Laub v. Horbaczewski
Laub v. Horbaczewski
2020 WL 9066078 (C.D. Cal. 2020)
July 22, 2020
Stevenson, Karen L., United States Magistrate Judge
Summary
The court found that the plaintiff had a duty to preserve ESI concerning the Drone Racing League (DRL) no later than January 2016, but failed to do so. The court denied the defendants' request for preclusion sanctions but granted their request for monetary sanctions to reimburse them for the costs associated with the plaintiff's spoliation. The court ordered the plaintiff to pay $1,200 to the defendants and allowed the defendants to file a request for reasonable attorney's fees and expenses.
Additional Decisions
Justice Laub
v.
Nicholas Horbaczewski et al
v.
Nicholas Horbaczewski et al
Case No. CV 17-6210-JAK (KS)
United States District Court, C.D. California
Filed July 22, 2020
Counsel
Patrick M. Ryan, Stephen C. Steinberg, Chad DeVeaux, Gabriella A. Wilkins, Joseph John Fraresso, Bartko Zankel Bunzel and Miller APC, San Francisco CA, for Justice Laub.Kenneth A. Kuwayti, Morrison and Foerster LLP, Paolo Alto CA, Nicholas Rylan Fung, Los Angeles CA, Andrew Ditchfield, Brian M. Burnovski, Peter M. Bozzo, Pro Hac Vice, Davis Polk and Wardwell LLP, New York, for Nicholas Horbaczewski.
Stevenson, Karen L., United States Magistrate Judge
Proceedings: (IN CHAMBERS) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SPOILATION SANCTIONS (Dkt. Nos. 454, 456)
*1 On July 10, 2017, Justice Laub (“Laub” or “Plaintiff Laub”) brought this action against Nicholas Horbaczewski (“Defendant Horbaczewski”) and Drone Racing League, Inc. (“DRL” or “the Company”) (collectively, “Defendants”) in the Los Angeles Superior Court. (Dkt. No. 1-1.) Defendants removed the action to federal court. (Dkt. No. 1.) Plaintiff subsequently filed an amended complaint and added Daniel Kanes as a plaintiff (“Kanes” or “Plaintiff Kanes”). (Dkt. No. 13.) On July 19, 2018, Plaintiffs filed the operative complaint (the “Complaint” or “TAC”), which asserts, inter alia, a number of contract claims against both Defendants. (Dkt. No. 62.) The claims and allegations of the TAC are detailed in prior discovery orders. (See, e.g., Dkt. Nos. 141, 187.)
During discovery, Plaintiffs failed to produce a single text message exchanged solely between themselves or between Plaintiff Kanes and his brother, Aaron Kanes. (Dkt. No. 454-2 (“Burnovski Decl.”), ¶ 3.) Plaintiffs' counsel informed Defendants' counsel in January 2019 that Plaintiffs had replaced their phones before the litigation began and did not preserve the messages requested and, therefore, could not produce them. (Burnovski Decl., ¶ 5.) In February 2019, Defendants filed a Motion to Compel Production of Plaintiffs' Text Messages. (Dkt. No. 152.) On April 30, 2019, following briefing on the Motion to Compel and oral argument, United States Magistrate Judge Karen L. Stevenson ordered Plaintiffs to: search for, and produce, all responsive text messages between Laub and Kanes and between Kanes and Aaron Kanes for the period January 2015 through March 2016; contact their cell phone providers on or before May 15, 2019 to learn what text messages might be recoverable; and provide a signed affidavit outlining the search protocol used to locate additional responsive text messages. (Dkt. No. 212.)
On August 13, 2019, Plaintiff Kanes produced nearly 1,000 responsive text messages, none of which had been produced during discovery. (Burnovski Decl., ¶ 6.) Several months later, in December 2019, Plaintiff Kanes produced more than 200 additional responsive texts. (Burnovski Decl., ¶ 9.) However, text messages from key periods relevant to the litigation were missing. (Burnovski Decl., ¶¶ 7, 10.) The Court subsequently authorized a limited forensic examination of data extracted from an October 2018 backup of Plaintiff Kanes' old iPhone 6S Plus. (Dkt. No. 450 at 15, 17.)
Plaintiff Laub did not produce any text messages in response to the Court's April 30, 2019 Order. (Motion, Burnovski Decl., ¶ 10.) Instead, Plaintiff Laub submitted a Declaration of Compliance, in which he stated the following under penalty of perjury: he acquired his current iPhone in January 2017, about six months before he filed this case; a search of both his current phone and iCloud backups revealed no text messages that met the Court's parameters; and his cell phone provider, Verizon Wireless, informed him that it had no way of recovering text messages that met the Court's parameters. (See Dkt. No. 454-11; Burnovski Decl., Ex. I.)
*2 On April 20, 2020, after receiving leave from the Court to file a motion for spoliation sanctions (Dkt. No. 448 at 65), Defendants filed the instant Motion for Spoliation Sanctions against Plaintiff Laub (the “Motion”). (Dkt. No. 454, 456.) The crux of Defendants' argument is that Plaintiff Laub failed to take any steps to preserve text messages that he exchanged with third parties about DRL, and, at the time those messages were destroyed, he had a duty to preserve all relevant evidence. (See Motion at 1.) Defendants attached to the Motion numerous exhibits including Declarations from Brian M. Burnovski, Defendants' counsel, and Michael Kunkel, Director of Investigative Services of Setec Security Technologies, Inc. (Dkt. Nos. 454-2, 454-16.) On May 20, 2020, Plaintiffs filed an Opposition to the Motion (Dkt. No. 461) and attached Declarations from Chad E. Deveaux (Dkt. No. 461-1), Plaintiffs' counsel, and Plaintiff Laub (Dkt. No. 461-5), as well as Plaintiffs' Objection to the Kunkel Declaration (Dkt. No. 461-8).[1] On June 10, 2020, Defendants filed a Reply (Dkt. No. 466) with additional declarations from Burnovski and Kunkel (Dkt. Nos. 466-1, 466-6).
On June 24, 2020, the Court heard oral argument on the matter (Dkt. No. 474), and the Motion is now fully briefed and ready for decision.
APPLICABLE LAW
Spoliation sanctions based on a failure to preserve electronically stored information are governed by Rule 37(e) of the Federal Rules of Civil Procedure, which states: “If electronically stored information that should have been preserved in 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.
FED. R. CIV. P. 37(e).
Thus, a movant must satisfy four threshold requirements to establish that spoliation governed by Rule 37(e) occurred: (1) the information at issue constitutes electronically stored information (“ESI”); (2) ESI was lost and “cannot be restored or replaced through additional discovery”; (3) the loss was due to the responding party's failure to take reasonable steps to preserve the ESI; and (4) the responding party was under a duty to preserve the ESI. Gaina v. Northridge Hospital Medical Center, No. CV 18-177-DMG (RAOx), 2019 WL 1751825, at *2 (C.D. Cal. Feb. 25, 2019). Here, there is no dispute with respect to the first requirement that Plaintiff Laub's text messages constitute ESI. (See Motion at 10; see generally Opposition at 15-31.) Accordingly, the Court's initial focus is on whether Plaintiff Laub's text messages with third parties about DRL were lost and cannot be restored or replaced through, inter alia, additional discovery. See FED. R. CIV. P. 37 advisory committee note to 2015 amendment.
*3 The standard of proof for spoliation motions in the Ninth Circuit is the preponderance of the evidence. OmniGen Research v. Yongqiang Wangi, 321 F.R.D. 367, 372 (D. Or. 2017) (internal quotation marks and citation omitted). “[O]nce spoliation is shown, the burden of proof shifts to the guilty party to show that no prejudice resulted from the spoliation.” Id.
Where spoliation and prejudice is established, Rule 37(e)(1) authorizes courts to impose measures “no greater than necessary” to cure the prejudice due to the loss of the electronically stored information. If the moving party establishes that the party guilty of spoliation acted with the intent to deprive the moving party of the lost information's use in litigation, courts may infer that the lost information was favorable to the opposing party in the litigation. See FED. R. CIV. P. 37 advisory committee note to 2015 amendment. However, neither negligence, nor even gross negligence, is insufficient to satisfy Rule 37(2)'s intent requirement. FED. R. CIV. P. 37 advisory committee note to 2015 amendment. Consequently, “very severe” measures, such as adverse inference instructions, should not be used in the absence of a finding of intent. FED. R. CIV. P. 37 advisory committee note to 2015 amendment.
DISCUSSION
I. ESI Was Lost And Cannot Be Restored or Replaced
As stated above, there is no dispute that Plaintiff Laub's text messages qualify as electronically stored information (“ESI”), and, therefore, the first requirement of Rule 37(e) is satisfied. The Court therefore begins its analysis with whether ESI was lost and cannot be restored or replaced. See FED. R. CIV. P. 37 advisory committee note to 2015 amendment. The moving party must show by competent evidence that the ESI sought was lost, or, at least, “that categories of irreplaceable, relevant documents were likely lost.” Colonies Partners L.P. v. County of San Bernardino, No. 518CV00420JGBSHK, 2020 WL 1496444, at *5 (C.D. Cal. Feb 27, 2020) (emphasis added) (citing Oracle Am. Inc. v. Hewlett Packard Enterprise Co., 328 F.R.D. 543, 553 (N.D. Cal. 2018)), report and recommendation adopted, 2020 WL 1491339 (C.D. Cal. Mar. 27, 2020).
The record shows that, in or around January 2017, Plaintiff Laub got rid of the iPhone that he had used during a period of time that is critical to the current litigation and prior to the initiation of this action in July 2017. (Laub Decl., ¶ 2.) When he got rid of his iPhone, Plaintiff Laub had no back up of the text messages stored on that phone. (Burnovski Decl., Ex. J, ¶ 6; see Laub Decl., ¶¶ 5-6.)
Plaintiffs argue that “it is pure speculation” that, had Plaintiff Laub retained his iPhone or backed it up before getting rid of it, he would have retained text messages beyond those that have been obtained from other sources. (See Opposition at 15.) Defendants respond that Plaintiff Laub sent Plaintiff Kanes screenshots of messages he had received in which third parties asked Plaintiff Laub about the DRL or his role in the Company, and Plaintiff Laub told Plaintiff Kanes that these were examples of “many” similar messages he had received. (Motion at 8 (citing Burnovski Decl., Ex. H at line 69).) According to Defendants, these texts and screenshots show that Plaintiff Laub “clearly communicated with third parties about DRL” (Reply at 5), and some unidentified portion of those messages were lost.
*4 Defendants describe the missing texts as “a treasure trove of statements that contradict Plaintiffs' claims” and base this inference on Plaintiff Laub's email to a friend on August 12, 2015, about which Defendants deposed Plaintiff, and his April 2016 response to a FaceBook Messenger message from a third party. (Reply at 11; see also Burnovski Decl., Ex. M (August 2015 email thread), H at lines 74-75 (FaceBook Messenger thread from April 2016).) Plaintiffs also produced a screenshot that Plaintiff Laub sent to Plaintiff Kanes of a similar text message inquiry that he, Plaintiff Laub, received in January 2016 (Burnovski Decl., Ex. H at line 71) but did not produce the full thread of any resulting conversation between Plaintiff Laub and the inquiring individual (see generally id.).
The Court agrees with Defendants that Plaintiff Laub's destruction of his iPhone, without first backing up the information on it, likely resulted in the loss of ESI—namely, text conversations between Plaintiff Laub and third parties—and those conversations cannot now be restored or replaced. See Colonies Partners L.P., 2020 WL 1496444, at *5. The Court bases this conclusion on the following facts: Plaintiff Laub was a prolific texter; Plaintiff Laub received numerous inquiries about DRL from third parties (Laub Decl., ¶ 13), including some by text (Burnovski Decl., Ex. H at line 71); although Plaintiff Laub does not specifically remember whether or not he responded to any or all of these third party inquiries (Laub Decl., ¶ 13), he did respond to at least two of the inquiries (Burnovski Decl., Ex. M, H at lines 74-75); and, finally, his responses to those inquiries are relevant to the defense (see id.).
II. The Loss of the ESI Was Due to Plaintiff Laub's Failure to Take Reasonable Steps to Preserve the ESI
Defendants observe that Plaintiff Laub “did not take any steps—let alone reasonable steps—to preserve his text messages with third parties regarding DRL.” (Motion at 12.) Defendants point out that he never backed up his text messages, purportedly never altered the auto-delete function on his phone, and only preserved a few text messages that he believed would be helpful to his claim. (Motion at 12-13.) Plaintiffs contend that it was reasonable for Plaintiff Laub to get a new phone and not change his iCloud settings in January 2017 given his lack of experience with litigation and forensic discovery. (Opposition at 15-16.)
In assessing the reasonableness of a responding party's efforts to preserve ESI, courts “should be sensitive to the party's sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation.” See FED. R. CIV. P. 37 advisory committee note to 2015 amendment (emphasis added). Specifically, the advisory committee pointed out that courts should be sensitive to party resources: “aggressive preservation efforts can be extremely costly, and parties ... may have limited staff and resources.” Id. These concerns are not relevant here, however, where Plaintiff Laub demonstrated the capacity to preserve ESI when he had a desire to do so. Specifically, he took screenshots of text messages he believed would be favorable to his case and saved them in his photos or forwarded them to Plaintiff Kanes. There were other easy and free methods of preserving his text messages about DRL available to Plaintiff Laub as well, but he did not take advantage of them.
Clearly, then, there were reasonable steps available to Plaintiff Laub to preserve the ESI at issue, and he chose not to take them. He chose not to send to Plaintiff Kanes or save to his iCloud screenshots of all of his text threads with third parties about DRL. He similarly chose not to backup his text messages that were stored on his iPhone. Instead, he chose to only preserve those messages and text threads that he believed could support his position in future litigation about DRL. Accordingly, although Plaintiff Laub is an individual litigant with limited sophistication and resources in terms of ESI preservation, the record shows that he could have taken reasonable steps to preserve the ESI at issue, he chose not to, and, as a result, this ESI is now lost.
III. Plaintiff Laub Was Under a Duty to Preserve the ESI
*5 The fourth prong of the analysis considers whether, at the time the ESI was lost, Plaintiff Laub was under a duty to preserve the ESI. In considering the 2015 amendments to Fed. R. Civ. P. 37, the advisory committee clarified that, in determining whether and when a duty to preserve arose, courts should consider “the extent to which a party was on notice that litigation was likely and that the information would be relevant.” See FED. R. CIV. P. 37 advisory committee note to 2015 amendment.
Defendants contend that Plaintiff Laub's duty to preserve evidence arose more than a year before he recycled his phone in January 2017. (Motion at 13.) Citing the advisory committee's notes to the 2015 amendment, they observe that Plaintiff Laub's duty to preserve arose “as soon as litigation [was] ‘reasonably foreseeable’ ” (Motion at 13 (quoting FED. R. CIV. P. 37 advisory committee note to 2015 amendment)), and, more specifically, as soon as a potential claim was identified (id. at 13-14 (quoting Blumenthal Distrib. Inc. v. Herman Miller Inc., No. ED CV 14-1926-JAK (SPx), 2016 WL 6609208, at *10 (C.D. Cal. Jul. 12, 2016)). Defendants emphasize that, as a plaintiff in this action, and, indeed the plaintiff who filed the initial lawsuit in state court, Plaintiff Laub anticipated this litigation well before the complaint was filed in state court. (See Motion at 14.) Defendants also observe that Plaintiff Laub began searching for, compiling, and preserving evidence for a claim against Defendants in May 2015, including saving texts that he thought would be “important.” (Motion at 14) (citing Burnovski Decl., Ex. H, Ex. A at 454:20-455:4).)
Plaintiffs also withheld notes taken by counsel on June 22, 2015 on the grounds that the notes were prepared in anticipation of litigation and, therefore, protected under the work product doctrine. (Motion at 14-15.) In August 2015, Plaintiffs explicitly discussed suing Defendant Horbaczewski, and, in January 2016, their communications reflected a shared intent to sue accompanied by some initial planning for the litigation. (See Motion at 6-7, 15.) Specifically, the January 2016 text messages show that Plaintiffs were discussing the timing of any lawsuit, potential counsel, and how to finance litigation. (Motion at 6-7 (citing Burnovski Decl., Ex. H at lines 27, 30, 31-32).) Additionally, in one January 2016 text, Plaintiff Laub referred to electronically stored information that could support their claims against Defendants and sent screenshots of some text messages to Plaintiff Kanes. (Motion at 8 (portions under seal) (citing Burnovski Decl., Ex. H at lines 51, 56).) By February 2016, Plaintiffs began to speak with counsel, and, in an email to Plaintiff Kanes, Plaintiff Laub said that he was “sorting out documents” and thanked Plaintiff Kanes in advance for searching his calendar and emails. (Motion at 9 (citing Burnovski Decl., Ex. L).) Plaintiff Laub got rid of his cell phone in or around January 2017 (Laub Decl., ¶ 2), almost a full year after those initial conversations with counsel.
Plaintiffs do not challenge Defendants' arguments that Plaintiff Laub's duty to preserve ESI about DRL developed long before the suit was filed. (See generally Opposition at 2, 15-16.) Instead, Plaintiffs focus on whether Defendants satisfied their burden of proving that ESI was in fact lost and that Plaintiff Laub failed to take reasonable steps to preserve it. In the absence of any meaningful argument on the issue from Plaintiffs and the compelling argument presented by Defendants, the Court finds that Plaintiff Laub had a duty to preserve text messages concerning DRL and that duty developed no later than January 2016, when Plaintiffs evinced a shared intent to sue and began formulating a plan to file a lawsuit and Plaintiff Laub began preserving some of his text messages.
IV. Intent
*6 Only upon finding that Plaintiff Laub acted with the intent to deprive Defendants of the use of the ESI at issue in this litigation may the Court presume that the lost information was unfavorable to Defendants and impose severe measures, such as instructing the jury that it may or must presume the information was unfavorable to the party, or dismiss the action or enter a default judgment. FED. R. CIV. P. 37(e); see also FED. R. CIV. P. 37 advisory committee note to 2015 amendment. However, neither negligence, nor even gross negligence, is insufficient to satisfy Rule 37(2)'s intent requirement. FED. R. CIV. P. 37 advisory committee note to 2015 amendment. Further, any remedy selected by the court “should fit the wrong,” and, therefore, the severe measures authorized by Rule 37(e)(2) should not be used when the information lost was relatively unimportant and lesser measures would be sufficient to redress the loss. FED. R. CIV. P. 37 advisory committee note to 2015 amendment.
Defendants have readily established that Plaintiff Laub (1) knew there could be evidence saved on his iPhone, including among his old text messages, that could be relevant to the litigation he was planning and (2) did not take steps to identify and preserve this information. Defendants have also established that Plaintiff Laub took steps to identify and preserve ESI on his old iPhone that he believed could be favorable to his case. The question for the Court, then, is whether Plaintiff Laub's selective preservation of some ESI on the iPhone establishes that he intentionally destroyed other ESI on his iPhone when he failed to back up the information before it was automatically deleted and/or he got rid of the iPhone entirely.
Because courts are unable to ascertain precisely what was in a person's head at the time spoliation occurred, they must look to circumstantial evidence to determine intent. See, e.g., Bistrian v. Levi, ––– F. Sup.3d ––––, 2020 WL 1443735, at *11 (E.D. Penn. Mar. 24, 2020). Relevant factors can include, inter alia, the timing of the destruction, the method of deletion (e.g., automatic deletion vs. affirmative steps of erasure), selective preservation, the reason some evidence was preserved, and, where relevant, the existence of institutional policies on preservation. Bistrian v. Levi, ––– F. Sup.3d ––––, 2020 WL 1443735, at *11 (E.D. Penn. Mar. 24, 2020); see also Culhane v. Wal-Mart Supercenter, 364 F. Supp.3d 768, 773-74 (E.D. Mich. 2019) (considering the responding party's policies governing preservation in assessing its intent).
Applying these considerations to this case, only Plaintiff Laub's acts of selective preservation weigh in favor of a finding of intent. Plaintiff Laub did not take affirmative steps to destroy the ESI at issue. Instead, it was destroyed as a result of his failure to change his iPhone's default settings for deleting old text messages and his decision to replace his old iPhone with a newer model. There is also nothing suspicious about the timing of the spoliation at issue, and there is no indication that Plaintiff Laub was ever expressly informed that he had a duty to preserve all relevant evidence, much less given express instructions or a methodology for doing so.
Accordingly, although Defendants may have established that Plaintiff Laub negligently destroyed relevant evidence, they have not established that he did so with the specific intent to deprive Defendants of the use of these text messages in this litigation. Thus, Defendants' request for severe sanctions under Fed. R. Civ. P. 37(e)(2), such as an adverse inference instruction and the exclusion of the selectively preserved ESI, must be DENIED.
V. Prejudice
In the absence of intent, the Court may, upon finding prejudice to Defendants from loss of the information, order measures no greater than necessary to cure the prejudice. FED. R. CIV. P. 37(e)(1). The burden of proof at this stage shifts to the guilty party, Plaintiff Laub, to show that no prejudice resulted from the spoliation. OmniGen Research, 321 F.R.D. at 372. Accordingly, the Court begins its analysis with Plaintiffs' Opposition to the Motion.
*7 Plaintiffs present two primary arguments against finding prejudice: (1) Defendants failed to identify any concrete extrinsic evidence indicating that the spoliated text messages between Plaintiff Laub and third parties about DRL were relevant and admissible evidence in the instant litigation; and (2) any prejudice has been ameliorated by the texts that were recovered from Plaintiff Kanes' iCloud.[2] (Opposition at 25-30).
The Court disagrees with both assertions. First, Defendants have produced extrinsic evidence indicating that Plaintiff Laub lost text messages that would have been relevant to the defense. Plaintiff Laub, by his own admission, was a prolific texter and maintained his iPhone's auto delete function for text messages because otherwise they overwhelmed his storage. (See Laub Decl., ¶¶ 3-4.) Additionally, the ESI that was lost by Plaintiff Laub but recovered from Plaintiff Kanes indicated that, in January 2016, Plaintiff Laub described receiving “many” messages from third parties from DRL. (Burnovski Decl., Ex. H at line 69; see also Laub Decl., ¶ 13 (“As I recall ... around the time the DRL launched publicly ... did lead to my receiving a number of related messages from third parties[.]”).) At least one of these inquiries was via text (Burnovski Decl., Ex. H at line 71), and Plaintiff responded to at least two similar inquiries—an August 2015 email (Burnovski Decl., Ex. M) and an April 2016 FaceBook Messenger message (Burnovski Decl., Ex. H at lines 74-75). Further, Plaintiff Laub's responses to the latter two inquiries contradicted Plaintiffs' allegations that they believed they had an agreement with Defendants and a controlling stake in the DRL. In light of the foregoing, there is extrinsic evidence that Plaintiff Laub likely received text messages from third parties about DRL during the relevant period and responded with statements that are relevant to Defendants' defenses in this case.
In reaching this conclusion, the Court has considered Plaintiff Laub's statement in his Declaration that he “do[es] not recall responding” to any other inquiries about the DRL “particularly as by that time [January 30, 2016], [he] was already speaking with potential litigation counsel about a potential lawsuit against Defendants.” (Opposition, Laub Decl. at ¶ 13.) However, Plaintiff Laub's statements, which amount to an expression of doubt that relevant texts ever existed, does not carry Plaintiffs' burden of proof of establishing the lack of prejudice, see OmniGen Research, 321 F.R.D. at 372, nor is it even persuasive. Contrary to Plaintiff Laub's suggestion that it is unlikely that he responded to any third party inquiries after January 30, 2016, the evidence shows that Plaintiff Laub did respond to a third party inquiry about DRL in April 2016 (Burnovski Decl., Ex. H at lines 74-75), despite any prior or ongoing consultations with potential counsel.
Plaintiffs' argument that the evidence would not be admissible also fails. Plaintiffs stated that the text messages sought would be inadmissible hearsay: out-of-court statements offered for the truth of the matter admitted. (Opposition at 29-30.) However, Defendants are not seeking to admit the third party texts for the truth of the matter asserted. Rather, they would primarily seek to admit Plaintiff Laub's responses to those texts, responses that would be admissible under Fed. R. Evid. 801(d)(2). In the Reply, Defendants also point to other potential bases for the admission of the third party texts if they were necessary to provide context to Plaintiff Laub's response. (Reply at 19 (citing Fed. R. Evid. 801(c)(2), 803(5), 807).)
*8 Finally, Plaintiffs contend that any prejudice from the loss of Plaintiff Laub's text threads with third parties about DRL has been ameliorated because Plaintiffs produced all of Plaintiff Laub's texts with Plaintiff Kanes and Defendants have all of Plaintiff Laub's texts with Defendants. (Opposition at 28-29.) Again, the Court disagrees. Plaintiffs have produced very few texts between Plaintiff Laub and third parties about DRL, despite there appearing to have been a large number of third party inquiries, and the few responses from Plaintiff Laub that were produced are relevant to Defendants' defense. The texts between the two Plaintiffs and between Plaintiffs and Defendants are, without a doubt, important evidence. However, Plaintiff Laub's understanding of the existence and substance of any agreement is also represented by his texts with third parties. On the record before it, the Court cannot say that Plaintiff Laub has carried his burden to show no prejudice resulting from his spoliation. See OmniGen Research, 321 F.R.D. at 372. Accordingly, sanctions may be imposed.
VI. Sanctions
The 2015 advisory committee noted that the range of measures is broad and the court has significant discretion in determine what measure is appropriate. FED. R. CIV. P. 37 advisory committee note to 2015 amendment. Serious measures could include forbidding the party that failed to preserve information from putting on certain evidence, permitting the parties to present evidence and argument to the jury regarding the loss of information, or, inter alia, giving jury instructions to assist in the jury's evaluation of such evidence or argument. FED. R. CIV. P. 37 advisory committee note to 2015 amendment.
Although all of the requirements have been met for the imposition of sanctions, the Court must determine what sanctions are “no greater than necessary” to cure the prejudice due to the loss of the text conversations between Plaintiff Laub and third parties about the DRL. The Court has significant discretion in determine what measure satisfies this standard. FED. R. CIV. P. 37 advisory committee note to 2015 amendment. In effect, Rule 37 requires the Court to quantify the prejudice caused by the spoliation in order to determine the sanctions that would be appropriate.
In the absence of a finding of intent, Defendants ask the Court to preclude Plaintiffs from relying at summary judgment or trial on any of the third-party texts that Plaintiff Laub “selectively and self-servingly decided to preserve.” (Motion at 23.) They also ask the Court to impose monetary sanctions to reimburse Defendants for the cost incurred in bringing this motion. (Motion at 24.) The advisory committee has characterized the preclusion of evidence as a “serious measure.” FED. R. CIV. P. 37 advisory committee note to 2015 amendment.
The Court finds that the imposition of the serious sanctions sought by Defendants is not warranted because the prejudice to Defendants was rather minimal. Defendants have received an array of other communications from Plaintiff Laub, including with third parties and with Plaintiff Kanes, which show Plaintiff Laub's different characterizations of his relationship with the DRL and agreement with Defendant Horbaczewski and, as such, will help their defense. Though it is likely that additional relevant evidence was lost as a result of Plaintiff Laub's actions, it is not at all clear to the Court that this missing evidence would significantly alter the type of evidence at Defendants' disposal or its persuasiveness.
Accordingly, the primary prejudice to Defendants in this case is the additional time and efforts they incurred in obtaining ESI from Plaintiff Kanes' iCloud backup and an order directing a forensic examination of that backup and litigating the spoliation issue. Cf. Borum v. Brentwood Village, LLC, 332 F.R.D. 38, 50 (D.D.C. 2019) (“prejudice to Defendants primarily consists of the additional time and efforts it incurred ... and litigating the spoliation issue”). This quantum of prejudice can be remedied by monetary sanctions. Id. (citing Karsch v. Blink Health Ltd., No. 17-3880, 2019 WL 2708125, at *13 (S.D.N.Y. Jun. 20, 2019)). Thus, the Court concludes that monetary sanctions in the amount of $1,200 and an award of the reasonable expenses, including attorneys' fees, is sufficient to the reimburse Defendants for the costs associated with bringing this Motion, are sufficient and no greater than necessary to cure the prejudice caused by Plaintiff Laub's spoliation.
ORDER
*9 Therefore, the Court DENIES Defendants' request for preclusion sanctions but GRANTS Defendants' request for monetary sanctions to reimburse Defendants for the costs associated with Plaintiff Laub's spoliation. IT IS ORDERED that Plaintiff Laub shall pay $1,200.00 (one thousand two hundred dollars and zero cents) to Defendants within ten (10) days of the date of this Order; and, within 14 days of the filing of this Order, Defendants may file a request for reasonable attorney's fees and expenses in connection with filing and briefing the instant Motion, supported by billing records and appropriate documentation. Briefing on that request will be governed by the Local Rules.
IT IS SO ORDERED.
Footnotes
In the Objections to the Kunkel Declaration, Plaintiffs assert that the Kunkel Declaration is fatally tainted because it is premised on a clearly erroneous factual premise. (Dkt. No. 461-8.) The Court finds that, to adjudicate the Motion, it need not refer to the Kunkel Declaration, much less Mr. Kunkel's opinion that Plaintiff Laub was dishonest when he declared that he always had his iPhone set to auto-delete text messages older than 30 days. Accordingly, while it has reviewed the Kunkel Declaration, Plaintiffs' Objections to it, and the Supplemental Declaration signed by Michael Kunkel (Dkt. No. 466-6), it declines to strike the Kunkel Declaration.