In McCoy v. Transdev Svc., Inc., 2021 WL 1215770 (D. Md. Mar. 31, 2021) (Copperthite, J.), data on Defendant’s former employee’s cell phone was erased after Plaintiffs had sent a preservation letter.
Defendant Transdev admitted that it had a duty to preserve the evidence and had control over it when it was destroyed. It asserted that the destruction was merely inadvertent, and the Court reiterated that, in the Fourth Circuit, ordinary negligence or gross negligence was sufficient to support a sanction.
The Court then turned to a central issue: “That leaves us with the third element [of sanctions analysis], put simply – the relevance of the lost information. The relevance of the lost information, is where the Plaintiffs and [Defendant] Transdev part ways.” Id. at * 2.
Apparently, the substantive issue was whether Defendant Transdev was a joint employer with Defendant Davi for FLSA purposes. Plaintiffs asserted that the lost ESI related to that issue. For example, Plaintiffs argued that it went to the degree of control that Transdev exercised over Davi, a key issue in joint employer litigation.
Defendants countered that the lost cell phone data was not relevant. In part, they asserted that:
Plaintiffs have failed to reasonably establish a possibility based upon concrete evidence “beyond their fertile imagination” that the lost data would have shown coordination between Davi and Transdev and thus support the joint employer allegations.
The Court was not persuaded by Transdev’s argument that Plaintiffs could not prove the relevance of information Transdev had destroyed after Transdev had received Plaintiffs’ preservation demand. The Court explained:
What is clear is that Plaintiffs will never know what information was contained on the Whitley cell phone. The Plaintiffs need not prove the content of the information or reconstruct the lost information in order to prove its relevance. That proposition is absurd. The parties agree that information is lost and the actual content unknown. As alleged, the information might have supported the claims of Plaintiffs and therefore, the information was relevant. …. Plaintiffs have also persuaded the Court that the evidence would have naturally been introduced into evidence. …. Plaintiffs’ claims against Transdev depend on the joint employer status. Evidence of the conversations between [Defendant’s former employee] Ms. Whitley and [Plaintiff] Massey, along with three other non-Plaintiff drivers and Ms. Whitley and Mr. Davis would have been admissible to support the joint employer liability claim. Plaintiffs have met the third requirement, the lost information is relevant and prejudicial to Plaintiffs and therefore Plaintiffs are entitled to sanctions. [Emphasis added; Citations omitted].
The Court considered the appropriate sanction under Fed.R.Civ.P. 37(e). It applied the principle that it must impose the least harsh sanction “necessary to cure the prejudice.” Id. at *2 (citation omitted).
In doing so, it considered the degree of culpability. The Court wrote: “[T]here is no evidence to support any intentional conduct by [Defendant]….” Id. at *2.
Faced with conflicting descriptions of when the destruction occurred, the Court wrote:
If the destruction occurred about a month or so after the April preservation letter then Transdev would have been negligent in destroying the evidence. If the destruction occurred in July 2020, then Transdev would have had a year to ensure preservation measures were taken and Transdev would have been grossly negligent in spoliating evidence. Here the Court credits the testimony of the user of the phone Ms. Whitley who testified the information was contained on the phone she returned to Transdev in July 2020. Transdev was grossly negligent in failing to preserve ESI after a year of notice and actual knowledge of the ongoing litigation.
The Court then fashioned a remedy that included preclusion of certain testimony by the Defendant and a recommendation that the jury be instructed regarding the destruction. The instruction would not include an adverse inference and would be based on evidence presented at trial. Id. at *3.
 There is a well-established, but inapposite, body of law holding that a motion for sanctions cannot be grounded on speculation. See, Blog, “There is a Difference Between Relevance for Discovery and Relevance for Spoliation Sanctions” (Aug. 11, 2021); “Where Producing Party Represents That It Fulfilled Its Duty to Produce, a Motion to Compel Additional Production Cannot be Based on Speculation” (Jul. 27, 2021).
 It was defendant’s policy to replace cell phones every two years, “which resulted in the potential evidence being destroyed.” Id. at *1. Of course, the routine operation of an information technology system is no longer a “safe harbor” under the December 2015 amendments to Rule 37 and it was never a safe harbor after the duty to preserve was triggered.