NATIONWIDE LIFE INSURANCE COMPANY, Plaintiff, v. MARCY A. BETZER, individually and as the administrator of the Estate of Cheryl A. Betzer, and FREDERICK A. SMITH, Defendants, and MARCY A. BETZER, Defendant/Crossclaim Plaintiff/Third-Party Plaintiff, v. FREDERICK A. SMITH, Defendant/Crossclaim-Defendant, and DAWN ROBINSON, Third Party Defendant Case No. 5:18-cv-39-Oc-30PRL United States District Court, M.D. Florida October 28, 2019 Counsel Allison Paige Gallagher, Megan Costa DeVault, Akerman LLP, Orlando, FL, for Plaintiff. Jacqueline Alyse Van Laningham, Michael A. Abel, The Abel Law Firm, Jacksonville, FL, for Defendants. Lammens, Philip R., United States Magistrate Judge Report and Recommendation1 This interpleader action arises from a dispute regarding the beneficiary designation for two annuity contracts held by Nationwide Life Insurance Company. Contending that Defendant Frederick Smith and Third-Party Defendant Dawn Robinson (Defendants) have committed various discovery violations, Third-Party Plaintiff Marcy Betzer (Plaintiff) has filed a motion for sanctions and seeks a finding that the Defendants spoliated certain evidence and requests an adverse inference jury instruction. (Doc. 55). Upon due consideration, I submit that Defendants have spoliated evidence and that Plaintiff’s motion should be granted: an adverse inference instruction should be given as a sanction under Fed. R. Civ. P. 37(e)(2). In addition, as set forth below, that attorney’s fees and costs be awarded to Marcy.[2] I. Background This action arises from a family dispute concerning financial assets previously owned by decedent Cheryl Betzer, who died on March 1, 2017. Nine days prior to her death and while she was hospitalized, a change of beneficiary designation was executed by decedent, or on decedent’s behalf, dated February 20, 2017, naming Frederick Smith (decedent’s elderly father) as the primary beneficiary and Dawn Robinson (decedent’s sister) as the contingent beneficiary on the disputed annuities. (Doc. 63-4). The new beneficiary designation represented a change, as previously decedent had designated her only child, Marcy Betzer, as the beneficiary. The change of beneficiary form was transmitted to Nationwide from the ICU unit at Shands hospital in Gainesville, Florida, where decedent was hospitalized. (Doc. 53-3, p. 49-50). Marcy’s theory of the case is that the decedent had long-standing estate plans that included the designation of her (the decedent’s only living child) as the beneficiary on two annuity contracts held by Nationwide Life Insurance Company. She contends that the decedent invested those funds for her benefit for over 25 years and frequently referred to the funds as Marcy’s inheritance. Marcy Betzer contends that, while her mother was suffering in a hospital bed under the fog of terminal illness and under the influence of medications (including opiates), Defendants Frederick Smith (decedent’s father and Marcy’s maternal grandfather) and Dawn Robinson (decedent’s sister and Marcy’s maternal aunt) intentionally and fraudulently induced decedent to change the beneficiary designation. Meanwhile, Defendants Smith and Robinson’s theory of the case is that decedent and her daughter Marcy were estranged and had a troubled relationship, and that decedent intentionally changed the beneficiary designations due to the belief that her daughter was immature. Smith and Robinson maintain that their involvement was merely to aid decedent in executing her final wishes. Recently Marcy Betzer filed a motion for sanctions and for a finding of spoliation of evidence. (Doc. 55). Marcy argues that Defendants Smith and Robinson knowingly failed to disclose responsive records, violated their duty to preserve information and records relevant to this litigation, and spoliated key evidence in this case by running commercial deletion software on their computers and erasing specific relevant data. Consequently, Marcy seeks a mandatory adverse inference instruction under Federal Rule of Civil Procedure 37(e) concerning the spoliated evidence and reasonable attorney’s fees and costs. The Court will begin with a detailed summary of the factual background that is necessary to analyze Marcy Betzer’s motion. A. Factual Background The vast majority of facts relevant to Marcy Betzer’s motion are undisputed. Decedent Cheryl Betzer and her husband Jeffrey Betzer had one surviving child, Marcy Betzer. Marcy’s father, Jeffrey Betzer, died when Marcy was approximately 14 years old. The parties offer varying characterizations of the relationship between Marcy and her mother. Marcy contends that her mother always referred to the disputed assets as “her inheritance” and invested them for her benefit for over 25 years. Indeed, Marcy was ultimately named the personal representative and beneficiary of her mother’s estate under Cheryl’s legal valid will that was executed in 1985. (Doc. 63-7). And on March 17 and 24, 2016 (less than one year before her death), decedent affirmatively designated Marcy as the beneficiary on applications for the disputed annuities. (Docs. 66-1 & 66-2). Michael Beebe, the Nationwide representative who was working with Cheryl regarding management of her accounts, confirmed in his deposition that the designation of Marcy as beneficiary was Cheryl’s affirmative choice at the time. (Doc. 63-3, pp. 25 - 29). Soon thereafter, on May 25, 2016, Cheryl designated her estate as beneficiary on significant assets at Edward Jones and listed Marcy Betzer as the contact person. (Doc. 66-3). As Cheryl’s only child, Marcy contends that she was the intended sole beneficiary of her mother’s longstanding estate plans. On the other hand, Defendants characterize the relationship between Marcy and Cheryl as troubled and even “estranged.” Defendants contend that Marcy frequently distanced herself from her mother and describe her teen and college years as tumultuous and rebellious. Smith testified that he was appalled by Marcy’s treatment of her mother. (Doc. 55-3, p. 22). In documents revealed during discovery, Smith states that Cheryl wanted to change her beneficiary because there had been “no relationship” between Marcy and her mother in many years, and Cheryl “didn’t want Marcy and her live in boyfriend to receive the money.” (Doc. 55-2, p. 4). Robinson stated in her affidavit that the change in beneficiary was “[d]ue to their estranged relationship and Cheryl Betzer’s continued belief that Mary Betzer was immature.” (Doc. 63-1, p. 2). Nonetheless, Smith testified that he witnessed a phone call between mother and daughter while Cheryl was in the hospital and they exchanged the sentiments that they loved each other. (Doc. 55-3, p. 56-57). Robinson also testified that there were no significant changes in the relationship between Marcy and Cheryl such as a big fight or an argument during the time period between March 2016 (when Cheryl designated Marcy as her beneficiary) and February 2017 (when the beneficiary designation was changed). (Doc. 55-1, p. 134). Less than one year after affirmatively designating Marcy as the beneficiary on the disputed annuities, Cheryl was hospitalized with end stage ovarian cancer. (Doc. 63-1). Smith and Robinson contend that, while in the hospital, Cheryl told them that she did not want Marcy to be her beneficiary and instructed them to “get the beneficiary designations changed on the Nationwide and Edward Jones accounts.” (Doc. 63-1, p. 3). Defendants contend that they assisted Cheryl in changing the designations on the Nationwide annuities and a separate account with Edward Jones. As Cheryl’s health was quickly failing, Defendants also interviewed multiple lawyers expressing the urgency of the situation and commissioned a new will that would have diverted Cheryl’s estate entirely to themselves to the exclusion of Marcy. (Doc. 55-1, pp. 79, 85-87). Cheryl Betzer was hospitalized when this occurred and apparently never met or spoke to Glen Abbott (the attorney who drafted the proposed will) personally. (Doc. 55-1, p. 87). The information about Cheryl’s alleged intentions for the new will was based solely on what was communicated to Mr. Abbott from Smith and Robinson. (Doc. 55-1, p. 88). Cheryl Betzer passed away on March 1, 2019, before the new will could be executed. Defendants contend that Marcy refused to come to Cheryl’s funeral, stating she was “not a member of the family anymore.” (Doc. 63-1, p. 3). Soon after Cheryl’s death, Smith communicated with Nationwide in an attempt to claim the annuities. On April 18, 2017, Smith executed a beneficiary claim from and sent it to Nationwide. (Doc. 63-3, p. 52). Michael Beebe testified that during conversations with Smith, Smith “made reference to the fact that Marcy was going to contest something.” (Doc. 63-3, p. 53). Although Beebe does not specify when that conversation took place, his deposition testimony suggests it was around the time that Smith submitted the claim form. (Doc. 63-3, p. 52-54). The conversation was necessarily earlier than November 2017, when Beebe left Nationwide. (Doc. 63-3, p. 54). Following Cheryl’s death, Defendants took possession of and distributed her personal property. Robinson began using Cheryl’s computer based on her claim that Cheryl had told her she could have it and to get rid of everything. As a later forensic examination revealed, at some point Robinson deliberately and manually initiated the deletion of data on the computer, together with a systematic defragmentation of the hard drive. Robinson claims that she did so because her sister’s information “had nothing to do with me and because she had told me to get rid of everything.” (Doc. 63-1, p. 3). The forensic examination revealed that the same type of deliberate deletion had occurred on Smith’s computer. (Doc. 55-5). During the relevant time periods, decedent and Robinson lived in Smith’s home. Testimony in the case reveals that they had ready access to each other’s documents and computers, and this is particularly true of Robinson and Smith following decedent’s death. After receiving competing claims for the subject annuities from both Frederick Smith and Marcy Betzer, Plaintiff Nationwide initiated this interpleader action on January 19, 2019. (Doc. 1). At issue are Nationwide annuity contract number 01-6332165 which was valued at $613,509.70 as of January 9, 2018 and 01-6824719 which was valued at $289,271.64 as of the same date. (Doc. 1). On August 10, 2017, Marcy Betzer notified Nationwide that she was disputing the change of beneficiary form dated February 21, 2017 on the basis that decedent was on her deathbed, under the influence of opiates, under the influence of a critical illness, and under duress of death. (Doc. 1). In other words, the amount in dispute regarding the Nationwide annuities alone (and setting aside other potentially disputed assets such as the Edward Jones account and the assets passing through the estate) is nearly $1 million. B. Discovery This case involves a history of discovery disputes between the parties. The Court will highlight the background most pertinent to the instant motion. Marcy Betzer’s First Request for Production included requests for various categories of relevant documents and specifically requested, “Cheryl Betzer’s personal files and records, including banking/brokerage records, draft wills or incomplete wills, and correspondence.” (Doc. 45-1, p. 5). The requests also included any computer in Smith’s household as well as Cheryl Betzer’s electronic devices, cell phones, etc. (Doc. 45-1, p. 5). As to the document request, On June 14, 2018, Smith simply responded, “None.” As for the request regarding computers, Smith objected. (Doc. 45-1, p. 5). Robinson responded to duplicate requests in the same way. (Doc. 45-1, p. 9). As a forensic examination ultimately revealed, Smith’s computer contained several relevant documents that Marcy Betzer contends should have been produced on June 14, 2018, but were withheld. (Doc. 55-2). Those documents include (1) records reflecting payments made related to Cheryl Betzer’s funeral expenses and distributions from various financial accounts of Cheryl Betzer (Doc. 55-2); (2) a draft addendum of Smith’s will reflecting Smith’s intent to distribute the Nationwide annuities to various religious organizations and relatives (but expressly excluding Marcy Betzer); and (3) an unexecuted copy of a legally unenforceable will for Marcy Betzer. (Doc. 55-2). Although these documents were not produced, the forensic examination revealed that Defendants accessed these documents on June 10, 2018, just four days prior to their document production on June 14, 2018 (Doc. 55-2, p. 2). While these documents were not timely disclosed in response to the discovery requests, Defendants did eventually produce a signed copy of the Invalid Will on January 15, 2019, in an attempt to assert a Counterclaim against Marcy Betzer for a trust over separate portions of decedent’s estate consisting of assets in several mutual funds. (Doc. 34, p. 3). The Invalid Will (which appears to be homemade or at least drafted without legal assistance) purported to make Smith trustee of decedent’s assets and appears to be signed by decedent on February 23, 2017. (Doc. 37-1, p. 5). These developments triggered Marcy Betzer’s heightened concern that Defendants had not been entirely forthcoming during discovery. Although Defendants had previously been deposed, Defendants’ depositions were reopened (at additional expense) following the revelation of the Invalid Will. Defendants’ reopened depositions occurred on March 11, 2019. During his reopened deposition, Smith testified that he had provided responsive financial and banking records of the decedent to his lawyer, although Marcy Betzer claimed she had never received the documents. (Doc. 55-3, p. 184-85). Smith also raised the possibility during his deposition that he had not been preserving evidence, stating, “I also erase things on my computer. I don’t always keep everything.” (Doc. 55-3, pp. 152-153). By letter dated April 15, 2019, counsel for Marcy Betzer outlined the claimed deficiencies in Defendants’ discovery responses. (Doc. 55-4). On April 29, 2019, pursuant to an agreement of the parties, Marcy Betzer’s forensic expert Vicente Rosado conducted an examination of the hard drives of Defendants’ computers. (Doc. 55-5). The computers imaged included Smith’s personal computer, as well as the computer identified as Robinson’s. Notably, Robinson’s computer was previously owned by decedent Cheryl Betzer until her death. Robinson testified that decedent gave her the computer to use or dispose of, together with other personal property. Robinson stated, “I began to use her computer based on her instructions that we could have her stuff.” (Doc. 63-1, p. 3). Based on his examination, Rosado determined that commercial deletion software had been frequently used on each computer, together with the systematic defragmentation of the hard drives. (Doc. 55-5). Rosado explained that, at a minimum, programs known as CCleaner and Microsoft embedded applications were used by Defendants. (Doc. 55-5). Rosado noted that these programs require the user to manually initiate the software, and that the commercial deletion software was frequently used followed by the command to defragment the computer. (Doc. 55-5, p. 7). Rosado stated that the “consistent pattern on each computer, of using commercial deletion software, followed immediately by a command to defragment the hard drive, makes it highly unlikely that Defendants’ computers were defragmented automatically and without human intervention.” (Doc. 55-5, p. 7). The result was the irretrievable loss of most of the erased data, except for small incomplete fragments of delated files. (Doc. 55-5, p. 7). For both computers, Rosado utilized search terms such as “Cheryl w/10 Betzer,” “Marcy w/10 Betzer,” “Michael w/10 Beebe,” and numerous other searches that were hinged to key individuals believed to be involved in underlying events. Using this method, Rosado yielded hits for potentially relevant, responsive material from fragments of files. (Doc. 55-5). Based on his analysis of Smith’s computer, Rosado yielded 785 hits for potentially relevant, responsive material from fragments of 77 deleted files, and approximately 25% of those files were erased from the hard drive. The analysis of Robinson’s computer (which was Cheryl Betzer’s computer prior to her death) yielded 18,000 hits for potentially relevant, responsive material from fragments of 2,382 deleted files on the hard drive. (Doc. 55-5). Thus, Marcy Betzer posits that 97% of the potentially responsive material on Robinson’s computer was destroyed by Defendants. These conclusions which are set forth in the forensic expert’s affidavit are unrebutted. (Doc. 55-5).[3] The fact that both Smith and Robinson deliberately deleted records on their computers at some time after Cheryl’s death is apparently undisputed. Robinson stated that she “deleted my sister’s personal information from the computer shortly after her death and over 9 months before the institution of this lawsuit, which was filed on January 19, 2018, because it had nothing to do with me and because she had told me to get rid of everything.” (Doc. 63-1, p. 3). Similarly, although he states he does not recall deleting any emails, Smith does not dispute that certain records (including files relevant to this action) were deleted. Though he does not specifically recall, Smith states, “I believe that they were deleted after my daughter Cheryl’s death but well before (at least 9 months) this litigation began.” (Doc. 63-2, p. 2). Smith also stated that other files may have been inadvertently deleted during a migration to a newer hard drive that occurred soon after Cheryl’s death. (Doc. 63-2, p. 4). Ultimately, Marcy Betzer filed a motion to compel that has previously been addressed by the Court (Docs. 45 & 59) and the motion for sanctions that is currently before me (Doc. 55). The motion is now ripe, as Defendants have filed a response to the motion for sanctions (Doc. 63) and Marcy Betzer has filed a reply (Doc. 66). On October 25, 2019, pursuant to prior notice, the Court held a status conference regarding the motion for sanctions. Both parties involved in this motion agreed the issues were fully briefed and supported with record evidence; neither requested an evidentiary hearing. (Docs. 74 and 75). Finally, in the interim on October 8, 2019, Dawn Robinson notified the Court that her father, Defendant Frederick Smith, died on September 22, 2018. (Doc. 69). II. Discussion A. Standards Spoliation is the “destruction” of evidence or the “significant and meaningful alteration of a document or instrument.” Green Leaf Nursery v. E.I. DuPont De Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003). In Flury v. Daimler Chrysler Corporation, the Eleventh Circuit held that “federal law governs the imposition of spoliation sanctions” but at the same time observed that federal law does not set forth “specific guidelines” to determine when such sanctions are warranted. Flury, 427 F.3d at 944. The court then borrowed a multi-factor test from Georgia spoliation law, which it found to be “wholly consistent with federal spoliation principles.” Id. The factors identified by the Court in Flury, as relevant to the inquiry, include: (1) whether the party seeking sanctions was prejudiced as a result of the destruction of evidence and whether any prejudice could be cured, (2) the practical importance of the evidence, (3) whether the spoliating party acted in bad faith, and (4) the potential for abuse if sanctions are not imposed. See id. at 945. Generally, the party moving for sanctions carries the burden of proof on the spoliation issue, including the legal elements needed to establish spoliation. See Eli Lilly & Co. v. Air Express Int’l USA, Inc., 615 F.3d 1305, 1318 (11th Cir. 2010). In December 2015, Rule 37 of the Federal Rules of Civil Procedure was amended to address the spoliation of electronically stored information. See Fed. R. Civ. P. 37(e). Rule 37(e) now provides: (e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment. Id. The Eleventh Circuit recently acknowledged that it has not yet had the opportunity to determine whether, given the amendment to Rule 37, the multi-factor test relied upon in Flury is still applicable when a party seeks sanctions based on the spoliation of electronically stored evidence. ML Healthcare Services v. Publix Super Markets, Inc., 881 F.3d 1293, 1308 (11th Cir. 2018); see also, Wooden v. Barringer, No. 3:16-cv-446-MCR-GRJ, 2017 WL 5140518, at *3 (N.D. Fla. Nov. 6, 2017) (finding that amendment to Rule 37(e) “significantly limits a court’s discretion to impose sanctions for ESI spoliation.”). B. Analysis Marcy Betzer’s motion seeks sanctions and an adverse inference for a variety of discovery violations. The most significant and broadest of the alleged violations is the destruction of relevant and potentially relevant responsive records as a result of Defendants’ use of commercial deletion software. The Court will address this alleged violation first. 1. Failure to Preserve Relevant, Responsive Records On May 14, 2018, Marcy Betzer requested that Smith produce (1) any computer in Smith’s household, as well as any disks, thumb drives, hard drives, or other portable storage devices, and (2) Cheryl Betzer’s electronic devices, including computers, cell phones, tablets, and portable storage devices. (Doc. 45-1). Defendants objected. (Doc. 45-1). In the meantime, discovery proceeded and resulted in the revelations described above, as well as Defendants’ deposition testimony and the forensic examination conducted by Vicente Rosado. There appears to be no dispute that the deletion of relevant and potentially relevant information from the computers was deliberate, or at least intentionally and manually initiated. Defendants do dispute, however, whether they were under any duty to preserve the evidence. Because the allegedly spoliated evidence was ESI, Rule 37(e) applies here. The information on both Smith and Robinson’s computers was electronically stored. The court must address three preliminary questions before turning to an analysis of subsections 37(e)(1) or (e)(2).[4] If the answer to each of the preliminary questions is yes, then the Court must determine whether another party has been prejudiced by the loss of the information under (e)(1) or whether there was an intent to deprive under (e)(2). See Alabama Aircraft Industries, Inc. v. Boeing Co., 319 F.R.D. 730, 740 (N.D. Ala. 2017). a. Was the allegedly spoliated ESI evidence that should have been preserved? The standard for whether a duty to preserve arises is essentially the same under both Rule 37(e) and preexisting Eleventh Circuit precedent. The Advisory Committee’s notes on Rule 37(e) explicitly state that “[t]he rule does not apply when information is lost before a duty to preserve arises.” Fed. R. Civ. P. 37(e) Advisory Committee notes to 2015 amendment. In the Eleventh Circuit, the test is whether litigation was “pending or reasonably foreseeable” when the spoliation occurred. Graff v. Baja Marine Corp., 310 Fed. Appx 298, 301 (11th Cir. 2009). Notably, it is an objective standard and considers whether a party should reasonably have anticipated litigation. See Alabama Aircraft Industries, Inc. v. Boeing Co., 319 F.R.D. 730, 742 (N.D. Ala. 2017). Thus, the Court must consider whether there is sufficient evidence to establish that Smith and Robinson should reasonably have anticipated litigation before deleting relevant and potentially relevant information from their computers. To be sure, Smith and Robinson contend that they had no idea that Marcy would dispute the beneficiary designation or pursue litigation. The standard, however, is objective rather than subjective. For the following reasons, the Court concludes that a reasonable party in both Smith and Robinson’s positions should have reasonably anticipated litigation over the change of beneficiary. The totality of the circumstances is significant here. Both Smith and Robinson were well aware that Marcy was decedent Cheryl Betzer’s sole living child. And while they considered Marcy and her mother to be estranged, in their depositions they both described a history of contact between Marcy and her mother. Further, while they characterized the relationship between Marcy and her mother as troubled, they described the alleged estrangement as originating long ago during Marcy’s adolescence, soon after her father passed away when she was 14 years old. (Doc 53-3, p. 19-22). Smith described himself as appalled by what he considered Marcy’s treatment of her mother. (Doc. 55-3, p. 22). Importantly, while Defendants testified regarding disputes during Marcy’s college years and long-standing friction between mother and daughter, neither Smith nor Robinson identified any changes in the nature of the relationship between Marcy and her mother during the year prior to Cheryl’s death. To the contrary, Robinson specifically testified that there were no big changes in their relationship between March of 2016 (when Cheryl affirmatively designated Marcy as beneficiary on the two Nationwide annuities) and February of 2017 (when Cheryl was hospitalized and the beneficiary designation was changed). (Doc. 55-1, p. 134-35). Smith testified that, while Cheryl was in the hospital just prior to her death, he witnessed a phone call wherein Marcy called Cheryl on Cheryl’s personal cell phone and mother and daughter told each other that they loved each other. (Doc. 55-3, p. 56-57). And even Smith’s version of events when explaining the details of the unexecuted will drafted by Attorney Glen Abbott is that Cheryl wanted Marcy to have some money “and she wanted to be sure that she was taken care of.” (Doc. 55-3, p. 53-54). Further, both Smith and Robinson were aware that Marcy had been Cheryl’s primary beneficiary on the Nationwide annuities. Their version of events is that, upon learning that Marcy was the beneficiary, Cheryl enlisted their help in changing the designation. By their own accounts, both Smith and Robinson were actively involved in those efforts, as well as efforts to obtain a new will for Cheryl. Defendant Smith succeeded in drafting and apparently having Cheryl sign (while hospitalized) what the parties describe as the Invalid Will. Although not enforceable, the document purported to make Smith executor of Cheryl’s estate and provided for annual distributions of $25,000 to Marcy. (Doc. 37-1, p. 5). Defendants also interviewed multiple attorneys and commissioned yet another will that (although never executed due to Cheryl’s death) would have completely disinherited Marcy, left everything to Smith, and provided Smith with full discretion as to whether to provide any funds to Marcy. (Doc. 63-6). In the event that Smith predeceased Cheryl, the estate would have gone to Robinson. (Doc. 63-6). When Cheryl died on March 1, 2017, both Smith and Robinson were well aware of (and indeed involved in) the changes to the beneficiary designation, as well as efforts to change Cheryl’s will, all of which would have disinherited Marcy and resulted in the assets (of which the Nationwide annuities alone represented nearly $1 million) flowing to either Smith or Robinson. Further, Smith testified that Marcy did not come to the funeral because she did not consider herself part of the family. (Doc. 55-3, p. 57). Nationwide representative Michael Beebe spoke to Smith, who revealed he was aware of the likelihood that Marcy would dispute the beneficiary change. Beebe testified that Smith “referenced that Marcy was going to contest something.” (Doc. 63-3, p. 53-54). The totality of the circumstances also includes the relatively short time period between decedent’s initial designation of Marcy as beneficiary on the annuity applications in March 2016, her hospitalization, and the beneficiary change in February 2017. Also relevant is the fact that Cheryl was suffering from a painful and ultimately terminal illness and on numerous medications. It is not surprising that Marcy (as the prior beneficiary and only child of decedent) would take issue with a change of beneficiary designation that undisputedly occurred while decedent was in the hospital mere days from death. Likewise, it is not difficult to anticipate that Marcy would dispute a change that impacted nearly $1 million, particularly considering the animosity Defendants believed Marcy felt toward them. Applying the objective standard, there is more than sufficient evidence to establish that Defendants should reasonably have anticipated litigation over the change in beneficiary designation naming Smith as primary beneficiary and Robinson as contingent beneficiary. Smith and Robinson’s argument that litigation was not foreseeable is simply not persuasive. Their contention that they did not subjectively foresee litigation is irrelevant because the standard is an objective one. Further, the Court is not persuaded by their contention that they should be excused due to lack of sophistication. To be sure, the Advisory Committee notes to Rule 37(e) provide that the court “should be sensitive to the party’s sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigations, may be less familiar with preservation obligations than others who have considerable experience in litigation.” Fed. R. Civ. P. 37(e) Advisory Committee’s notes to 2015 amendment. It is worth noting that, in this case, it is alleged that Defendants affirmatively deleted evidence, as opposed to simply failing to take steps to preserve it. Nonetheless, Smith and Robinson fail to cite any authority in support of their position that lack of sophistication excuses them here. And, while the majority of cases imposing sanctions under Rule 37 involve corporate parties, courts have also imposed sanctions against individual parties. See Steves & Sons, Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 106 (E.D. Va. 2018) (sanctions imposed against individual consultant based upon his duty to preserve material evidence). Further, the facts established in the case suggest Smith and Robinson possessed a certain level of both legal and technical sophistication. As Marcy Betzer argues, the deliberate and systematic use of commercial deletion software suggests Defendants were both technically sophisticated and were aware that their actions would erase material from their computers. Robinson admitted in her deposition to successfully searching through decedent’s financial paperwork to determine details regarding the annuity accounts (such as the identity of the beneficiary). (Doc. 55-1, p. 45). Robinson also testified that she and Smith both interviewed multiple lawyers in an effort to find legal assistance in creating a new will for Cheryl. (Doc. 55-1, p. 79). As Marcy Betzer suggests, it is disingenuous for Defendants to claim ignorance about the possibility of litigation after being so actively involved in plans to divert decedent’s sizeable assets to themselves and to the exclusion of her only daughter and prior designated beneficiary. Given the particular circumstances of this case, the Court agrees with Marcy Betzer that the duty to preserve relevant information (including the ESI contained on both Smith and Robinson’s computers) existed at the time of Cheryl Betzer’s death on March 1, 2017. b. Was the alleged spoliated ESI lost because a party failed to take reasonable steps to preserve it? The second preliminary question is whether the allegedly spoliated ESI was lost because a party failed to take reasonable steps to preserve it. Here, the unrefuted affidavit of forensic expert Vicente Rosado establishes that the ESI contained on both Smith and Robinson’s computers was lost through intentional efforts to erase data on the hard drives. This is not a case in which data was lost because it was overwritten or purged via an automatic process. Rather, the evidence suggests that Defendants manually, intentionally and systematically utilized deletion software to delete information on their hard drives. The only step necessary to preserve the evidence here would have been for Defendants to merely refrain from using the deletion software. Consequently, the second preliminary question is also answered in the affirmative. c. Is the allegedly spoliated ESI evidence that cannot be restored or replaced through additional discovery? The final prerequisite to a spoliation finding is that the information “cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). The Advisory Committee notes provide that loss of ESI from one source may be harmless if substitute information can be found elsewhere. Fed. R. Civ. P. 37(e), 2015 Notes of Advisory Committee. Courts have clarified, however, that in spoliation cases, the prejudiced party should not be held to too strict a standard of proof regarding the probable contents of the destroyed evidence “because doing so allows the spoliators to profit from the destruction of evidence.” Southeastern Mechanical Services, Inc. v. Brody, 657 F.Supp.2d 1293, 1300 (M.D. Fla. 2009). Marcy Betzer argues that the only known location for the lost ESI is on the hard drives for the computers themselves because Defendants did not identify any alternative locations for the data, such as a cloud-based storage device or external hard drive. She further argues that the vast majority of the information that was destroyed is unique to Defendants’ computers (such as metadata) and cannot be retrieved from another source. In particular, there is no other source for deleted records that were created by Defendants, such as drafts of the Invalid Will or excel spreadsheets regarding how Cheryl Betzer’s financial assets were distributed. Indeed, the documents that were recovered from Smith’s computer and never previously produced include relevant documents that were drafted by Smith, such as an addendum to his will including his intentions regarding the disputed annuities, a synopsis of events regarding the change of beneficiary, and a draft of an unexecuted will for decedent Cheryl Betzer (Doc. 55-2). These examples demonstrate that the likely contents of the destroyed data included evidence that was unique to Defendants’ computers and cannot be retrieved through another source. The same is true to an even greater extent of the vast amount of information that was lost from Cheryl Betzer’s former computer. Under the circumstances, the Court finds that Marcy Betzer has sufficiently demonstrated that the lost ESI cannot be restored or replaced through additional discovery. d. Is there prejudice under Rule 37(e)(1) or intent to deprive under Rule 37(e)(2)? Because the answer to all three prerequisite questions is yes, the court must consider whether there is prejudice to Marcy from the loss of the information such that sanctions under subsection (e)(1) are warranted or whether the harsher penalties set forth under subsection (e)(2), such as the adverse jury instruction she seeks, are appropriate because the Defendants had an intent to deprive Marcy of the information’s use in litigation. There is a difference between the two findings: while a sanction (such as allowing the parties to present information and argument to the jury regarding the loss) can be imposed under subsection (e)(1) where the loss of the information is prejudicial to the party seeking it, but its loss was the result of negligence or even gross negligence, sanctions under (e)(2) can only be imposed where there is a finding that “the party that lost the information acted with the intent to deprive another party of the information’s use in the litigation.” Fed. R. Civ. P. 37(e), 2015 Notes of Advisory Committee. The “intent to deprive” finding can be made by the Court when ruling on a pretrial motion. Id. An analysis of whether there is prejudice or an intent to deprive overlaps. While a finding that the loss of the information is prejudicial isn’t sufficient to establish an intent to deprive (nor is a finding of prejudice necessary to find an intent to deprive), a finding of intent to deprive can support “an inference that the lost information was unfavorable to the party that intentionally destroyed it” and “also an inference that the opposing party was prejudiced by the loss of information that would have favored its position.” Fed. R. Civ. P. 37(e), 2015 Notes of Advisory Committee. Prior to the adoption of Rule 37(e), “prejudice” was already a critical factor in determining whether spoliation sanctions are appropriate. See McLeod v. Wal-Mart Stores, Inc., 515 Fed. Appx. 806, 808 (11th Cir. 2013). While the burden of establishing prejudice generally falls on the party seeking sanctions, courts acknowledge that it can often never be proved what was contained in destroyed evidence. Typically, only the spoliator knows how much prejudice has been caused by the destruction. See Brown v. Chertoff, 563 F. Supp.2d 1372, 1379 (S.D. Ga. 2008) (“To require a party to show before obtaining sanctions, that unproduced evidence contains damaging information would simply turn ‘spoliation law’ on its head.”). Thus, “[t]o show prejudice resulting from the spoliation, ‘a party must only come forward with plausible, concrete suggestions as to what [the destroyed] evidence might have been.’ ” Moody v. CSX Transp., Inc., 271 F. Supp. 3d 410, 430 (W.D.N.Y. 2017) (alteration in original) (quoting TLS Mgmt. & Mktg. Servs. LLC v. Rodriguez-Toledo, No. 15-2121, 2017 WL 1155743, at *1 (D.P.R. Mar. 27, 2017)). Consequently, the Advisory Committee Notes clarify that the rule “leaves judges with discretion to determine how to best assess prejudice in particular cases.” Fed. R. Civ. P. 37(e), 2015 Notes of Advisory Committee. Where there is evidence of bad faith in the destruction of evidence, it may be inferred that missing evidence was unfavorable and that there was prejudice. See Southeastern Mechanical Services, Inc. 657 F.Supp. 2d at 1300. In making this determination, courts necessarily consider the context of the destruction. See Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 110 (S.D. Fla. 1987) (noting that alleged spoliator’s contention that no significant prejudice resulted from destruction to be unconvincing). The Eleventh Circuit recently suggested that the “bad faith” standard and the “intent to deprive” standard in Rule 37(e) are connected. ML Healthcare Services v. Publix Super Markets, Inc., 881 F.3d 1293, 1308 (11th Cir. 2018); see also, Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *6 n.6 (S.D. Fla Mar. 22, 2016) (“It appears to this Court that the “intent to deprive” standard in Rule 37(e)(2) may very well be harmonious with the “bad faith” standard previously established by the Eleventh Circuit.”). It thus seems that often, in cases involving deliberate destruction of ESI, consideration of one’s apparent bad faith can be used to determine both prejudice and also intent to deprive. Frequently, perhaps, the same facts could be used to satisfy either standard. Here, there is considerable circumstantial evidence suggesting that Defendants possessed a degree of bad faith that supports a finding of prejudice and, I submit, that they had the requisite intent to deprive Betzer of the destroyed ESI. Important questions relevant to the inquiry under Rule 37(e)(1) are the scope of the prejudice and the importance of the spoliated ESI. In other words, the loss of ESI that is inconsequential does not typically warrant relief. See Freidig v. Target Corp., 329 F.R.D. 199, 209 (W.D. Wis. 2018). So, if the evidence suggests that the lost ESI would have helped Marcy Betzer’s claim, then she suffered prejudice. But, if the evidence suggests that the lost ESI would have been inconsequential to her claim, then she did not. See id. In this case, the lost ESI consists of data from both Smith and Robinson’s former computers. Marcy Betzer’s forensic expert opined that 25% of potentially relevant information was lost from Smith’s computer and 97% of potentially relevant information (equating to more than 2,000 files) was lost from Robinson’s computer, which of course formerly belonged to decedent. Because the central issues in this case concern decedent’s intent regarding her beneficiary designation and her estate, as well as the nature of the relationship with her daughter, it is highly likely that her computer contained information relevant to those issues. As observed, even the lack of evidence (such as correspondence or draft wills) that decedent was taking steps to change her longstanding estate plans would tend to bolster Marcy Betzer’s theory of the case. As to Smith’s computer, several documents that were not produced but only discovered via the forensic examination (such as a draft copy of the Invalid Will, a summary of the events surrounding the beneficiary designation, and a draft addendum to Smith’s will) contain evidence that supports Marcy Betzer’s claims. A logical inference is that the relevant documents that were deleted also were beneficial to her claims as well. Because the lost ESI would likely have helped Marcy Betzer’s claim, at a minimum, a finding of prejudice is warranted under Rule 37(e)(1). Beyond that, there is also evidence of bad faith, a factor that can support a finding of prejudice under Rule 37(e)(1) and a finding of intent to deprive under (e)(2), as the two standards are closely related. It is undisputed that Smith and Robinson were directly involved in the events surrounding the change of beneficiary designation. Indeed, precisely how involved they were and whether their actions amounted to fraudulent inducement is at the very heart of the merits of this case. Central issues in this case include what Defendants’ intentions were, what decedent’s intentions were, and the nature of the relationship between Marcy Betzer and her mother, Cheryl. Given the issues in dispute in this case, it is difficult to imagine sources of information more relevant and useful than decedent’s and Smith’s personal computers. Smith and Robinson maintain that there is no evidence of bad faith and that the information was lost because they merely performed routine maintenance on their computers. The overall circumstances, however, suggest otherwise. First, Defendants were unquestionably heavily involved in orchestrating significant changes to decedent’s estate plans while she was in the hospital and mere days from death. It is also undisputed that the intended outcome of Defendants’ efforts was to divert decedent’s sizeable assets to themselves. While Defendant Smith has described himself as entitled to deference due to his advanced age and frail health, evidence suggests that many of his actions were aided by or in concert with his daughter, Defendant Dawn Robinson, who was also his caretaker. And, as it happens, Robinson was the purported contingent beneficiary for the Nationwide annuities (as well as the contingent beneficiary in Defendants’ other attempts to assist decedent in revising her estate plans). Indeed, with Smith’s recent death, Robinson has now become the true party in interest in this matter. Further, during discovery, Defendants failed to timely disclose evidence that was unquestionably relevant and responsive to discovery requests, such as the Invalid Will which was not produced until January 15, 2019. Certain other relevant evidence was only discovered during the forensic examination. (Doc. 55-2). And, tellingly, the forensic examination revealed that, on June 10, 2018 (four days before the production deadline), Defendants accessed several documents that should have been produced as responsive to discovery requests. These facts undermine Defendants’ argument that they lacked any bad faith. The nature of the evidence that was not timely disclosed provides some insights into Defendants’ actions and at least arguably tends to bolster Marcy Betzer’s theory of the case. For example, that a draft of the Invalid Will was found on Smith’s computer sheds light on Smith’s actions and intentions. The same is true for the addendum to Smith’s own will which sets forth his intentions for distributions for the Nationwide annuities and reveals that he planned to give significant sums to religious organizations and various relatives, but “No funds are to be distributed to Marcy Betzer.” (Doc. 55-2). As an example of a document that might once have existed on Defendants’ computers, Marcy Betzer points to an unsigned letter purporting to be from Cheryl Betzer to Nationwide dated February 21, 2017 (Doc. 68-1). In summary, the letter confirms Cheryl Betzer’s intent to change her beneficiary from Marcy Betzer to Smith. It is unclear how this document originated. Both Smith and Robinson testified that they did not prepare it for Cheryl and they did not know how it originated. (Doc. 55-3, p. 73-74, Doc. 55-1, p. 62-63) Yet, Cheryl was hospitalized at the time and, according to Smith, did not have access to a computer. (Doc. 55-1, p. 73). Marcy Betzer suggests that no one else besides Defendants would have had the opportunity or motive to prepare this letter for Cheryl. Marcy contends that because of the spoliation, she now has no way to test the accuracy of Defendants’ testimony regarding the document. She is correct. Further, it is notable that Robinson (as the contingent beneficiary under the challenged designation) now stands to receive the annuity proceeds. This circumstance casts significant doubt upon her assertion that, after taking possession of decedent’s computer, she merely deleted information because “it had nothing to do with me and she had told me to get rid of everything.” (Doc. 63-1). It is difficult to imagine a single source of information that would be more highly relevant to the central issues in this case than Cheryl Betzer’s personal computer. While one can only wonder what the destroyed evidence may have revealed, it is apparent that Robinson was and is the person who would stand the most to gain by deleting all records that potentially included correspondence, estate plans, and draft wills or records revealing Betzer’s intentions regarding her financial assets.[5] This was equally true prior to Smith’s death, as it is undisputed that he has been suffering from both advanced age and a terminal illness during the time periods relevant to this action, and was being assisted by Robinson. Finally, while the Court is in no way prejudging the merits of the case or making findings that would prejudice any factual or legal issues in future proceedings, it is worth noting that Defendants’ version of events is inconsistent with some of the evidence. Defendants’ contention that decedent Cheryl Betzer and her daughter Marcy were estranged and had been for most of Marcy’s adult life is seemingly inconsistent with Nationwide representative Michael Beebe’s uncontroverted testimony that Decedent affirmatively designated Marcy as her beneficiary on the two subject annuity applications dated March 24, 2016 and March 17, 2016. (Docs. 66-1 & 66-2). Likewise, Smith’s characterization that there had been “no relationship” between Marcy and Cheryl in many years (Doc. 55-2, p. 4) is somewhat at odds with his admission that he observed a telephone call between Cheryl and Marcy wherein they exchanged the sentiment that they loved each other. Defendants offer numerous differing (and arguably inconsistent) versions of Cheryl’s intentions. They include (1) that Cheryl wanted Smith to be the beneficiary and Robinson to be the contingent beneficiary because she did not want Marcy to receive the Nationwide assets, as Robinson testified (Doc. 55-1, p. 45); (2) that Cheryl wanted Smith to manage her assets as trustee for Marcy and to make annual distributions to Marcy, as reflected in the Invalid Will (Doc. 55-2, p 11); (3) that Cheryl wanted Smith to be the beneficiary on the Nationwide assets because she did not want Marcy and her live in boyfriend to receive the money, as reflected in Smith’s summary of events (Doc. 55-2, p. 4); and (4) that Cheryl wanted Smith to inherit her estate, with Robinson as contingent beneficiary, as reflected in the unexecuted will drafted by Attorney Glen Abbott (Doc. 63-6). These various explanations also are at odds with other evidence, such as the testimony of Nationwide representative Michael Beebe that, in March of 2016, Cheryl affirmatively designated Marcy as her beneficiary, and that Marcy became the personal representative and beneficiary of Cheryl’s estate under her legally valid will that had been executed many years previously. Similarly, Cheryl designated her estate as beneficiary of her Edward Jones investments on May 25, 2016 and listed Marcy Betzer as the contact person. (Doc. 66-3). The Court also notes evidence regarding Smith’s intentions for the Nationwide annuities, which included distributions to various religious organizations relatives and with the express provision, “No funds are to be distributed to Marcy Betzer,” as reflected in Smith’s addendum to Will and Trust (Doc. 55-2, p. 9-10). Defendants’ various iterations and manifestations of what they describe as Cheryl’s wishes are confusing at best, and arguably less than credible. Numerous other facts directly relevant to the merits of the case also form the considerable body of circumstantial evidence suggesting bad faith on the part of Defendants. Robinson is a retired pharmacy tech, a fact Marcy Betzer believes is relevant to her knowledge of how medications may have affected Cheryl while in the hospital. (Doc. 55-1, p. 13). Robinson admitted that she actually filled out the change of beneficiary forms for Cheryl and that Cheryl merely signed them, although Robinson couldn’t say to what extent Cheryl read them. (Doc. 55-1, p. 50). Robinson further testified that, when Cheryl signed the forms, not all the information was filled in. Robinson admitted to printing Cheryl’s name, and that Cheryl merely signed. (Doc. 55-1, p. 58-60). Finally, the Court observes the high level of animosity between Defendants and Marcy Betzer. Smith and Robinson’s deposition testimony makes clear that they both disapproved of Marcy. Smith authored a summary of events surrounding the beneficiary change and described “a litany of rebellion” by Marcy against her mother. (Doc. 55-2, p. 12). Smith describes Marcy as having a troubled youth and explains that Marcy “ended up traveling around the US with various people she met in college and otherwise such that her mother did not know where she was for a long period of time.” (Doc. 5-2, p. 12). Smith’s statement makes clear that he disapproved of Marcy’s conduct and her intermittent contact with her mother. The animosity was apparently mutual, as Marcy reportedly refused to come to Cheryl’s funeral because she did not consider herself part of the family. The discord was so severe that, according to Robinson’s testimony, she and Smith disposed of or sold all of Cheryl’s personal possessions (including her wedding ring) without offering anything to Marcy. (Doc. 55-1, p. 135). It is possible to draw a parallel between the merits of the case and the sanctions issue. The central controversy in this case arises from Defendants’ efforts to deprive Marcy Betzer of her mother’s assets. Circumstantial evidence strongly suggests that, during this litigation, they also intentionally acted to deprive her of relevant ESI. Sufficient evidence of bad faith exists to establish prejudice under Rule 37(e)(1) and I submit that such a finding of prejudice is certainly warranted. The intentionally destroyed ESI was both highly consequential and likely to benefit Marcy Betzer’s. Defendants have not shown otherwise. As a sanction under Rule 37(e)(1) the Court could allow the parties to present evidence to the jury concerning the loss and likely relevance of information and instruct the jury that it may consider the evidence, along with all the other evidence in the case, in making its decision. See Fed. R. Civ. P. 37(e), 2015 Notes of Advisory Committee. The Court, in allowing that presentation, could also prohibit Defendants from presenting a forensic expert to rebut Plaintiff’s, and I note they haven’t even presented one here. I submit, however, that given the evidence of bad faith, the intentional nature of the destruction of evidence from both computers (which is unrebutted), the volume of likely evidence on the computers, and, relatedly, the significance of the lost evidence, that Marcy has indeed established that Smith and Robinson acted with the intent to deprive her of the information’s use in litigation. Accordingly, I recommend that the Court grant her motion and, under Fed. R. Civ. P. Rule 37(e)(2), instruct the jury that it must presume the information was unfavorable to Smith and Robinson. 2. Failure to Disclose Responsive Records Marcy Betzer has also moved for sanctions due to Defendants’ failure to disclose certain responsive records, specifically the draft Invalid Will and other documents revealed during the forensic examination. As has already been discussed, those documents were accessed four days before Defendants’ document production but not produced, apparently intentionally. The failure to timely disclose the documents led to considerable additional expense, including motion practice and reopened depositions. At this point, however, Marcy Betzer has the documents and the Court has already made the recommendation above regarding appropriate measures. The Court has no trouble concluding that Marcy Betzer is entitled to reasonable attorney’s fees and costs associated with Defendants’ failure to timely produce the documents. 3. Reasonable Attorney’s Fees and Costs Finally, the court finds Marcy Betzer is entitled to reasonable attorney’s fees and costs from Defendants (not their counsel)[6] for the filing of both the motion for sanctions and the motion to compel, and the costs shall include those costs associated with retaining the forensic expert, his evaluation, and the preparation of his report, as well as costs associated with the reopened depositions. See Alabama Aircraft Industries., Inc. v. Boeing Co., 319 F.R.D. 730, 747 (N.D. Ala. 2017) (finding it appropriate for the spoliator to pay reasonable attorney’s fees and costs of prosecuting the sanctions motion); Morrison v. Veale, No. 3:14-CV-1020-TFM, 2017 WL 372980, at *9 (M.D. Ala. Jan. 25, 2017) (inviting a properly supported motion for attorney’s fees and costs after finding sanctions for spoliation), and Borum v. Brentwood Vill., LLC, No. CV 16-1723 (RC), 2019 WL 3239243, at *10 (D.D.C. July 18, 2019) (upon finding that sanctions under 37(e)(1) were appropriate, ordering spoliator to pay reasonable attorney’s fees and costs associated with litigating the sanctions issue). III. Recommendation For the reasons explained above, I recommend that Marcy Betzer’s motion for sanctions and for a finding of spoliation of evidence (Doc. 55) be GRANTED and that an adverse instruction be given to the jury under Fed. R. Civ. P. 37(e)(2), instructing the jury that it must presume that the lost information was unfavorable to Smith and Robinson. I further recommend that Marcy Betzer be awarded her reasonable attorney’s fees and costs associated with Defendants’ failure to timely produce documents as well as for litigating the sanctions motion. Recommended in Ocala, Florida on October 28, 2019. Footnotes [1] Within 14 days after being served with a copy of the recommended disposition, a party may file written objections to the Report and Recommendation’s factual findings and legal conclusions. See Fed. R. Civ. P. 72(b)(3); Fed. R. Crim. P. 59(b)(2); 28 U.S.C. § 636(b)(1)(B); Local Rule 6.02. A party’s failure to file written objections waives that party’s right to challenge on appeal any unobjected-to factual finding or legal conclusion the district judge adopts from the Report and Recommendation. See 11th Cir. R. 3-1. [2] As appropriate hereinafter for the sake of clarity and brevity, the Court will refer to the parties by last names or occasionally by first-name, for example, “Smith” and “Robinson,” or “Marcy” and “Cheryl.” [3] In Defendants’ response, they argue that some of the allegedly deleted documents found on Smith’s computer were actually moved to a protected location on the advice of counsel because they were privileged. (Doc. 63, p. 12). Even if accurate, that distinction has very little bearing on Rosado’s conclusions overall, and no bearing whatsoever on his conclusions about the data deleted from Robinson’s (decedent’s former) computer. Defendants’ argument in this regard fails to offer any meaningful rebuttal of the forensic expert’s affidavit and, notably, Defendants do not offer a counter expert of their own to dispute Rosado’s conclusions. [4] Some courts describe the inquiry as involving four (rather than three) preliminary questions, with the first being the threshold question of whether the evidence at issue is ESI. See, e.g., Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216, 2016 WL 1105297, at *4 (S.D. Fla. Mar. 22, 2016). In either case, the substance of the inquiry is the same. [5] Under the facts of this case, even an absence of information regarding Cheryl Betzer’s intentions to make changes to her estate plans could be relevant. Given that Cheryl had affirmatively designated Marcy as the beneficiary of sizeable assets in March of 2016, if her computer (in the 2,382 potentially relevant files identified as erased by the forensic expert) revealed no plans to change that designation in the interim, that lack of evidence could bolster Marcy Betzer’s theory of the case. [6] To clarify, no assertion has been made that counsel appearing in this case were in any way involved in the spoliation issues. The Court’s finding is specifically directed against Defendants and not any of their counsel.