Hadley v. Perez et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 25-cv-22162-BLOOM/Louis
DEMOREE HADLEY,
Plaintiff,
v.
DESIREE PEREZ, ROC NATION, ICONIC CREATIVE, LLC,
DANIEL BOBER, NATALIE ANDERSON, SIG 9, LLC, JAMES FONDO,
STEVEN CADY, JESSICA CADY, SOUTH BROWARD HOSPITAL DISTRICT,
ODYSSEY BEHAVIORAL HEALTHCARE, LIFE SKILLS SOUTH FLORIDA
OUTPATIENT, LLC, BROWARD COUNTY SHERIFF'S OFFICE, JOHN DOE, #1,
JOHN DOE, #2, and RACHEL BERNSTEIN,
Defendants.
_________________________/
ORDER ON MOTION FOR SANCTIONS
THIS CAUSE is before the Court upon Defendant Desiree Perez’s (“Perez”) Motion for
Sanctions Against Plaintiff Demoree Hadley (“Hadley”) Pursuant to Federal Rule of Civil
Procedure 37 (“Motion”), ECF No. [469]. Hadley did not file a Response. The Court has reviewed
the Motion, the record, and is otherwise fully advised. For the reasons that follow, the Motion is
granted in part and denied in part.
I. 	BACKGROUND
Perez seeks sanctions against Hadley for destruction of evidence directly material to the
claims and defenses. ECF No. [469] at 20. Perez requests that, pursuant to Federal Rule of Civil
Procedure 37(e)(2), the Court strike the remaining claims in Hadley’s Amended Complaint, or in
the 	alternative, 	a 	jury 	instruction 	requiring 	an 	adverse 	inference 	that 	(1) 	the 	destroyed
Electronically Stored Information (“ESI”) — including the iCloud account, iPhone contents, text
messages, WhatsApp messages, July 30th Video, and unproduced social media direct messages,
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and destroyed, second “listening device” were relevant to Perez’s defenses; and (2) that the
evidence is unfavorable to Hadley’s claims. Id.
Perez contends Hadley’s intentional spoliation of evidence occurred at the time of the
contemplation of her lawsuit. Id. at 4. First, Perez points out that in April 2024, on recorded phone
calls, Javon Hadley (“Javon”) openly plotted with his mother to sue Perez. See ECF Nos. [210-1];
[210-2]. Within a month of those calls, Hadley married Javon. ECF No. [400-10] at 11. Also in
April 2024, Hadley took photographs of an alleged “listening device” and provided them to
Javon’s defense counsel. See ECF No. [400-11].
Perez asserts that on the day Hadley was released from LifeSkills, in April 2024, she wiped
her iCloud account. Id. Hadley testified, “I went in person to Apple and I made sure that my
account before this lawsuit was filed was cleared. So, I made sure everything was deleted. I made
sure that Mrs. Perez could not get access to my phone illegally anymore.” ECF No. [469-1] at 578.
Perez also argues Hadley intentionally destroyed the contents of iPhone, including text
messages, WhatsApp, and photographs. ECF No. [469] at 6. Hadley testified that after she was
released from LifeSkills, she deleted all messages from her phone. ECF No. [469-1] at 614. Hadley
further testified that she deleted over 130,000 photos and videos on her phone, keeping only those
of her grandfather and grandmother. Id. at 528. Hadley testified that she erased contents from her
phone to free up storage space and turned over to her attorney whatever she thought was relevant
to the case. Id. at 540. Hadley also “threw out” an alleged listening device without preserving or
photographing it because she “had too much other evidence.” ECF No. [400-11] at 140-144.
II. 	LEGAL 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 omitted). In a diversity action
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such as this case, federal law governs the imposition of spoliation sanctions. See Flury v. Daimler
Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (“conclud[ing] that federal law governs the
imposition of sanctions for failure to preserve evidence in a diversity suit.”). Although federal law
governs, “the Court may look to state law for guidance to the extent that it is consistent with federal
law.” Wilson v. Wal–Mart Stores, Inc., No. 5:07-cv-394-Oc-10GRJ, 2008 WL 4642596, at * 2
(M.D. Fla. Oct. 17, 2008) (footnote omitted).
The moving party carries the burden of proof. “To establish spoliation, the party seeking
sanctions must prove several things; 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.” Walter v. Carnival
Corp., No. 09-20962-CIV, 2010 WL 2927962, at *2 (S.D. Fla. July 23, 2010) (citing Floeter v.
City of Orlando, 6:05–cv–400–Orl–22KRS, 2007 WL 486633, at *5 (M.D. Fla. Feb. 9, 2007)).
Even if all three elements are met, “[a] party's failure to preserve evidence rises to the level of
sanctionable spoliation ‘only where the absences of that evidence is predicated on bad faith,’ such
as where a party purposely loses or destroys relevant evidence.” Id. at *2 (citing Bashir v. Amtrak,
119 F.3d 929, 931 (11th Cir. 1997)) (adverse inference from party's failure to preserve evidence
must be predicated on bad faith). “Mere negligence” in losing or destroying records is not enough
for an adverse inference, as “it does not sustain an inference of consciousness of a weak case.” Vick
v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975). See also In Matter of Complaint
of Bos. Boat III, L.L.C., 310 F.R.D. 510, 516 (S.D. Fla. 2015) (noting that “even grossly negligent
conduct would not justify [an adverse inference] jury instruction when it is not accompanied by
bad faith”).
If direct evidence of bad faith is unavailable, the moving party may establish bad faith
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through circumstantial evidence. Id.; see also Atl. Sea Co. v. Anais Worldwide Shipping, Inc., No.
08-23079-CIV, 2010 WL 2346665, at *2 (S.D. Fla. June 9, 2010) (noting that where the movant
“offer[s] no direct evidence of bad faith, ... this Court must assess the circumstantial evidence of
bad faith under the standard set forth in Calixto.”). The following constitutes circumstantial
evidence of bad faith:
(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.
Walter, 2010 WL 2927962, at *2 (citing Calixto v. Watson Bowman Acme Corp., No. 07-60077-
CIV, 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009)). The party seeking sanctions must
establish all four of these factors where there is no direct evidence of bad faith. Calixto, 2009 WL
3823390, at *16 (stating that “in this Circuit, bad faith may be found on circumstantial evidence
where all of the [aforementioned] hallmarks are present”).
District courts have “broad discretion” to impose sanctions, which power “derives from the
court's inherent power to manage its own affairs and to achieve the orderly and expeditious
disposition of cases.” Flury, 427 F.3d at 944. Sanctions may include “(1) dismissal of the case; (2)
exclusion of expert testimony; or (3) a jury instruction on spoliation of evidence which raises a
presumption against the spoliator.” Id. at 945. Dismissal represents the most severe sanction
available to a federal court, and therefore is only imposed “where there is a showing of bad faith
and where lesser sanctions will not suffice.” Id. at 944. “Because this Circuit requires a showing
of bad faith before sanctioning a party when there is spoliation of evidence, courts in this Circuit
must refrain from imposing sanctions when no bad faith is shown.” Bos. Boat III, 310 F.R.D. at
516.
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III. 	DISCUSSION
Perez argues the spoliation standard and the requirements of Rule 37 are satisfied. ECF No.
[469] at 14. Perez contends Hadley’s intentional destruction has severely prejudiced Perez and she
points out that Hadley destroyed one of the two listening devices subject to Counts XVII and XVIII
of the Complaint. Moreover, the destroyed ESI is comprised of communications underlying the
wiretap allegations.
As an initial matter, the Court finds that Defendant has demonstrated the three foundational
elements to establish spoliation. Walter, 2010 WL 2927962, at *2. First, the messages and alleged
listening device existed at one time. Hadley’s testimony confirms this. Second, Hadley knew or
should have known she had a duty to preserve the evidence. Indeed, Hadley testified that she went
to Apple to delete her iCloud specifically before this lawsuit was filed. And third, the evidence is
crucial to Perez’s defense against Hadley’s claims. The alleged listening device is the subject
device in the wiretapping claims, and Perez’s ability to investigate that device has been frustrated
by Hadley’s destruction.
To further merit sanctions, Perez must establish bad faith destruction of the generator by
direct evidence or by circumstantial evidence. Courts in this district have interpreted “bad faith”
in the spoliation context to not require a showing of malice or ill-will, but conduct evidencing more
than mere negligence. See, e.g., Austrum v. Fed. Cleaning Contractors, Inc., 149 F. Supp. 3d 1343,
1350–51 (S.D. Fla. 2016) (noting that in the spoliation context, “bad faith” “does not require
malice and is defined by weighing ‘the degree of the spoliator's culpability against the prejudice
to the opposing party.’ Furthermore, the spoliator’s degree of culpability must be more than mere
negligence”) (internal citation omitted).
Here, as Hadley testified, her deletion of text messages, photos, and videos, and destruction
of the alleged listening device was not accidental or merely negligent. Rather, she voluntarily
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deleted the ESI and intentionally threw out the alleged listening device. Hadley should have known
the listening device would need to be inspected and should have known to preserve the ESI.
Instead, Hadley deleted the content from her phone and turned over only what she thought was
relevant. Therefore, spoliation exists, warranting sanctions.
“Factors to be considered when determining the seriousness of the sanctions to impose
against a party for failure to preserve critical evidence in its custody vary according to (1) the
willfulness or bad faith of the party responsible for the loss or destruction of the evidence; (2) the
degree of prejudice sustained by the opposing party; and (3) what is required to cure the prejudice.”
Bos. Boat III, 310 F.R.D. at 523 (citation omitted). Defendant requests that the Court either strike
the remaining claims in Hadley’s Complaint, or in the alternative, instruct the Jury that the (1)
destroyed ESI and alleged listening device were relevant to Perez’s defenses; and (2) this evidence
is unfavorable to Hadley’s claims. ECF No. [469] at 20.
Upon review and consideration, the Court does not agree that the severe sanction of
dismissal is appropriate. Instead, the appropriate and less punitive measure to cure Perez’s
prejudice is an adverse inference jury instruction. “There are different types of adverse inferences:
(1) a jury may be instructed that certain facts are deemed admitted and must be accepted as true;
(2) the Court may impose a mandatory, albeit rebuttable, presumption; or (3) the jury must presume
that the lost evidence is relevant and favorable to the innocent party, but also consider the
spoliating party's rebuttal evidence, and then decides whether to draw an adverse inference.”
Schultze v. 2K Clevelander, LLC, No. 17-CV-22684, 2018 WL 4859071, at *7 (S.D. Fla. Oct. 4,
2018).
The Court finds that the second category of adverse inference should be imposed. Under
this sanction, the jury is to presume that the destroyed ESI and alleged listening device were
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relevant and favorable to Perez and unfavorable to Hadley, but Hadley can rebut this presumption
through her presentation of evidence. As such, Perez’s Motion is granted in part and denied in part.
IV. 	CONCLUSION
Accordingly, it is ORDERED AND ADJUDGED that Desiree Perez’s Motion, ECF No.
[469], is GRANTED in part and DENIED in part.
DONE AND ORDERED in Chambers at Miami, Florida, on October 12, 2026.
_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc: 	counsel of record
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