*1 This cause came on for consideration without oral argument on the following motion:

I. INTRODUCTION.

In this latest installment of the parties’ ongoing discovery-related motions, Plaintiffs seek sanctions against Defendant Ross Albert and his counsel, Courtney Wilson.[1] Doc. No. 395. Plaintiffs claim that devices with critical ESI evidence are missing and Albert is responsible, Albert has concealed other relevant evidence, Albert and his counsel failed to submit two existing devices for forensic imaging, and that Albert has committed perjury. Id. Plaintiffs seek to have the Court strike Albert's answer, or alternatively heavily restrict his defenses. Id. at 6. Plaintiffs seek attorney's fees under Rule 37. Id.

II. BACKGROUND.

Albert was employed by Plaintiff Classic Soft Trim (“Classic”) until March 18, 2016 when he resigned to go work for Defendant Katzkin Leather, Inc. (“Katzkin”). Doc. Nos. 395 at 2; 104. Plaintiffs claim that, prior to leaving Classic, Albert breached his fiduciary duty and duty of loyalty by conspiring with Katzkin to take Classic's customers and employees with him when he left Classic. Doc. No. 104 at 20, 33, 69.

On August 22, 2017, Classic filed suit in state court against Albert, Classic Design Automotive, LLC (“CDA”), John Held, John Donellan, and Daniel Valencia.[2] Doc. No. 1-1. The action was removed to this Court on July 31, 2018. Doc. No. 1. On October 17, 2018, Plaintiffs’ counsel mailed a letter to Albert, Katzkin, and Defendant Clearlight Partners LLC (“Clearlight”)[3] requesting preservation of ESI evidence in anticipation of discovery in this case. Doc. No. 395 at 93.

On March 19, 2020, Plaintiffs served a Notice of Deposition on Albert that included a Rule 34 demand for production of documents (“Rule 34 Deposition Requests”). Doc. No. 302-1. On April 17, 2020, Plaintiffs served a separate Rule 34 request to produce (“Rule 34 Requests”) on Albert. Doc. No. 302-2. On August 18, 2020, the Court issued an order granting the motion to compel in part and directing Albert to comply with the discovery requests (the “ESI Search Order”).[4] Doc. No. 350 at 11.

*2 On May 22, 2020, Roadwire served another Rule 34 request for Albert to produce devices for forensic imaging including cell phones, laptops, and tablets.[5] Doc. No. 305-1 at 8-9. Albert did not respond to this request to produce. Doc. No. 305. On June 25, 2020, Plaintiffs filed a motion to compel against Albert. Id. On September 2, 2020, the Court granted the motion in part directing Albert to comply with the requests to produce but limiting the time period in request 2 to devices used by Albert from March 22, 2016 to January 1, 2018 (the “Forensic Search Order”). Doc. No. 366 at 6.

On November 2, 2020, Plaintiffs filed a Motion for Sanctions against Albert and his counsel, Courtney Wilson (the “Motion”).[6] Doc. No. 395. Plaintiffs argue that: 1) Albert destroyed a Motorola flip phone (the “Motorola”), a Nokia flip phone (the “Nokia”), an iPhone 6, and a Panasonic laptop after a duty to preserve evidence arose; 2) Albert concealed two cloud-based accounts – theeleatherman@icloud.com (the “theeleatherman iCloud account”) and classicdesignleather@gmail.com (the “classicdesignleather account”); 3) Albert failed to produce responsive emails from these accounts and theeleatherman@gmail.com (the “theeleatherman Gmail account”); and 4) Albert willfully withheld his iPhone 8, iPad, and access to his cloud-based Google and iCloud accounts in violation of the Forensic Search Order. Id. CST also argues that Albert has failed to retract perjury at his deposition.[7] Id. at 16.

*3 Plaintiffs argue that Albert's duty to preserve evidence began on March 18, 2016 when he received a cease and desist letter from Classic. Doc. No. 395 at 8. Plaintiffs provide a copy of a cease and desist letter which is dated March 18, 2016, but there is no indication if and when Albert received it. Doc. No. 395 at 29-32. Plaintiffs claim that Albert destroyed the Motorola on March 18, 2016, discarded the Panasonic laptop sometime toward the end of March 2016 or the beginning of April 2016, “lost” the Nokia in the latter half of 2018, and his iPhone 6 was destroyed. Doc. No. 395 at 10. Plaintiffs claim that the classicdesignleather account and “its numerous records and emails was fully responsive” to the ESI Search Order. Doc. No. 395 at 11, 12 (specifically referencing Requests 3, 4, and 5 from the Rule 34 Requests). Id. Plaintiffs claim that Albert stole and transmitted Classic's proprietary forms and customer lists to the classicdesignleather account through his theeleatherman Gmail account.[8] Id. at 12 (citing 41-51, 54, 134-40 (¶¶ 17-21). Plaintiffs claim the theeleatherman iCloud emails and account were “fully responsive” to the ESI Search Order. Doc. No. 395 at 13. Plaintiffs also claim that Albert's failure to provide the 24 stolen Classic customer orders demonstrates non-compliance.[9] Id. at 15.

Plaintiffs claim that Albert failed to turn over his iPhone 8, iPad, and access to backup ESI storage in his iCloud and Google accounts in violation of the Forensic Search Order. Doc. No. 395 at 5, 15. Plaintiffs then claim Albert has failed to recant perjury at his deposition. Doc. No. 395 at 16. Plaintiffs cite to excerpts from Albert's deposition. Id. at 16-17. Plaintiffs also offer what appears to be quoted material with no attribution and no source provided. Id. at 17. Plaintiffs claim that this, in addition to the contents of concealed email and text messages discovered on CDA's devices, warrants sanctions for perjury.[10] Id.

On November 16, 2020, Albert filed a response to the Motion (the “Response”). Doc. No. 409. Albert argues that litigation did not commence until late 2017, a preservation letter was sent in late 2018, and no ESI discovery was sought until 2020. Id. Therefore, Albert had no obligation to maintain the devices he no longer possesses. Id. Albert further argues that there is no evidence of bad faith in their loss, just ordinary negligence and routine upgrades of equipment. Id.

Albert states that he left the Motorola at the AT&T store on March 18, 2016 when he got the Nokia and iPhone 6, that he lost the Nokia in a rental car in the latter half of 2018, that he deleted all the Classic data on the Panasonic laptop and then discarded it in late March or early April 2016 when he was transitioning to Katzkin, and that he upgraded from the iPhone 6 to an iPhone 8. Doc. No. 409 at 2-4; see Doc. No. 395 at 100-31.

Albert argues he conducted the search required by the ESI Search Order. Doc. No. 409 at 2. Albert retained a forensic consultant, Kevin Foster, to assist him in searching all available ESI sources and producing responsive documents. Id. Albert provides the Declaration of Kevin Foster who conducted the search. Doc. No. 409-1.

Mr. Foster states that he searched Albert's Lenovo laptop (which was his work laptop), iPad, and iPhone 8 for existing and deleted documents (emails, text messages, and any other correspondence through January 1, 2018) in compliance with the ESI Search Order. Id. at 1. Mr. Foster also searched Albert's iCloud and Google accounts “collecting any documents under the same time period parameter.” Id. at 1, 3. Mr. Foster states that he personally backed up relevant data from the iPhone 8 and iPad to Albert's Lenovo laptop on August 24, 2020, including back-up folders, so that information was available during Mr. Chase's forensic search. Id. at 3-4; see Doc. No. 395 at 134-35. Mr. Foster states that Mr. Chase did not “identify any source of potentially relevant documents, that is currently available to Mr. Albert, that I did not search for ... in August 2020.” Doc. No. 409-1 at 4.

*4 Albert argues he did not violate the Forensic Search Order because it did not require access to his cloud-based accounts and because he did not possess the iPhone 8 or iPad during the relevant time period. Doc. No. 409. Albert argues that there is no evidence of perjury and that Plaintiffs have failed to provide any factual basis for their claim. Id.

II. APPLICABLE LAW.

Under Federal Rule of Civil Procedure 37(b)(2), the Court has several options for imposing sanctions upon “a party or a party's officer, director, or managing agent” for failing to obey a discovery order. Those sanctions include “striking pleadings in whole or in part” and “rendering a default judgment against the disobedient party ....” Fed. R. Civ. P. 37(b)(2)(A)(iii), (vi).

“[A] default judgment sanction requires a willful or bad faith failure to obey a discovery order.” Malautea v. Suzuki Motor Co., 987 F.2d 1536, 1542 (11th Cir. 1993). Negligence, a misunderstanding, or an inability to comply are not sufficient for a default under Rule 37. Id. “[T]he severe sanction of a dismissal or default judgment is appropriate only as a last resort, when less drastic sanctions would not ensure compliance with the court's orders.” Id.

“A finding of prejudice is an important component of a decision to sanction a party with dismissal or default.” Mitchel v. Vegassportsconsultants.com, No. 18-cv-61404, 2019 WL 3426038, at *4, 2019 U.S. Dist. LEXIS 144603, at *9 (S.D. Fla. May 23, 2019) (quoting Inmuno Vital, Inc. v. Telemundo Grp., Inc., 203 F.R.D. 561, 573 (S.D. Fla. 2001)). “Rule 37 sanctions are intended to prevent unfair prejudice to the litigants and insure the integrity of the discovery process.” Dearth v. Hartford Fire Ins. Co., No. 16-cv-1603, 2018 WL 6266508, at *2, 2018 U.S. Dist. LEXIS 228371, at *5 (M.D. Fla. Aug. 30, 2018) (quoting Gratton v. Great Am. Commc'ns, 178 F.3d 1373, 1374-75 (11th Cir. 1999)).

Spoliation is the intentional concealment, destruction, mutilation, or material alteration of evidence. Southeastern Mechanical Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1299 (M.D. Fla. 2009). Spoliation of ESI is addressed via Rule 37(e). ML Healthcare Servs., LLC v. Publix Super Mkts., Inc., 881 F.3d 1293, 1307 (11th Cir. 2018); Fed. R. Civ. P. 37(e). Federal Rule of Civil Procedure 37(e) provides that:

Fed. R. Civ. P. 37(e); see Wooden v. Barringer, No. 1:16-cv-378, 2017 WL 5140518 at *4, 2017 U.S. Dist. LEXIS 183170 at *10-11 (N.D. Fla. Nov. 6, 2017).

III. ANALYSIS.

Albert worked for Classic for sixteen years, up to Friday, March 18, 2016 when he resigned to go work for Katzkin. Doc. Nos. 104; 395 at 2. On the day he resigned, Albert was using the Motorola and Panasonic laptop. Doc. No. 395 at 104, 113. Albert indicates he wasn't much of a texter, preferring to use the telephone to communicate. Id. at 103, 109, 111. Also, at that time, he had a personal email account the theeleatherman Gmail account. Id. at 114

*5 After resigning from Classic earlier in the day, Albert went to the AT&T store to get new phones for his job with Katzkin. He purchased the Nokia and an iPhone 6. Id. at 103, 107, 109, 111, 112. He left the Motorola, which he said was obsolete and not working properly anyway, at the store. Id. at 103, 105, 106 He used the Nokia in part to transfer contacts from the Motorola. Id. at 108, 109. He deleted any Classic forms and proprietary information from his Panasonic laptop that weekend, and a few weeks later, in either late March or early April, Albert got rid of the Panasonic laptop when Katzkin sent him a new work computer. Id. at 113, 118-19. Albert lost the Nokia in the latter half of 2018, leaving it in a rental car. Id. at 107-08. At some point in 2018, Albert upgraded from the iPhone 6 to an iPhone 8, but he did not keep the iPhone 6. Id. at 10-11. He still has the iPhone 8, as well as an iPad, and a Lenovo laptop he received from Katzkin. Doc. No. 409-1.

To date, an ESI search has been conducted by Albert on the iPhone 8, the iPad, the Lenovo laptop and in his Google and iCloud accounts, including the theeleatherman Gmail account, the classicdesignleather account, and the theeleatherman iCloud account. Id. Plaintiffs have also completed a separate forensic search of the Lenovo laptop. Doc. No. 395 at 135.

Plaintiffs want Albert's work text messages from January 1, 2015 to January 1, 2017 from his phones. Doc. No. 395 at 11. During that time frame, Albert owned and used the Motorola, the Nokia, and the iPhone 6. Plaintiffs also want the ESI from Albert's Panasonic laptop. Id. Clearly, these devices are no longer available so Plaintiffs claim spoliation. Because the alleged spoliation involves ESI, Rule 37(e) applies. see Nationwide Life Ins. Co. v. Betzer, No. 5:18-cv-39, 2019 WL 5700288, at *6, 2019 U.S. Dist. LEXIS 194165, at *19 (M.D. Fla. Oct. 28, 2019).

In addressing the impact of the missing devices, the Court must first determine if the allegedly spoliated ESI was evidence that should have been preserved. Rule 37(e) does not apply when information is lost before a duty to preserve arises. see Ala. Aircraft Indus. v. Boeing Co., 319 F.R.D. 730, 740 (N.D. Ala. 2017). In the Eleventh Circuit, a duty to preserve evidence occurs when litigation is “pending or reasonably foreseeable.” Barton & Assocs. v. Liska, No. 9:19-cv-81023, 2020 WL 8299750 at *1, 2020 U.S. Dist. LEXIS 249174 at *2 (S.D. Fla. May 11, 2020) (citing Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 2009)). The earliest Albert could have known that litigation was reasonably foreseeable would have been when he received Classic's cease and desist letter.[11] Doc. No. 395. While the letter is dated March 18, 2016, it was addressed to Albert with no indication as to how it was delivered but it does appear to indicate Albert had already resigned. Doc. No. 395 at 29-32. Thus, Plaintiffs provide no evidence that Albert, an otherwise unsophisticated litigant, was aware that litigation was otherwise reasonably foreseeable until he was served with the original state court complaint, which was filed on August 22, 2017. Doc. No. 1 at 1. The Court finds that, on this basis, any duty to preserve only attached to the Nokia and the iPhone 6.

Next, the Court must determine if the allegedly spoliated ESI was lost because a party failed to take reasonable steps to preserve it. Albert testified at his deposition that there were no text messages on his Nokia, and that he used it only to transfer contact information. Doc. No. 395 at 107-08. Plaintiffs claim records from AT&T show text messages to and from 407-466-8294, the number used for both Albert's Motorola and the Nokia. Id. at 173-83. A review of those records reflect that all of the text messages predate Albert's ownership of the Nokia. Id. Thus, the Court finds there is no evidence that text messages existed on the Nokia in the first instance that were consequently “lost” when the Nokia went missing. Cf. Freidig v. Target Corp., 329 F.R.D. 199, 209 (W.D. Wis. 2018) (the loss of ESI that is inconsequential does not typically warrant relief).[12] However, there is evidence that text messages from the relevant time frame existed on the iPhone 6 and that Albert failed to preserve that device and its related ESI. Doc. No. 395 at 56-91; 134, 145, 147-48.

*6 The Court must then determine whether the allegedly spoliated ESI evidence can be restored or replaced through additional discovery. Rule 37(e) precludes any sanction or curative measure if the ESI can be restored or replaced through additional discovery. The Advisory Committee Notes to Rule 37(e) explain that loss from one source may be harmless when substitute information can be found elsewhere.

Plaintiffs can obtain any emails stored on the iPhone 6 from other sources; however, the same cannot be said about the text messages. Plaintiffs have Albert's cell phone records from AT&T which provide some important information (recipient/sender, time, date), but no content is available. Doc. No. 395 at 56-91; 134, 145, 147-48. Plaintiffs can obtain text messages from the other recipients/senders. In fact, Plaintiffs have obtained some of Albert's text messages in this manner. See, e.g., Doc. No. 395 at 39.

Unfortunately, there be as many as 3,000 text messages on the iPhone 6 and there is no indication all of them can be recovered, but there is also no indication what portion of them are work-related.[13] Id. at 140. The original data on Albert's iOS backup folder on his Lenovo laptop was deleted, likely when Albert connected his new iPhone 8 to it. Id. at 135, Doc. No. 409-1 at 3. The iPhone 8 or Albert's iCloud account may have text messages from the iPhone 6, but those were already searched. Doc. Nos. 395 at 140; 409-1 at 4. Given the steps already taken, it is unlikely that all of the relevant ESI on the iPhone 6 can be restored or replaced through additional discovery. see Sinclair v. Cambria Cty., No. 3:17-cv-149, 2018 WL 4689111 at *2, 2018 U.S. Dist. LEXIS 167010 at *5 (W.D. Penn. Sept. 28, 2018) (despite diligent effort counsel unable to obtain all missing emails). Thus, the Court finds that the iPhone 6 satisfies the preliminary requirements of Rule 37(e).

The next question is whether prejudice under subsection (e)(1), or an intent to deprive under subsection (e)(2) exists. Fed. R. Civ. P. 37. “[P]rejudice exists where documents that are relevant to a claim are unavailable and the moving party has come forward with a plausible, good faith suggestion as to what the evidence might have been.” Goldrich v. City of Jersey City, No. 15-885, 2018 WL 4492931, at *10 (D.N.J. July 25, 2018). “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.” Nationwide Life Ins. Co. v. Betzer, 2019 WL 5700288, at *10, 2019 U.S. Dist. LEXIS 194165, at *31.

The Court finds Plaintiffs have sufficiently demonstrated prejudice. Plaintiffs claim that text messages identified by Mr. Chase include text messages to car dealerships, John Held, and other Katzkin employees shortly after Albert left Classic. Doc. No. 395 at 10-11. The missing text messages would likely contain relevant information which would support Plaintiffs’ claims.[14] The Court would observe, however, that the scope of prejudice is somewhat limited as the available text messages at issue occurred beginning March 18, 2016, after Albert resigned. Further, Plaintiffs have been able to recover many work-related text messages from other sources and the usefulness of any more work-related text messages from the iPhone 6 may be limited. Additionally, searches have been conducted of Albert's available devices, his cloud-based accounts, and his Lenovo laptop. Doc. Nos. 395 at 135; 409-1. Thus, while there is some prejudice involved in the loss of the ESI from the iPhone 6, it is not as significant as if the iPhone had been in use the entire time.

*7 Based upon the record as a whole, particularly Albert's deposition testimony, and given his relative lack of sophistication as a litigant, the Court finds that there is no evidence of an intent to deprive or bad faith. Plaintiffs provide no evidence that Albert intentionally sought to deprive them of the iPhone's ESI, thus the Court finds that only subsection (e)(1) sanctions are appropriate under the circumstances. see Living Colors Enters. v. New Era Aquaculture Ltd., No. 14-cv-62216, 2016 WL 1105297 at *6-7, 2016 U.S. Dist. LEXIS 39113 at *21-22 (S.D. Fla. Mar. 22, 2016) (finding no evidence of intent to deprive considering the context of deletion of emails, routine practices, and sophistication of litigant).

Plaintiffs argue that Albert violated the Forensic Search Order when he failed to submit his iPhone 8, iPad, and cloud-based accounts for forensic imaging. Doc. No. 305-1 at 9. Neither Request 1 or 2 sought discovery from Albert's cloud-based accounts, they sought only Albert's personal devices and the Classic and Katzkin's devices and servers Albert used. Doc. No. 305-1. Thus, Albert had no obligation to provide access to his cloud-based accounts.

With respect to the available devices, Mr. Wilson advised Plaintiffs’ counsel that the Lenovo laptop was the only “relevant device” per the limited time frame pre-2018. Doc. No. 409 at 6. The time period was limited from March 22, 2016 to January 1, 2018 by the Court. Doc. No. 366.

Emails on the Lenovo from the theeleatherman Gmail account during the relevant time period have the signature line “Sent from my iPad.” Doc. No. 395 at 139. Thus, there is evidence that Albert used an iPad during the relevant time period. Plaintiffs also maintain that the work orders Albert took may have been sent from his iPad. Doc. No. 395 at 15. In his Response, Albert maintains that he did not possess the iPad and iPhone 8 before 2018. Doc. No. 409 at 12.

The Court finds Albert failed to comply with the Forensic Search Order when he failed to submit his iPad, based on Mr. Chase's observation that emails were sent from an iPad to his Katzkin account during the relevant time period. Doc. No. 395 at 139. However, there is no evidence Albert used his iPhone 8 before January 1, 2018. Thus, Plaintiffs cannot demonstrate Albert's failure to provide his iPhone 8 is a violation of the order.

Plaintiffs provide nothing more than conjecture and conclusory evidence to support their claim that a search of Albert's cloud-based accounts was not conducted and responsive emails were not disclosed. See Doc. No. 395 at 27, 41-51, 136-37. Albert's Lenovo laptop, iPhone 8, iPad, and cloud-based accounts were searched by an IT consultant and the results were provided to Plaintiffs. Doc. No. 409-1. The mere existence of the accounts, without more, does not demonstrate that responsive emails were withheld. Similarly, the absence of emails that prove Plaintiffs’ case does not demonstrate this either.[15] Accordingly, the Court finds Plaintiffs have failed to prove Albert violated the ESI Search Order.

*8 Plaintiffs’ counsel attempted to impeach Albert at his deposition with the recording of a phone call between Albert and Aaron Forrister. Doc. No. 395 at 127. The excerpt from Albert's deposition is woefully insufficient to support Plaintiffs’ claim that this constitutes perjury that requires sanctions. Doc. No. 395 at 16-17. Plaintiffs other generalized allegations provide no additional support of perjury necessitating sanctions. Thus, the Court declines to award sanctions on this basis.

Based on the foregoing, the Court finds that the appropriate measure, no greater than necessary to cure the prejudice Plaintiffs’ suffered, is to allow Plaintiffs to introduce evidence concerning the loss of the iPhone 6, and consequently the loss of Albert's remaining work text messages. See Rule 37(e). Albert will also be ordered to pay Classic's attorney's fees for this Motion.

With respect to the iPad, Albert will be required to provide his iPad for imaging in compliance with the Forensic Search Order on or before February 16, 2021. Failure to comply with this Court's order may result in additional sanctions up to and including entry of default. Attorney's fees are also awarded against Albert pursuant to Rule 37(b)(2)(C).

Accordingly, it is ORDERED that the Motion for Sanctions (Doc. No. 395) is GRANTED in part and DENIED in part as follows:

DONE in Orlando, Florida on February 10, 2021.