In Fowler v. Tenth Planet, Inc., 2023 WL 2691576 (D. Md. Mar. 29, 2023)(Coulson, J.)(“Fowler I”), the Magistrate Judge wrote that preservation of a cell phone “in place” may be acceptable in some instances, but made clear that it is risky. Plaintiff had not backed up his cell phone. He left it in an unlocked car and it was stolen. Relevant text messages were lost. On the facts presented, Judge Coulson recommended denial of a request for game ending sanctions. Defendant objected; however, the objections were overruled. Fowler v. Tenth Planet, Inc., __ F. Supp. 3d __, 2023 WL 3569816 (D. Md. May 19, 2023)(Rubin, J.) .)(“Fowler II”). Fowler I’s important preservation-in-place guidance remains valid.
The Hon. J. Mark Coulson, U.S. Magistrate Judge, wrote “it was not reasonable to simply maintain those text messages only on his phone without at least verifying that they were being backed up to a cloud service or otherwise taking affirmative steps to create a copy given the not uncommon occurrence of a phone getting damaged, lost, or stolen.” In short, the preservation-in-place, without a backup, was negligent.
However, on the facts presented, Judge Coulson recommended denial of game ending sanctions and wrote: “Rather, the issue of the missing text messages should be dealt with according to the usual rules of evidence, with Judge Rubin being in the best position to decide the extent to which the parties can introduce evidence and testimony regarding the missing text messages and the circumstances of their unavailability.”
For additional analysis of Fowler I, see District of Maryland Sets Guidelines for Cell Phone Preservation in Place and Kelly Twigger, Episode 106: Whether a Lost or Stolen Device Lead to Sanctions under FRCP 37(e) | eDiscovery Assistant (May 11, 2023).
In Fowler II, the Court wrote: “Defendants object to Judge Coulson’s conclusions ‘on the issues of prejudice and intent to deprive,’ and as to the ultimate recommendation against imposition of any Rule 37(e) sanction.” The objections were overruled.
Intent to Deprive
Defendants argued that Plaintiff’s counsel’s alleged “’overtly aggressive and accusatory’ conduct during pretrial discovery” is “strong evidence of Plaintiff’s conscious dereliction of a known duty.” They also argued that, because Plaintiff is “no stranger to litigation…the only reasonable conclusion…is that Plaintiff and his counsel knew they had a duty to preserve the text messages but consciously chose not to do so. That is enough to prove intent.” They urged that a “prolonged time period” from the commencement of the lawsuit until the loss of the messages also showed intent. Finally, they argued that Plaintiff’s contradictory statements about the texts indicate deliberate concealment.
Those arguments failed to carry the day. “The court appreciates Defendants’ view of the totality of circumstances differs from that of Judge Coulson, but Defendants have not carried their burden to demonstrate that Judge Coulson was clearly erroneous (or mistaken as to the law) in concluding that the record lacks clear and convincing evidence of Plaintiff’s intent to deprive. The court agrees with Judge Coulson.”
The Fowler II Court wrote: “Defendants rely on the basic premise (supported by long-standing, uncontroversial law) that prejudice is established when one party’s spoliation of evidence impairs the other side’s ability to present ‘essential’ evidence, and that the concept of prejudice is not fixed, but rather ‘can range along a continuum.’” They asserted error in failure to conduct an evidentiary hearing and, in flowery language, Defendants argued that the lost messages were “truth serum to Plaintiff’s shifting narrative and that the availability of the live testimony of Plaintiff’s restaurant co-workers will not cure the prejudice because [t]hese witnesses cannot be expected to remember.” [quotation cleaned up].
Those arguments also failed to carry the day. The Fowler II Court wrote that:
“Critically, Judge Coulson found that ‘both sides concede[ ] the missing text messages are not the only potential evidence.’ Therefore, he logically concluded that the missing messages are therefore not ‘essential.’…. The mixed weight of the evidence on its face and Defendants’ concession to which Judge Coulson refers is rather at odds with Defendants’ present contention that the missing text messages are equivalent to a ‘unique’ ‘truth serum’ essential to Defendants’ case.”
As to the alleged failure to conduct an evidentiary hearing, “Defendants fail to identify what evidence other than the exhibits appended to the parties’ motions papers Defendants were denied the opportunity to present, or how such evidence might have made a difference in Judge Coulson’s analysis.”
Fowler II provides an excellent analysis of the intent, prejudice, and procedural issues. Fowler I’s important preservation-in-place analysis remains “good law.”
 In Kelly Twigger’s Episode 107: Comparing and Contrasting Different Rulings on Prejudice and Intent under Rule 37(e) | eDiscovery Assistant, Fowler is compared to In re Skanska USA Civil Se. Inc., 340 F.R.D. 180 (N.D. Fl. 2021).
 In Fowler II, the Court disagreed that there was a blatant contradiction.