moves the Court for an order seeking sanctions against Defendant in the form of a default judgment or spoliation jury instructions. In support of this motion Plaintiff avers the following: 1. On June 30, 2020, while on Defendant’s, VYSTAR CREDIT UNION, premises located at 7802 Atlantic Blvd., Jacksonville, Florida 32211, Mrs. Norelia was injured by Defendant’s employee-branch manager, Charaynea Latimore. The employee struck Mrs. Norelia’s head with the entrance/exit door of the premises which injured Mrs. Norelia. 2. On July 21, 2020, Plaintiff’s counsel mailed Defendant two (2) certified mail correspondence to the subject premises which requested Defendant to preserve all video from the surveillance systems/cameras located on the premises. Plaintiff received postal certified mail return receipts which proved the Defendant accepted and, therefore, had knowledge of the preservation letters were Plaintiff requested the Defendant to preserve sixteen (16) total hours of video surveillance (8 hours before and 8 hours after the incident. See the following: • Exhibit “A”, correspondence with certified mail return receipt (Bates stamped 000001-000003); and ACCEPTED: DUVAL COUNTY, JODY PHILLIPS, CLERK, 02/15/2023 11:41:04 AM • Exhibit “B”, correspondence with certified mail return receipt (Bates stamped 000004-000005). 3. On July 21, 2020, Plaintiff’s counsel also sent Defendant’s risk management representative, three (3) preservation correspondence which requested Defendant to preserve all video from the surveillance systems/cameras located on Defendant’s premises; Plaintiff received postal certified mail return receipts which proved all the letters were accepted on behalf of Defendant. See the following: • Exhibit “C”; correspondence with certified mail return receipt (Bates stamped 000006-000008); • Exhibit “D”, correspondence with certified mail return receipt (Bates stamped 000009-000010); and • Exhibit “E”, correspondence with certified mail return receipt (Bates stamped 000011-000012). 4. On September 8, 2022, Defendant’s employee, Charaynea Latimore, was deposed; Ms. Latimore was the branch manager of the subject premises located at 7802 Atlantic Blvd., Jacksonville, Florida 32211. See attached hereto: Exhibit “F”, Condensed Videotaped Deposition transcript of Charaynea Latimore (Bates stamped 000013-000048). 5. During the deposition of Ms. Latimore, she was shown and then questioned on the surveillance video of Defendant’s premises. See Deposition transcript of Charaynea Latimore, page 11, lines 6-9; page 15, lines 10-25; page 37, lines 6-9. 6. Ms. Latimore noted that the video she viewed in the deposition showed one video screen of two (2) camera frames that captured simultaneous footage of the incident from two (2) locations: 22 Q Okay. And these frames, can you describe what 23 they are frames of? 24 A So, the frame to the far right is an overview 25 of the lobby itself. It captures a little bit of 1 everything. It can kind of see the teller line, the 2 lobby, the front desk areas and the walkway to the door. 3 You can also see a few offices from that view. 4 Q So, is this camera pointed position on a 5 ceiling and facing the floor of the interior of this 6 building? 7 A Yes. 8 Q And we're talking about the right frame, 9 correct? 10 A Right to my right, yes. As I'm -- as you're 11 viewing the -- as you're viewing it, it would be on the 12 right side. 13 Q Okay. And the frame on the left, what does 14 that show? 15 A So, the frame on the left is our front desk 16 view. It gives us a view of what we had at that time, 17 was our front desk and it also gives a view of the front 18 door. You can also see a few offices as well. 19 Q Okay. Do you see yourself in any of these two 20 frames? 21 A I can see myself in the left view, I am 22 wearing a orange top walking -- orange and cream top 23 walking towards the front door. Page 15, line 22 to page 16, line 23. 7. Out of the sixteen (16) hours of videos requested by Plaintiff, Defendant only preserved approximately one (1) minute and fifteen (15) seconds of video from the day of the incident. See Deposition transcript of Charaynea Latimore, page 21, line15 to page 22, line 1. 8. Ms. Latimore admitted that the two (2) videos were not continuous footage and there were missing video frames of the incident. See Deposition transcript of Charaynea Latimore, page 31, line 1 to page 33, line 25; page 37, line 11 to page 40, line 18. 9. Ms. Latimore could feel the door make contact with Mrs. Norelia, but she could not see when the door contact Mrs. Norelia. 2 Q So, you're not disputing that the door made 3 contact with some part of her body? 4 A Okay. 5 Q No, I'm asking you. 6 A No, I couldn't see it hit her, but I felt it. 7 Q Okay. 8 A She said it hit her in the head. I had no 9 reason to believe that she would be dishonest. See Id., page 15, lines 2-9. 10. Ms. Latimore admitted that the portion of the video – approximately four (4) seconds, 12:27:21pm to 12:27:25pm– is missing, and although Ms. Latimore felt the door touch Plaintiff’s person, the video surveillance did not record the actual incident. Id. page 25, line 14 to page 26, line 12; page 27, lines 2-5; page 28, line 15 to page 29, line 21. 11. The following was stated Deposition transcript of Charaynea Latimore: 2 Q Okay. Does he appear to be in the same spot 3 as when I initially stopped it at 12:27:47 seconds? 4 A As far as I can tell, yes. 5 Q So, in seven -- I am sorry to cut you off. 6 So, seven seconds, it appears that he's stationary in 7 one spot? 8 A Yes, he's still in that same spot. 9 Q Okay. I'm going to roll it again here, 10 continue to play. Okay. So, we just stopped it at -- 11 I'm going go back a little bit. So, I stopped it at 12 12:27:54, can you see that at the bottom? 13 A I do see that. 14 Q Okay. Is he still in that same spot? 15 A Yes, he is. 16 Q Okay. Now, once I play it here from that 54 17 seconds, does he appear to move after? 18 A Yes. Id. page 40, lines1-18. Emphasis added. 12. Ms. Latimore noted that after Mrs. Norelia was struck by the door, but none of the following five (5) material acts were preserved on surveillance: (a) Ms. Latimore and Mrs. Norelia interaction outside of the building of the premises; (b) Mrs. Norelia return to the lobby with her husband; (c) Ms. Latimore conversation with Mrs. Norelia and Mr. Norelia; (d) When Ms. Latimore provided Mrs. Norelia with a seat to sit in the lobby, (e) emergency medical personnel arrived and examined Mrs. Norelia in the lobby,. Page 41 line 19 to page 42, line 16. 13. Ms. Latimore noted that Mrs. Norelia and her husband, Mr. Norelia, returned to the lobby but she does not know if they returned immediately or if there was a lapse of time after the incident or not. Page 42, lines 17-25. 14. Ms. Latimore was shown two (2) certified mail correspondence which requested Defendant to preserve all video from the surveillance systems/cameras located on Defendant’s premises for eight hours before and after the incident and which were also attached as exhibits to the deposition transcript of Charaynea Latimore. Id. at page 49 line 1 to page 51 line 3. See also Exhibits A and B herein. 15. Ms. Latimore admitted that the correspondences had the correct address for Vystar’s premises were the incident occurred and that although she did not recall if she received the letters, she stated that the documents would have been forwarded to Vystar’s “legal team or possibly [Vystar’s] security team.” Page 48 lines 7-15; page 49 lines 10-14. 16. At the time of the taking of her deposition, Ms. Latimore did not know how the surveillance video system for the premises operated, and she testified that Vystar’s Security team would be the proper department to discuss the video surveillance system. 15 Q Yes, ma'am, just a few more things. Do you 16 know how the video at that kind of surveillance video 17 that is, how's that maintained? 18 A I don't know how it's maintained. I do know 19 there is a system that we use to pull video, but I know 20 that that video is only, I think, it's -- unless it's 21 recorded, it's only there for so long. And that would 22 be a question for our security team. I'm so sorry. I 23 don't really know how that works. Id. Page 44, lines 15-23. Emphasis added. 17. Ms. Latimore stated that Vystar’s “in house security team” monitors or review video, and the team periodically checks in and looks at different cameras as a safety procedure for people at the branch. Page 47, lines 3-9. 18. Ms. Latimore testified that an outside vendor Stanley (a business), maintenances the video surveillance system on the premises, and if she has technical issues she will have the vendor to come out to address the issue. Page 46, lines 1-5. 19. Although she noted that she could retrieve video surveillance footage, she did not know who retrieved the video surveillance of the incident which was requested on behalf of the Plaintiff. Page 47 line19- Page48 line 1. 20. When Ms. Latimore was questioned about the number of outdoor video surveillance cameras on the premises, she could not provide a definitive answer. 11 Q I remember when you told me earlier and I 12 don't like to ask questions twice. But how many cameras 13 do you have located outside of this building, five? 14 A Again, I don't know the exact number, but if 15 I'm just going off the top of my head, I would say about 16 five. But they're located throughout the outside of the 17 building. So, they're in different places on the 18 premises. Page 46, lines 11-18. 21. Approximately twenty-two (22) minutes after the deposition of Charaynea Latimore concluded, Ms. Latimore appeared a second time - this time in her capacity as the corporate representative for Defendant taken on September 8, 2023. See attached hereto: Exhibit “G”, Condensed Videotaped Deposition transcript of Charaynea Latimore, Defendant’s Corporate Representative (Bates stamped 000049-000065). 22. Ms. Latimore stated that Defendant designated her to speak about the surveillance system located at the subject premises and the location of cameras. See Exhibit G. Deposition transcript of Charaynea Latimore, Defendant’s Corporate Representative, page 6, line 21 to page 7, line 1. 23. However, Ms. Latimore admitted that Defendant had a person with more knowledge than her about the surveillance system located at her branch; which would be anyone in Defendant’s security department. 17 Q So, again, ma'am, is there a person in your 18 company who has more knowledge about the surveillance 19 system located at your branch? 20 MS. DUNHAM: Same objection. 21 THE WITNESS: Yes. 22 BY MR. SAUNDERS: 23 Q Okay. Who would that person be? 24 A I would say anyone in our security department. 25 I would have to pull their -- I would have to pull up 1 our security team to give you their names. But anyone in 2 that area who manages or who looks over that, who works 3 in that area or who manages that area. Id. page 10, Line 17 to page 11, line 3. 24. For the subject incident, Ms. Latimore typed up or completed an incident report and forwarded the incident report to Defendant’s security team. Exhibit F. page 43, lines 11-21. 25. Ms. Latimore included in the report, Mrs. Norelia’s allegations that she was struck by the door. 22 Q In this internal document, do you make any 23 mentioning of remarks that Mrs. Norelia made? 24 A I said that she said I hit her with the door. Id. page 43, lines 22-24 26. Ms. Latimore testified that during the break between her first deposition taken within thirty (30) minutes of her second deposition that day, that she learned that there are thirteen (13) cameras located outside the Defendant’s subject premises, but noted that she is not an expert on how the surveillance is stored at that location. 4 Q Okay. And from your prior testimony today, 5 you stated you didn't know the exact number of exterior 6 cameras at your building? 7 A Not off the top of my head, but I do have 8 access to that, and so, I pulled it up for you. 9 Q That's not the question I'm asking you, 10 though, ma'am. I'm just asking you, it's a yes or no 11 question. Do you know exactly how many cameras are 12 located outside? 13 A Yes. 14 Q You do? What is it, how many? 15 A 13. 16 Q There's 13 cameras located outside? 17 A Yes. 18 Q Do you recall me asking you the same question 19 in our deposition less than 30 minutes ago? 20 A Yes. 21 Q Okay. And when did you acquire that 22 information? 23 A On our break, I pulled it up to look at it. 24 Q Okay. You understand how the surveillance is 25 stored at that location? 1 A No, I'm not an expert in how it is stored. Exhibit G, Page 11, line 4 to page 12, line 1. 27. Based on the foregoing, Plaintiff avers that the Defendant, being on notice of the potential for litigation and the pending claim, and being duly advised to preserve the evidence, was required to preserve the evidence. 28. Defendant anticipated litigation based on the following actions; (a) Defendant’s employee was aware of Mrs. Norelia’s allegation that Ms. Latimore struck her with the building entrance/exit door; (b) Defendant created an incident report of Mrs. Norelia’s allegation that she was struck by the door; (c) Defendant and Defendant’s risk management carrier (and the carrier’s claim representative) were all provided with preservation letters that requested Defendant preserve sixteen (16) hours of video surveillance from all cameras on the premises; and (d) Defendant preserved one (1) minute and fifteen (15) seconds of video surveillance of part of the incident. 29. This failure to preserve video evidence as described in the paragraphs above have significantly impaired Plaintiff’s ability to establish a prima facie case against the Defendant for negligence because this important evidence was destroyed and/or not preserved by Defendant. 30. Plaintiff respectfully moves the Court for an entry of an order entering a default judgment on liability. 31. If that request is denied, in the alternative, Plaintiff moves for a jury instruction in which the presumption of negligence is in favor of Plaintiff and against Defendant for intentional or, in the alternative, negligent spoliation as a matter of law. A presumption of negligence should arise from the Defendant’s failure to permanently retain evidence of the cause of Plaintiff’s injury and subsequent material actions thereafter. The presumptions much be given as a matter of law for the Plaintiff to achieve justice in the jury's determination of this case. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been furnished to DEANA N. DUNHAM, ESQUIRE, Luks, Santaniello, Petrillo & Jones, 301 W Bay St Ste 1010, Jacksonville, FL 32202-5139, by Florida e-Filing portal/email delivery, this 15th day of February 2023. FARAH & FARAH, P.A. /s/ Xavier T. Saunders ________________________ Xavier T. Saunders, Esq. Florida Bar No.: 447798 10 West Adams Street Jacksonville, FL 32202 (904) 586-3060 (Tel. & Fax.) Primary: xsaunders@farahandfarah.com Secondary: tedwards@farahandfarah.com Attorney for Plaintiff