In Hale v. Mayor & City Co. of Baltimore City, 2022 WL 374512 (D. Md. Feb. 8, 2022), the Court denied a request for sanctions in the summary judgment context despite a “convoluted and murky” explanation for missing text messages. The Court described the missing texts as “the primary basis of [plaintiff’s] claims….” Id. at *5. This blog focuses on whether the duty to preserve was triggered prior to the intentional deletion of the messages.
Ms. Hale sued the City for alleged sexual harassment by a supervisor, Mr. Moore, while both were employed by the City. Before Mr. Moore was promoted, he and Ms. Hale were congenial co-workers. They socialized and double-dated. Mr. Moore became Ms. Hale’s direct supervisor in August 2017, and the relationship began to deteriorate.
Ms. Hale alleged five inappropriate events between September and October 2017. Three were allegedly contained in text messages and two were verbal. The Court’s opinion describes the texts in detail, and suffice it to say that they were explicit and entirely inappropriate on their face. The subsequent events that teed up the sanctions issue:
Plaintiff contends that she deleted all three offending text messages—and her replies to them—from her physical device within an hour of receiving them…. Before doing so, however, Plaintiff allegedly showed the text messages to Angela Waddell, … and captured screen shots of the text messages, which she sent via text to Tanika Bryant…. As discussed in greater detail below, Plaintiff did not provide corroborating documentary evidence as to the existence or contents of the text messages. [emphasis added].
Plaintiff alleged that, following these five events, Mr. Moore began to take actions against her. After alleged adverse actions in March 2018, Ms. Hale submitted a complaint to her union and the human resources department on May 31, 2018 (roughly seven months after the texts). More disputed events followed, and Ms. Hale alleged that “Moore’s [subsequent] conduct and the City’s ensuing responses” caused emotional harm. In June 2018, she filed a charge of discrimination with the EEOC and the EEOC issued a right-to-sue letter on November 27, 2019. Plaintiff filed suit on February 25, 2020.
Defendants moved for summary judgment and the Court sua sponte ordered briefing detailing why the relevant text messages – – or evidence corroborating their existence – – was absent and what impact, if any, the absence should have. Plaintiff provided some supplementary material and defendants moved for sanctions.
The Court addressed a number of issues; however, this blog focuses on whether the duty to preserve the text messages was triggered prior to the deletion, an hour after they were sent to Ms. Hale.
Ms. Hale contended that she deleted the messages and replies because she did not want her “current boyfriend at the time to come up to my job and assault [Moore].” Also, she “did not want to have to continue seeing those distressing and harassing text messages, and my response to them, on my phone in my text history.” Ms. Hale asserted that her deletion was immaterial because her “physical device only retained text messages for a year….” The Court noted: “To make matters worse, at some point prior to the filing of this suit, Plaintiff traded in the physical phone on which she had received the text messages for an upgraded model, and is accordingly no longer in possession of the device.” The Court described a “glaring lack of documentary or testimonial evidence corroborating the existence of the text messages….”
However, the Court wrote that:
“At the time she deleted the messages, Plaintiff ‘had no intentions or plans… to file a lawsuit.’” [emphasis added].
It concluded that neither Fed.R.Civ.P. 37(e) nor its inherent authority justified the imposition of spoliation sanctions “at this stage.” It held that it could not conclude that the duty to preserve was triggered within an hour after receipt of the texts. A mere possibility of litigation does not trigger the duty. Id. at *6. Further, there was insufficient evidence to conclude that Ms. Hale’s conduct “was willful or accompanied by a culpable state of mind.” The Court wrote that “Plaintiff has proffered non-culpable motivations for her destruction of the text messages… which have not been refuted by Defendants.” [emphasis added].
The decision appears to be limited to the summary judgment context and, importantly, the Court wrote that: “The Court will accordingly decline to impose sanctions against Plaintiff at this juncture [i.e., a motion for summary judgment], while allowing Defendants to re-raise the issue at a later stage for consideration. Curative measures, such as jury instructions regarding the duty to preserve relevant evidence, may be warranted at trial.” It wrote: “Put differently, it is for the jury to assess the credibility of Plaintiff’s testimony while weighing the lack of direct or circumstantial evidence corroborating her allegations.”
It appears that, at trial, a sufficient showing may be made. The question of when the duty to preserve is triggered is objective, not subjective. As noted by the Sedona Conference:
The touchstone is “reasonable anticipation” or “reasonably foreseeable.” The standard is an objective one, “asking not whether the party in fact reasonably foresaw litigation, but whether a reasonable party in the same factual circumstances would have reasonably foreseen litigation.”
The Sedona Conference, Commentary on Legal Holds, Second Edition: The Trigger & The Process, 20 Sedona Conf. J. 341, 354 (2019) (citations omitted). “Trigger” is “fact specific.” Id.
In my opinion, the “proffered non-culpable motivations for her destruction” are subjective. It should be irrelevant that: “At the time she deleted the messages, Plaintiff ‘had no intentions or plans… to file a lawsuit.’” That is a subjective test. The question that should be posed at trial is whether an objective recipient of those messages would have reasonably anticipated litigation.
Several objective factors point toward a trigger prior to the destruction by Ms. Hale. First, Ms. Hale described the texts as “distressing and harassing” and, objectively, when a person receives those kinds of messages in the workplace, that points toward triggering the duty. Second, deletion is an intentional act. Third, before deleting them, Ms. Hale took screen shots and sent them to Ms. Bryant. That is an objective indicator that Ms. Hale found the texts to be noteworthy prior to deleting them. Fourth, Ms. Hale showed the texts to Ms. Waddell before deleting them, another objective indicator that she found them noteworthy. Fifth, Ms. Hale responded to the texts and deleted her responses. Sixth, Ms. Hale disposed of the cell phone. That is an intentional act.
Ms. Hale’s assertion that she deleted the messages and responses because she did not want to see them is understandable but not objectionably reasonable. There are many low-cost measures available to preserve text messages. Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional. | Ball in your Court (craigball.net) Once preserved, they could have been defensibly deleted.
Ms. Hale’s assertion that the texts would have been deleted by the autodelete setting on her cell phone, and therefore there was “no harm, no foul,” should be rejected. The December 2015 amendments to Fed.R.Civ.P. 37 deleted the shallow “safe harbor” provision. Once the duty was triggered, a litigation hold should have been imposed and, as part of that, autodeletion should have been turned off. It would be difficult to assert that Ms. Hale did not reasonably anticipate litigation before autodeletion, given the importance of the texts, the alleged subsequent adverse actions, and the filing of a union complaint in May 2018, roughly seven months after the texts were sent.
 Ms. Hale also asserted that Ms. Bryant – recipient of the screen shots – had a six-month autodelete for texts.