By Tim Rollins
Golf has a long reputation as a gentleman’s sport, one in which a self-enforced ethical code makes cheating exceedingly rare. If a golfer breaks a rule of the game, he or she is expected to self-report the violation and accept the appropriate penalty.
However, Tiger Woods’ recent legal troubles may, if true, have a business owned by him in partnership with his girlfriend, in trouble for cheating. It is not this blog’s habit to take sides in public legal disputes no matter what the stakes, and certainly I’ll not be changing that habit on this matter. But in the interest of understanding, I’ll lay out the basic details of the story:
- On December 10, 2018, Nicholas Immesberger crashed his car on a Florida highway and died. His blood-alcohol level was 0.256, well over Florida’s legal limit.
- Prior to the accident, he had been drinking at the Woods, a Jupiter, FL, restaurant owned by Tiger Woods and managed by his girlfriend, Erica Herman, after finishing a shift there as a bartender.
- Immesberger’s family filed suit on Monday, May 13th, against Tiger Woods. The suit alleges that Woods and Herman allowed their son to drive while drunk, as restaurant employees over-served Immesberger despite knowing that he was an alcoholic.
- Florida has a “dram shop” law which renders an establishment liable for injury and damages if it “knowingly services a person habitually addicted” to alcohol.
Now, if this were the end of the story, it would be no less tragic, but not related in any way to this blog.
But, as you may deduce from the title, the family’s attorney is alleging spoliation. The attorney, Spencer Kuvin, requested video footage of Immesberger drinking at the restaurant’s bar for nearly three hours. However, the footage is missing—“destroyed and deleted” according to Kuvin. In a news conference held earlier this week, Kuvin in fact stated that “We absolutely believe that the videotape was destroyed as a direct result of [Immesberger’s] death… and they wanted to get rid of that evidence.”
From a discovery perspective, the allegation is explosive. Were the matter being tried in federal court, there’s a series of questions do determine if sanctions might apply—which you can see in Exterro’s handy infographic, Do ESI Spoliation Sanctions Under Rule 37(e) Apply?
- Has ESI been lost? Apparently so.
- Should the lost ESI have been preserved? Given Florida’s “dram shop” law and the resultant fatality, this seems clear.
- Did the party fail to take reasonable steps? We don’t have visibility into what the Woods’ process is for preserving security videos, but for the sake of argument, we can assume that there was a failure to take reasonable steps.
- If the video cannot be restored or replaced, sanctions can apply. At this point, the court must evaluate if there was “intent to deprive.” If there was intent, then severe sanctions, up to and including dismissal or default judgment, may apply. Failing evidence of intent, the court may order measures “no greater than necessary to cure the prejudice.”
This is a fairly conservative standard, and while the circumstances of the lost video seem suspicious, a court might not be willing to issue a default judgment.
That said, a different FRCP apply to this case—the Florida Rules of Civil Procedure. The governing rule in Florida’s FRCP is 1.380(e), which states:
Electronically Stored Information; Sanctions for Failure to Preserve. Absent exceptional circumstances, a court may not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, good faith operation of an electronic information system.
Applicable case law [Bondu v. Gurvich, 473 So. 2d 1307 (Fla. 3d DCA 1985)] seems to indicate that in this case, in which “a party is in control of evidence crucial to his adversary and then loses or destroys the evidence,” the court should treat this spoliation as a discovery violation. In that case, the court has significant discretion to issue sanctions, considering five factors:
- whether there is prejudice to the opposing party
- whether the prejudice can be cured
- the practical importance of the evidence
- the good faith or bad faith surrounding the loss of the evidence
- possible abuse if the evidence is not excluded
At this point, we’ll have to wait and see what happens in the courtroom where the case will be tried—if it doesn’t end up settled—but from this perspective, it seems that whether gross negligence or intent to deprive, the judge will have wide latitude to deal with any evidentiary missteps on the part of Tiger’s restaurant.