In Doe v. Willis, 2023 WL 2918507 (M.D. Fl. Apr. 12, 2023), the plaintiff’s lawyer imposed an oral legal hold, telling her that she should not delete texts, throw away evidence, or post anything on Facebook, and: “That’s about it.” The instructions were not memorialized in a writing. Subsequently, the plaintiff dropped her cell phone “multiple times” and “[i]t kinda got demolished.” She then got a new phone; took screenshots of some, but not all, of the important messages; and, then threw the old phone away. The discarded phone was the one she used at the time of the alleged – and disputed – sexual assault that formed the basis of her claims.
Willis is another example of the dangers of custodial preservation in place. For a prior example of a failure of that method, see District of Maryland Sets Guidelines for Cell Phone Preservation in Place.
The Willis decision also focused on the dangers of unsupervised self-collection by a biased litigant. It strongly criticized Doe’s “unilateral exercise in selecting the evidence from her iPhone 6s which she deemed to be pertinent to the action and then later discard[ing] that device.”
Many parts of the Willis decision are interesting; however, I am focusing on only three.
First, the Willis court addressed the definition of “prejudice” under Fed.R.Civ.P. 37(e)(1):
There is a disagreement… as to what actually constitutes “prejudice” under Rule 37(e)(1). Some courts in the Eleventh Circuit, for example, “have suggested that a non-spoliating party suffers ‘prejudice’ under Rule 37(e) if the unavailable ESI would have helped evaluate the merits of its positions, regardless of whether the ESI would be favorable [to] its case.” Wilson, 2022 WL 3273718, at *7 (citations omitted). Other courts, by contrast, insist that the moving party demonstrate the spoliated evidence “ ‘would [have] affirmatively support[ed] the movant’s claim.’ ” Id. at *7 n.11 (citation omitted).
Id. at *11. The District of Maryland has consistently stated: “Spoliation of evidence causes prejudice when, as a result of the spoliation, the party claiming spoliation cannot present ‘evidence essential to its underlying claim.’” Fowler v. Tenth Planet, Inc., 2023 WL 2691576, at *2 (D. Md. Mar. 29, 2023); Gov’t Emps. Health Ass’n v. Actelion Pharms. Ltd., __ F.R.D.__, 2023 WL 316578, at *6 (D. Md. Jan. 19, 2023)(“The burden of proof is on the party seeking sanctions, and the standard of proof in the Fourth Circuit appears to be ‘clear and convincing’ evidence where, as here, relatively harsh sanctions are sought.”); Mod. Remodeling, Inc. v. Tripod Holdings, LLC, 2021 WL 3852323, at *10 (D. Md. Aug. 27, 2021); Brittney Gobble Photography, LLC v. Sinclair Broad. Grp., Inc., 2020 WL 1809191, at *4 (D. Md. Apr. 9, 2020); Al-Sabah v. Agbodjogbe, 2019 WL 4447235, at *5 (D. Md. Sept. 17, 2019); Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 532 (D. Md. 2010), aff’d in part, modified in part, 2010 WL 11747756 (D. Md. Nov. 1, 2010).
Second, the Willis court explained that Subsections (e)(1) and (e)(2) “operate independently of each other.” Id. at *6. Subsection (e)(1) requires a showing of “prejudice,” but not “intent to deprive.” Subsection (e)(2) does not require prejudice – instead, prejudice is presumed if there is intent to deprive and “intent” is a necessary element. The Willis court summarized as follows: “In other words, subsection (e)(2) may apply even if subsection (e)(1) does not, and vice versa.” Id. at *6.
Third, however, even though they are independent, the Willis court stated that the two subsections overlap:
Finally, it bears highlighting that deciding whether a movant has suffered prejudice under Rule 37(e)(1) can sometimes “overlap[ ]” with determining whether there was an intent to deprive under Rule 37(e)(2). Nationwide, 2019 WL 5700288, at *10. By way of example, a finding of an intent to deprive can support “an inference that the lost information was unfavorable to the [spoliating] party” and “also an inference that the opposing party was prejudiced by the loss of information that would have favored its position.” Fed. R. Civ. P. 37(e), advisory committee notes to 2015 amendment. Not surprisingly given the interconnectedness of the Rule 37(e)(1) and (e)(2) inquiries, the same set of facts can oftentimes be used to satisfy both the intent to deprive and the prejudice requirements. See Nationwide, 2019 WL 5700288, at *11– 14 (relying upon similar evidence to establish both prejudice and an intent to deprive).
Id. at *11 (emphasis added).
Ms. Doe’s egregious actions – including many not described in this blog – supported sanctions.
 For more information on self-collection and the need for both attorney supervision and a fail-safe backup, see Self-Identification and Self-Preservation: A Fool for a Client? and Unsupervised Self-Collection Predictably Led to Problems; but cf. Maker’s Mark: A Different View of Self Collection.
 The Wilson court wrote: “Two different views of ‘prejudice’ may be hypothesized[.] … Under one view, ‘prejudice’ may be taken to mean merely that the evidence is probative, similar to the concept of relevance under Fed. R. Evid. 401. Under the alternative view, prejudice may require proof that the evidence was not only probative, but that it would affirmatively support the movant’s claim. Courts in this Circuit generally require some proof of prejudice in the latter sense before sanctions will issue.” Wilson v. HH Savannah, LLC, 2022 WL 3273718, at *7 n. 11 (S.D. Ga. June 1, 2022).