Plaintiff’s Multiple E-Discovery Failures Didn’t Support Terminating Sanctions Where She Provided Contemporaneous Evidence That Her Devices Were Acting Strangely, Her Password Was Compromised, and, Her Phone Overheated, Was Hacked, and Did Not Operate Properly

Tatyana Silva sued Panasonic Corporation of North America, alleging discrimination in employment and retaliation.  The court wrote that the merits were untested.

However, Panasonic sought terminating sanctions for alleged deletion of thousands of text messages and other ESI.  The request for terminating sanctions was denied under Rule 37(e)(2).  Panasonic did not request lesser “curative” sanctions under Rule 37(e)(1).  Silva v. Panasonic Corporation of North America, Inc., 2026 WL 2334134 (D. Nev. Aug. 12, 2026).

First, the court credited the unrepresented plaintiff’s assertion that much of her ESI went missing due to events beyond her control.  Second, it held that defendant failed to show intent to deprive.

Plaintiff contended that seven co-workers would support her claims. She produced text messages from only Employees 2 and 7.  After additional efforts: “Silva produced supplemental documents, however, this supplemental production did not include any communications between Silva and the witnesses identified in her complaint about the allegations in the lawsuit…. At that time, Silva’s counsel indicated that no such documents existed.”

Panasonic did what any diligent litigant would do: “Panasonic then proceeded to conduct third party depositions…. Two witnesses produced communications with Silva that were responsive to Panasonic’s discovery requests that Silva had failed to produce.”

Panasonic went further, pursuing forensic collection.  That uncovered a lot.

First, it uncovered additional accounts:  “As part of the ESI protocol, Silva submitted a declaration listing two email accounts and two messaging applications; however, the vendor located eleven email accounts and ten messaging applications that contained data since January 1, 2021.” [emphasis added].

Second, the forensic examination “showed several documents that Silva had failed to produce related to Silva’s claims, including LinkedIn messages with various individuals regarding the allegations in her lawsuit….  The forensic report also showed that 40,681 text messages had been deleted in total, and that 3,252 text messages were deleted between June 28, 2024, and October 8, 2025…. The forensic report indicates that when the ESI deletion analysis occurred, Silva did not have auto-deletion enabled on her cell phone…. The deleted messages include, among others, messages with Employees 1, 2, 4, and 6 from Silva’s complaint.”

Based on that, Panasonic sought case-ending sanctions.

However, the court wrote that Rule 37(e) provides “circumscribed” authority for sanctions.

The threshold question was whether Ms. Silva had taken “reasonable steps” to preserve ESI.  Panasonic pointed to the large volume—thousands of messages and messaging applications deleted after the preservation duty was triggered.  It argued that this was clear evidence of manual deletion.  “Silva responds that she did not intentionally delete text messages, and that ESI was lost when she traveled out of the country and in a manner consistent with her phone being hacked.”

The court held that Panasonic failed to carry its burden of proof:

[T]he forensic report only indicates that, at the time Silva’s cell phone data was extracted, automatic message deletion was not enabled…. This, however, does not show that Silva, herself, manually deleted thousands of text messages, nor does it show that Silva never had automatic message deletion enabled.

Instead, the large deletion of messages and applications is consistent with Silva’s explanation for deletion. Silva contends that, as early as December 2024, her devices were behaving strangely, in a manner consistent with being hacked…. She even filed complaints and inquiries with Apple Support and the FBI regarding these issues, and a notification from the Equal Employment Opportunity Commission (“EEOC”) indicated that her data had been compromised….  Additionally, she states that she traveled internationally several times, and during these trips she would change the eSIM of her phone, which often resulted in data being deleted.

The court held that “Silva is an individual litigant who is less familiar with preservation obligations that others who have considerable experience in litigation,” and “the steps that Silva took were reasonable, even if they were not perfect.” [cleaned up].

In short: “While the forensic report does show that text messages were deleted, it does not indicate that Silva, herself, manually deleted text messages. Instead, all available evidence indicates that Silva took reasonable steps to protect against deletion risks, but that ESI was destroyed by events outside of her control.”

Alternatively, the court ruled that, even if Ms. Silva had not taken reasonable steps, Panasonic failed on Rule 37(e)(2)’s “intent to deprive” element.  Panasonic grounded its showing of intent on the foregoing forensic report.

Ms. Silva “responds that use of her devices in a manner that is usual and customary to her, which resulted in some deletion of information, does not evidence intentional spoliation.”

The court agreed: “Silva, instead, explains that she had ongoing issues with her devices, including overheating, messages about passwords being compromised, and an email from the EEOC indicating that her data was compromised, which indicate her device may have been hacked…. Additionally, she states that when she traveled, and replaced the eSIM in her cell phone, that messages were not received or went missing.”

Panasonic had another arrow in its quiver: “Panasonic also argues that Silva’s intent is evidenced by her failure to disclose all her relevant messaging applications and email addresses in her declaration as part of the ESI protocol.”

Silva responds that this case has been extremely stressful, and that while it is possible that she may have made mistakes when trying to respond to her attorneys, she did not delete or manipulate anything intentionally…. Instead, she contends that she disclosed the emails she used for communication, as it did not occur to her to disclose email addresses she only used for a work strategy known as “Inbox Zero by Project.” …  She did not provide several other email addresses to Panasonic because she does not use them for regular communication and would not have used them for any communication related to her claims against Panasonic…. Regarding the messaging applications, she contends that her cell phone offloads applications regularly and she did not recall using those applications to discuss her employment…. Similarly, she states that she did have messages related to her case on LinkedIn, but usually only accesses LinkedIn through a computer, and not on her cell phone….

On those allegations, the court concluded:

While Silva’s failures to disclose may evidence a careless mistake by a party unfamiliar with litigation, they do not show intent to deprive Panasonic of relevant ESI, even if deletion occurred while discovery is ongoing. In the absence of persuasive evidence that Silva intentionally deleted communications to deprive Panasonic of this evidence, the Court lacks the authority to impose sanctions enumerated in Rule 37(e)(2), including case ending sanctions. [emphasis added].

I wonder what the outcome would have been if Panasonic had argued that it was prejudiced and sought more limited, “curative” sanctions under Fed.R.Civ.P. 37(e)(1).  See Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1)(May 19, 2025) (“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).).