The court wrote: “The parties generally agree that courts considering a preservation order should assess (i) the degree of concern that evidence will be destroyed, (ii) the risk of irreparable harm to the requesting party, and (iii) the preserving party’s capability to maintain the evidence in question.”  Id. at *1.

True Footage asserted a right to a preservation order because allegedly “this case involves ‘young people without litigation experience,’ and (ii) … Defendants haven’t responded in enough detail to its inquiries about the specific preservation measures Defendants are taking.”  Id.

That was insufficient for two reasons.  First, plaintiff provided no authority showing that it was entitled to “specific assurances.”  Second, “Defendants are represented by experienced counsel, have assured Plaintiff they intend to take steps to preserve evidence and follow applicable law, and have stated their willingness to negotiate an ESI protocol in good faith.”  Id.  The court held: “Plaintiff’s request is denied, without prejudice to its renewal if a legitimate basis for a protective order arises.”

While I agree with the court’s description of the applicable test, I disagree a bit with its rationale. Fed.R.Civ.P. 26(f) states topics that “the parties must consider” in a conference of the parties a/k/a a “meet and confer.”  One of them is to “discuss any issues about preserving discoverable information….” Further, the “discovery plan” developed by the parties should address “any issues about… preservation of electronically stored information….”  Fed.R.Civ.P. 26(f)(3)(C).  The defendants’ “willingness to negotiate an ESI protocol” may miss this mark. See An “ESI Protocol” is Not a Rule 26(f) “Discovery Plan” (Nov. 24, 2025); “ESI Protocol” v. “Discovery Plan” (Jan. 2, 2024).

However, in all events, it is important to apply the correct standard to a request for a preservation order. However, there are a number of formulations.

The preliminary injunction standard is sometimes mistakenly applied.  A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied (Apr. 3, 2026).

Some courts, like True Footage, apply a three-prong test in which the Court will consider: 1) the danger of destruction absent a court order, 2) whether any irreparable harm is likely to result to the party seeking preservation in the absence of an order, and 3) the burden of preserving the evidence.   Id.

Another test is whether the party seeking preservation can demonstrate both that an order is necessary and not unduly burdensome.  Id.

See generally:

• Request for Preservation Order Denied Under the “Cry Wolf” Doctrine (May 31, 2026);
• Motion to Compel Preservation of RAM Denied Without Prejudice (Aug. 7, 2025).
• Failed Request for a Preservation Order (Jul. 2, 2022);
• Requests for a Preservation Order (Mar. 7, 2022)(“Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”).

This blog was initially posted on  Electronic Discovery Reference Model.

Defendants’ sanctions motion was unsuccessful because Defendants failed to provide clear and convincing evidence that the paper documents went missing after this Plaintiff’s duty to preserve was triggered.  The case demonstrates that the trigger and loss dates for each litigant is fundamental to spoliation analysis. Terran Biosciences, Inc. v. Compass Pathfinder Limited, 2026 WL 2349408 (D. Md. Aug. 13, 2026)(Crawford, J.).

THE FACTS,COMPLAINTS, and DISCOVERY REQUEST

While one plaintiff, Dr. Thompson, was working at the University of Maryland-Baltimore (“UMB”) lab, he developed a breakthrough medical treatment. The research details were recorded in physical lab notebooks and stored in the lab.

In March 2020, a major renovation began.  The materials were supposed to be moved to the floor below.  Post-renovation cleanup was completed in late 2022, however, Dr. Thompson had resigned on June 30, 2022.

The Court wrote: “When Dr. Thompson resigned, his lab ceased to exist, and there is no evidence that the removed lab materials, including the lab notebooks, ever returned to the fifth floor…. UMB has no knowledge of what happened to the lab notebooks after Dr. Thompson’s departure in June 2022.”

Plaintiffs sued, alleging improper disclosure and use of their trade secrets by Defendants.  Terran filed suit on August 5, 2022. Dr. Thompson joined as a plaintiff on June 5, 2023. UMB joined as a plaintiff on February 6, 2024.

Compass and two individuals were named defendants.

On July 10, 2025, [defendant] Compass served on Plaintiffs a request for production of documents that sought, among other things, documents relating to Dr. Thompson’s research, specifically identifying “lab notebooks” as encompassed by the request…. Defendants deposed [plaintiff] Dr. Thompson on September 16, 2025…. At this deposition, Dr. Thompson testified that when he left UMB, he knew where he left the lab notebooks but that “nobody seems able to find them.”

EFFORTS TO FIND THE NOTEBOOKS – DISCOVERY ON DISCOVERY

A discovery dispute was deferred while UMB continued to look for the notebooks. The parties then filed a status report and reported that they had agreed, in my words, to “discovery on discovery.”[1]

Specifically, the parties represented to the Court that UMB had “agreed to produce its internal litigation hold correspondence and the positions of individuals who received the litigation hold.”[2] …

UMB had also agreed to produce a witness to testify on five topics:

(1) When UMB first became aware that Terran intended to file this lawsuit, UMB’s involvement in that effort, and UMB’s knowledge of the fact that the suit involved alleged trade secrets detailed in Professor Thompson’s lab notebooks; (2) The details of UMB’s litigation hold; (3) What steps UMB took to identify relevant physical evidence, including the lab notebooks and when it implemented its litigation hold; (4) The timing and circumstances of the loss of the lab notebooks; and (5) When UMB first learned that the lab notebooks were missing, when it told Terran, and what steps it took next.

… The letter advised that after Defendants received this discovery, they would “confer with UMB on the scope of sanctions Defendants will seek based on the loss of the lab notebooks.” …

All of those steps were accomplished and the parties proposed a formal briefing schedule, which the Court granted.

COURT PROCEEDINGS

Initially, the Magistrate Judge rejected two preliminary challenges mounted by Plaintiffs.  Those were a challenge alleging untimeliness under Judge Grimm’s decision in Goodman v. Praxair, 632 F. Supp. 2d 494 (D. Md. 2009), and failure to follow the Judge’s protocol for resolving disputes.  The Court’s exhaustive analysis of timeliness is worth reading, id. at *3, but not the focus of this post.[3]

THE SPOLIATION STANDARD

Turning to the merits, the Court found sanctions were “unwarranted.”  Because the notebooks were not ESI, Fed.R.Civ.P. 37(e) did not apply and the Court held that the party moving for sanctions must show:

(1) [T]he party having control over the evidence had an obligation to preserve it when it was destroyed or altered; (2) the destruction or loss was accompanied by a ‘culpable state of mind;’ and (3) the evidence that was destroyed or altered was ‘relevant’ to the claims or defenses of the party that sought the discovery of the spoliated evidence, to the extent that a reasonable factfinder could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.

The Court relied on its “inherent power” to control the judicial process, noting that inherent power is limited to curative sanctions and the movant bears the burden of providing “clear and convincing” evidence.

TRIGGER DATE

The first element involves deciding when the duty to preserve was triggered and when the loss or destruction occurred. Defendants contended that Plaintiffs’ duty arose in April 2022, months before litigation began, and long before there was any contention of loss. Plaintiffs replied that there was no duty in April 2022 and the lab notebooks most likely were lost in July 2022, before the duty was triggered.

The Facts Relating to the Trigger Date

The Court set the scene:  “There is no dispute that Terran filed this lawsuit on August 5, 2022, notified UMB of the filing on August 8, and that approximately one week later, on August 16, UMB issued its litigation hold.”  While UMB did not enter the case until February 6, 2024, it is a plaintiff and a plaintiff’s duty is triggered when it decides to pursue a claim.

In support of their asserted April 2022 trigger date, Defendants marshalled several facts.  The Complaints alleged: “Plaintiffs first suspected Defendants’ disclosure of, and misuse of, the Psilocybin Trade Secrets in approximately April 2022, in the course of reviewing Compass’s published patent application filings.”  Further, the Defendants relied on Plaintiffs’ privilege log which showed communications with outside counsel regarding “litigation, IP advice, and licensing advice.”[4]

Plaintiffs responded that UMB did not anticipate that it would later join the case.  They asserted that while Terran may have anticipated litigation in April 2022, that knowledge could not be imputed to UMB.  And, they asserted that the logged communications with counsel were on a licensing agreement with Terran, not on litigation against the Defendants.

The Court’s Holding Re: Trigger Date

The Court held that Defendants had failed to establish by clear and convincing evidence that Plaintiffs reasonably anticipated litigation as early as April 2022. It added:

Even assuming that Plaintiffs first suspected misuse of the trade secrets in April 2022, the mere suspicion of certain facts giving rise to a dispute demonstrates only that there was the “possibility of litigation,” not that Plaintiffs should have reasonably anticipated litigation at that time…. The Complaint does not allege that Plaintiffs understood in April that Compass had misappropriated their trade secrets, nor does it allege that Plaintiffs made known their suspicions of misappropriation to Compass. On the contrary, the allegation that Plaintiffs “first suspected misuse” in April suggests that this was their initial reaction to information contained in Compass’s patent filings—a far cry from an affirmative decision to sue, or even a direct threat of litigation from Terran to Compass that would have triggered a duty to preserve.  [emphasis in original].

The Court found the privilege log entries to be ambiguous. “At most, they establish that Plaintiffs communicated with private, outside attorneys regarding licensing and intellectual property issues and ‘litigation’ of an unspecified nature. That the subject emails covered multiple topics other than litigation tends to support the conclusion that litigation (of whatever nature) was not the parties’ sole, or even primary, concern at that time.”

The Court identified another gap in proof: “Nor have Defendants set forth any clear and convincing evidence establishing at what time after April 2022 but before August 5, 2022 [the date suit was filed], Plaintiffs, including then non-party UMB, may have reasonably anticipated litigation sufficient to trigger a duty to preserve.”

The Court concluded:

Accordingly, Defendants have failed to establish by clear and convincing evidence that Plaintiffs should have reasonably anticipated litigation in April 2022, thus triggering their duty to preserve evidence at that time. Rather, the evidence submitted supports the Court’s findings that Terran commenced litigation on August 5, 2022, triggering its own duty to preserve relevant evidence, and UMB’s duty to preserve arose at the latest on August 8, 2022, with UMB’s receipt of correspondence from Terran advising UMB of the lawsuit and seeking preservation of relevant evidence.[5]

The Court added: “Having determined when the duty to preserve arose, the Court now considers when UMB lost the notebooks, as the timing of when the evidence was lost in relation to when the duty to preserve arose, is essential to the spoliation analysis.”

DATE OF LOSS OF THE NOTEBOOKS

The Court wrote: “After engaging in discovery to determine the lab notebooks’ whereabouts, neither Plaintiffs nor Defendants can state with any precision when the lab notebooks were lost or destroyed. The evidence shows that the last time the lab notebooks were observed was in June 2022…. There is no concrete evidence regarding what happened to the notebooks after that time.”

Plaintiffs asserted that the “most likely” time of loss was July 2022. They relied on an October 1, 2025, UMB email stating that the lab notebooks were inadvertently lost during the renovations and cleanup.  Renovations began in early 2021 and continued into 2022, well after Dr. Thompson resigned.

The Court disagreed with Plaintiffs:

This evidence does not support the firm conclusion that the date of loss or destruction of the lab notebooks was in July 2022, versus a later point, like August or thereafter. Plaintiffs’ chosen timing is convenient because it would mean that the lab notebooks were lost before the Plaintiffs’ duty to preserve arose. But another plausible and equally speculative interpretation of the same October 1 email is that the lab notebooks may have been lost sometime after August 5, 2022, when this lawsuit commenced. The record is unclear. At bottom, the only conclusions that the Court can draw from the evidence presented are: (1) the lab notebooks went missing sometime after June 2022, when Dr. Thompson last saw them; (2) the lab notebooks were declared lost on October 1, 2025, when UMB advised Defendants of the results of their investigation into the whereabouts of the lab notebooks; and (3) the lab notebooks were in UMB’s possession when they were lost or destroyed. [emphasis in original].

However, the Court saw no need to decide when the notebooks went missing:

As noted above, I cannot conclude that Plaintiffs’ duty to preserve the lab notebooks arose in April 2022. The evidence only establishes that the duty arose on August 5, 2022, at the earliest. Because the lab notebooks were lost at some point after June 2022, it is entirely possible that the lab notebooks were destroyed in the intervening month before there was a duty to preserve. Given that Defendants have not carried their evidentiary burden at the first step in the analysis, the Court need not proceed to step two to determine whether UMB had a culpable state of mind. Doing so would require the Court to stack all its findings upon a hypothetical—a “what if” scenario that presumes Plaintiffs lost or destroyed the lab notebooks after August 5, 2022. Such a conditional analysis could not serve as the basis for the award of any sanctions.

In short, the movant failed to demonstrate that the lab notebooks went missing after the duty to preserve was triggered. The Court added: “Defendants’ evidence would also fail to meet the less stringent preponderance of the evidence standard, if such standard applied here.” Here, the trigger date was dispositive.

This blog was initially posted on  Electronic Discovery Reference Model.

____

[1] For more on “satellite” or “culpability” discovery, see generally Guidelines for “Discovery on Discovery” (Aug. 5, 2025); “Discovery on Discovery” Permitted (Sep. 4, 2025); “Discovery on Discovery” Denied in “It Ends With Us” Lawsuit  (Sep. 5, 2025).

[2] For more on disclosure of implementation communications, see “The Court is keenly interested in whether Defendants’ counsel issued a litigation hold.” (Feb. 19, 2026); 8 Lessons Learned – Part IV – Disclosure of Recipients of Litigation Hold Notices (May 9, 2024); Discovery of Steps Taken to Implement a Litigation Hold is Permitted (Mar. 26, 2022); When is a Litigation Hold Notice Discoverable? (Dec. 1, 2020)

[3] For more on timing, see, The “Best Time” to File a Spoliation Motion (Jul. 15, 2025); When Should a Motion for Sanctions be Filed?  (Mar. 30, 2026).

[4] A Privilege Log Can Be Admissible Evidence (Jan. 20, 2025); Privilege Log Entry Was Relevant to Inquiry Notice Where Time-Bar Was at Issue (Jul. 6, 2025);  Privilege Log Helps Defeat Summary Judgment on One Count (Jun. 24, 2025); Listing a Document on a Privilege Log Concedes That it is Relevant for Discovery (Sep. 6, 2025).

[5] Generally a Third Party Had No Duty to Preserve (Feb. 14, 2026).  UMB was not a party when Terra made its preservation request.

Neither side must preserve or disclose, including in expert deposition testimony, the following documents or materials:…  Artificial Intelligence (“Artificial Intelligence” or “AI” means any software, system, or technology that utilizes machine learning, deep learning, neural networks, natural language processing, computer vision, or other computational techniques to: (a) learn from data or experience; (b) make predictions, recommendations, classifications, or decisions; (c) generate content, including text, images, audio, video, code, or other outputs; or (d) perform tasks that would otherwise require human intelligence or judgment. Artificial Intelligence includes, without limitation, generative AI systems, large language models (LLMs), machine learning models, predictive analytics tools, and autonomous or semi-autonomous decision-making systems) prompts and output that any expert or any person assisting an expert used in the course of their work on this matter, including but not limited to producing an expert witness report, provided however, nothing contained herein is intended to or shall serve to limit a party’s right to examine the bases for an expert’s opinion, sources relied on, or methodology…. [emphasis added].

I’m a bit curious to see how a party can depose an expert on “the bases for [the] expert’s opinion, sources relied on, or methodology,” but if the expert used A.I., the expert need not “disclose, including in expert deposition testimony,” “prompts and output” that  the “expert used in the course of their work on this matter….”

For examples of other types of A.I. confidentiality orders, see:

• Are Protective Orders Limiting Upload to AI of Documents Produced by an Opponent in Discovery Becoming the Standard of Care? (May 26, 2026).
• Another Confidentiality Order Limiting Use of AI to Analyze Protected Materials (Apr. 27, 2026).
• I. Protective Orders Are Becoming Routine(Apr. 20, 2026).
• “Deepfake Executives, Created Via Depositions, Pose Grave Threat”: Protective Order Suggested(Apr. 5, 2026).
• Important A.I. Work Product and Protective Order Decision(Mar. 31, 2026).
• Order Prohibiting Upload of Confidential Discovery Documents to Artificial Intelligence (“AI”)(Nov. 3, 2025), based on Warner v. Gilbarco, Inc., 2025 WL 3047881 (E.D. Mich. Oct. 30, 2025).
• Protective Order Limited Uploading Discovery Responses to Open A.I.(Mar. 26, 2026), discussing Jeffries v. Harcros Chemicals, Inc., 2026 WL 820218 (D. Kans. Mar. 25, 2026). Notably, in Jeffries, the protective order applied to both confidential and non-confidential information produced in discovery.

Frequently, movants apply an incorrect preliminary injunction standard:

• A Request for a Preservation Order Was Denied: Preliminary Injunction Standard Was Not Applied (Apr. 3, 2026);
• Motion to Compel Preservation of RAM Denied Without Prejudice (Aug. 7, 2025);
• Failed Request for a Preservation Order (Jul. 13, 2022);
• Requests for a Preservation Order (Mar. 7, 2022).

I describe Zeta as the “cry wolf” doctrine.  The court held that plaintiffs, the movants, seeking a preservation order did not meet their burden of production.

Defendant Dotdash argued it had acted appropriately to fulfill its preservation duty. It asserted that plaintiffs’ requests to disclose its preservation process were not answered because they were premature.

Defendant Zeta argued that the motion was largely moot and that it was really an effort to circumvent an agreed discovery stay that had been entered pending resolution of a motion to dismiss. Zeta disclosed custodial locations, eight custodians and other information.

The Zeta court wrote:

Defendants respond that they confirmed to plaintiffs that they are “aware of [their] obligations” to preserve ESI and “ha[ve] acted accordingly.”…. Absent evidence to the contrary, that answer is appropriately responsive. Zeta has identified for plaintiffs the systems with potentially relevant ESI, the ESI being preserved, and the time period for which such ESI is being preserved…. Dotdash has not furnished these details to plaintiffs, but it too represents that it has been aware of its preservation obligations “since the inception of this matter,” heeded them, and recognized that these exist with or without a court order. [emphasis added].

In denying the request for a preservation order, the court explained the governing standard:

• “At a minimum, the party seeking a preservation order must demonstrate that the evidence is in some danger of being destroyed absent a court order….”
• “Plaintiffs have not shown that here. Mere ‘speculative assertions’ in support of spoliation concerns are insufficient to merit entry of a preservation order…..”
• “Defendants have preservation duties with or without a preservation order. Plaintiffs’ dissatisfaction with defendants’ responsiveness to their communications does not support the inference that there is a ‘substantial risk’ that, absent such an order, relevant ESI may be lost, overwritten, or deleted…..”
• “On the record at hand, there is no basis to distrust defendants’ reassurances that they understand and will heed their obligations to preserve such material.”
  • “Dotdash [stated that it] has been, and remains, keenly aware of its preservation obligations … and has acted accordingly….”
  • “Zeta … provided assurances that it was taking reasonable steps to comply with its … related preservation obligations…. Zeta has repeatedly informed

    laintiffs that … it is complying with its discovery obligations….”

Id. at *2 (cleaned up and reformatted).

A request for a preservation order must be supported with a factual predicate and cite the correct legal standard.

This blog was initially posted on  Electronic Discovery Reference Model.

Plaintiff moved for a “preliminary injunction” to prevent alleged “imminent spoliation.”  The pro se plaintiff sought to enjoin “Apple from deleting his e-books and requiring it to prove preservation.”  His motion was denied.

While it would not likely have changed the outcome on these facts, in this blog, I suggest that other parties seeking a protective order should not do so by means of a motion for preliminary injunction or motion for a temporary restraining order.

THE TRO AND PRELIMINARY INJUNCTION STANDARD

“The standard for issuing a temporary restraining order and preliminary injunction under Federal Rule of Civil Procedure 65 is the same.” Isiev v. StantaCruz, 2026 WL 891760, at *2 (C.D. Cal. Apr. 1, 2026).

A TRO may issue only if “specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition….”  Fed.R.Civ.P. 65(b)(1).

A TRO and preliminary injunction  involve “substantially identical analysis….” Isiev, 2026 WL 891760, at *2.  Generally, there must be a showing of “(1) a likelihood of success on the merits, (2) that the plaintiff will likely suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tip in its favor, and (4) that the public interest favors an injunction.” Id.

“The movant must “clearly establish” all four elements.”  Jackson v. Jones, __ F.Supp.3d ___, 2026 WL 561148, at *2 (N.D. Ga. Feb. 27, 2026).

“A TRO or preliminary injunction under Federal Rule of Civil Procedure 65 is an “extraordinary remed[y]” that should be granted ‘only sparingly and in limited circumstances.’” Wood v. Bank of Am. N.A. et al., 2026 WL 893043, at *1 (W.D. Va. Apr. 1, 2026).

THE STANDARDS GOVERNING PRESERVATION ORDERS

There are at least three different tests applicable to preservation requests:

Some courts apply the four-prong preliminary injunction test.  That requires showing a likelihood of success on the merits.  Some courts have found that inapplicable to a request for a preservation order.

Others apply a different, three-prong test. Requests for a Preservation Order (Mar. 7, 2022).  Under the three-prong test, the Court will consider: 1) the danger of destruction absent a court order, 2) whether any irreparable harm is likely to result to the party seeking preservation in the absence of an order, and 3) the burden of preserving the evidence. Id. (citation omitted).

A third test is whether the party seeking preservation can demonstrate both that an order is necessary and unduly burdensome. Id.

KAFEEL APPLIED A CORRECT STANDARD

Instead of the four-factor standard implicitly requested by Mr. Kafeel, the Kafeel court applied a proper—and different—standard for a preservation order,

The Kafeel court wrote that the motion “revolves solely around preservation.”  It set out the principles governing such a motion:

[P]arties already have a duty to preserve relevant evidence in anticipated and pending litigation….  As an order demanding compliance with this preexisting duty is strong medicine that should be dispensed with restraint, courts first require “a significant concern that potentially relevant evidence will be destroyed causing harm to the opposing party.” [citations omitted].

Here, Mr. Kafeel did not meet the burden of production:

Kafeel submits limited evidence that his e-books face likely deletion. First, he points to a settlement agreement requiring Apple to “confirm permanent deletion of individual Siri audio recordings.” … But this case involves e-books, not Siri. Second, he points to a provision of the eBook Distribution Agreement providing that after termination of the Agreement, “Publisher Materials in Apple’s possession or control shall be promptly destroyed.” … However, Apple confirmed that it is complying with its preservation duties in this lawsuit “notwithstanding any contractual right to delete materials.” … Apple’s preservation duties in this lawsuit would clearly prohibit deletion of Kafeel’s e-books, so there is no reason to believe they are subject to imminent deletion.

A BETTER MOUSETRAP?

It is not unusual for parties seeking a preservation order to request immediate injunctive relief.  E.g., Gibson v. Frederick County, MD, 2022 WL 2593710 (D. Md. Jul. 6, 2022)(request for TRO denied).

However, parties seeking a protective order may wish to suggest theories that do not impose a burden higher than is necessary.  In my view, the standard applied to motions for TRO’s and preliminary injunctions is higher than the standards applied to motions for preservation orders.

While, on these facts, it would not likely have made a difference, I suggest that the Kafeel plaintiff shouldered a heavier burden than necessary by seeking a preliminary injunction.

Under every standard, a party moving for a protective order bears a significant burden: “Courts have found that in instances where a party is already under a duty to preserve material evidence and appears to be fulfilling that duty, there is no need preemptively to issue a separate preservation order.”  Id., quoting Gambino v. Hershberger, 2017 WL 2493443, at *3 (D. Md. June. 8, 2017), aff’d, 700 Fed.Appx. 272 (4^th Cir. 2017);  Failed Request for a Preservation Order (Jul. 13, 2022).

The allegations were disputed and the court wrote that: “As a result of these disputes, the content of the parties’ cellular devices, and specifically the text messages exchanged among the parties, is particularly relevant evidence.”  Hernandez v. DiBiaso, 2026 WL 710248 (N.D. Ill. Mar. 9, 2026).

SUMMARY

After being told by her counsel that she had a duty to preserve ESI, and after the Complaint was filed, Ms. Hernandez sold her cell phone.  . She explained that she sold the phone because she needed money for her family.  There was no backup.

The missing communications were at the “heart” of her Complaint. Defendant DiBiaso moved for sanctions.  Ms. Hernandez had taken screenshots before selling the phone

Efforts to recover the missing data from Apple failed.  Ms. Hernandez did not go to her ex-boyfriend based on fears of abuse.

The Hernandez court held that all five threshold requirements of Fed.R.Civ.P. 37(e) had been met.  Ms. Hernandez argued that screenshots would suffice.  The court noted that the parties entered into an ESI protocol to search the phone and that fact rebutted her argument.  It found that her actions were not reasonable and that there was no secondary evidence available.

However, because Ms. Hernandez offered “credible” reasons for the sale of the cell phone, there was no “intent to deprive” Mr. DiBiaso under Rule 37(e)(2) and as such, so-called “game ending” sanctions were not available.

The court wrote that establishing prejudice under Rule 37(e)(1) is a “tricky business” because definitionally the ESI is gone.  Nevertheless, self-curated screen shots did not suffice to avoid Rule 37(e)(1) sanctions. Curative sanctions were recommended.

SALE OF THE CELL PHONE

Despite the advice of counsel, Ms. Hernandez’ cell phone was not preserved. The Hernandez court explained:

Plaintiff first engaged counsel for this lawsuit in May 2023 and signed a representation agreement with counsel that reminded her to “[k]eep everything…from here on out, don’t delete or throw away any documents or records that might have anything to do with your case.” … Around that time, she “[t]ook screenshots of all the text messages she had between herself, Dibiaso [sic], Kusper, and others that she thought could possibly be relevant to the case.” … Thereafter, in May 2024, Plaintiff informed her counsel that she had sold her cellphone “[b]ecause her family needed money.” …. It is undisputed that Plaintiff sold her cellphone after litigation commenced, but before the parties’ agreed ESI protocol could be applied to her phone. Following the sale of the cellphone, Plaintiff attempted to recover the data on the phone through various means (including by working with the parties’ ESI vendor), but she was unsuccessful. … (Plaintiff explaining that she went to the Apple store to see if she could obtain the cellphone’s messages and data from Apple iCloud). The only avenue for recovering the cellphone data that was not explored by Plaintiff was contacting the ex-boyfriend who gave Plaintiff the phone in the first instance; Plaintiff explained at her deposition that he was physically abusive to her and that she does not want him to know where she or her kids are located….

Mr. DiBiaso moved for sanctions under Fed.R.Civ.P. 37(e).  He asked for either dismissal of claims based on the texts or striking that part of the Complaint and instructing the jury on a mandatory adverse inference.

The Hernandez court described the requirements of that Rule and then applied them.

THE FIVE THRESHOLD REQUIREMENTS OF RULE 37(e)

The court held that the five threshold requirements of Rule 37(e) were met.

It was undisputed that the missing information was ESI and that the duty to preserve had been triggered because litigation had commenced when the cell phone was sold.  It was undisputed that the missing communications “between the parties … are at the heart of the complaint.”

The parties disputed the reasonable efforts standard. Ms. Hernandez argued that the prefiling screenshots sufficed.  However, the court disagreed:

This case revolves around the communications between the three parties, including the screenshotted text messages, but not limited to them; as has been evidenced by other discovery motions filed before this Court, call records between the parties are relevant, and have been sought from other sources due, in part, to the loss of Plaintiff’s cellphone. Additionally, even the screenshotted text messages themselves omit relevant ESI, such as the date and time of some messages.

The court added that, if the parties believed at the outset that screenshots would suffice, “then the Court sees no reason why the parties would agree to an ESI protocol that would search Plaintiff’s cellphone via a contract with an ESI extraction vendor. The parties’ intent to apply the ESI protocol to Plaintiff’s cellphone and engagement of an ESI extraction vendor to effectuate that protocol suggests that there was data beyond that included in the screenshots which the parties sought from Plaintiff’s cellphone.”

As such, the sale of the cellphone, without  backup or forensic extraction was held to be unreasonable.  In short, the Hernandez court wrote that “Plaintiff failed to take reasonable steps to backup the additional ESI on her cellphone prior to selling the cellphone.”

It was undisputed that the missing ESI could not be restored or replaced.  Numerous efforts had been made, without success.

Ms. HERNANDEZ DID NOT ACT WITH “INTENT TO DEPRIVE” Mr. DIBIASO

Next, the Hernandez court analyzed and applied subsection (e)(2) of Rule 37(e).  Mr. DiBiaso sought “stringent” sanctions.  The court  explained:

Intent must be established before a court can impose sanctions, such as adverse jury instructions, default, and dismissal under Rule 37(e)(2) … If intent is established for these sanctions, prejudice need not be separately established because prejudice is assumed from the intent.

The court first wrote that Mr. DiBiaso did not expressly argue intent in his opening motion and did not raise it until a reply memorandum.  This was “too little, too late.”

However, the Hernandez court also wrote that, even if it considered the untimely argument, it would not be persuaded. It addressed two of Mr. DiBiaso’s arguments:

First: “Defendant DiBiaso primarily suggests that intent is demonstrated because Plaintiff sold her phone after litigation started and allegedly thwarted Defendant DiBiaso’s efforts to identify the ‘owner’ of the ‘account’ (presumably the cellphone’s iCloud account) following the sale of the cellphone…. As to the first point, if all a finding of intent required was a violation of the duty to preserve, then every Rule 37(e) violation would be intentional. Fed. R. Civ. P. 37(e). But the Rule does not presume intent in every violation; instead, it establishes intent as a stand-alone element that must be demonstrated in addition to a duty to preserve where a party seeks the most serious sanctions.” [emphasis in original].

Second: “Turning next to the allegation that Plaintiff thwarted Defendant DiBiaso’s efforts to identify the iCloud account owner, Plaintiff explains that she was reluctant to disclose information about the individual who may also have access to the iCloud account because that individual was an abusive ex-boyfriend that Plaintiff did not want to have contact with and who was unlikely to provide help with accessing the iCloud account even if he could do so…. This explanation credibly evinces a lack of intent to deprive Defendant DiBiaso of the ESI; Plaintiff did not want to identify another individual with potential (though, according to Plaintiff, unlikely) access to the iCloud account because the individual was an abusive ex-boyfriend, not because Plaintiff wanted to deprive Defendant DiBiaso of access to the ESI.” [emphasis added].

The court then examined Ms. Hernandez’s argument. Ms. Hernandez had a credible explanation for the sale.  She had “fallen on hard times” and no longer used that cellphone.  “She sold the cellphone in order to get money for her family.”  Thus, sanctions were not available under Fed.R.Civ.P. 37(e)(2).

WAS Mr. DIBIASO PREJUDICED WITHIN RULE 37(e)(1)?

The court wrote:

Having recommended that there be no finding of intent to deprive Defendant DiBiaso of the ESI, the Court turns to Defendant DiBiaso’s last avenue for sanctions, being a demonstration of prejudice warranting measures “[n]o greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1).

The court explained that:

Establishing prejudice is tricky business. All involved—the court, the party that failed to preserve, and the seeking party—are at a disadvantage because none know precisely what the lost ESI contained or showed. It is difficult for a court to determine prejudice when the ESI no longer exists and cannot be viewed. [emphasis added; cleaned up; citation omitted].

Ms. Hernandez argued “that no finding of prejudice should be made because Defendant DiBiaso can only present a ‘suspicion’ of what the lost text messages may contain.”

That argument did not carry the day: “The Court is therefore unpersuaded that there is no prejudice simply because Defendant DiBiaso cannot affirmatively attest to what the lost ESI contains. Given that the claims in Plaintiff’s complaint rely heavily on text messages exchanged between the parties, with Plaintiff including screenshots of some messages in the complaint itself, the Court recommends a finding of prejudice from the sale of the cellphone.” [emphasis added].

The court wrote that prejudice exists when “a party’s ability to obtain the evidence necessary for its case has been thwarted….”  It found that to “clearly” be the case here, because the claims “rely heavily on text messages” and other electronic communications.

The Court agrees that the loss of the full ESI from the cellphone deprives the Court of the opportunity to comprehensively evaluate the context of the text messages; it is impossible for the Court to say definitively one way or the other whose theory of the case the lost text messages may credit precisely because the text messages are lost. Where, as here, the claims at the heart of this case rely heavily on text messages and other electronic communications for which the ESI was lost, the Court recommends a finding that the loss of Plaintiff’s cellphone prejudices Defendant DiBiaso. [emphasis in original].

Based on prejudice, with the threshold requirements having been met, sanctions were appropriate under Rule 37(e)(1).

THE SANCTION

Rule 37(e)(1) sanctions are curative only.  The court wrote:

As a result, the Court recommends that Defendant DiBiaso be permitted “[t]o present evidence to the jury” regarding the sale of cellphone and the “[l]ikely relevance of the lost ESI,” and that the Court “[i]nstruct the jury that it may consider this information when making its decision,” but that the jury “[s]hall not be given instructions on any presumption or inference based on the lost ESI.” [citation omitted].

It added: “Finally, ‘[b]ecause a decision on the appropriate means for presenting this evidence and argument to the jury is outside the scope of the referral of this case to the undersigned, the undersigned leaves it to the district judge to determine the appropriate means for presenting the evidence and arguments at trial on this issue.’”

One question that I had is why Mr. DeBiaso could not attempt to prove prejudice by showing some of Ms. Hernandez’s texts that were presumably stored on Defendants’ cell phones.

This blog was initially posted on  Electronic Discovery Reference Model.

What about third parties?

“Generally, the duty to preserve extends to documents or tangible things … by or to individuals likely to have discoverable information that the disclosing party may use to support its claims or defenses…. This duty may extend to a non-party to a proceeding when there is a special relationship involving the non-party or when the non-party enters into an agreement to preserve the evidence sought to be obtained.”  St. v. Christ, 2025 WL 3453338, at *1 (W.D. La. Dec. 1, 2025), reconsideration denied, 2025 WL 3623319 (W.D. La. Dec. 12, 2025).

“With respect to third parties, the general rule is that absent some special relationship arising from agreement, contract, statute, or other special circumstance, the duty to preserve evidence applies only to parties to the litigation, not nonparties.”  Rains v. Westminster Coll., 2023 WL 2894506, at *5 (D. Utah Apr. 11, 2023)

“The duty to preserve does not generally apply to non-parties to the litigation unless ‘some special relationship or duty arising by reason of an agreement, contract, statute, or other special circumstance’ counsels in favor of an exception.”  Johns v. Gwinn, 503 F. Supp. 3d 452, 462–63 (W.D. Va. 2020).

However, a party or potential party should preserve information that is within its possession, custody, or control, and that information may be in a third-party’s hands. Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sep. 7, 2022); Possession, Custody, or Control – Part II (Oct. 27, 2023); Possession, Custody, and Control of Third-Party Personal Devices Determined by Information Governance Policies (Apr. 22, 2025); “Possession, Custody, or Control” of State Agency Documents by State Attorneys General? (Sep. 3, 2025); Bad Things Can Happen When Company Officers Use Their Private Email Accounts for Work (May 20, 2024); The “Practical Ability” Standard for “Control” in Maryland (Dec. 11, 2020)

It is reported that: 1) the Bankruptcy Judge found that text messages had been improperly deleted; and, 2) the finding has been, and is, disputed and an appeal will be noted.

Because I was unable to find the court’s decision on Westlaw,[1] this blog relies entirely on media reports.  It is also limited to a single text message issue.

The USA Today article states:

The court cited evidence showing McGraw deleted an “unflattering” text message regarding a “gangster move” that allegedly incriminated him of trying to avoid paying certain creditors through the Chapter 11 route, Variety reported.

Winston Cho reported in Dr. Phil Loses Trial Over His Media Startup’s Bankruptcy (Hollywood Reporter Oct. 28, 2025).

In the decision, the court pointed to evidence indicating that Dr. Phil, whose surname is McGraw, deleted incriminating text messages and that he’d try to game the bankruptcy by paying certain favored creditors over others.

“Candor to the court is critical,” [Judge] Everett said in the bench ruling.

Id.  A spokesperson for Mr. McGraw’s ‘production banner,” said that there will be an appeal. Id.

“We take great exception to the court’s improper assertions regarding the alleged destruction of evidence, which simply did not happen,” the spokesperson said. “We will not let this stand given all that Dr. Phil and Peteski Productions have done to protect Merit Street employees, distributors, and other interested parties and to resolve this unfortunate situation.”

Id.

The Variety article also indicated that there will be an immediate appeal. Todd Spangler, Judge Rules Against Dr. Phil in Merit Street Bankruptcy, Orders Chapter 7 Liquidation (Variety Oct. 28, 2025). Variety reported that: “The judge also found that during discovery in the case, McGraw had destroyed evidence that was ‘unflattering.’” Variety wrote:

TBN also filed a motion to impose sanctions on Peteski, alleging Peteski failed to produce requested documents — and [Judge] Everett, in his ruling, found that McGraw had deleted an “unflattering” text message in which McGraw described his strategy to “wipe out” TBN and PBR’s claims via the Merit Street bankruptcy. McGraw evidently did so to avoid having it produced in the court proceeding, Everett said, in violation of the judge’s orders.

Id. Variety reported:

(In Peteski’s Aug. 12 filing with the bankruptcy court, McGraw’s lawyers said the “gangster move” statement “was made by misrepresenting an email [from Dr. Phil] which TBN improperly and illegally accessed off its server which it was hosting for the Debtor as part of its contractually obligated services” under the JV agreement; the lawyers did not provide context for the “gangster move” comment.)

Id.  Variety also noted:

In a statement to Variety, a spokesperson for McGraw’s Peteski Productions said, “We are filing an immediate appeal. We take great exception to the court’s improper assertions regarding the alleged destruction of evidence, which simply did not happen. We will not let this stand given all that Dr. Phil and Peteski Productions have done to protect Merit Street employees, distributors, and other interested parties and to resolve this unfortunate situation. Today’s ruling found that Dr. Phil became the sole director of Merit Street long after the company became overwhelmed by debt thanks to Trinity Broadcasting’s mismanagement. Dr. Phil is proud of his efforts to help Merit Street through this process but is also pleased that he can now devote his time and energy to his new network, Envoy.”

In another article, Fox4 reported:

“At this point, and notwithstanding able council [sic] for the parties, the chapter 11 is a broken, three-legged stool,” [Judge] Everett said. “The first leg is Mr. McGraw, who deletes unfavorable text messages he doesn’t want me to see…..”

Fox 4 also reports that Mr. McGraw’s attorneys “take great exception to the court’s improper assertions regarding the alleged destruction of evidence, which simply did not happen.” Steven Ardary, Dr. Phil’s media company ordered to liquidate in bankruptcy case | FOX 4 Dallas-Fort Worth (Oct. 30, 2025).

Entertainment reported:

In court, [Judge] Everett reviewed details of the case, including McGraw’s deletion of a text message that was part of discovery in the case, an action that the judge said was considered in his ruling.

“Mr. McGraw’s actions violated not only the discovery order…but also a broader principle that the debtors, board members, or de facto officers or agents should not destroy property of the estate to help them in pending litigation,” Everett said.

Raechal Shewfelt, Dr. Phil loses major ruling in bankruptcy case, TV network is ordered into liquidation (Entertainment Oct. 29, 2025).

See generally Dr. Phil loses control—judge orders $181 million empire liquidated after deleted texts found (MSN).

In light of the dispute, and with no judicial opinion available for review, this blog expresses no opinion on the merits of this issue.

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[1] It appears that it was an oral ruling.  Todd Spangler, Judge Rules Against Dr. Phil in Merit Street Bankruptcy, Orders Chapter 7 Liquidation (Oct. 28, 2025)(“… Judge Scott W. Everett of the U.S. Bankruptcy Court for the Northern District of Texas said at a hearing Tuesday in which he announced his ruling….”).

There is a substantial and growing body of scholarly and regulatory writing applicable to the use of digitally-obtained geographical information in other contexts, including civil litigation, information governance, and regulation.  It would take multiple books to reach even the tip of the scholarly iceberg.  This blog does not seek to climb that mountain.  Instead, like a first-year law school class, it is intended as issue-flagging.

GEOFENCING IS BEGINNING TO APPEAR IN CIVIL LITIGATION

Geofencing is beginning to appear in civil litigation.  In KalshiEX, LLC v. Hendrick, 2025 WL 1073495, at *1 (D. Nev. Apr. 9, 2025), a plaintiff moved to enjoin State agencies “from pursuing civil or criminal enforcement against Kalshi for offering event contracts in Nevada.”  The State had sent Kalshi a cease-and-desist letter alleging that Kalshi’s actions were unlawful in Nevada.

Injunctive relief was granted for a number of reasons; however, in pertinent part: “Kalshi presents credible evidence that even if it could implement geofencing at great expense, it could not do so immediately as the defendants demanded. And, as discussed at the injunction hearing, there are questions about whether Kalshi could recover monetary damages against the defendants in either state or federal court and, even if it could, whether those damages would be capped such that Kalshi could not meaningfully be compensated for the millions of dollars it asserts it would have to spend to geofence out Nevada market participants.” Id. at *7 (emphasis added).

USE OF GEOTARGETTING POTENTIAL JURORS

One of the most fascinating uses of geofencing in civil litigation was an attempt to reach potential jurors by targeting advertisements around the courthouse in one of several hundred “Roundup” cases. Pilliod v. Vionsanto Co., 2019 Cal. Super. LEXIS 23599, at *7 (Alameda Cty. Super. Ct. Apr. 4, 2019)(unpublished).

Plaintiffs alleged personal injury caused by Monsanto’s Roundup product. The case was set for a jury trial “against the backdrop of substantial press coverage outside the courtroom of similar cases….”

Plaintiffs moved to preclude Monsanto from publishing advertisements about product-related issues.  Among the various types of advertising, “at the hearing on 4/4/19, counsel for plaintiff asserted that Monsanto was using geofencing or geomarketing to target advertisements about the safety of Roundup to cellphones and other mobile electronic devices that in the area of the courthouse. Plaintiff’s assert that  this targeted advertising on a central issue in this case is jury tampering.” Id. at *6-7.  Plaintiffs’ counsel asserted, without evidence, that “Monsanto is geomarketing to the courthouse.”

The Pilliod court wrote:

Assuming arguable misconduct, there are practical concerns. In contrast to persons in a courtroom with placards or buttons, the court cannot readily observe geomarketing. The court could, but will not, order Plaintiff’s and Monsanto to cease and desist from geomarketing the courthouse and to submit declarations of compliance. Even if issued, any such order precluding geomarketing would not preclude general marketing in Alameda County and the Bay Area, and the jurors might be exposed to such marketing at home and on their ways to and from the courthouse. The court is not persuaded that the alleged geomarketing is materially different from carrying signs outside a courthouse or carrying placards or wearing  buttons inside a courtroom or that it requires a different judicial response.

Id. at *7-8 (emphasis added). With the exception of Ms. Neff’s article which brought this decision to my attention, Shepard’s does not report any subsequent citation of this decision.

GEOFENCING, GEOTARGETING, AND GEO-BLOCKING

IN SOME CIVIL CONTEXTS

One recent article defines and discusses the role of geofencing, geotargeting, and geo-blocking in some civil contexts.  S. Neff, “Thinking Inside the Box: Geo-Fencing Technology Litigation and Lessons for the Consumer Financial Services Industry,” 78 Consumer Finance Law Quarterly Report 1 (2025).[1]

Oversimplified, geofencing occurs when law enforcement knows where and when a crime was committed and law enforcement serves a multi-step geofence search warrant to find out what cell phones were in the “geofenced” area at the relevant time, thus locating suspects.  Uses in civil litigation can be hypothesized.  X claims that A harassed X at 4 p.m., in the employer’s office building.  Can geolocation data show that A – or, at least, A’s cell phone – was, or was not, at that location at that time?[2]

Geotargeting identifies devices currently in an area so that targeted marketing can be sent to those devices. A shopper in Store Y may receive a text about a special sale item located in Aisle 9 of that store while the customer is still shopping.

Geo-blocking is used to prevent access.  For example, a seller that does not want to purposely avail itself of a particular forum may geo-block its website or advertising from that forum. And, “[i]n Ukraine, SpaceX used location data to create a geofence around Crimea so that the Ukrainian military could not access Starlink in that location because Musk did not want Starlink to be used offensively by Ukraine to gain territory that Russia controlled.”  Gavin Small, 20 Duke J. Const. L. & Pub. Pol’y Sidebar 107, 113 (2025).

Geofencing may be more widespread than most of us recognize.  In “Thinking Inside the Box,” Ms. Neff wrote:

Many financial service companies have adopted the use of geo-fencing and geo-location technologies. These products and services take advantage of these emerging technologies to improve the services provided and contour the products offered to consumers. While these technologies have much to offer, geo-fencing and geo-location are more frequently becoming the subject (or at least an aspect) of litigation. This Article explores the ways that geo-fencing and geo-location have found a presence in the American courtroom and the lessons this development has for consumer financial service companies. [emphasis added].

Some commercial uses of geofencing are:

For example, consider a customer who enters a grocery store and crosses into an invisible geo-fence. While in the store, he may receive a text message with a linked coupon or a message about weekly specials or may see other focused advertising on social media. This is a prime example of an advertising geo-fence in action–providing targeted information and opportunities to a consumer as he enters the designated geo-fence area. In addition to advertising, geo-fences serve a variety of purposes, such as gathering data on location behavior, recording employee attendance, and improving resource management based on how locations are frequented. Importantly, geo-fences are increasingly used to ensure compliance with regulations. For example, Geo-fences can verify the location of a person placing a wager on a state-regulated wagering platform, ensuring that the user is not located in a county or parish that has expressly prohibiting such gaming. Similarly, geo-fences are used to limit the territory of internet-streamed radio broadcasts, helping unlicensed stations stay within the 150-mile exemption of the U.S. Copyright Act for streaming broadcasts online. Geo-fences also play a role in security and safety. States have created grant programs to use geo-fencing to protect schools from security threats. Additionally, geo-fences are used to guide commercial drivers away from restricted areas during political events or to track commercial boats for purposes of reducing pollution.

Geo-targeting is a similar, but different concept: “While geo-fencing is triggered by a device moving into or out of a designated geo-fence, geotargeting focuses on the current location of a device, regardless of movement…. In the context of digital environments, such as internet browsers and online services, geotargeting can be used to tailor content and advertisements to a user’s location to enhance relevance and effectiveness.  Ms. Neff wrote:

For example, when a user in Chicago opens the browser on her cell phone and searches for “Chinese restaurant,” the browser geotargets the user’s location and assumes she is searching for Chinese restaurants in Chicago, which is reflected [in] the search results. Similarly, the Federal Communications Commission authorized the Wireless Emergency Alerts System to use geotargeting to send messages to all devices within a specified area to receive emergency alerts. This is how a user receives AMBER Alerts or emergency shelter alters targeted to the user’s current location.

Ms. Neff asks: “What lessons do criminal cases about geo-fencing warrants have for consumer financial services companies?”  For example, she points out that any company using geofencing as a marketing or other commercial tool may find itself served with a search warrant for the data.  That is an information governance consideration.  Does management wish to take that risk? [3]

Geo-blocking, Ms. Neff wrote, is “using location technology to prevent access to websites or information” and she opines that it and geofencing are “some of the latest battlegrounds in personal jurisdiction fights, especially in cases involving e-commerce or internet jurisdiction.” Personal jurisdiction may be demonstrated by action purposely aimed at a forum state, such as seeking to contract or provide goods in that forum.  Ms. Neff asks:

But what if a defendant uses geo-fencing or geo-blocking technology to intentionally avoid engaging with or doing business in the subject forum? The general sentiment is that the extent of a defendant’s efforts to utilize location technology to avoid transacting in a certain jurisdiction tend to demonstrate that a defendant did not purposefully avail itself of the privilege of conducting business in that for[u]m. Efforts to block contacts with a forum– even if not foolproof–demonstrate a defendant’s effort to avoid minimum contacts within a forum, and that the defendant has a due process interest in not being hailed into court in that forum. “To be sure, the proposition that a website’s affirmative geoblocking efforts should weigh against the exercise of personal jurisdiction is unobjectionable.” [emphasis added; citation omitted].

However, Ms. Neff asserts that “the reverse is not necessarily true,” and a failure to geoblock is not a purposeful availment of the forum.[4]

The Duke Journal article notes that several states bar geofencing around physical and mental health care facilities.  Geofencing can be used to “promote targeted products and services….”  As one example, the Neff article states that, absent a legal prohibition: “Digital advertising firms can set up geofences around health care entities, and once a person crosses that invisible barrier, the person is bombarded with text messages and advertisements, urging the person not to seek reproductive or gender-affirming care.” [citation omitted].  While some states have barred the process, Ms. Neff wrote that others have not.

After discussing Pilliod v. Vionsanto Co., 2019 Cal. Super. LEXIS 23599 (Alameda Cty. Super. Ct. Apr. 4, 2019)(unpublished), Ms. Neff concludes:

For consumer finance companies engaging in high stakes litigation, geofencing targeted messages about a company’s commitment to transparency and fair practices could be a powerful tool to augment the conversation in advance of a jury trial. That said, the more narrowly the geographic area is targeted, the less likely it will survive scrutiny.

As a matter of information governance, if nothing else, entities planning to use geofencing, geotargeting, or geo-blocking should make an informed analysis.

A SAMPLING OF GEOFENCING AND ITS COUSINS

IN CIVIL CONTEXTS

As noted at the outset, this topic could fill books and is the subject of numerous law review and journal articles.  A few samples follow:

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Lawyer Advertising

“’Weird, this is the fourth ad I have gotten on my phone from a personal injury firm since I’ve been here. It’s like this thing can read my mind …,’ Tanner thinks as he browses his phone while he sits in the University Hospital waiting room. He is waiting to see his elderly father, Cole, who just had a fall at the supermarket.”  Trevor Warren, “En Garde!: Geofencing and the Pressing Need to Update ABA Model Rule 7.3,” 63 U. Louisville L. Rev. 187, 187 (2024).  “This technology is already being used by retail giants such as Target.”  Id.  The article states: “With the realization of a growing need for regulation of attorneys using geofencing to solicit their legal services, and in light of a silent ABA, some states have issued their own advisory opinions.” Id. at 204.

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Privacy and Health Care

“In September 2017, the Attorney General of Massachusetts settled its suit against Massachusetts-based advertising company, Copley Advertising, LLC, for violating state consumer protection laws. Copley had created a ‘geofence’ around Massachusetts reproductive health facilities, tracking consumers’ physical location and disclosing that location to third-party advertisers.”  Lianne Foley, “Targeted Advertising in the Healthcare Industry: Predicted Privacy Concerns,” 27 Annals Health L. Advance Directive 62, 62 (2017).  “[Copley Advertising] can set up a mobile geofence around any area.”  Id. at 65 (emphasis added); see Hana Ferrero, “Identifiable to Whom? Clarifying Biometric Privacy Rights in Illinois and Beyond,” 92 U. Chi. L. Rev. 1027, 1040, n. 79 (2025)(“Prohibiting the use of geofences helps ensure patients’ privacy regarding visits to healthcare facilities (e.g., abortion clinics, substance abuse treatment, and mental health clinics) and their underlying medical conditions.”).

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Reproductive Rights Privacy & Political Campaigns

“Targeted advertising is a critical, hotly contested policy issue for at least four reasons.”  Derek E. Bambauer, “Target(Ed) Advertising,” 58 U.C. Davis L. Rev. 1429, 1435, 1509 (2025):

“One Wisconsin group used geofencing techniques to identify the phones brought into the offices of health care providers such as Planned Parenthood and then used the device IDs to target ads to their owners on social media platforms such as Facebook and Snapchat. Similar campaigns ran in New Jersey, California, Florida, and Colorado. Abortion rights groups expressed concerns that just the use of targeted advertising in this context is problematic from a health privacy perspective. And while advertising can often lead to outcomes that are beneficial for all involved, such as when a consumer purchases a product that they did not previously know about but ultimately find useful, the abortion geofencing campaign is likely one that is a zero-sum game….  [R]esearchers used targeted advertising to display ads about the risks of climate change to members of the Republican Party in a pair of competitive Congressional districts….”

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Abortion Clinics

“Protesters have used geofencing so that third party data brokers bombard abortion clinic visitors’ phones and devices with targeted information about crisis pregnancy centers and adoption agencies. Anti-abortion groups can also purchase geolocation datasets for a specific location, such as Planned Parenthood facilities, from data brokers. The information these brokers provide is anonymized, but does provide assumptions about where the smartphones that visited the chosen location spend the night specified by census tract.”  Carson Goos, Elaine McCabe, “Abortion Protesting,” 26 Geo. J. Gender & L. 245, 260 (2025)

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Employment Issues

Another article wrote:

It’s 10:00 p.m. Do you know where your employees are? For an increasing number of employers, the answer is yes. The location data collected from employees’ smartphones makes it easy, and increasingly inexpensive, to track the whereabouts of employees whenever their phones are with them.

The average person has more than eighty apps downloaded on their smartphone and never leaves home without that phone. Of those eighty-plus apps, many are recording that phone’s location every few seconds. That information is then sold to third-party data collectors, who sell that location data in a lucrative and growing open market. This practice has turned into a $21 billion location data industry that is predicted to more than double to $53 billion by 2030.

Although this data is touted as being anonymized, with the right knowledge and motivation, it is easy to figure out which data sets belong to a specific person. In 2018, the New York Times tested this by trying to figure out which data set, out of millions, belonged to the smartphone of Lisa Magrin, a forty-six-year-old math teacher. It did not take long for them to discover that only one device traveled from Magrin’s home in upstate New York at 7:00 a.m. to her school fourteen miles away and then back to her home late that afternoon. That was sufficient for the Times to track all her smartphone’s movements. Ms. Magrin was disturbed to discover that the Times reporters had learned when she went to Weight Watchers, had a doctor’s visit for a medical procedure, took her dog on a hike, and spent a night at her ex-boyfriend’s house.

Elizabeth A. Brown & Matthew M. Cummings, “Every Step You Take: Securing Employees’ Location Data Privacy,” 26 Minn. J.L. Sci. & Tech. 1, 4–5 (2025).

“In July 2021, the Catholic news outlet Pillar outed a prominent Catholic priest using location data to discover that he attended LGBTQ+ bars and nightclubs, forcing him to resign.

In 2022, ByteDance, TikTok’s parent company, admitted to firing four employees after it learned those employees were using location data to track the whereabouts and relative proximity of journalists and coworkers they suspected of whistleblowing.”  Id. at 5.

“For example, if an employer is aware of a unionization drive, they could geofence that area and see who attended it.”  Id. at *6.

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Employment Issues (Cont.)

“Employers may use geofencing to receive alerts when an employee, equipment, or electronic records enters or exits a defined area. Employers may protect assets, track employees’ location, track employees’ performance, e.g., deliveries per hour, and track hours worked. A geofence may also alert an employer to an unauthorized entry or unauthorized equipment removal and may exclude equipment. An employer can link geofences to equipment, so that it stops working when removed from that area. An employee may use a geofence to protect his privacy or property.”  William E. Hartsfield, 1 Investig. Employee Conduct § 6:37.

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Regulation of Drones and Use at Major Events

“[S]cholars … propose that the adoption of new geofencing technology will solve the problems created by the introduction of widespread drone usage. In particular, this would obviate the need for registration, and for the FAA to place undue restrictions on issuing beyond visual line of sight (BVLOS) permits…^.  Geofencing may indeed be the future for drone manufacturers. Unlike the current regulatory regime, it solves a myriad of problems posed by drones which are not properly addressed under the current regulatory scheme.”  John Ricci, “No Drone Zones: Assessing the FAA’s Role in Implementing Geofencing and the Future of Drone Regulations in the United States,” U. Ill. J.L. Tech. & Pol’y, Spring 2022, at 161, 163.

“Developers can create geofences which can be read by any device containing an onboard GPS system with the requisite software to detect the geofence. Once triggered, the geofence can be used to serve any number of functions from sending text messages, triggering events in mobile games, or even targeting advertising.”  Id. at 168.

“ Geofencing is a far more effective solution to the problem of airspace safety than anything that the FAA has attempted to date….  For example, geofencing technology can help keep drones out of dangerous areas…. Temporary geofences can be set up around huge public events (e.g., the Super Bowl, parades, or concerts), hazardous locations (e.g., wildfires, pipeline explosions, nuclear plants), or people (e.g., the president).” Steve Calandrillo, et. al., “Deadly Drones? Why FAA Regulations Miss the Mark on Drone Safety,” 23 Stan. Tech. L. Rev. 182, 188, 221, 247 (2020).

“Geographical restrictions also found a particularly striking application in the drone industry. DJI, a leading drone manufacturer, employed a Geospatial Environment Online (GEO) system that was built into every one of its drones and which used GPS data to enforce no-fly zones near sensitive locations. DJI’s geofencing system categorized airspace into five zones by color: Red (Restricted, no-fly), Blue (Authorization, unlockable with proof), Orange (Enhanced Warning, extra confirmation required), Yellow (Warning, alerts but no blocks), and Gray (Altitude, where flight is allowed but limited to a specific maximum height).”  João Marinotti, “Defragging Ownership: How Corporations Sliced, Diced, and Sold the Bundle,” 100 Ind. L.J. 1931, 1951 (2025).

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Copyright Royalties

Courts should allow broadcasters to use geofencing to avoid copyright royalties.  Bradley Ryba, “Iheartgeo-Fencing?: The Section 114 Exemption That Illustrates Why Full Sound Recording Rights Are the Sine Qua Non for A Vibrant Music Industry,” 20 Marq. Intell. Prop. L. Rev. 33, 39 (2016).

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Franchise Regulation and Targeting

“Today’s franchise marketing may involve ‘traditional’ advertising, such as advertisement in franchise trade publications or in local or regional business publications; but more often, franchisors are utilizing the technologies of the twenty-first century, such as ‘Google Ads,’ ‘Facebook Ads,’ ‘re-marketing,’ or ‘geo-fencing’ or ‘geo-targeting.’ As applied to digital advertising, the current state of franchise advertising regulations is archaic and antiquated … and frankly inapplicable in most situations.”  Mark J. Burzych, “Franchise Advertising in the Digital Age: Regulators Need to Contemporaneously Address Advancing Advertising Technologies or Step Aside,” 40 Franchise L.J. 221 (2020).

“As described in further detail below, popular advertising technology such as Google Ads, retargeting, remarketing, and geo-targeting, or geo-fencing does not squarely fit in the current regulatory scheme.” Id.

Advertisers can maximize their return on investment (ROI) and click conversions on online ads through geo-targeting and geo-fencing. Geo-targeting is simply customizing an ad campaign to reach audiences (through their computers or mobile devices) who are physically located in a particular geographic area. Both Google Ads and Facebook Ads offer advertisers the option to limit a particular campaign to a geographic area, such as the United States or Michigan. If advertisers want to get even more geographically specific with their ad audiences, they can pursue a geo-fencing strategy.

Geo-fencing allows advertisers to create a virtual box around a geographic location, wherein their ads will appear only on computers or mobile devices that are physically located in the box. Using GPS or Internet users’ IP addresses, advertisers can reach out only to specific users who enter a geographic area relevant to the advertiser’s business. For example, a retail establishment in a shopping mall may draw a several-block radius around the mall to specifically target Internet users who may either be out in the vicinity of the mall, or are already shopping inside. Alternatively, a local pizzeria (say one of two in town) can draw a geo-fence around not only its own location, but also around the location of its competitor, specifically targeting people in the vicinity of its competitor with advertisements showing its comparatively lower prices or current promotional deals.

Many companies take advantage of geo-fencing when customers download their mobile app and opt-in to the app’s “location services.” By allowing GPS to track where the device is located, advertisers can send push notifications, text messages, or PPC (pay-per-click) ads to the device. However, geo-fencing is available to companies that do not have a mobile app to track customers’ movements, and any business with access to Google or Facebook can set up a geo-fencing marketing campaign.

Advertisers can set up geo-fencing campaigns through either Google or Facebook relatively easily. Google Ads users can manually enter a specific location to target their ad campaigns, rather than selecting an entire state or country. Alternatively, advertisers may choose to target a radius of miles around a specific location, allowing the advertisers to maximize the specificity of their targeted audience.

Facebook users have an identical option. When customizing their Facebook ad campaign, advertisers can target their ads to a specified location, such as a particular state or country. If the advertiser wants to be even more specific, Facebook provides an interactive map that allows the advertiser to drop a “pin” on a central location and determine a radius of miles surrounding the pin where the ad campaign will be targeted. Although the minimum radius an advertiser can draw is one mile, advertisers can be even more specific by excluding certain geographic areas captured by the radius.

Id. at 233-34.

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Some Regulatory Efforts

“Though no federal standard yet exists for geolocation data tracking, twelve states have enacted statutes that address data privacy practices in regard to consumers’ geolocation data. Many consider the Virginia Consumer Data Protection Act (‘VCDPA’), which took effect on January 1, 2023, as one of the leading state approaches on the topic. The VCDPA requires controllers of data to obtain affirmative consent from Virginians to process and sell their sensitive data, including their precise geolocation data.”  Eliza Smith-Driggs, “The ‘Right to Be Let Alone’ Should Apply to Geolocation Tracking Within the Home,” 30 Rich. J.L. & Tech. 495, 4 (2024).

“This Note also recommends that Virginia legislators require companies to enable a geofence around a consumer’s home so the consumer can choose when she wants her data collected….  To encourage even more control and home privacy, smart devices could ask homeowners whether they want their geolocation data tracking services turned off once they enter their home…. The default should be that the geofence blocks all trackers. But, for example, if one of the trackers is the homeowner’s mobile carrier needing location data to send a cell signal, the homeowner should be able to manually allow her carrier into the geofence to receive cell service.”  Id. at 65.

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“Buying a Way” Around the Fourth Amendment?

“Well before Dobbs leaked, the Secret Service, IRS, U.S. military, DEA, ICE, CBP, FBI, and governmental entities at the state and local levels had all purchased data from brokers without obtaining Fourth Amendment search warrants. Lawmakers had already begun investigating these entities for “buy[ing] [their] way around the Fourth Amendment.”  Andrew Wade, “The Clocks Are Striking Thirteen: Congress, Not Courts, Must Save Us from Government Surveillance Via Data Brokers,” 102 Tex. L. Rev. 1099, 1101–02 (2024)(cleaned up).

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Geofence Data Must Be Correctly Interpreted to Avoid Error

Geofence data tracks a device, not a person.  “For Jorge Molina, his wrongful arrest arose when a geofence search revealed that a cell phone logged into his accounts was present at the time of a murder; police rushed to arrest him, ignoring evidence that his abusive stepfather used his phone and car.”  Mary D. Fan, “Suspecting with Data,” 109 Minn. L. Rev. 2253, 2256, 2262-63 (2025)(emphasis added).

“The arrest at Molina’s workplace shattered the young man’s life, resulting in his mugshot and name plastered over the news as a killer, six days of incarceration, and an arrest in his records that jeopardized his career and educational goals.”  Id.

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Contract Enforcement

“Geofencing allows lenders and dealers to wield significant control over drivers post-transaction. Such features enable lenders to disable a car once it exits a predetermined area established by the lender. Once a lender receives an alert of the violation, the lender can remotely disable the vehicle to limit the driver’s mobility.”  Stacy-Ann Elvy, “The Vehicle Monitoring and Collection Technology Era,” 110 Iowa L. Rev. 43, 69 (2024).

This blog was initially posted on  Electronic Discovery Reference Model and  JD Supra.

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[1] This blog summarizes Ms. Neff’s article.  It is based on, and all quotations are from, that article, unless otherwise indicated.

[2] As used herein, this blog does not discuss obtaining user location data directly from a user’s device through either a search warrant or civil discovery.  It discusses obtaining location data that is collected and stored elsewhere.

[3] For discussion of geofence search warrants, please see Certiorari Petition to U.S. Supreme Court in 4th Circuit Geofence Decision – E-Discovery LLC; En Banc Fourth Circuit Geofence Decision is Splintered – E-Discovery LLC; New Jersey Decision Permits Geofence Warrants Upon a Proper Predicate – E-Discovery LLC; Texas Upholds Narrow Geofence Warrant After Melee Resulted in Murder – E-Discovery LLC; Possible Clarity About Geofence Search Warrants – E-Discovery LLC; Geofence Search Warrant Held Valid – E-Discovery LLC (Maryland); Keeping an Eye on Geofence Warrants – E-Discovery LLC; Requests for “Tower-Dump” or “Tower-Extraction” Search Warrants Declined Under Geofence Precedent – E-Discovery LLC.

[4] One authority cited by Ms. Neff states: “[E]quating ‘a failure to geoblock with purposeful availment’ would ‘effectively mandate geoblocking for any website operator wishing to avoid suit in the United States.’ …. Safex cites no authority suggesting that such ‘a failure to act might constitute purposeful availment,’….”  Safex Found., Inc. v. SafeLaunch Ventures Ltd., 694 F. Supp. 3d 1, 17 (D.D.C. 2023).

Ms. Lively argued that the “Wallace Defendants” should be compelled to produce Signal messages, “including records that demonstrate a conversation took place, even if no substantive messages remain….”

Alternatively, Ms. Lively asked the court to “order them to alternatively show why they have not and are unable to do so, including by identifying whether responsive communications were deleted after the date by which litigation was anticipated.”

The court wrote:

The Wallace Defendants respond that no such Signal communications are in its possession, custody, or control, noting that they enabled Signal’s auto-deletion function on any purportedly relevant chats…. A responding party who denies that documents exist cannot be compelled to produce them unless the discovering party makes an adequate showing to overcome that assertion. See Golden Trade, S.r.L. v. Lee Apparel Co., 143 F.R.D. 514, 525 n.7 (S.D.N.Y. 1992). Lacking any evidence to counter the Wallace Defendants’ assertion that no Signal communications exist, Lively has not shown that the records she seeks are relevant to this case. For the same reason, Lively has also not sufficiently demonstrated a basis for discovery on discovery. See Williams v. Fed. Gov’t of Nigeria, 2025 WL 507702, at *2 (S.D.N.Y. Feb. 14, 2025). The Court therefore denies her request for these materials. [emphasis added]

However, by citing Williams v. Fed. Gov’t of Nigeria,  the court may have left the door slightly open. In Williams, 2025 WL 507702 at *2 (emphasis added):

Moving Defendants’ request is in the nature of discovery on discovery as they seek documents and information that are not directly relevant to a claim or defense, but that are instead collateral. See Haroun v. ThoughtWorks, Inc., 2020 WL 6828490, at *1 (S.D.N.Y. Oct. 7, 2020). A party seeking discovery on discovery “must provide an adequate factual basis to justify the discovery, and the Court must closely scrutinize the request in light of the danger of extending the already costly and time-consuming discovery process ad infinitum.” Winfield v. City of New York, 2018 WL 840085, at *3 (S.D.N.Y. Feb. 12, 2018) (quotations omitted). Moving Defendants provide insufficient grounds to question Plaintiff’s “good faith” attempts to obtain documents from the prior litigations in the United Kingdom. Plaintiff’s U.S. counsel, as an officer of the court, is expected to comply with Rules 26 and 34 in connection with searching, collecting, reviewing, and producing documents. [citations omitted]. Moving Defendants do not identify a deviation from such duties. Moving Defendants also do not show a basis for discovery on discovery of items presumably in their possession—the records of prior litigations to which Defendants were parties.

However, the Williams decision cited in Lively left the door at least slightly open, writing:

Defendants can inquire at Plaintiff’s deposition “both about the documents that have been produced and those that have not been produced.” See Haroun, 2020 WL 6828490, at *2. If, based on the deposition or otherwise, Defendants create[] a record, they may have a basis for discovery on discovery or for sanctions, including, inter alia, the ability to depose Plaintiff a second time at Plaintiff’s expense.[1]

In Haroun, cited by Williams, the court discussed a request for “discovery on discovery” and wrote:

Plaintiff has offered no such adequate factual basis here. It does not identify any gaps in the production of ESI, any reason to believe that documents have been deleted, or any basis for asserting that Defendants are not searching all relevant and reasonably available sources of ESI that would contain material responsive to Plaintiff’s document requests. Nor, contrary to Plaintiff’s assertion, does Plaintiff need to know all of Defendants’ sources of ESI to determine whether documents have been deleted and, if so, whether they may be available from another source. Plaintiff can inquire at deposition both about the documents that have been produced and those that have not been produced and can review the document production itself for obvious gaps. If it creates a record, it may have a basis for discovery on discovery. It does not have such a basis now.

2020 WL 6828490, at *2 (emphasis added).

Ephemeral messaging was central to the holding in this iteration of Lively.  In Lively, the Wallace Defendants used ephemeral messaging.  I have questioned similar information governance techniques. Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? – E-Discovery LLC (Aug. 22, 2024).  For a comprehensive analysis, please see The Sedona Conference, Commentary on Ephemeral Messaging, 22 SEDONA CONF. J. 435 (2021).

For prior blogs on the Lively lawsuit, please see Discovery of Search Terms & Ephemeral Signal Messages – It Has Not Yet Ended “With Us”– E-Discovery LLC (Aug. 30, 2025); “It Ends With Us” – E-Discovery LLC (Apr. 8, 2025); Court Grants Motion to Strike Deposition Transcript Using Its “Inherent Power” – E-Discovery LLC (Aug. 11, 2025); Initial Disclosures Cannot Await Expert Opinions – E-Discovery LLC (Jul. 20, 2025); Party’s Motion to Quash Subpoena Denied for Lack of Standing – E-Discovery LLC (Jul. 2, 2025); and,Crime-Fraud Exception to Privilege Not Shown – E-Discovery LLC (Jun. 8, 2025).

UPDATE: T. Harper & S. Shah, Current Approaches to “Discovery on Discovery” (ABA Litigation Sec. Apr. 7, 2023)(“The approach that is most widely adopted by courts, as well as most practical, is to disallow discovery on discovery unless there are proven material deficiencies or bad faith (or both) in an opposing party’s production that warrant a foray into discovery processes and procedures.”).

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[1] Williams was affirmed on other grounds, 2025 WL 1065928 (2^nd Cir. Apr. 9, 2025).