*1 This is a putative class action brought by Plaintiff Ronald Chinitz against Defendant Intero Real Estate Services (“Intero”) for allegedly making unlawful calls to Plaintiff's residential telephone lines in violation of the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. (“TCPA”) and Plaintiff's privacy rights. Compl. ¶ 1, ECF 1. Before the Court is a motion filed by Plaintiff for an order imposing adverse inference jury instructions and monetary sanctions pursuant to the Court's inherent authority and Federal Rule of Civil Procedure 37. See Notice of Mot. 1, ECF 81. Intero opposes this motion. See Opp. to Mot. (“Opp.”), ECF 88. The Court held a hearing on this motion on April 23, 2020. For the reasons stated on the record and below, the Court GRANTS IN PART and DENIES IN PART the motion.

I. BACKGROUND

On March 5, 2019, Plaintiff served Intero with its First Set of Requests for Production of Documents (“RFPs”). Decl. of Sabita J. Soneji (“Soneji Decl.”) ¶ 4, ECF 81-1; see Soneji Decl., Ex. 1, First Set of RFPs, ECF 81-2. Four requests within that First Set of RFPs are relevant to this motion: (1) RFP No. 5 requesting “ANY and ALL DOCUMENTS from September 13, 2014 to present CONCERNING training of personnel pursuant to 47 CFR § 64.1200(c)(2)(i)(B)”; (2) RFP No. 8 requesting “ANY and ALL DOCUMENTS CONCERNING training of personnel from September 13, 2014 to present pursuant to CFR § 64.1200(d)(2)”; (3) RFP No. 10 requesting “ANY and ALL DOCUMENTS CONCERNING any person found to be out of compliance with any provision of the Telephone Consumer Protection Act from September 13, 2014 to present”; and (4) RFP No. 17 requesting “ALL non-privileged internal emails containing instructions to YOUR REAL ESTATE AGENTS not to dial any telephone number on the National Do Not Call Registry.” First Set of RFPs, at 7-8.

On April 8, 2019, Intero responded to Plaintiff's First Set of RFPs. Soneji Decl. ¶ 5; see Soneji Decl., Ex 2, Def.'s Response to First Set of RFPs (“Response to First RFPs”), ECF 81-2. In response to RFPs No. 5 and 8, Intero responded that it “does not have any documents in its possession, custody, or control that are responsive to this request.” Response to First RFPs, at 4-5. Intero objected to RFP No. 10 as being overbroad, vague, and ambiguous; however, Intero stated it would “produce all non-privileged documents in its possession, custody and control concerning complaints by Plaintiff, as alleged in the Complaint, and what was done in response thereto.” Response to First RFPs, at 5. Intero additionally stated that it was not aware of any other instance where a person associated with Intero was accused of violating the TCPA. Response to First RFPs, at 5. Intero also objected to RFP No. 17 because it was vague and ambiguous; however, Intero stated it would “produce all documents in its possession, custody, or control instructing real estate salespersons and brokers not to call specified telephone numbers represented to be on the National Do Not Call Registry.” Response to First RFPs, at 8. Intero did not produce any documents in response to RFP No. 10, and it produced only one document in response to RFP No. 17. Soneji Decl. ¶ 26.

*2 In or about October 2019, Plaintiff's counsel discovered a platform on Facebook entitled “Intero Live.” Soneji Decl. ¶ 7. As of early November 2019, Intero Live had 152 training videos, and these videos were accompanied by posts containing, among other things, reviews, video descriptions, and information regarding the number of views, shares, likes, and comments. Soneji Decl. ¶¶ 7-8. On or October 7, 2019, Plaintiff served Intero with its Second Set of RFPs. Soneji Decl. ¶ 11; see Soneji Decl., Ex. 4, Second Set of RFPs, ECF 81-2. The Second Set of RFPs requested, among other things, documents, call scripts, and other training materials used by Intero. Second Set of RFPs, at 7-8. On November 12, 2019, Intero responded to the Second Set of RFPs and produced responsive documents. Decl. of Margaret T. Cardasis (“Cardasis Decl.”) ¶ 9, ECF 88-4. Intero's production included seven additional emails in which Intero's in-house attorneys, managers, or executives sent mass emails to the company or offices containing instructions not to call specific people or numbers, or general instructions regarding restrictions on calling. Cardasis Decl. ¶ 9.

On November 15, 2019, Intero's counsel advised Plaintiff's counsel that Intero made its Facebook page private and that it had removed four videos that featured Dominic Nicoli (the “TCPA Videos”). Cardasis Decl. ¶ 12. Two other videos appeared to have been removed from Intero Live as well. Soneji Decl. ¶ 22. Intero's counsel stated that it preserved the TCPA videos and that it would produce these videos. Cardasis Decl. ¶ 12. Intero's production included 147 of the Facebook videos but did not include all of the Facebook posts that accompanied the videos. Soneji Decl. ¶¶ 21-22.

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 37(e), a court may sanction a party “[i]f 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.” Fed. R. Civ. P. 37(e). If these criteria are met, and a court “find[s] prejudice to another party from the loss of the information,” a court “may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). If, however, a court “find[s] that the party acted with the intent to deprive another party of the information's use in the litigation,” then a court “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.” Fed. R. Civ. P. 37(e)(2).

For a finding of prejudice under Rule 37(e)(1), “[t]he Court has discretion to determine whether the loss of the information is prejudicial; neither party carries a burden of proving or disproving prejudice.” Ramirez v. Zimmerman, No. 17-CV-1230-BAS-AHG, 2020 WL 905603, at *2 (S.D. Cal. Feb. 25, 2020). “[W]hether the loss of the information was prejudicial depends in part on the importance of the information to the case.” Id. A party moving for spoliation sanctions under Rule 37(e)(2) has “the burden of establishing spoliation by demonstrating that [the non-moving party] destroyed documents and had some notice that the documents were potentially relevant to the litigation before they were destroyed.” Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 766 (9th Cir. 2015) (internal quotation marks omitted); accord Ramirez, 2020 WL 905603, at *2.

III. DISCUSSION

Plaintiff asks the Court to issue adverse inference jury instructions and award monetary sanctions based on Intero's actions as to (1) the Facebook videos and related posts, and (2) the potentially responsive emails. The Court addresses each category of discovery in turn.

A. Facebook Videos and Posts

Plaintiff argues that Intero concealed and intentionally deleted the four TCPA videos and posts, along with the two additional Facebook videos (collectively, the “Facebook Videos and Posts”), see Mot. 5, and therefore adverse inference jury instructions and monetary sanctions “are warranted under either Rule 37(e)(2) or this [C]ourt's inherent authority” because Intero's actions were during active litigation. Mot. 3-7, 10; Reply in Supp. of Mot. (“Reply”) 1-4, ECF 90. Specifically, Plaintiff argues that Intero should have produced the Facebook Videos and Posts after Plaintiff served Intero with the First Set of RFPs. Mot. 3-4. While Plaintiff has five of these six videos, Plaintiff argues that Intero's spoliation prejudiced him because he does not have the full record of Facebook posts for these videos. Mot. 4-5. For example, Plaintiff argues that Intero's spoliation prevents him from relying on comments that were posted to the TCPA Videos. Mot. 5. Because the Facebook Videos and Posts were deleted after Intero was aware of its duty to preserve evidence, Plaintiff also argues that Intero intentionally deprived Plaintiff of this evidence. Mot. 6-7. Plaintiff further argues that he is prejudiced by Intero's actions because Intero “destroyed evidence of Intero's ongoing interactions with and promotion of the TCPA Videos, including by its executives, managers, and agents.” Mot. 7.

*3 Intero, on the other hand, argues that Plaintiff has admitted that he is in possession of the six videos and that he took screenshots of the Facebook comments and likes for at least one of the videos, so the electronically-stored information (“ESI”) at issue cannot be considered “lost.” Opp. 6. In addition, Intero argues that ESI can only be lost if it cannot be restored or replaced through additional discovery and Plaintiff has not tried to obtain the posts through additional discovery from Facebook or Intero's managers and executives that commented on the Facebook page. Opp. 7. Moreover, Intero argues that Plaintiff has not been prejudiced by Intero removing the videos from its Facebook page because Plaintiff's counsel had access to the Facebook posts for weeks, used them to prepare for depositions, and used them during depositions. Opp. 6-7. Intero argues that it provided the Facebook page as soon as Plaintiff claimed that it was responsive. Opp. 7. Furthermore, Intero argues that Plaintiff has not shown that Intero intended to deprive Plaintiff of the Facebook Videos and Posts. Opp. 7-8. Intero argues that it removed the videos because the statements were inconsistent with company policy. Opp. 7. Intero argued that it preserved and produced the videos, and it did not know that the associated posts would be removed from the Facebook page when it made the page private. Opp. 8.

“Before determining the appropriate sanctions, Rule 37(e) requires the Court to assess the following four criteria: (1) whether the information qualifies as [ESI]; (2) whether the ESI is ‘lost’ and ‘cannot be restored or replaced through additional discovery’; (3) whether the ESI ‘should have been preserved in the anticipation or conduct of litigation’; and (4) whether the responding party failed to take reasonable steps to preserve the ESI.” Colonies Partners, L.P. v. Cty. of San Bernardino, No. 518CV00420JGBSHK, 2020 WL 1496444, at *2 (C.D. Cal. Feb. 27, 2020), report and recommendation adopted, No. 518CV00420JGBSHK, 2020 WL 1491339 (C.D. Cal. Mar. 27, 2020) (quoting Fed. R. Civ. P. 37(e)).

Here, Plaintiff has failed to meet the requirements of Rule 37(e). The Facebook videos and posts qualify as ESI, and Intero clearly failed to take reasonable steps to preserve the ESI because it removed the Facebook Videos and Posts from its Facebook page during the middle of litigation. Moreover, because the parties were in active litigation and – while not overwhelmingly clear – the First Set of RFPs was plausibly broad enough to include the contents of the Facebook page, the Facebook Videos and Posts should have been preserved. Plaintiff, however, has failed to show that the Facebook Videos and Posts have been “lost.” That is, Plaintiff has not shown that the missing video and posts “cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). Indeed, there is no evidence in the record that Plaintiff tried to obtain the Facebook Videos and Posts from Facebook directly through additional discovery.

Additionally, even assuming Plaintiff has satisfied the criteria of Rule 37(e), the Court is not satisfied that Intero's actions warrant the quite extraordinary relief Plaintiff requests under Rule 37(e)(2) – i.e., mandatory adverse inference instructions. See Mot. 7 (“Plaintiff respectfully suggests the following adverse inference jury instructions are warranted under either Rule 37(e)(2) or this court's inherent authority.”). Under Rule 37(e)(2), the Court may impose adverse inference jury instructions if the Court finds “[Intero] acted with the intent to deprive [Plaintiff] of the information's use in the litigation.” Fed. R. Civ. P. 37(e)(2). Given the unusual circumstances of this case that the posts reside only on the Facebook pages themselves, the Court is not persuaded that Plaintiff has put forth any evidence that Intero intended to destroy the Facebook Videos and Posts and deprive Plaintiff of their use. Indeed, Intero has put forth evidence that it only intended to remove the Facebook Videos and Posts from its public page and it did not know that the posts would not be preserved when it did so. See Decl. of John A. Thompson (“Thompson Decl.”) ¶ 8 (“At the time, I was not aware of any risk that any data associated with the videos might be lost.”). Thus, even assuming the Rule 37(e) criteria is met, Plaintiff has not shown that Intero intended to destroy any evidence to prevent Plaintiffs from using it in litigation to warrant the requested adverse inference instructions.

*4 In addition, Plaintiff argues that the Court has the inherent authority to impose these adverse inference instructions. Courts have “the inherent power ... to levy sanctions in response to abusive litigation practices.” Leon v. IDX Sys. Corp., 464 F.3d 951, 958 (9th Cir. 2006). Where, however, “the evidence in question consists of electronically-stored information,” as is the case here, “FRCP 37(e), not inherent authority, supplies the controlling legal standard.” Waymo LLC v. Uber Techs., Inc., No. C 17-00939 WHA, 2018 WL 646701, at *14 (N.D. Cal. Jan. 30, 2018); accord Newberry v. Cty. of San Bernardino, 750 F. App'x 534, 537 (9th Cir. 2018); see Fed. R. Civ. P. 37(e) Advisory Committee's Note to 2015 Amendment (stating that Rule 37(e) “authorizes and specifies measures a court may employ if [electronically stored] information that should have been preserved is lost, and specifies the findings necessary to justify these measures. It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used”). The Court, therefore, does not have the inherent authority to impose adverse inference instructions because the evidence in question – i.e., the Facebook Videos and Posts – consists of ESI.

Accordingly, the Court DENIES Plaintiff's motion for adverse inference jury instructions. However, because Intero admittedly removed the Facebook Videos and Posts, the Court GRANTS Plaintiff's motion as to monetary sanctions and Intero SHALL bear the reasonable costs of subpoenaing Facebook for the Facebook Videos and Posts that Plaintiff identified as potentially material to the litigation. The parties SHALL meet and confer to determine the scope of the subpoena and Intero SHALL support Plaintiff in his efforts to obtain the video and posts from Facebook.

B. Emails

Next, Plaintiff argues that monetary sanctions and adverse inference jury instructions are required to remedy the fact that “Intero ... concealed or failed to preserve materially relevant emails responsive to Plaintiff's First Set of RFPs.” Mot. 8. Plaintiff argues that Intero's employees testified to the existence of responsive emails, including between 4 and 24 such emails sent in the past year alone. Mot. 8. Plaintiff argues that Intero nevertheless only produced three emails (one initially and two after Plaintiff's counsel informed Intero that its production was deficient), and Plaintiff argues that Intero only stated the emails did not exist and never asserted any grounds for withholding the emails. Mot. 8-9. Because Intero's preservation policies require it to permanently retain all legal-related correspondence and these emails should have been preserved no later than September 2018 when the Complaint was filed, Plaintiff concludes that Intero is either concealing the responsive emails or deleted them in violation of its own policy. Mot. 9. Plaintiff argues that in either case the Court should issue adverse inference jury instructions under Rule 37. Mot. 9-10. Finally, Plaintiff argues that Intero acted willfully and in bad faith because at least some of the emails were concealed or deleted after Intero's preservation obligations attached. Mot. 10.

Intero argues that sanctions are not warranted as to the emails. Opp. 9. Intero argues that it does not have a policy or automated process for deleting emails from its systems, and it argues that it does not follow, nor is it required to follow, the email deletion and retention policy of HomeServices of America, Inc., which is cited by Plaintiff's counsel. Opp. 9. Intero argues that it produced nine emails related to Plaintiff's request, and “[t]here is nothing more to produce.” Opp. 9. Additionally, Intero argues that Plaintiff has not established that the emails are lost; indeed, Intero notes that Plaintiff has subpoenas pending with four Intero sales associates seeking the emails that Intero allegedly did not produce. Opp. 10. Furthermore, Intero argues that Plaintiff has not established prejudice because Intero has admitted that it has a policy that sales associates should not call numbers on the National Do Not Call Registry or Intero's internal list, so purportedly missing emails instructing sales associates of this policy does not prejudice Plaintiff. Opp. 10. Lastly, Intero argues that Plaintiff has not established that Intero intended to deprive Plaintiff of any responsive emails because Intero conducted diligent searches and produced responsive documents. Opp. 10. Intero notes that it is telling that Plaintiff never moved to compel. Opp. 10.

*5 As stated above, before the Court determines appropriate sanctions, it must assess the Rule 37(e) criteria. See Colonies Partners, 2020 WL 1496444, at *2. Here, the Court is not satisfied that the emails have been “lost” such that they “cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). In fact, Plaintiff issued subpoenas to four Intero sales associates seeking the same emails that Plaintiff claims that Intero has not produced. Cardasis Decl. ¶ 19. Because the allegedly responsive emails may be produced in response to these subpoenas, the emails cannot be said at this time to be lost under Rule 37(e).

Accordingly, the Court DENIES Plaintiff's motion for adverse inference jury instructions and monetary sanctions as to the emails. The Court finds that this issue is more of a discovery dispute and the proper course of action is for Plaintiff to see the fruits of these subpoenas. If the emails are not forthcoming, the next step may be for an outside company to conduct a search of Intero's servers to find and restore the emails, if any exist. The Court cannot determine who will bear those costs until the Court knows what is produced in response to the outstanding subpoenas to the sales associates and the expense of hiring an outside company to search Intero's servers.

IV. CONCLUSION

For the reasons stated above, the Court DENIES Plaintiffs' motion for adverse inference jury instructions as to the Facebook Videos and Posts and emails, DENIES Plaintiff's motion for monetary sanctions as to the emails, and GRANTS Plaintiff's motion for monetary sanctions as to the Facebook Videos and Posts. Intero SHALL bear the reasonable costs of subpoenaing Facebook for the Facebook Videos and Posts. The parties SHALL meet and confer within two weeks of the date of this Order to determine the scope of the subpoena and Intero SHALL support Plaintiff in his efforts to obtain the video and posts from Facebook.

IT IS SO ORDERED.