Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1)

In Cooper v. Baltimore Gas & Electric Co., 2025 WL 1416943 (D. Md. May16, 2025)(Coulson, J.), the Court did justice and partially rescued a party that overreached by moving for sanctions under Rule 37(e)(2) while not making an alternative, “belts and suspenders” request under Rule 37(e)(1).

Defendants moved for “game ending” sanctions under Fed.R.Civ.P. 37(e)(2); however, the United States Magistrate Judge recommended that the motion be denied.  The Court provided a Rule 37(e)(1) suggestion.

PLAINTIFF’S ERRONEOUS RELIANCE ON OBSOLETE AUTHORITIES

Plaintiff’s response to the motion for sanctions missed the mark.  The Court wrote that Plaintiff “relies exclusively in her Opposition on cases premised on the Court’s inherent authority applicable to spoliation generally, rather than the Federal Rules of Civil Procedure.”

That reliance was held to be misguided.  The Court noted that, since the December 2015 amendments to Rule 37:

In matters of alleged spoliation of Electronically Stored Information (“ESI”)…, the amended version of Federal Rule of Civil Procedure 37(e) provides the exclusive analytical framework. While there is some overlap between pre-amendment caselaw and Rule 37(e)’s framework, Plaintiff’s failure to rely on the correct standard puts her analysis at odds with the current state of the law in important respects.

The Court wrote that it no longer views pre-2015 decisions as persuasive in addressing spoliation of ESI. See Fowler v. Tenth Planet, Inc., 673 F. Supp. 3d 763, 773 (D. Md. 2023); Gov’t Emps. Health Ass’n v. Actelion Pharms. Ltd., 343 F.R.D. 474, 482 (D. Md. 2023); Recent “Textbook” Analysis of Fed.R.Civ.P. 37(e)(Apr. 17, 2023);  Fowler Cell Phone Decision Affirmed (May 23, 2023).

It is important, almost ten years later, for litigants to be aware of the December 2015 revisions to the Federal Rules of Civil Procedure.  See A Wake Up Call Revisited: Read the Rules & Don’t Argue “Not Reasonably Calculated” in Federal Courts (Feb. 25, 2025); Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure (Jun. 2, 2022).

THE COOPER COURT APPLIED Fed.R.Civ.P. 37(e)

Having rejected Plaintiff’s misdirection, the Cooper Court then applied Fed.R.Civ.P. 37(e), writing:

Defendants asks the Court to dismiss Plaintiff’s case with prejudice due to Plaintiff’s alleged spoliation of evidence, and also seek attorneys’ fees and costs incurred related to these issues, including the costs and fees associated with their motion.

Text messages were central to both sides of the “v.”

• Plaintiff alleged sexual harassment, in the Court’s words, “in large part relying on text messages in support of her allegations.”
• Defendants asserted that the relationship between plaintiff and her former supervisor, Mr. Roberts, “was consensual, and contend that a full accounting of their text messages and other communications will further prove this.”

Defendants requested production of text messages in native form.

However, Plaintiff produced screenshots.

“Defendants contend[ed that the produced messages] are an incomplete inventory of all such communications, and that even the screenshots for the messages produced are sometimes cut off, undated, and fail to include images and videos referenced in the messages.”

Further:  “Plaintiff produced only two Facebook Messenger messages that were both post-separation despite Plaintiff’s testimony that the two exchanged such messages ‘almost every day’ during her employment.”

Defendants asserted that plaintiff “took affirmative steps to deprive Defendants of the complete catalog of these communications….”

Plaintiff responded that her alleged consent was irrelevant, the screenshots were sufficient, and she defended “her preservation as her best effort to capture all relevant communications….”

In terms of her own preservation efforts, Plaintiff testified that she took screen shots of the text messages between herself and Mr. Roberts.

Plaintiff’s attorneys were not involved in the foregoing process and never reviewed the message thread, other than the screenshots.  The Court wrote that: “She never downloaded the entire text message stream for preservation.”  Her cell phone and iCloud backup were no longer available.

Self preservation may be permissible, but carries risks, especially without supervision of counsel.  “Self Help” Discovery Results in Striking of Wrongfully Obtained Evidence (Mar. 3, 2025); “Self-Collection” May Be Reasonable Using Ralph Losey’s Dual-Protection System (Jan. 19, 2024); District of Maryland Sets Guidelines for Cell Phone Preservation in Place (Apr. 10, 2023).

The Cooper Court wrote that: “Plaintiff’s explanations for the disposition of her original cell phone have varied.” One explanation was that she traded the phone in, but retained the SIM card (which did not contain any text messages).  She also said that ‘she now has the old phone in her possession.’”  The Court wrote:

When confronted about the somewhat conflicting explanations of originally saying she traded her phone in, and then indicating that she still had the phone, Plaintiff testified that she originally just “thought” that she traded it in, but then realized she still had it.

The Court wrote that: “Eventually, the parties both filed discovery motions seeking access to Plaintiff’s now-located cell phone, with the Court ordering a forensic examination of the phone, the SIM card, and Plaintiff’s iCloud account.”  Plaintiff was also ordered to provide an authorization to her former cell phone carrier so that a message log could be obtained.  The log would be used to verify what was missing.

“Unfortunately, the parties subsequently informed the Court that Plaintiff could not recall the password from her phone or iCloud, and any attempt to reset them would result in a loss of all of the data.”

And, the cell phone carrier no longer had the log.

As to the daily Facebook Messenger messages, plaintiff “gave her lawyer screenshots of ‘what I had,’ although only two messages were produced in discovery, both of which post-date her separation from the company.” Additionally:

Plaintiff testified that she no longer had access to those messages because, after she separated from the company, Mr. Roberts allegedly sent her threatening messages so that she blocked him, explaining “when you block somebody and they’re no longer your friend, you can’t see anything from them.” … She estimates that she did this “probably a year” before her January, 2025 deposition.

The Court summarized the status:

Thus, the current state of affairs is: (1) Plaintiff has only her screenshots of the text messages between herself and Mr. Roberts, which the Court views as an incomplete inventory given that some are cut off, some have no date, there are large gaps in time that are unaccounted for, and there are references to video attachments that were not produced…; (2) Plaintiff has produced only two post-separation Facebook Messenger messages, when her testimony was that she communicated with Mr. Roberts on Messenger “almost every day” during her employment but lost access to the messages when she blocked Mr. Roberts, well after the litigation commenced; (3) Plaintiff’s inability to recall her cell phone password and iCloud credentials renders both inaccessible; and, (4) T-Mobile is unable to produce a log of the messages because the date range sought falls outside its retention period. [Emphasis added].

Further: “All attempts to subpoena or depose Mr. Roberts and/or gain access to the text messages through him has been thwarted to date by his evasiveness.”

The Court applied Fed.R.Civ.P. 37(e) to these facts.  It wrote that: “The Court has no trouble concluding that the four threshold requirements set forth in Rule 37(e) are easily met here.”

To trigger Rule 37(e), four initial criteria must be met: (1) the party was under a duty to preserve the ESI at issue; (2) the ESI at issue was not preserved; (3) the loss of the ESI was due to the party’s failure to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.…  If these four criteria are met, Rule 37(e) offers two alternative paths.

On the first point, Plaintiff’s duty to preserve arose in September 2022, when she decided to pursue her claim by filing an EEOC Complaint.  She retained counsel that month.  She filed her lawsuit in September 2023.  The ESI went missing after the trigger date.

As for the second requirement, the Court has concluded from its own review of the screenshots provided that even the screenshots provided inadequately capture the full extent of the text messages between Plaintiff and Mr. Roberts. The screenshots are visibly incomplete based on being cut off and lacking referenced attachments such as videos. They are, in some cases, undated. And there are long gaps in time where there are no messages at all, strongly suggesting that they are not the full inventory of relevant text messages between the two. Further, Plaintiff testified that she exchanged Facebook Messenger messages with Mr. Roberts “almost every day” during her tenure at GardaWorld, yet only produced two post-separation messages. She also took affirmative steps to block Mr. Roberts, thereby depriving the parties of access to the messages during the pendency of the present suit. Thus, unequivocally, discoverable ESI was lost based on her lack of preservation.

Turning to the third element, on these facts, the self-collection did not constitute reasonable steps to preserve information:

While there may be cases where self-collection or screenshots could be defensible where such messages were not numerous and/or central to the allegations, this is not such a case. Additionally, based on the information presented to the Court, counsel took no steps to assist in preservation at a time when the messages were still easily preserved, and took no steps to collect the Facebook Messenger messages which were still accessible until Plaintiff blocked Mr. Roberts in approximately late 2023 or early 2024.

Finally, the Court said that efforts to recover the missing ESI, while extensive,  were “to no avail.”

Defendants’ motion sought only Rule 37(e)(2) dispositive sanctions.

Turning to plaintiff’s argument that consent was irrelevant: “The Court disagrees. For sexual harassment to be actionable, it is well established that it must be, inter alia, unwelcome.”

The Court wrote that: “In this case…, forbidding the Plaintiff from offering or referencing the text messages does little to remedy the prejudice. If anything, such exclusion would compound the prejudice [to Defendants] in that Plaintiff would further distance herself from the communications since Defendants would then be left to introduce incomplete communications as their only evidence of the consensual nature of the relationship.”

It then reasoned: “Alternatively, allowing Defendants to introduce the circumstances of the loss might partially remedy the prejudice, but jurors could easily get confused by the timeline and logistics of that evidence without more.”

The Court held that, because Defendants sought dismissal with prejudice, their burden under Rule 37(e)(2) was to prove “intent to deprive” by clear and convincing evidence.  It wrote:

To be sure, there are some circumstances surrounding Plaintiff’s lack of preservation well after the duty to preserve attached and well after she had engaged counsel that tend to support such intent. For example, Plaintiff offered shifting explanations for the whereabouts of her phone, first suggesting that she traded it in but ultimately admitting it was still in her possession. She offered no details on how it became damaged, except to verify that this occurred through multiple drops, but suggesting it nonetheless remained operable until nearly a year after suit was filed. She admits that she took the affirmative step of blocking Mr. Roberts on Facebook—again after suit had been filed—understanding that the effect of that would be to make their “almost daily messages” inaccessible yet foregoing any steps to preserve those messages beforehand. And she now claims she cannot remember either the passcode for her phone nor the code for her iCloud account.

On the other hand, Plaintiff’s counsel “actively attempted” to recover the lost communications, agreed to a forensic examination of the cell phone, actively cooperated in the forensic process, “and, when that failed to be fruitful, took the extra step of contacting Apple’s general counsel. Such efforts are inconsistent with an intent to deprive.”

The Court concluded: “The evidence on intent to deprive is, therefore, mixed. Under such circumstances, the undersigned cannot conclude that Defendants have carried their burden of establishing an intent to deprive by clear and convincing evidence so as to justify the sanction they seek. Therefore, the undersigned recommends that Defendants’ Motion for Sanctions be denied.”

One takeaway is that the burden of demonstrating “intent to deprive” for dispositive sanctions is a heavy one.  Another, is the significance of Plaintiff’s counsel’s remedial efforts.

In what may be dicta, the Court also wrote out the jury instruction it would have suggested if Defendants had filed a motion under Rule 37(e)(1).

As to the Facebook ESI, there may have been low-cost options that could have avoided this problem.  See District of Maryland Gives Qualified Approval to Non-Forensic Downloads of Social Media Data (Aug. 10, 2021).  In that blog, I wrote:

Many social media programs provide their members with a non-forensic download tool. For example,  Google Takeout,  Uber,  Twitter, and LinkedIn provide download instructions.  See C. Ball, “Preserving Social Media Content: DIY (Dec. 24, 2019).

The same may be applicable to the iPhone.  Craig Ball has posted Custodian-Directed Preservation of iPhone Content: Simple. Scalable. Proportional. | Ball in your Court (Jul. 26, 2017)(“It requires no special tools, cabling or software and no technical expertise.  Moreover, the process poses almost no risk of loss or alteration of the relevant data and is unlikely to prompt custodians to game the process.  There are no operating system compatibility issues.  Remote screen-sharing handily facilitates any desired oversight and audit.  In short, cost and burden are so trivial that relevance alone should be the pole star in deciding whether to preserve mobile content.”); How Will We Back Up iPhones Without iTunes? (Aug. 30, 2019);  Mobile to the Mainstream (2019), and Do-It-Yourself Digital Discovery, Revisited | Ball in your Court (Feb. 7, 2015).