For the reasons set forth below, IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions is DENIED.

A. Facts of Employment and Termination

Plaintiff Ellen Farrell (“Plaintiff”) was employed by Defendant AT&T Corporation (“AT&T”) as an Account Representative. (ECF No. 26, p. 1). On April 21, 2016, Plaintiff was terminated by AT&T. (ECF No. 5, p. 4) AT&T contends that Plaintiff was terminated “for failing to meet performance expectations ....” (ECF No. 26, p. 1). Following her termination by AT&T, Plaintiff filed a charge of discrimination (“Charge”) with the Equal Employment Opportunity Commission (“EEOC”). The Charge alleged that her termination violated the Americans with Disabilities Act of 1990 (“ADA”) and also mentions the Family and Medical Leave Act (“FMLA”). (ECF No. 23-6). The Charge was filed on April 26, 2016. (Id.)

“Plaintiff's Original Complaint” was filed on March 27, 2018, and alleged that her termination violated the ADA, the Age Discrimination in Employment Act (“ADEA”), and the FMLA. (ECF No. 5, p. 4-5).[2]

B. Plaintiff's Factual Presentation

Plaintiff's Motion for Sanctions seeks discovery sanctions against AT&T for failing to preserve relevant electronically stored information (“ESI”). Plaintiff alleges that the lost ESI would show that AT&T did not properly adjust her performance targets and goals to reflect when she took medical leave. (ECF No. 23, p. 2). In support of this claim, Plaintiff provides the sworn affidavit of Luis Velez, a former Retention Manager at AT&T. (Id.). According to his sworn statement, “if the employee was on medical and/or disability leave[,] the performance metric percentages and targets were not adjusted and the employee was expected to meet the performance metrics and targets ....” (ECF No. 23-1, p. 3). Further, “AT&T penalized these employees for taking medical leave and/or disability leave because the employee's Month to Date performance/percentage targets were negatively affected, which negatively affected their monthly and yearly performance metric targets ....” (Id. at 4). Finally, the unadjusted performance metrics were used to “progress [employees] through the steps of discipline for termination as quickly as possible.” (Id. at 3).

*2 Plaintiff also provided a sworn affidavit from Graciela Varela, formerly a Senior Office Clerk at AT&T, who created daily, monthly, and yearly reports for various supervisors at AT&T. (ECF No. 23, p. 3). According to her affidavit, the employee performance targets contained in the reports she prepared were only adjusted when an employee was on long-term disability leave. (ECF No. 23-2, p. 3). Her affidavit further explains that long-term disability leave would only start after an employee had been out for eight consecutive days. (Id.).

Plaintiff asserts that the daily, monthly, and yearly reports constituted relevant ESI, which AT&T should have preserved in anticipation of litigation. (ECF No. 23).

C. AT&T's Factual Presentation

AT&T argues that Plaintiff's Motion for Sanctions is “wholly without merit ....” (ECF No. 26, p. 1). AT&T construes this discovery dispute as addressing two different types of information maintained about each Account Representative's performance, only one of which was used in the decision to terminate Plaintiff. “Issued Data” consists of the “initial and temporary sales orders,” reflecting “a temporal snapshot of the initial sales data for the Account Representatives.” (ECF No. 26, p. 3, 4). In contrast, “Posted Data” reflects “final sales amounts... which reflected sales that actually closed.” (Id. at 4). According to the Declaration of Johnny Soliz, a General Manager for AT&T, there are numerous reasons why the numbers contained in the Issued Data are different than the Posted Data, including order cancellations, chargebacks, and installation problems. (ECF No. 26-1, p. 2, 3).

These two distinct types of data were incorporated into different reports generated by different groups within AT&T. The Issued Data was incorporated into End of Day (“EOD”) reports. (ECF No. 26, p. 4). These EOD reports were created by a Senior Records Clerk within AT&T and reflect “daily sales target and initial sales amounts” for various services and products offered by AT&T. (Id. at 3). The EOD reports were either saved on a share drive or emailed to various supervisors and coaches within the Call Center. (Id. at 3-4) The EOD reports and the underlying Issued Data were not used to discipline or terminate employees because they “did not reflect the final sales data or posted data.” (ECF No. 26-1, p. 2). The purpose of the EOD reports was to give the Call Center supervisors “an idea of how the sales were trending on any given day in order to provide daily feedback to Account Representatives and roughly g[i]ve daily sales trends.” (Id. at 3).

The Posted Data was used by the Field Sales Automation team to generate an employee's “Scorecard.” (ECF No. 26, p. 4) The Scorecards used three types of information: the metric and weight each metric was assigned, the Posted Data for each metric, and the attendance information for each Account Representative. (Id.). As part of the Scorecard's preparation, the total number of call minutes for an Account Representative was adjusted to reflect the protected leave taken thereby producing the “total adjusted minutes.” (Id.). The total adjusted minutes were then used and applied to each metric “to ensure the objectives were reduced to account for protected leave time.” (Id.). “AT&T has produced Plaintiff's monthly and annual Scorecards ... as well as the spreadsheets and documents reflecting the calculations underlying Plaintiff's Scorecards.” (Id. at 5). AT&T contends that the Scorecards and the spreadsheets and documents reflecting the calculations underlying the Scorecards constitute the “relevant reports that AT&T leaders relied upon in making disciplinary decisions.” (Id. at 6).

*3 According to AT&T, the Scorecards provide the basis for employee discipline and termination, while the EOD reports are not considered. To support this contention, AT&T provides deposition testimony and sworn statements from multiple current and former employees and supervisors at AT&T, including Plaintiff.

Johnny Soliz is currently a General Manager for AT&T and responsible for managing and directing call centers, including the Call Center where Plaintiff was employed. (ECF No. 26-1, p. 1). According to his sworn declaration, “[b]ecause the data in the temporary EOD reports did not reflect the final sales data or posted data, employees were not disciplined or terminated on the basis of any information recorded in these temporary EOD reports.” (Id. at 2).

Fernando Jacquez was the manager of the Call Center where Plaintiff was employed between 2014 and the center's closure on December 13, 2017. (ECF No. 26-3, p.1). According to his sworn declaration, “[t]he Scorecards alone served as a basis for disciplining and terminating employees.” (Id. at 2). Further, he recommended the termination of Plaintiff to Johnny Soliz “after she failed to consistently meet 100% of her performance targets in her Scorecards in 2015 through 2016.” (Id. p. 2-3).

Plaintiff acknowledged during her Union Grievance interview that she “was not meeting my numbers ....” (ECF No. 23-5, p. 5).

Luis Velez was a Retention Manager at AT&T until September 2015. (ECF No. 23-1, p. 2). During his deposition, he stated that employees were only disciplined based on their attendance or their MyScorecards.[3] (ECF No. 26-7, p. 12).

Graciela Varela was a Senior Office Clerk at AT&T until her termination in November 2017. (ECF No. 23-2, p. 2). During her deposition, she stated that she was unaware of an Account Representative ever being disciplined for performance results outside of those that appeared on the MyScorecard. (ECF No. 26-8, p. 19).

A. Electronically Stored Information

Rule 37(e) Failure to Preserve Electronically Stored Information of the Federal Rules of Civil Procedure controls the findings required and the sanctions a court may impose when a party fails to preserve electronically stored information. As amended, effective December 1, 2015, when considering lost or destroyed electronically stored information, a court must determine:

FED. R. CIV. P. 37(e).

B. Magistrate Judge's Authority On Discovery Sanctions

*4 Both 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72 “recognize[ ] that the authority of magistrate judges and the corresponding review by the district court ultimately depend[s] on whether the referred matter is properly characterized as dispositive or non-dispositive. Brown v. Bridges, No. 12-CV-4947-P, 2015 WL 410062, at *2 (N.D. Tex. Jan. 30, 2015). See W.D. Tex. Civ. R. 7(c) (defining “dispositive motion”). Further, “when a district court refers a motion for sanctions, the sanction chosen by the magistrate judge, rather than the sanction sought by the party, governs the determination of whether Rule 72(a) or 72(b) supplies the proper standard of review.” Id. (internal quotation omitted).

When a motion for sanctions is referred to a Magistrate Judge for determination, “the issue of ... sanctions is a non-dispositive matter subject to clearly erroneous review under Rule 72(a), unless the nature of the sanction imposed, i.e., dismissal of the offending claim or defense, is itself dispositive of the claim or defense.” Id. (quoting Giganti v. Gen–X Strategies, Inc., 222 F.R.D. 299, 305 (E.D.Va. 2004.)). A conclusion that a Motion for Sanctions is dispositive because the party seeking sanctions requests a dispositive remedy “would permit the party seeking sanctions to engage in a game of labels that would improperly dictate the standard of review.” Id. See also 12 CHARLES ALAN WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 3068.2 (3d ed. 2014)(“[t]he critical issue here is what sanction the magistrate judge actually imposes, rather than the one requested by the party seeking sanctions.”); 14 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE - Civil § 72.02 (3d ed. 2018) (“[w]hen a party brings a motion for sanctions, the sanction chosen by the magistrate judge rather than the sanction sought by the party governs the determination of whether the decision is dispositive.”); Phinney v. Wentworth Douglas Hosp., 199 F.3d 1, 6 (1st Cir. 1999) (“[m]otions for sanctions premised on alleged discovery violations are not specifically excepted under 28 U.S.C. § 636(b)(1)(A) and, in general, they are not of the same genre as the enumerated motions. We hold, therefore, that such motions ordinarily should be classified as nondispositive .... [W]e caution that a departure from this general rule may be necessary in those instances in which a magistrate judge aspires to impose a sanction that fully disposes of a claim or defense.”); Gomez v. Martin Marietta Corp., 50 F.3d 1511, 1519–20 (10th Cir. 1995) (“the penalty to be imposed, rather than the penalty sought by the movant, controls the scope of the magistrate's authority .... Even though a movant requests a sanction that would be dispositive, if the magistrate judge does not impose a dispositive sanction the order falls under Rule 72(a) rather than Rule 72(b).”).

A. Four Elements Required under 37(e)

Rule 37(e) was amended in 2015 to direct courts as they consider lost or destroyed electronically stored information. The amended rule resolved formerly conflicting circuit standards for issuing sanctions when electronically stored information is not preserved. See CAT3, LLC v. Black Lineage, Inc., 164 F. Supp. 3d 488, 495 (S.D.N.Y. 2016).

Under Rule 37(e), there are four predicate elements that must exist before a court can determine whether there is prejudice, and then order measures to cure the prejudice under Rule 37(e)(1), or determine whether there is an intent to deprive, and impose severe sanctions under Rule 37(e)(2), for lost ESI: “(a) the existence of ESI of a type that should have been preserved; (b)[the loss of] ESI; (c) the loss [of the ESI] results from a party's failure to take reasonable steps to preserve it; and (d) [the ESI] cannot be restored or replaced through additional discovery.” Richard v. Inland Dredging Co., LLC, No. 6:15-0654, 2016 WL 5477750, at *3 (W.D. LA Sept. 29, 2016) (citing FED. R. CIV. P. 37(e)).

1. Preservation of the ESI

*5 There are two areas of consideration necessary to determine whether or not the ESI should have been preserved. First, did AT&T have a duty to preserve relevant information at all? Second, if there was such a duty, did AT&T's duty to preserve information encompass the ESI at issue in Plaintiff's Motion for Sanctions?

A party to litigation has a duty to preserve evidence “when the party has notice that the evidence is relevant to the litigation or should have known that the evidence may be relevant. Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015). The duty to preserve relevant evidence includes the preservation of evidence “in the anticipation ... of litigation ....” FED. R. CIV. P 37(e); See also Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010) (“the duty to preserve arises when a party ... should have known that the evidence may be relevant to future litigation.”) (internal quotations omitted).

Plaintiff argues that AT&T's duty to preserve relevant ESI began with the filing of her Charge on April 26, 2016. (ECF No. 23, p. 7). AT&T takes no firm position on when its duty to preserve relevant evidence began instead stating that “[a]ssuming [AT&T was on notice of litigation when the EEOC charge was filed], AT&T's duty was limited to preserving relevant information related to the discrete acts complained of in the Charge.” (ECF No. 26, p. 8). Further, AT&T contends the disputed EOD reports were not relevant to the Charge and therefore, “AT&T had no duty to preserve them.” (Id. at 9).

In this case, the Court concludes that the receipt of the Plaintiff's EEOC charge of discrimination provided AT&T with sufficient notice to anticipate litigation. Therefore, the Court finds AT&T had a duty to preserve relevant information upon receiving notification of Plaintiff's Charge, filed on April 26, 2016. See Scalera v. Electrograph Sys., Inc., 262 F.R.D. 162, 171 (E.D.N.Y. 2009) (holding “that any duty to preserve relevant emails arose as of the time Defendants received Plaintiff's EEOC Charge.”).

“[L]ost or destroyed evidence is relevant if a reasonable trier of fact could conclude that the lost evidence would have supported the claims or defenses of the party that sought it.” Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 801 (N.D. Tex. 2011) (internal quotations omitted).

Once again, the parties disagree over the relevance of the ESI that AT&T failed to preserve and produce. Plaintiff argues that the documents in dispute are “the most relevant documents in the entire case.” (ECF No. 23, ¶ 7). Further, Plaintiff alleges that the ESI “prove or disprove Employer AT&T's claim that Employee Farrell's performance was subpar.” (Id.).In contrast, AT&T contends that they have produced the “relevant reports ... relied upon in making disciplinary decisions.” (ECF No. 26, p. 6). Further, AT&T argues that “[b]ecause there is no evidence to support Plaintiff's contention that she was disciplined or terminated on the basis of the temporary EOD reports, there is no evidence to support that [the EOD reports] are relevant and should have been subject to a litigation hold.” (Id. at 9).

The claims or defenses a party must prove in an ADA claim, ADEA claim, or FMLA claim are controlled by the burden shifting framework first laid out by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 799, (1973). Plaintiff must first establish a prima facie case of discrimination. See E.E.O.C. v. LHC Group, Inc., 773 F.3d 688 (5th Cir. 2014) (applying the McDonnell Douglas burden shifting analysis to an ADA claim); Goudeau v. National Oilwell Varco, L.P., 793 F.3d 470 (5th Cir. 2015) (applying the McDonnell Douglas burden shifting analysis to an ADEA claim); DeVoss v. Sw. Airlines Co., 903 F.3d 487 (5th Cir. 2018) (applying the McDonnell Douglas burden shifting analysis to an FMLA claim). If a plaintiff can successfully establish the prima facie case, the burden then shifts to the defendant to articulate a non-discriminatory reason for the adverse employment action. Id. If the defendant successfully meets its burden, the burden then returns to the plaintiff to show that the stated reason for termination was pretextual. Id.

*6 A reasonable trier of fact could conclude that data kept and maintained by employer AT&T of Plaintiff's employment performance is relevant to Plaintiff's claim of wrongful termination under the ADA, the ADEA, and the FMLA and what Plaintiff must show under the McDonnell Douglas burden shifting framework. The EOD report submitted by AT&T in its Response, showing the format of the EOD reports produced by AT&T, (ECF No. 26-6, p. 4), has columns setting out “% of Goal Attainment” for Plaintiff in connection with the specified categories contained within the EOD report. Accordingly, the Court finds that the lost ESI was relevant and should have been preserved by AT&T in anticipation of litigation. Because this formulation of relevance is more restrictive than the definition of relevance provided in FED. R. EVID. 401, the Court further finds the lost ESI is relevant under either formulation. See Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 531 (D. Md. 2010) (“[i]It is not enough for the evidence to have been sufficiently probative to satisfy Rule 401 of the Federal Rules of Evidence ....”) (internal quotation omitted).

2. AT&T Does Not Dispute That The ESI Was Lost

AT&T acknowledges that the ESI at issue is “not kept after a period of one year at the El Paso 6 Call Center where Plaintiff worked.” (ECF No. 26 at 5). Further, AT&T has not produced this ESI because it was “routinely deleted from the shared drive in the ordinary course of business pursuant to AT&T's regular document retention procedures.” (Id.)

3. The ESI Was Lost Because AT&T Failed To Take Reasonable Steps To Preserve

AT&T acknowledges that the ESI was “routinely deleted from the shared drive in the ordinary course of business pursuant to AT&T's regular document retention procedures.” (Id.). Had AT&T implemented a litigation hold and suspended its practice of deletion after one year upon receipt of Plaintiff's EEOC charge, the ESI would not have been lost. The Court acknowledges that a corporation like AT&T does not have to preserve “every shred of paper, every e-mail or electronic document, and every backup tape.” Consol. Aluminum Corp. v. Alcoa, Inc., 244 F.R.D. 335, 339 (M.D. La. 2006) (internal quotation omitted). However, having found above that the ESI at issue in this motion is relevant, the ESI should have been preserved. Implementing a litigation hold would have been proportional to the needs of this case and consistent with clearly established applicable standards. Accordingly, the Court finds that AT&T failed to take reasonable steps to preserve the ESI.

4. The Lost ESI Cannot Be Restored Or Replaced Through Additional Discovery

AT&T states that it has “produced over 200 EOD reports that were maintained in emails in its production.” (ECF No. 26 at 5). Further, AT&T produced Plaintiff's monthly and annual scorecards, “as well as the spreadsheets and documents reflecting the calculations underlying Plaintiff's Scorecards.” (Id.). What appears to be lacking from AT&T's production is the actual EOD reports that were not maintained through email attachments as well as the Issued Data contained within the EOD reports. AT&T acknowledges that it failed to produce some of the EOD reports “because they were routinely deleted from the shared drive in the ordinary course of business ....” (Id. at 5).[4] AT&T does not suggest that it still has the lost ESI in some form. Given AT&T's production of some of the EOD reports, specifically those preserved as email attachments, combined with AT&T's unequivocal statement that the EOD reports were deleted after a year, it is clear to the Court that the lost ESI cannot be restored or replaced through additional discovery.

B. Prejudice – Rule 37(e)(1)

*7 Having determined that the four predicate considerations of Rule 37(e) are met, the Court now turns to a determination of whether or not Plaintiff was prejudiced by AT&T's failure to preserve relevant ESI, as required by Rule 37(e)(1).

At the outset, the Court notes that there is no intent requirement in the prejudice determination. A party need not have acted with any objective or subjective bad faith. Inland Dredging Co, 2016 WL 5477750, at *3 (W.D. LA. 2016).

The amended rule 37(e) does not affirmatively place the burden of proving prejudice on either party. FED. R. CIV. P. 37(e)(1) Committee Notes.

Id. “Prejudice is a degree of question.” Spencer v. BMW of N. Am., LLC, 5:14-CV-00896-DAE, 2015 WL 11661765, at *2 (W.D. Tex. 2015). “Prejudice to the non-culpable party can range from an utter inability to prove claims or defenses to minimal effects on the presentation of proof.” Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772. 801 (N.D. Tex. 2011).

Plaintiff claims to have been prejudiced through an inability to “substantiate either some of Plaintiff's claims or Employer AT&T's stated reason for Plaintiff's termination.” (ECF No. 23, p. 9). AT&T asserts that Plaintiff has not suffered any prejudice by the destruction of the ESI because “there is no evidence that the temporary EOD reports were used in connection with any adverse employment action complained of ...” and because “AT&T has produced the entire data set that formed the basis for disciplining and terminating [Plaintiff].” (ECF No. 26, p. 9) (emphasis added). Further, “AT&T produced over 200 EOD reports that were maintained in emails in its production.” (Id. at 5).

Plaintiff in her Reply argues that she is prejudiced because the lost ESI “is relevant and cannot be restored or replaced.” (ECF No. 28, p. 10). This assertion overlooks the construction of Rule 37(e) which requires that the four predicate elements, including relevancy and the inability to be restored or replaced, be found before a court can consider prejudice. If Plaintiff were correct that the existence of lost evidence which is relevant and which cannot be replaced means there is prejudice, it would be unnecessary for Rule 37(e) to require a court to find the four predicate elements before a court could find prejudice and order measures to cure the prejudice under Rule 37(e)(1). Plaintiff's assertion is in direct contradiction with the text of Rule 37(e). See FED. R. CIV. P. Committee Notes (“[o]nce a finding of prejudice is made, the court is authorized to employ measures ‘no greater than necessary to cure the prejudice.’ ”) (quoting Rule 37(e)(1)).

*8 In this case, “the abundance of preserved information [appears] sufficient to meet the needs of all parties.” FED. R. CIV. P. 37(e)(1) Committee Notes. Further, “AT&T is willing to stipulate that no adjustments were made to Plaintiff's targets/objectives in the temporary EOD reports at issue.” (ECF No. 26, p. 5). Plaintiff has articulated what she believes the lost ESI will prove or disprove, i.e. “AT&T's stated reason for termination.” (ECF No. 23, p. 9). However, Plaintiff has not articulated how the lost ESI affects her presentation of proof. Nor has Plaintiff articulated how the EOD reports produced by AT&T (ECF No. 26, p. 5), as well as the entire data set purported to have formed the basis for discipline and termination (Id.). and all other discovery production in this case, is insufficient.

Without an articulated reason as to why the lost ESI affects her presentation of proof or is prejudicial, the Court is unable to find that Plaintiff has suffered any prejudice through AT&T's failure to preserve relevant ESI. See Rimkus at 616 (“[c]ourts have held that speculative or generalized assertions that the missing evidence would have been favorable to the party seeking sanctions are insufficient.”).

The Committee Notes leave to the Court's discretion determining which party has the burden of proving prejudice. The Court is not placing the burden of proving prejudice on the Plaintiff although the Committee Notes make clear such a burden may be appropriate in some circumstances. However, the Court cannot find the prejudice alleged by the loss of the ESI when Plaintiff has not provided an articulable statement about how the lost ESI, or what it could have shown, has any impact on Plaintiff's presentation of proof. Additionally, Plaintiff has failed to articulate a reason why the EOD reports that were produced, as well as the rest of AT&T's discovery production, are insufficient to meet her needs. See FED. R. CIV. P. 37(e)(1) Committee Notes (“the abundance of preserved information may appear sufficient to meet the needs of all parties.”) See also Rimkus at 616 (“there are sources from which at least some of the allegedly spoliated evidence can be obtained.”). Because the Court is unable to find that Plaintiff has been prejudiced by the loss of the ESI, Plaintiff is not entitled to any relief under Rule 37(e)(1).

C. Intent To Deprive Another Party – Rule 37(e)(2)

The most extreme measures, as set forth in Rule 37(e)(2), may only be implemented by the court “upon a finding that the party acted with the intent to deprive another party of the information's use in litigation....” FED. R. CIV. P. 37(e)(2). If the Court finds that a party acted with the intent to deprive, the 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).

Plaintiff's Motion for Sanctions requests relief under Rule 37(e)(2), requesting that “an instruction [ ] be issued to the jury that the destroyed evidence was prejudicial to AT&T....” and attorney's fees. (ECF No. 23-8).

There is insufficient evidence in this case to support a finding that AT&T acted with the intent required for the extreme measures specified in Rule 37(e)(2). “The Fifth Circuit permits an adverse inference against the destroyer of evidence only upon a showing of ‘bad faith’ or ‘bad conduct.’ ” Condrey v. SunTrust Bank of Georgia, 431 F.3d 191, 203 (5th Cir. 2005). “Typically, we do not draw an inference of bad faith when documents are destroyed under a routine policy.” Russell v. Univ. of Texas of Permian Basin, 234 F. App'x 195, 208 (5th Cir. 2007). See also Vick v. Texas Employment Comm'n, 514 F.2d 734, 737 (5th Cir. 1975) (“There was indication here that the records were destroyed under routine procedures without bad faith ....”).

*9 Plaintiff asserts that AT&T's failure to preserve the ESI was willful because AT&T knew that the ESI “may be relevant to future litigation in early 2016.” (ECF No. 23, p. 9). This knowledge arose “within the year the reports were stored on the shared drive.” (Id.).

Plaintiff has not produced any direct evidence of intent on the part of AT&T, arguing instead that the loss of the ESI occurring after the filing of the Charge, demonstrates the bad faith required by AT&T for the imposition of the most severe sanctions. Guzman 804 F.3d 707, 713 (5th Cir. 2015) (affirming denial of sanctions and adverse inference instruction when the moving party “produced no evidence suggesting bad faith.”).

The uncontested evidence in this case shows that AT&T was in possession of ESI. This ESI was routinely deleted after one year as part of AT&T's routine policy. Even after Plaintiff filed her EEOC charge, AT&T continued its routine policy of deleting this ESI after one year. Evidence of destruction as part of a regular course of conduct is insufficient to support a finding of intent to deprive, as required by Rule 37(e)(2), because it does not demonstrate bad faith. Russell, 234 F. App'x 195, 208 (5th Cir. 2007). Even assuming AT&T's failure to preserve relevant ESI was negligent (ECF No. 26, p. 10), “[m]ere negligence is not enough, for it does not sustain an inference of consciousness of a weak case.” Vick v. Texas Employment Comm'n., 514 F.2d 734, 737 (5th Cir. 1975). See also FED. R. CIV. P. Rule 37(e) Committee Note (“Information lost through negligence may have been favorable to either party, including the party that lost it, and inferring that it was unfavorable to that party may tip the balance at trial in ways the lost information never would have.”). Plaintiff has failed to provide any hint of evidence that AT&T's failure to preserve the relevant ESI was anything more than a negligent continuation of its routine policy as required to support the most severe measures. Accordingly, the Court is unable to make the intent to deprive finding required to impose the most severe sanctions contemplated under Rule 37(e)(2). Because the Court is unable to find that AT&T acted with the intent to deprive, Plaintiff is not entitled to the sanctions permitted under Rule 37(e)(2).

D. Issues Raised by Plaintiff's Reply

Plaintiff's Reply raised numerous issues for the first time. Plaintiff requests relief different than what was requested in Plaintiff's Motion for Sanctions. In her Reply, Plaintiff requests that the Court “strike AT&T's defensive pleadings, its answer, and affirmative defenses [and] issue a default judgment against AT&T ....” (ECF No. 28, p. 5). Further, Plaintiff alleges that additional documents, not the subject of Plaintiff's Motion for Sanctions, were not produced. (Id. at 8).

The Reply is not the appropriate place for a party to raise new issues for the first time. The Court has no obligation to consider issues raised for the first time in a reply. See Bruce v. McCain, No. CV 15-3814, 2017 WL 1161136, at *2 (E.D. La. Mar. 29, 2017) “[t]his Court will not consider issues when they are raised for the first time in a reply brief.” See also, United States v. Jones, No. CR 13-205, 2016 WL 1383656, at *7 (E.D. La. Apr. 7, 2016) “[t]he Fifth Circuit and the courts within it have held that arguments raised for the first time in a reply brief are generally waived.”); Iteld, Bernstein & Assocs., LLC v. Hanover Ins. Grp., No. CIV.A. 08-3418, 2009 WL 2496552, at *4 (E.D. La. Aug. 12, 2009) (addressing a motion for partial summary judgment and stating “arguments raised for the first time in a Reply brief are waived.”).

*10 Nevertheless, the Court will consider the issues raised for the first time by Plaintiff's Reply.

Plaintiff requests the most severe sanction contemplated by Rule 37(e)(2), entry of default judgment. For a court to order such an extreme sanction, the Court must first find that the spoliating party acted with the intent to deprive the movant of the information's use in the litigation. See FED. R. CIV. P. 37(e)(2). Plaintiff has not provided any evidence that the loss of the ESI was anything more than the negligent continuation of a routine deletion policy by AT&T. As the Committee Notes to Rule 37(e) make clear, negligence or even gross negligence is insufficient to find the intent required. FED. R. CIV. P. 37(e) Committee Notes. Without more, the Court is unable to find the intent necessary to grant the severe sanctions requested by Plaintiff's Reply.

Plaintiff also alleges that AT&T's Response made Plaintiff aware of additional documents which AT&T had not produced. (ECF No. 28, p. 8). Plaintiff states “it seems as if the documents purportedly showing adjustments to these targets, and how, if at all, these adjustments were made to account for protected medical leaves and disability leaves were also destroyed given that such evidence has not been produced in litigation.” (Id.). While making such a broad assertion, Plaintiff has failed to provide support which would allow the Court to conclude that AT&T's statements about its production contained in its Response (ECF No. 26), including the “spreadsheets reflecting how [Plaintiff's] Scorecard was calculated” (Id. at 10) and the attached affidavit from Attorney Stacey Hernandez (ECF No. 26-6), are inaccurate, incomplete, or misleading. Without a basis of support, the Court is unable to conclude that Plaintiff should be granted relief on the asserted grounds.

Accordingly, the Court finds the newly raised issues do not support granting Plaintiff's Motion for Sanctions.

For the foregoing reasons, the Court is unable to find that Plaintiff was prejudiced by AT&T's failure to preserve relevant ESI. Further, the Court is unable to find that AT&T acted with the intent to deprive Plaintiff of the information's use in the litigation.

Accordingly, IT IS HEREBY ORDERED that Plaintiff's Motion for Sanctions is DENIED.

SIGNED and ENTERED this 8th day of November, 2018.

While recounting the factual background, the Court addresses only the facts relevant to the immediate Order.

Plaintiff's claim was originally filed in Texas State Court. Pursuant to Judge Martinez's standing order, Plaintiff repleaded her complaint after the claim was removed to Federal Court. See (ECF No. 2, ECF No. 5).

“Scorecard” and MyScorecard” appear to be used interchangeably to reference the reports generated by the Field Automation team.

Plaintiff references “other documents” produced by AT&T that were from 2016. (ECF No. 23, p. 4, 6, 7, 8) (the documents referenced by Plaintiff are attached to Plaintiff's Motion for Sanctions as ECF No. 23-5). Those documents appear to be correspondence about and documents related to the union grievance process. Plaintiff appears to be assuming, without any support, that because AT&T deleted the EOD reports from the shared drive after a year, the inference is that all documents were deleted after one year. See (ECF No. 23, p. 4, 7). AT&T clearly does not delete all documents after one year since it was able to produce over 200 EOD reports that were maintained as email attachments. (ECF No. 26, p. 5).