Three Motions for Sanctions Denied Under ESI Rule and Common Law

In two related decisions, plaintiff’s motions for sanctions for spoliation of a cell phone and for destruction of drug testing swabs, were denied.  Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403350 (D. Md. May 15, 2025)(Coulson, J.)( “Cooper I”); Cooper v. Baltimore Gas & Electric Co., 2025 WL 1403334 (D. Md. May 15, 2025)(Coulson, J.)(“Cooper II”).  Among other things, plaintiff cited obsolete legal principles, undercutting her motions.

In a third decision, 2025 WL 1416943 (D. Md. May 16, 2025)(“Cooper III”), the Court addressed defendants’ spoliation motion.  Defendants went a bridge too far in seeking Fed.R.Civ.P. 37(e)(2) sanctions.  The Court wrote that they did not request, but were entitled to, Rule 37(e)(1) sanctions.  That is a recurrent theme in a number of cases.

Ms. Cooper alleged sexual harassment by her former supervisor, Mr. Roberts, while they both worked for GardaWorld, which provided security services for co-defendant Baltimore Gas & Electric Co.  She also alleged discrimination and retaliation when quid pro quo sexual services ceased.  She claimed that her complaint led to her termination on August 26, 2022.

THE WORK CELL PHONE ISSUE

Cooper I shows the need to stay current on changes in the law applicable to spoliation and the requirement of providing proof of each element of that Rule.  Ms. Cooper fell short when she relied on the Court’s common-law inherent power, instead of Fed.R.Civ.P. 37(e).  That Rule was amended in December 2015, to preclude the use of inherent powers.

Three days after termination, Ms. Cooper alleges that she provided text messages with Mr. Roberts to an officer of GardaWorld.  She claims that they showed the inappropriate nature of the relationship.  Mr. Roberts was fired the next day.  The Court recited the key facts:

• “Plaintiff cites additional explicit text messages between herself and Mr. Roberts in her Complaint.”
• “At her deposition, Plaintiff was asked whether any these explicit text exchanges were sent to Mr. Roberts’ work phone and she responded ‘not to my knowledge.’”
• “Relatedly, Plaintiff has testified that to the best of her ability, she took screen shots of, and provided to counsel, all relevant texts between herself and Mr. Roberts.”

Mr. Roberts surrendered his work cell phone to GardaWorld when he was terminated.  It was reissued to his replacement about two or three days later.  At that time, it still contained Mr. Roberts’ contacts and texts.  The new user did not delete them and retained the phone until January 2025, when asked to turn it over to counsel.  Counsel retained it in a secure locked location until it was turned over to the forensic expert discussed below.

The Court ordered a forensic examination of the work phone by James Vaughn of iDiscovery Solutions.  “Mr. Vaughn created a forensic image of the phone at issue, and employed search terms agreed on by counsel, but found no explicit text messages.”

In a remarkable misfire, Ms. Cooper moved for sanctions based on the Court’s inherent authority.  The Court pointed out that, since 2015, Fed.R.Civ.P. 37(e) “provides the exclusive analytical framework” and the Court applied the Rule, noting that: “Plaintiff’s failure to rely on the correct standard puts her analysis at odds with the current state of the law in important respects.”  The Court explained that the requirements under the Rule differ from those under the inherent power:  “Again, the Court distinguishes the general culpability standard applicable to loss of evidence generally, versus the more precise culpability standard for imposing sanctions for spoliation of electronic evidence is set forth specifically in Rule 37(e).”

The Court explained in detail the requirements of a Rule 37(e) motion and then applied them:

Plaintiff has failed to put forth sufficient evidence of the four necessary elements to trigger the application of Rule 37(e) at all, let alone proven by clear and convincing evidence the intent required to show she is entitled to the remedies she seeks.

To “streamline its analysis,” the Court assumed, arguendo, that the duty to preserve Mr. Roberts’ work cell phone had been triggered.  However: “Plaintiff has offered no facts to suggest that the phone was not adequately preserved.”  While there was a gap in the chain of custody, “Plaintiff presents no evidence that anything has been lost from the phone.”

The new user testified that she did not delete the texts and the forensic expert conducted a search using terms provided by the parties.  “Although no explicit text messages were found, this is consistent with Ms. Cooper’s testimony that her explicit texting with Mr. Roberts was not done to his work phone.”

Therefore, “in the absence of any evidence of a loss of data,” no sanctions were justified.

In the final sentence of Footnote 4, the Court wrote: “Defendants strenuously argue that Plaintiff’s preservation efforts were inadequate, which serves as the basis for Defendants’ own motion for spoliation sanctions.”  That motion was not addressed in the decision and is discussed below.

FAILURE TO RETAIN DRUG TESTING SWABS

In Cooper II, Ms. Cooper sought sanctions because GardaWorld did not retain two testing swabs for drug tests administered on August 25, 2022, a day before her termination.  The tests were “inconclusive.”  The U.S. Magistrate Judge recommended denial of the spoliation motion.  Unlike Cooper I, which involved ESI and Fed.R.Civ.P. 37(e), Cooper II did not involve ESI or that Rule.

Ms. Cooper alleged that her termination was a “rush to judgment as a pretextual joint decision of the defendants based on a single inconclusive test for use of a marijuana test.”  She claimed that Mr. Roberts had termination authority over her “and exerted his influence over the decision to terminate Plaintiff Cooper based on the pretext of a ‘failed drug test’ despite Mr. Roberts’ own admission to the Plaintiff of the contrary results of the test.”

Ms. Cooper admitted to smoking marijuana once or twice a day, while working at GardaWorld, in violation of company policy.  “Plaintiff testified at deposition that she was upset when, just prior to her separation, Mr. Roberts allegedly told her that GardaWorld was going to treat the inconclusive test as a positive test, and use it as a basis for termination.”  She stated “that Mr. Roberts told her she was fired in relation to the drug testing results….”  She asked for a copy of the results and it was not provided.

However, a GardaWorld manager “testified that no decision had been made to treat the inconclusive results as positive, or what, if any, action would be taken regarding the results prior to Ms. Cooper ‘walking off the job.’”

Before turning to the applicable legal principles, the Court wrote:

• “Important to the Court’s decision making here, the test results from these two tests were both preserved and provided to Plaintiff in discovery, and the parties do not dispute that the results were inconclusive.”
• “Instead, Plaintiff’s motion is based on GardaWorld’s failure to preserve the actual swabs used to take the samples for those tests, which were apparently discarded in the ordinary course of business a few weeks after the tests were administered.”

First, the Court noted that “there is no general duty to preserve documents, things or information whether electronically stored or otherwise.” [citation omitted].

Second, it wrote that the duty to preserve “is triggered when litigation is reasonably anticipated.” That “also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” [citation omitted].  However, the “mere existence of a dispute” does not necessarily mean that the duty has been triggered.  “Rather, this duty begins somewhere between knowledge of the dispute and direct, specific threats of litigation.” [citation and quotations omitted].

Third, the Court explained the common-law culpability standard applicable to the swabs.  It wrote that negligence was insufficient and the destroyer “must have known that the evidence was relevant to some issue in the anticipated case, and thereafter willfully engaged in conduct resulting in the evidence’s loss or destruction.” [citation omitted].

Fourth, the movant must establish relevance of the missing evidence.  Relevance in this context is defined to be evidence that “would have supported the claims or defenses of the party that sought it.” [citation omitted].

Here, notwithstanding Ms. Cooper’s admitted use of marijuana in violation of GardaWorld policy, the tests were “inconclusive.”  The Court wrote:

As an initial matter, the Court has serious doubts about whether GardaWorld reasonably should have anticipated litigation at the time of the drug testing. Plaintiff points only to her request to Major Engle for her drug test results, combined with an offhand comment during their phone call consisting of, “oh I have to go…my lawyer is calling me” as her sole basis.

The Court pointed to several salient facts:

• “Curiously, Plaintiff testified at deposition that she had not even retained a lawyer until nearly one month after the call.”
• “But even if, arguendo, such an interaction was sufficient to trigger a duty to preserve the test results, the Court declines to find that GardaWorld should have reasonably anticipated litigation so as to trigger a duty to preserve the testing swabs.”
• “Additionally, Plaintiff has presented no evidence that the failure to keep the drug testing swabs was anything other than Defendants’ normal routine so as to establish the requisite culpability for spoliation sanctions.”
• “Nor can it reasonably be inferred from circumstances that Defendants’ failure to preserve was based motivated by any desire to deprive Plaintiff of evidence, where neither party is disputing the accuracy of the ‘inconclusive’ results.”

Additionally, Ms. Cooper “utterly failed to articulate the relevance” of the swabs.  The Court pointed out that while Ms. Cooper had asked for test results early, she did not ask for the swabs until late in the discovery process. Her motion was based on the swabs even though neither party disputed the test results.  “As such, she has failed to establish the relevance of the swabs to any issue in dispute in the case.”

DEFENDANTS’ CROSS-MOTION FOR SANCTIONS: PLAINTIFF’S CELL PHONE

In Cooper III, a defense motion for dismissal was denied; however, the U.S. Magistrate Judge recommended alternative relief.

Both parties saw the texts as central:  “Defendants assert the alleged relationship between Plaintiff and Mr. Tavon Roberts, her former supervisor, was consensual, and contend that a full accounting of their text messages and other communications will further prove this.”  Ms. Cooper’s Complaint relied on explicit text communications.

Defendants requested production of the texts in native form. Plaintiff produced screenshots.  The Court summarized the facts:

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

Efforts to subpoena or depose Mr. Roberts were “thwarted to date by his evasiveness.”

Again, and as before, Ms. Cooper incorrectly relied on inherent authority decisions.  The Court looked to Fed.R.Civ.P. 37(e), writing: “While there is some overlap between pre-amendment caselaw and Rule 37(e)’s framework, Plaintiff’s failure to rely on the correct standard puts her analysis at odds with the current state of the law in important respects.”  It repeated and amplified the analysis of the Rule as stated in its prior decisions.

First, the Court looked to the threshold elements of Rule 37e):

The Court has no trouble concluding that the four threshold requirements set forth in Rule 37(e) are easily met here. Plaintiff filed her EEOC complaint in September of 2022 and retained counsel that same month. Her text messages are prominent in that filing. Further, Plaintiff filed her lawsuit in September of 2023, where the messages are again an integral part of her allegations. There is no question that the duty to preserve relevant evidence attached at the latest in September of 2022 when Plaintiff decided to pursue her claim.

It found that the screenshots were inadequate and did not capture the full extent of the text messages.  They were cut off, undated, and there were large gaps of time.  They lacked attachments, such as videos.  “She also took affirmative steps to block Mr. Roberts, thereby depriving the parties of access to the messages during the pendency of the present suit.”  The Court found that clearly discoverable information had been lost based on lack of preservation.

The Court also concludes that neither Plaintiff nor her counsel took reasonable steps to preserve the information. While there may be cases where self-collection or screenshots could be defensible where such messages were not numerous and/or central to the allegations, this is not such a case. Additionally, based on the information presented to the Court, counsel took no steps to assist in preservation at a time when the messages were still easily preserved, and took no steps to collect the Facebook Messenger messages which were still accessible until Plaintiff blocked Mr. Roberts in approximately late 2023 or early 2024.

Finally, despite the extensive efforts, the missing communications could not be recovered.

Second, the Court looked to Rule 37(e)(2), cited by defendants, and Rule 37(e)(1), which defendants did not rely on.

Turning to Rule 37(e)(1), the Court wrote:

Though not presently before the Court (as Defendants seek only Rule 37(e)(2) sanctions), the undersigned would have at the very least recommended some sanction pursuant to Rule 37(e)(1). The nature of that sanction is less obvious.

It suggested an appropriate instruction under that Rule.

However, as to Rule 37(e)(2), it found that defendants had bitten off more than they could chew:

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

However:

On the other hand, Plaintiff’s counsel has actively attempted to recover the lost communications since at least January of 2025 when counsel agreed that a forensic examination of Plaintiff’s cell phone was appropriate (having already offered such an examination of the SIM card when it was believed the phone had been traded). … Plaintiff’s counsel has actively cooperated in the forensic process to gain access, and, when that failed to be fruitful, took the extra step of contacting Apple’s general counsel. Such efforts are inconsistent with an intent to deprive.

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