*1 In 2018, Defendant Ronald Scearce, then a member of the Pittsylvania County Department of Social Services Board (the “Board”), and others in the community, waged a public campaign against Department of Social Services (“DSS”) Director, Plaintiff Sherry Roberts Flanagan, that ultimately culminated in Flanagan's ouster. This public spat—which at times involved scurrilous allegations and vitriolic rhetoric—was widely covered by the local media, and it divided the community. Following her termination, Flanagan filed the instant lawsuit. In her suit, she alleges that, after giving a speech in which she pushed back against her critics—a speech that put her at odds with Scearce's position on those issues—she was fired as Director of the DSS, in violation of her First Amendment rights. Flanagan also contends that Scearce's actions as a member of the Board related to her termination violated her Fourteenth Amendment due process rights.[1]

Prior to filing suit, Flanagan hired an attorney, who promptly sent a standard “Preservation of Evidence” letter to several individuals, including Scearce. During discovery, it became apparent that certain emails Scearce had sent or received may have been deleted, and Facebook messages Scearce exchanged with another Board member a couple of months following Flanagan's termination suggest that Scearce deleted some emails intentionally. Flanagan believes Scearce did so in order to keep the evidence out of her hands, and accordingly has moved to sanction Scearce for this alleged spoliation in the form of an adverse-inference instruction at trial. For the following reasons, Flanagan's beliefs are insufficient to carry her burden to show a sanctionable spoliation of evidence.

To support her spoliation claim, Flanagan points to a series of Facebook messages that Scearce exchanged with Patricia Evans, a fellow Board member who also voted in favor of Flanagan's termination. (See Pl.’s Mem. in Supp. of Mot. for Sanctions for Failure to Preserve Evid. (hereinafter “Pl.’s Mem. in Supp.”) pg. 6 [ECF No. 86-6].) These October 29, 2018, Facebook messages provide as follows:

According to Flanagan, these messages—insofar as they are between two Board members and directly refer to Flanagan (“Sherry”), former codefendant and vociferous Flanagan critic Henry Hurt (“Henry”), and Flanagan's “fishing expedition”—establish that Scearce intentionally deleted relevant evidence in this case. (Pl.’s Mem. in Supp. pgs. 4–5.)

Flanagan also contends that Scearce spoliated evidence when his personal computer “crashed” in November 2018 and he failed to take immediate steps to recover potentially relevant email messages from his internet service provider, Chatmoss. (Pl.’s Reply Br. in Support of Pl.’s Mot. for Sanctions for Failure to Preserve Evid. (hereinafter “Pl.’s Reply Br.”) pgs. 4–5 [ECF No. 106].) Scearce waited nearly two years—until late 2020, or well into the discovery phase of this lawsuit—before attempting (unsuccessfully) to recover relevant emails that were lost due to the computer crash.

*2 Scearce filed a sworn declaration rebutting Flanagan's general claim that he spoliated relevant evidence—including his personal emails—and explaining his Facebook comments about deleting emails, which he contends Flanagan has taken “out of context.” (Decl. of Ronald Scearce ¶ 3, June 30, 2021 [ECF No. 93-1].). In his Declaration, Scearce avers that he “did not delete emails after receiving the preservation letter.” (Id. ¶ 2.) Scearce adds that his reference to deleting emails in the Facebook messages refers to his “general practice of deleting emails to keep my inbox organized and minimal[,]” and that he was “not referring to intentionally deleting emails after receiving the preservation letter.” (Id. ¶ 3.) Regarding the November 2018 computer crash, Scearce attests that he had attempted to recover all personal emails potentially relevant to this litigation, but that his internet service provider had informed him that they were not recoverable. (Id. ¶ 2.)

On August 9, 2021, the court held an evidentiary hearing on Flanagan's motion for sanctions. Flanagan did not present any additional evidence at that hearing to support her claim that Scearce had intentionally deleted relevant emails; instead, she simply relied on the Facebook messages described above, as well as the undisputed facts surrounding Scearce's computer crash and his belated efforts to retrieve lost emails. The court, however, called Scearce as a witness to flesh out the facts underlying Flanagan's claims.

Consistent with his Declaration, Scearce testified that he received Flanagan's preservation letter in or around the end of July 2018. (Evid. Hr'g Tr. at 7:17–8:5.)[2] Scearce added that he understood that this letter legally obligated him to identify and save all emails from his personal account that were related to Flanagan and the DSS. Scearce testified that he did exactly that:

(Id. at 9:10–10:21.)

*3 Regarding the October 2018 Facebook messages with fellow Board member Patricia Evans, Scearce admitted that in referencing “Henry” and “Sherry,” he was discussing, in a general way, the imbroglio involving himself, Flanagan, and the Board, but that he could not recall what he meant when he had written that he was “kind of torn about what to do myself considering what Henry had said.” (See id. at 12:14–13:22.) Scearce testified, however, that his use of the term “fishing expedition” was not a reference to Flanagan's July 2018 preservation letter, but to the investigation by the Virginia Attorney General's Office, related to the conduct of the Board, that arose following Flanagan's termination. (Id. at 14:20–16:15.)

Importantly, Scearce testified that he had not deleted any emails subject to Flanagan's preservation letter. When asked what he meant in his message to Ms. Evans that he deletes a lot of emails, Scearce said:

(Id. at 16:16–17:12; 18:2–9.)

Although Scearce consistently maintained—both in response to the court's questions and while under cross examination by Flanagan's attorney—that he had not intentionally deleted any responsive emails from his personal account, he conceded that he lost relevant emails when his personal computer crashed in November 2018:

(Id. at 20:21–21:16.) Despite his recognition that he had lost relevant emails in the crash, Scearce testified did not take any steps to attempt to recover them for two years. (Id. at 31:23–32:8.) In late 2020, during the discovery phase of this lawsuit, Scearce contacted his internet service provider about restoring these emails, but his provider informed him that they were no longer on its server.[3] (Scearce Decl. ¶ 2.) Scearce also admitted that he had not taken additional steps after he received Flanagan's preservation letter (but prior to the crash) to protect the Flanagan emails, such as exporting them to an external hard drive.

*4 Other than questioning Scearce—whose testimony was initiated by the court—Flanagan did not present any evidence at the hearing.[4] Flanagan nevertheless argues that Scearce's Facebook messages and his failure to take steps to protect—and, later, to recover in a timely fashion—the relevant emails demonstrate that his spoliation was willful and in bad faith, and that an adverse-inference instruction is warranted. Scearce counters that his testimony and the undisputed evidence about his computer crash established, at most, that he had been negligent in his handling of the Flanagan emails, and therefore that the requested sanction is not warranted. In so doing, Scearce points out that over 400 pages of Scearce's emails were produced during discovery and through the issuance of third-party subpoenas, and that Flanagan has failed to offer any evidence that any of the emails that may have been lost when Scearce's computer crashed were not obtained from other sources.[5]

Spoliation “ ‘refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.’ ” E.I. du Pont de Nemours & Co. v. Kolon Indus., 803 F. Supp. 2d 469, 496 (E.D. Va. 2011) (quoting Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001)). In evaluating a spoliation claim, courts employ a two-part test. First, the party alleging spoliation must show “that the adverse party had a duty to preserve documents or materials that may be relevant to the litigation or pending litigation.” Id. “A party that anticipates litigation ... is ‘under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request.’ ” Id. (quoting Samsung Elecs. Co. v. Rambus, Inc., 439 F. Supp. 2d 524, 543 (E.D. Va. 2006)). If the court finds that such a duty existed, it must “then consider whether the party breached this obligation, either by failing to preserve, or by destroying or altering, relevant materials or documents with a culpable state of mind.” Id. at 497. “In the Fourth Circuit, any level of fault, whether it is bad faith, willfulness, gross negligence, or ordinary negligence, suffices to support a finding of spoliation.” Id.

But that does not end the inquiry. Even when spoliation has occurred, the affected party must then show that the sanction requested is appropriate. In the Fourth Circuit, it is well-established that an adverse-inference instruction, as a sanction, is only appropriate where the party seeking that sanction demonstrates that the responsible party “acted either willfully or in bad faith in failing to preserve relevant evidence.” Sampson v. City of Cambridge, 251 F.R.D. 172, 181 (D. Md. 2008) (citing Hodge v. Wal-Mart Stores, Inc., 360 F. 3d 446, 450–51 (4th Cir. 2004)). Conversely, an adverse-inference instruction is not warranted where “the spoliator's conduct is merely negligent.” Id.; see also Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) (“An adverse inference about a party's consciousness of the weakness of his case, however, cannot be drawn merely from his negligent loss or destruction of evidence; the inference requires a showing that the party knew the evidence was relevant to some issue at trial and that his willful conduct resulted in its loss or destruction.”).

Applied here, the court has no trouble concluding that Scearce had a duty to preserve potentially relevant evidence once he received Flanagan's preservation letter in late July 2018. Accord Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001) (“The duty to preserve material evidence arises not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”). This element is not in contest. Scearce testified that he understood Flanagan's letter as triggering that legal obligation and, as a result, he took steps to identify and save emails and other records about Flanagan—and therefore relevant to her potential claims and defenses in the impending litigation—in his personal email account.

*5 It is also undisputed that Scearce breached this obligation by failing to preserve these relevant emails. Specifically, Scearce fell short in two ways: First, by not taking steps beyond moving relevant emails to a separate folder in his inbox, such as exporting them to an external hard drive or making hard copies; and second, by waiting two years after his computer crashed to contact his internet service provider to attempt to recover the emails that he knew, or should have known, were no longer in his inbox. Scearce therefore spoliated relevant evidence.

But the court cannot find, based on the evidence presented by Flanagan, that Scearce's mishandling of the emails was done either willfully or in bad faith such that an adverse-inference instruction is warranted. Although Flanagan argues that the Facebook messages conclusively establish that Scearce intentionally deleted relevant emails, this evidence, on its own, does not satisfy her burden. Without question, these Facebook messages suggest that Scearce may have deleted emails related to Flanagan and the local DSS. This was the court's overarching concern and its primary purpose for calling Scearce as a witness to testify about this exchange. But Scearce adequately explained—both in response to the court's and opposing counsel's questions—the specific context for these statements, and he consistently maintained that he did not intentionally delete any emails that were covered by the preservation request.[6] Moreover, Flanagan failed to present any other evidence to establish that Scearce intentionally deleted relevant emails, despite having a full and fair opportunity to do so.[7] In short, Flanagan has failed to carry her burden of proving Scearce willfully destroyed relevant evidence.

Instead, the court concludes that the evidence presented by Flanagan establishes that Scearce was negligent when he failed to take additional steps to preserve relevant emails and in failing to attempt to recover emails he knew might be jeopardized in a timely fashion.[8] See In re Ethicon, 299 F.R.D. 502, 518 (S.D.W. Va. Feb. 4, 2014) (“Negligence is a lack of due care, the failure to exercise the level of care expected of a reasonably prudent person acting under like circumstances.”). Although Scearce should certainly have been more diligent in fulfilling his legal duty to safeguard the emails at issue, the court cannot find, based on the evidence presented by Flanagan, that he engaged in deliberate misconduct to disadvantage her in the impending litigation, or that he otherwise intended to destroy relevant evidence. Put simply, Flanagan has established that Scearce acted carelessly, not that he engaged in intentional wrongdoing. The court will therefore deny Flanagan's motion for sanctions.

*6 For the foregoing reasons, Flanagan has failed to show that Scearce engaged in deliberate misconduct that warrants an adverse-inference instruction. Her motion for sanctions will be denied.