*1 This matter comes before the undersigned United States Magistrate Judge pursuant to a general assignment made in accordance with the provisions of 28 U.S.C. § 636, and upon Plaintiff's Second Motion for Spoliation Sanctions. [Docket No. 78].

For the reasons discussed below, Plaintiff's Second Motion for Spoliation Sanctions, [Docket No. 78], is GRANTED in part and DENIED in part.

I. BACKGROUND AND RELEVANT FACTS

A. Background

In 2000, Plaintiff David C. Evenson was hired by Defendant Johnson Brothers Liquor Company as a sales representative. (Evenson Dep. [Docket No. 23-1], at 3). In 2002, Plaintiff was promoted by Defendant to the position of district manager. (Id. at 4). Plaintiff alleges that after he turned 56 in 2014, Defendant began discriminating against him due to his age. (See, Compl. [Docket No. 1-1] ¶¶ 10–27, 36–56).

On January 31, 2017, Plaintiff informed his supervisor, Ryan Hupka (“Hupka”), that Defendant was overcharging one of its customers, Apollo Liquors. (Ex. L [Docket No. 27], at 35; Hupka Dep. [Docket No. 24], at 3–4). On February 1, 2017, Plaintiff sent Hupka a follow-up email that included a calculation of the credit that Plaintiff believed Defendant owed Apollo Liquors. (Ex. M [Docket No. 25]; Hupka Dep. [Docket No. 24], at 5). Hupka in turn reported the apparent overcharging to his supervisor, Dale Cochrane (“Cochrane”). (Cochrane Dep. [Docket No. 23-1], at 13; Hupka Dep. [Docket No. 24], at 6). Plaintiff continued to follow up on this issue through at least April 2017. (Hupka Dep. [Docket No. 24], at 8–9).

On May 19, 2017, Defendant terminated Plaintiff's employment following a May 17, 2017, survey visit at Andy's Crossroads Liquor during which its general manager, Michael Sedor, stated that he would not partner with Defendant for a store reset if Plaintiff was involved. (Ex. Y [Docket No. 34]; Ex. 2 [Docket No. 43-1], at 6]; Sedor Dep. [Docket No. 43-1], at 70–71, 73–75). Defendant promoted a younger employee to replace Plaintiff as district manager. (See, Hupka Dep. [Docket No. 24], at 14; Sedor Dep. [Docket No. 43-1], at 76; Compl. [Docket No. 1-1] ¶ 20).

On June 22, 2017, Plaintiff sent Defendant a demand letter which sought “compensation in exchange for a settlement and release of [Plaintiff's] age discrimination and whistleblower claims” and threatened litigation if the matter could not be resolved. (Nelson Decl. [Docket No. 23] ¶ 37).

On December 1, 2017, Plaintiff filed a charge with the Equal Employment Opportunity Commission alleging that Defendant discriminated against him on the basis of his age. (Ex. 1 [Docket No. 43-1], at 2; Roe Decl. [Docket No. 43] ¶ 2). The charge was referred to the City of Saint Paul Department of Human Rights and Equal Economic Opportunity. (Ex. 1 [Docket No. 43-1], at 2). Defendant received notice of the charge on December 19, 2017. (Roe Decl. [Docket No. 43] ¶ 2). On August 22, 2018, the City of Saint Paul Department of Human Rights and Equal Economic Opportunity determined that probable cause existed and issued a right to sue letter. (Ex. A [Docket No. 1-1], at 15–23).

*2 On October 17, 2018, Plaintiff initiated the present case in Ramsey County by serving his Complaint on Defendant. (Compl. [Docket No. 1-1]). In his Complaint, Plaintiff asserts four claims against Defendant. (Id.). Counts I–III allege age discrimination in violation of the Age Discrimination in Employment Act as amended by the Older Workers Benefit Protection Act, the Minnesota Human Rights Act, and the City of Saint Paul Ordinances Title XVIII, Ch. 183—Human Rights. (Id. ¶¶ 36–56). Count IV alleges whistleblower retaliation in violation of the Minnesota Whistleblower Act. (Id. ¶¶ 57–64). On November 15, 2018, the case was removed by Defendant to this Court. (Notice of Removal [Docket No. 1]).

On February 26, 2019, Plaintiff served his Requests for Production of Documents on Defendant. (Nelson Decl. [Docket No. 23] ¶ 7; see also, Ex. E [Docket No. 23-1], at 21–32). Request Nos. 32, 33, 36, and 37 sought all documents, including emails and text messages, relating to: communications regarding Plaintiff's performance; the May 17, 2017, survey visit; communications regarding Plaintiff's whistleblower claims; and communications between Defendant and third-parties regarding Plaintiff's claims. (Ex. E [Docket No. 23-1], at 30–31).

On April 11, 2019, Defendant served its Responses to Plaintiff's Requests for Production of Documents. (Nelson Decl. [Docket No. 23-1] ¶ 8; see also, Ex. F [Docket No. 23-1], at 33–46). However, Defendant did not produce the documents identified in its Responses. (Nelson Decl. [Docket No. 23] ¶ 11). Following entry of a Protective Order on May 9, 2019, Defendant produced responsive documents on May 17, 2019. (Id. ¶¶ 12–13).

On May 23, 2019, Plaintiff sent a deficiency letter to Defendant. (Ex. I [Docket No. 27], at 12–25). On June 24, 2019, Defendant served Supplemental Responses to Plaintiff's Requests for Production of Documents and produced additional documents. (Nelson Decl. [Docket No. 23-1] ¶¶ 9, 15; see also, Ex. G [Docket No. 27], at 1–8).

On July 8, 2019, Plaintiff sent a second deficiency letter to Defendant. (Ex. J [Docket No. 27], at 26–30). On August 5, 2019, having not received a response from Defendant regarding the second deficiency letter, Plaintiff sent a third deficiency letter to Defendant. (Ex. K [Docket No. 27], at 31–33). On August 7, 2019, Defendant produced additional documents. (Nelson Decl. [Docket No. 23] ¶ 18).

In September 2019, Plaintiff deposed Hupka and Cochrane. (See, Cochrane Dep. [Docket No. 23-1], at 11–20; Hupka Dep. [Docket No. 24]). Following these depositions, Plaintiff sent a fourth deficiency letter to Defendant on October 7, 2019. (Ex. N [Docket No. 28], at 1–7). In the fourth deficiency letter, Plaintiff argued that the deposition testimony of Hupka and Cochrane “clearly demonstrated that additional text messages, e-mail messages, and investigation records exist.” (Id. at 2). On October 25, 2019, Defendant produced additional documents. (Nelson Decl. [Docket No. 23] ¶ 26; Ex. R [Docket No. 28], at 17). Defendant also stated that it “does not have text messages responsive to Plaintiff's requests.” (Nelson Decl. [Docket No. 23] ¶ 26; Ex. R [Docket No. 28], at 17).

On December 18, 2019, Plaintiff sent a fifth deficiency letter/email[1] to Defendant. (Ex. S [Docket No. 28], at 19).

A. Relevant Facts

*3 On March 12, 2020, Plaintiff filed his prior Motion for Spoliation Sanctions and to Compel Discovery. [Docket No. 20]. In relevant part, Plaintiff sought an Order of this Court granting adverse inferences as spoliation sanctions and compelling Defendant to produce text messages responsive to Plaintiff's Requests for Production of Documents Nos. 32, 33, 36, and 37. (See, Mem. in Supp. [Docket No. 22]).

On April 30, 2020, Defendant filed its Motion for Summary Judgment pursuant to Federal Rule of Civil Procedure 56. [Docket No. 54].

On May 19, 2020, this Court issued its Order granting in part and denying in part Plaintiff's Motion for Spoliation Sanctions and to Compel Discovery. (Order [Docket No. 65]). As relevant to the present matter, this Court denied the motion without prejudice insofar as it sought spoliation sanctions because this Court found Plaintiff's request for such sanctions was premature. (Id. at 20 & n.8). However, this Court granted the motion insofar as it sought to compel Defendant to produce responsive text messages because this Court found that Defendant had not conducted a reasonably diligent search for such text messages. (Id. at 20, 23). Specifically, this Court Ordered Defendant to undertake necessary additional search efforts to locate responsive text messages, and to the extent Defendant was unable to locate responsive text messages, this Court Ordered Defendant to amend its Responses to Plaintiff's Request for Production Nos. 32, 33, 36, and 37 to indicate what specific efforts Defendant had undertaken to locate responsive text messages and whether any responsive text messages had been destroyed and cannot be recovered. (Id. at 22). In addition, this Court Ordered Defendant, if any responsive text messages were destroyed, to make reasonably diligent efforts to determine when the destruction occurred and under what circumstances, as well as, to locate Hupka and Cochrane's previous cell phones themselves or to determine when and how those phones were destroyed. (Id. at 23).

On June 9, 2020, Defendant served its Third Supplemental and Amended Responses and Objections to Plaintiff's Request for Production of Documents, Set I. (Niemczyk Decl. [Docket No. 82] ¶ 3; see also, Ex. A [Docket No. 82-1]). In its third supplemental responses, Defendant represented that it “does not store or retain employee text message content or details in any manner,” but it “consulted with mobile service carriers Verizon and AT&T to determine whether responsive text messages can be obtained through other means.” (Ex. A [Docket No. 82-1]).

In relation to Hupka, Defendant represented that Verizon confirmed Hupka's mobile phone was replaced on May 25, 2017, and again on June 4, 2019, Hupka “did not utilize cloud or computer backup of his text messages,” Hupka's “[t]ext messages that existed prior to May 25, 2017 were destroyed on that date and were not transferred to Mr. Hupka's subsequent phone,” and therefore, “text messages responsive to th[ese] request[s]—to the extent that they existed—were deleted prior to any notice of litigation in this case.” (Id.).

In relation to Cochrane, Defendant represented that his “mobile carrier at all relevant times was AT&T,” “AT&T records indicate Mr. Cochrane has had one activated mobile phone last year,” “[o]lder records are unavailable without a subpoena,” Defendant does not have internal records indicating when Cochrane replaced his phone, Cochrane “did not utilize cloud or computer backup of his text messages,” “Cochrane's practice is and always has been to delete his text messages after he has read them (except when directed to maintain them subject to a litigation hold),” and “[t]herefore, any text messages responsive to this request—to the extent that they existed—were deleted contemporaneously and prior to any notice of litigation.” (Id.).

*4 In addition, Defendant represented that although text message details may be obtainable though Verizon and AT&T pursuant to a subpoena, “neither carrier retains or can recover the content of text messages from the relevant time period.” (Id.).

On June 15, 2020, Plaintiff sent a sixth deficiency letter to Defendant. (Ex. B [Docket No. 82-2]). Plaintiff asserted that Defendant's third supplemental response did not comply with this Court's May 19, 2020, Order in several ways, and Plaintiff demanded Defendant supplement its response by June 22, 2020.

On June 18, 2020, Defendant responded to Plaintiff's sixth deficiency letter via email. (Ex. C [Docket No. 82-3]). Although Defendant contended that “this fishing expedition is insane,” Defendant also stated it was getting records from carriers and would get Plaintiff “final efforts and affidavits by July 17.” (Id.).

On June 26, 2020, Defendant served its Fourth Supplemental and Amended Responses and Objections to Plaintiff's Requests for Production of Documents, Set I. (Niemczyk Decl. [Docket No. 82] ¶ 6; see also, Ex. D [Docket No. 82-4]). In its fourth supplemental Responses, Defendant represented that it provides and pays for Hupka and Cochrane's mobile service through its corporate accounts, as the account holder Defendant “can access reports of SMS text messaging details (including the originating and recipient number(s), the date(s), and the time(s) of the text messages) for recent billing cycles only, “[t]his tool is not available for prior years including 2017,” Defendant “was instructed that older records of SMS text message details (including the originating and recipient number(s), the date(s), and the time(s) of the text messages) may be available pursuant to a subpoena, assuming the records are still maintained by the carrier,” and “[d]etails of iMessages sent between iPhones are not tracked by the carriers and are not included in such records.” (Ex. D [Docket No. 82-4]).

In reference to Cochrane, Defendant represented that “Cochrane replaced his phone on May 19, 2017 as part of [Defendant's] carrier-switching initiative,” “Cochrane did not utilize cloud or computer backup of his text messages,” Cochrane's “old device was provided to [Defendant] for recycling,” any “[t]ext messages which existed on Cochrane's phone were destroyed on that date and were not transferred to Mr. Cochrane's new device,” and “[t]hus, text messages responsive to this request that existed prior to May 19, 2017—if any—were deleted prior to any notice of litigation in this case. Mr. Cochrane has not replaced his phone since May 19, 2017.” (Id.). Defendant further represented that Cochrane “has not communicated by text about the claims or defenses in this case since May 19, 2017.” (Id.).

In reference to Hupka, Defendant represented that when he “replaced his phones on May 25, 2017 and June 4, 2019, his old devices were provided to Johnson Brothers for recycling.” (Id.). Defendant further represented that “[t]here is no testimony from Mr. Hupka that he communicated by text message about the claims or defenses in this case after May 25, 2017.” (Id.).

On August 18, 2020, Plaintiff filed the present motion. (Second Mot. for Spoliation Sanctions [Docket No. 78]). Plaintiff seeks adverse inferences as spoliation sanctions for the destruction of text messages. (Mem. in Supp. [Docket No. 80]).

*5 On November 4, 2020, Judge Tunheim granted in part and denied in part Defendant's motion for summary judgment. (Order [Docket No. 95]). Specifically, Judge Tunheim granted Defendant motion for summary judgment as to Plaintiff's whistleblower retaliation claim, and Judge Tunheim denied Defendant's motion for summary judgement as to Plaintiff's age discrimination claims.

II. Plaintiff's Second Motion for Spoliation Sanctions. [Docket No. 78].

On August 18, 2020, Plaintiff filed his Second Motion for Spoliation Sanctions. [Docket No. 78]. Plaintiff seeks an Order of this Court granting adverse inferences as spoliation sanctions for the destruction of text messages.[2] (Id.; see also, Mem. in Supp. [Docket No. 80], at 1–3).

A. Standards of Review

“[F]ederal law applies to the imposition of sanctions for the spoliation of evidence.” Sherman v. Rinchem Co., 687 F.3d 996, 1006 (8th Cir. 2012). “To establish spoliation, the moving party must show that the adverse party destroyed potential evidence, that the evidence was discoverable, and that the loss of evidence prejudiced the moving party.” Nicollet Cattle Co. v. United Food Grp., LLC, No. CIV 08-5899 JRT/FLN, 2010 WL 3546784, at *4 (D. Minn. Sept. 7, 2010) (citing Lexis–Nexis v. Beer, 41 F. Supp. 2d 950, 954 (D. Minn. 1999)). “The moving party bears the burden of proving spoliation.” Stepnes v. Ritschel, No. 08-5296 (ADM/JJK), 2009 WL 10711698, at *2 (D. Minn. Oct. 1, 2009).

“The ultimate focus for imposing sanctions for spoliation of evidence is the intentional destruction of evidence indicating a desire to suppress the truth ....” Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). “The intentionality requirement means that the destruction must have been purposeful.” Insignia Sys., Inc. v. News Am. Mktg. In-Store, Inc., No. CIV. 04-4213 JRT/AJB, 2009 WL 483850, at *4 (D. Minn. Feb. 25, 2009). In considering whether to sanction the destruction of evidence, a finding of bad faith is not always required. Escamilla v. SMS Holdings Corp., No. CIV. 09-2120 ADM/JSM, 2011 WL 5025254, at *11 (D. Minn. Oct. 21, 2011). If potential evidence is destroyed prior to the commencement of litigation, the moving party must also show that the destruction was in bad faith. E*Trade Secs. LLC v. Deutsche Bank AG, 230 F.R.D. 582, 588 (D. Minn. 2005). “If, however, the destruction of evidence occurs after litigation is imminent or has begun, no bad faith need be shown by the moving party.” E*Trade, 230 F.3d at 589.

In either case, the moving party must show that it was prejudiced by the destruction before sanctions are warranted. Id. at 592; see also, Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, (8th Cir. 2004) (“There must be a finding of prejudice to the opposing party before imposing a sanction for destruction of evidence.”), “Spoliation of evidence causes prejudice when, as a result of the spoliation, the party claiming spoliation cannot present ‘evidence essential to its underlying claim.’ ” In re Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 523 (S.D.W. Va. 2014) (quoting Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 532 (D. Md. 2010)).

*6 In evaluating prejudice, courts have looked to whether an allegedly harmed party took other available means to obtain the requested information. See, Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 903 (8th Cir. 2009); Greyhound Lines, Inc. v. Wade, 485 F.3d 1032, 1035 (8th Cir. 2007). “When evidence is irretrievably destroyed, a party suffers prejudice as a result of that destruction.” Escamilla, 2011 WL 5025254, at *5. However, “there is no prejudice when the movant is able to obtain the information in the destroyed evidence elsewhere.” Nicollet Cattle Co., 2010 WL 3546784, at *6.

B. Analysis

Plaintiff argues that Defendant has failed to preserve relevant text messages that were located on Hupka and Cochrane's cell phones, and as a result, those text messages were destroyed which has prejudiced Plaintiff's ability to prove his claims. (See, Mem. in Supp. [Docket No. 78]). Therefore, Plaintiff contends that he is entitled to adverse inferences as spoliation sanctions. (See, Id.).

A court's first task when determining whether sanctions are appropriate is to determine when the alleged spoliating party's duty to preserve documents commenced. E*Trade, 230 F.R.D. at 587. “A party is obligated to preserve evidence once the party knows or should know that evidence is relevant to future or current litigation.” Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 232 (D, Minn. Mar. 5, 2019) (citing E*Trade, 230 F.3d at 588). “The ‘duty to preserve evidence extends to those [persons] likely to have relevant information—the key players in the case, and applies to unique, relevant evidence that might be useful to the adversary.’ ” Id. (alteration in original) (quoting Ethicon, Inc. Pelvic Repair Sys. Prod. Liab. Litig., 299 F.R.D. 502, 517–18 (S.D. W. Va. 2014)). “To fulfill the obligation to preserve evidence ‘a litigant must take affirmative steps to prevent inadvertent spoliation.’ ” Shim-Larkin v. City of New York, 16-CV-6099 (AJN/KNF), 2019 WL 5198792, at *9 (S.D.N.Y. Sept. 16, 2019) (quoting R.F.M.A.S., Inc. v. So, 271 F.R.D. 13, 24 (S.D.N.Y. 2010)); see also, Paisley Park Enters., Inc., 330 F.R.D. at 233 (finding that after the duty to preserve attached, the defendants “were required to take reasonable steps to preserve ... text messages”).

Here, Defendant's obligation to preserve evidence relevant to the present litigation began on June 22, 2017, when Defendant received Plaintiff's demand letter notifying it that litigation was imminent.[3] See, e.g., E*Trade, 230 F.3d at 589.

Hupka replaced his phone on May 25, 2017, and again on June 4, 2019. (Ex. A [Docket No. 82-1], at 3; Ex. D [Docket No. 82-4], at 3). When Hupka replaced his phones, he turned them into Defendant for recycling. (Id.). Because Hupka did not backup his text messages, all text messages located on his previous phones were destroyed when they were recycled. (Id.). Thus, any text messages on Hupka's cell phone prior to May 25, 2017, were destroyed before Defendant's obligation to preserve evidence began, but any text messages on Hupka's cell phone from May 25, 2017, through June 4, 2019, were destroyed nearly 2 years after Defendant's obligation began.

Cochrane replaced his phone on May 19, 2017, and provided it to Defendant for recycling. (Ex. D [Docket No. 82-4], at 3). Cochrane has not replaced his phone since that time. (Id.). However, Cochrane has a personal practice of deleting his text messages after he has read them, and as a result, Defendant represents that any text messages located on his present phone have been destroyed. (Ex. A [Docket No. 82-1], at 3). Accordingly, any text messages on Cochrane's phone prior to June 22, 2017, were destroyed before Defendant's obligation to preserve evidence began, but any text messages on Cochrane's cell phone after that date were destroyed on a rolling basis after Defendant's obligation began.

*7 Next, the Court must consider whether spoliation has been established, and if so, whether sanctions are justified. “To establish spoliation, the moving party must show that the adverse party destroyed potential evidence, that the evidence was discoverable, and that the loss of evidence prejudiced the moving party.” Nicollet Cattle Co. v. United Food Grp., LLC, No. CIV 08-5899 JRT/FLN, 2010 WL 3546784, at *4 (D. Minn. Sept. 7, 2010) (citing Lexis–Nexis v. Beer, 41 F. Supp. 2d 950, 954 (D. Minn. 1999)). “If destruction of relevant information occurs before any litigation has begun, in order to justify sanctions, the requesting party must show that the destruction was the result of bad faith.” E*Trade, 230 F.R.D. at 588. “If, however, the destruction of evidence occurs after litigation is imminent or has begun, no bad faith need be shown by the moving party.” Id. at 589.

The record presently before this Court demonstrates that relevant text messages were destroyed prior to Defendant's duty to preserve evidence beginning and litigation becoming imminent on June 22, 2017. As noted in this Court's prior Order, Plaintiff has provided text messages that he exchanged with Hupka on January 31, 2017, February 3, 2017, and May 19, 2017.[4] (See, Ex. L [Docket No. 27], at 35–39; see also, Order [Docket No. 65], at 16–17). In a text message sent to Plaintiff on May 19, 2017, Hupka stated, “I had no idea what to say or do when I got a text this morning asking me to figure out if you were in Roch[ester] today.” (Ex. L [Docket No. 27], at 37–38). This indicates that at least one additional text message likely existed related to Plaintiff's termination.[5]

However, Plaintiff does not argue that such prelitigation destruction was the result of bad faith. (See, Mem. in Supp. [Docket No. 78]). Nor does the present record support any such finding in connection with the destruction of text messages that occurred prior to June 22, 2017. As such, this Court finds that Plaintiff is not entitled to any spoliation sanctions as a result of text messages that were destroyed prior to June 22, 2017. See, e.g., E*Trade, 230 F.R.D. at 588.

The Parties dispute whether any spoliation occurred after June 22, 2017. Defendant does not dispute that text messages located on Hupka and Cochrane's phones were destroyed after June 22, 2017. (See, Mem. in Opp'n [Docket No. 86]). Rather, Defendant argues that Plaintiff has neither shown that those text messages were discoverable nor that he was prejudiced by their destruction. (See, Mem. in Opp'n [Docket No. 86], at 12–16).

*8 To be discoverable, evidence must not be privileged and must be relevant to the claim or defense of any party. See, Sandoval v. Am. Bldg. Maint. Indus., Inc., 267 F.R.D. 257, 261 (D. Minn. 2007); see also, Nekich v. Wis. Cent. Ltd., No. 16-2399 (JNE/DTS), 2017 WL 11454634, at *3 (D. Minn. Sept. 17, 2017) (“The burden falls on the ‘prejudiced party’ to produce ‘some evidence suggesting that a document or documents relevant to substantiating his claim would have been included among the destroyed files.’ ”). Defendant does not argue privilege, but it contends that Plaintiff has failed to demonstrate that any text messages destroyed after June 22, 2017, were actually relevant to any claims or defenses in this case. (See, Mem. in Opp'n [Docket No. 86], at 12–16). The Court disagrees.

Defendant pays the service costs for Hupka and Cochrane's cell phones to facilitate their use for employment-related communications including text messages. (See, e.g., Evenson Decl. [Docket No. 81] ¶ 5; Ex. D [Docket No. 82-4], at 3). Both Hupka and Cochrane stated during their depositions that they regularly exchanged work-related text messages. (See, e.g., Cochrane Dep. [Docket No. 23-1], at 13; Hupka Dep. [Docket No. 24], at 6, 18). Likewise, Plaintiff represents that he regularly exchanged work-related text messages with his coworkers while employed by Defendant, and Plaintiff also represents that his former coworkers, including Hupka and Cochrane, regularly communicated with one another via text message. (Evenson Decl. [Docket No. 81] ¶¶ 3–5). Plaintiff has provided specific text messages that he exchanged with Hupka prior to Hupka changing his phone on May 25, 2017, which indicate relevant text messages existed prior to June 22, 2017.[6] (See, Ex. L [Docket No. 27], at 35–49). Moreover, although Hupka and Cochrane repeatedly stated during their depositions that they did not remember whether specific communications occurred via text message or some other method, or if specific communications even occurred at all, neither the deposition testimony of Hupka nor Cochrane precludes the possibility that additional responsive text messages existed. (See, Hupka Dep. [Docket No. 24]; Cochrane Dep. [Docket No. 23-1]).

As already noted, the present record demonstrates that Hupka and Cochrane utilized their cell phones to send relevant, work-related text messages prior to Plaintiff's termination. There is no reasonable basis to conclude that they did not continue to use their phones to exchange work-related text messages after Plaintiff's termination. Nor is there any reasonable basis to conclude that their subsequent communications were not relevant to the present case.[7]

*9 Accordingly, on the present record, this Court finds that Plaintiff has sufficiently met his burden of demonstrating that the text messages destroyed after June 22, 2017, were relevant and, therefore, discoverable. See, e.g., Sandoval, 267 F.R.D. at 261.

Defendant also argues that Plaintiff has failed to demonstrate that he was prejudiced by the destruction of text messages after June 22, 2017. (Mem. in Opp'n [Docket No. 86], at 14–16). Specifically, Defendant contends that Plaintiff has failed to show prejudice because he has not demonstrated that any text message destroyed after June 22, 2017, was relevant and favorable to his position. (See, Id.). Defendant further contends that Plaintiff has failed to show prejudice because he has not demonstrated that he was unable to obtain any information contained in the destroyed text messages from another source. (See, Id.).

“Prejudice exists when spoliation prohibits a party from presenting evidence that is relevant to its underlying case.” Paisley Park Enters., Inc., 330 F.R.D. at 236. “The party moving for sanctions bears the burden of demonstrating prejudice, although the burden placed on the moving party to show that lost evidence would have been favorable to it ought not to be too onerous, lest the spoliator be permitted to profit from its destruction.” In re Ethicon, 299 F.R.D. at 522–23.

In evaluating prejudice, courts have looked to whether an allegedly harmed party took other available means to obtain the requested information. See, Sentis Group, Inc. v. Shell Oil Co., 559 F.3d 888, 903 (8th Cir. 2009); see also, In re Ethicon, 299 F.R.D. at 523 (noting that prejudice is less acute when the requesting party may obtain some of the allegedly spoliated evidence from other sources). However, in some cases, the requisite element of prejudice may be satisfied by the nature of the evidence destroyed. Stevenson, 354 F.3d at 748; see also, Paisley Park Enters., Inc., 330 F.R.D. at 236 (finding the loss of text messages was prejudicial because the “Plaintiffs are left with an incomplete record of the communications that Defendants had with both each other and third parties”).

Here, Plaintiff has demonstrated that the text messages destroyed after June 22, 2017, were relevant to this case. Defendant has represented that the destroyed text messages cannot be recovered. (See, e.g., Ex. A [Docket No. 82-1], at 3; Ex. D [Docket No. 82-3], at 3). Plaintiff need not prove that the destroyed evidence contained a “smoking gun,” because “the very fact that it is the only ... [record of Hupka and Cochrane's text message communications] renders its loss prejudicial.” Stevenson, 354 F.3d at 748; see also, Park Enters., Inc., 330 F.R.D. at 236.

Furthermore, the contents of the destroyed text messages are not available from any other source. Defendant contends that there is no prejudice because “Plaintiff had a full and fair opportunity to question witnesses and other parties about text messages, the circumstances of Plaintiff's termination, the July 2017 investigation of pricing, and the hiring of Plaintiff's replacement.” (Mem. in Opp'n [Docket No. 86], at 15). At the Motion Hearing on this matter, Defendant further argued that Plaintiff failed to take available means to obtain the information contained in destroyed text messages from another source. Specifically, Defendant argued that Plaintiff could have asked Hupka and Cochrane more questions related to text messages, he could have deposed additional witnesses, and he could have subpoenaed SMS text message details from Hupka and Cochrane's mobile service providers.

*10 However, Plaintiff did ask both Hupka and Cochrane several questions related to text message communications during their depositions, and they consistently represented that they did not remember the details Plaintiff sought. (See, Hupka Dep. [Docket No. 24]; Cochrane Dep. [Docket No. 23-1]). Nothing in the present record indicates that Hupka or Cochrane would have responded any differently if Plaintiff had asked further questions. Moreover, even if they had, Plaintiff still would have been left with an incomplete record of their text message communications, hence still he would have been prejudiced. See, e.g., Stevenson, 354 F.3d at 748; Park Enters., Inc., 330 F.R.D. at 236. Similarly, deposing additional witnesses could not possibly have revealed a complete record of Hupka and Cochrane's text message communications.

In reference to Plaintiff's purported failure to subpoena SMS text message details from Hupka and Cochrane's mobile service providers, this Court notes that it previously Ordered Defendant to determine whether Hupka and Cochrane's mobile service providers were able to recover any responsive text messages. (Order [Docket No. 65], at 22). Defendant has represented that neither Hupka nor Cochrane's mobile service provider “retains or can recover the content of text messages from the relevant time period.” (Ex. A [Docket No. 82-1], at 3; accord, Ex. D [Docket No. 82-4], at 3). As such, the SMS text message details, which do not include the contents of the text messages, are no substitute for the messages themselves.

Accordingly, on the present record, this Court finds that Plaintiff has sufficiently met his burden of demonstrating that he was prejudiced by the destruction of Hupka and Cochrane's text messages after June 22, 2017. See, e.g., Stevenson, 354 F.3d at 748; Park Enters., Inc., 330 F.R.D. at 236.

In sum, this Court finds that Plaintiff has sufficiently met his burden of demonstrating that relevant, discoverable text messages were destroyed after Defendant's obligation to preserve evidence began on June 22, 2017, and that Plaintiff was prejudiced by that destruction. Therefore, Plaintiff has established that spoliation occurred after June 22, 2017.

Having established that spoliation occurred after Defendant's duty to preserve evidence began, the Court must determine whether adverse inferences are appropriate, and if so, what type is appropriate. As already noted, Plaintiff seeks adverse inferences as spoliation sanctions. (Second Mot. for Spoliation Sanctions [Docket No. 78]). However, Defendant argues that adverse inferences are inappropriate because Plaintiff has not established Defendant intentionally destroyed Hupka and Cochrane's text messages for the purpose of hiding the truth, and at most, the destruction of text messages after June 22, 2017, amounted to negligence or gross negligence. (Mem. in Opp'n [Docket No. 86], at 16–18). In other words, Defendant argues that adverse inferences are inappropriate because Plaintiff has not established that Defendant acted in bad faith after litigation became imminent and Defendant's obligation to preserve evidence began. See, Stevenson, 354 F.3d at 724 n.2 (equating bad faith with the intentional destruction of evidence).

“Upon a showing of spoliation, a court may impose appropriate sanctions.” Ewald v. Royal Norwegian Embassy, No. 11-cv-2116 (SRN/SER), 2014 WL 1309095, at *2 (D. Minn. Apr. 1, 2014) (quoting Nicollet Cattle Co., 2010 WL 3546784, at *4). “The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge, and is assessed on a case-by-case basis.” Id. (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. Oct. 22, 2003)).

The prelitigation destruction of evidence pursuant to a routine document retention policy requires a finding of bad faith before an adverse inference instruction may be imposed. Stevenson, 354 F.3d at 747. Because a negligence standard “would be inconsistent with the bad faith consideration and the intentional destruction required to impose an adverse inference for the prelitigation destruction of documents,” it would be inappropriate to “give[ ] and adverse inference instruction on the basis of prelitigation destruction of evidence through a routine document retention policy on the basis of negligence alone.” Id. (emphasis added).

*11 “If, however, the destruction of evidence occurs after litigation is imminent or has begun, no bad faith need be shown by the moving party. When litigation is imminent or has already commenced, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.” E*Trade, 230 F.R.D. at 589 (citation and quotations omitted); see also, Gallagher v. Magner, 619 F.3d 823, 845 (8th Cir. 2010) (“To be sure, a district court does not abuse its discretion by imposing sanctions, even absent an explicit bad faith finding, where a party destroys specifically requested evidence after litigation has commenced.”); Stevenson, 354 F.3d at 750 (“Sanctioning the ongoing destruction of records during litigation and discovery by imposing an adverse inference instruction is supported by either the court's inherent power or Rule 37 of the Federal Rules of Civil Procedure, even absent an explicit bad faith finding, and we conclude that the giving of an adverse inference instruction in these circumstances is not an abuse of discretion.”); The Valspar Corp. v. Millennium Inorganic Chems., Inc., No. 13-cv-3214 (ADM/LIB), 2016 WL 6902459, at *9 (D. Minn. Jan. 20, 2016) (“[W]ith respect to when evidence is destroyed prior to the triggering of a party's duty to preserve evidence, a court must find that the party destroyed the evidence in bad faith, i.e., intentionally and with the purpose to hide the truth, before the Court may impose an adverse inference instruction. When the destruction of evidence occurs after the duty to preserve documents is triggered, the Court may impose an adverse inference instruction without making a finding of bad faith.”).

Here, Defendant took no steps whatsoever to preserve the text messages located on Hupka and Cochrane's cell phones for over two years after Defendant was notified that litigation was imminent on June 22, 2017, and its obligation to preserve evidence began. As a result, Cochrane's text messages received after June 22, 2017, as well as, Hupka's text messages received between May 25, 2017, and June 4, 2019 were destroyed. Because Defendant was on express notice and its duty to preserve evidence related to imminent litigation had clearly attached, yet it nonetheless allowed that evidence to be destroyed, the Court need not find that Defendant acted in bad faith in order to impose an adverse inference instruction. See, e.g., The Valspar Corp., No. 13-cv-3214 (ADM/LIB), 2016 WL 6902459, at *9; E*Trade, 230 F.R.D. at 589.

Moreover, Defendant's actions go beyond simple negligence or even gross negligence. Although an express finding of bad faith is not necessary to impose an adverse inference instruction, the record presently before this Court supports such a finding. See, e.g., E*Trade, 230 F.R.D. at 587 (“Bad faith need not directly be shown but can be implied by the party's behavior.”).

On June 22, 2017, Plaintiff sent Defendant a demand letter thereby expressly notifying Defendant that this litigation was imminent and triggering Defendant's obligation to preserve evidence. See, Paisley Park Enters., Inc., 330 F.R.D. at 232. To fulfill its obligation, Defendant was required to “take affirmative steps to prevent inadvertent spoliation.” Shim-Larkin, 2019 WL 5198792, at *9 (quoting R.F.M.A.S., Inc., 271 F.R.D. at 24).

Shortly thereafter, on July 12, 2017, Defendant put a litigation hold in place. (Thill Decl. [Docket No. 44] ¶ 3). This indicates that Defendant was indeed aware that litigation was imminent and that it was obligated to preserve evidence. Defendant's general counsel, Mr. Rice, was involved in instituting the litigation hold, and as part of the process, he had individual conversations with the employees whom Mr. Rice “thought would be intimately involved in this matter.” (Rice Decl. [Docket No. 88] ¶ 4). Accordingly, Mr. Rice met separately with both Hupka and Cochrane. (Id. ¶ 5).

Defendant's duty to preserve evidence extended to Hupka and Cochrane as persons intimately involved in this matter who were likely to have relevant information. See, e.g., Paisley Park Enters., Inc., 330 F.R.D. at 232. Further, as set forth in this Court's prior Order, Defendant's duty to preserve evidence extended to Hupka and Cochrane's text messages that were located on their personal cell phones, which were used for business purposes and paid for by Defendant. (See, Order [Docket No. 65], at 15–16).

*12 During his meetings with Hupka and Cochrane, Mr. Rice specifically instructed each of them “not to send emails or text messages about this case.” (Rice Decl. [Docket No. 88] ¶ 6). Mr. Rice's instructions indicate that Defendant was cognizant of the fact that Hupka and Cochrane's relevant text messages would be discoverable in this case. However, despite Mr. Rice's tacit acknowledgment of the discoverability of Hupka and Cochrane's text messages, Mr. Rice never instructed Hupka or Cochrane to preserve the text messages already on their phones. (See, e.g., Id.; Hupka Dep. [Docket No. 24], at 3, 12, 16; Cochrane Dep. [Docket No. 23-1], at 13, 18–19). In short, Defendant, through Mr. Rice, took affirmative steps to prevent the creation of discoverable text messages, but took no steps to prevent the destruction of discoverable text messages.

Subsequently, Defendant “reconfirmed” the litigation hold in this matter after receiving notice of Plaintiff's charge of discrimination that was filed with the Equal Employment Opportunity Commission and referred to the City of Saint Paul Department of Human Rights and Equal Economic Opportunity, but Defendant still took no steps to preserve Hupka or Cochrane's text messages. (See, e.g., Roe Decl. [Docket No. 43] ¶¶ 2–3; Hupka Dep. [Docket No. 24], at 3, 12, 16; Cochrane Dep. [Docket No. 23-1], at 13, 18–19). Defendant reconfirmed the litigation hold again on November 1, 2018, “when [Defendant's] corporate counsel sent an email to document custodians reminding them of their continued document preservation obligations,” but no such email was sent to Hupka or Cochrane regarding their text messages. (See, e.g., Roe Decl. [Docket No. 43] ¶ 4; Hupka Dep. [Docket No. 24], at 3, 12, 16; Cochrane Dep. [Docket No. 23-1], at 13, 18–19). Indeed, it was not until after Hupka and Cochrane were deposed, in September 2019, that Defendant even asked them to search their cell phones for relevant text messages. (See, e.g., Roe Decl. [Docket No. 43] ¶¶ 10–11; Hupka Dep. [Docket No. 24], at 3, 12, 16; Cochrane Dep. [Docket No. 23-1], at 13, 18–19).

Between June 22, 2017, and September 2019, Cochrane continued his personal practice of deleting his text messages after reading them. (Ex. A [Docket No. 82-1], at 3). As a result, any relevant text messages on Cochrane's phone have been destroyed, and Plaintiff has been deprived of the only record of Cochrane's text message communications and thereby prejudiced. See, e.g., Stevenson, 354 F.3d at 748; Park Enters., Inc., 330 F.R.D. at 236. After taking no steps to fulfill its duty to preserve evidence and blindly allowing Cochrane to destroy his text messages for over two years after litigation became imminent, Defendant cannot not now escape spoliation sanctions by hiding behind Cochrane's personal practice of deleting text messages after they are read. See, e.g., E*Trade, 230 F.R.D. at 589 (“When litigation is imminent or has already commenced, a corporation cannot blindly destroy documents and expect to be shielded by a seemingly innocuous document retention policy.”).

The destruction of Hupka's text messages is even more egregious. On the present record, Hupka's text messages from May 25, 2017, through June 4, 2019, were destroyed when Hupka gave his prior phone to Defendant to be recycled on June 4, 2019. (See, Ex. A [Docket No. 82-1], at 3; Ex. D [Docket No. 82-4], at 3). On February 26, 2019, nearly 3 months before Hupka's text messages were destroyed, Plaintiff served his Requests for Production of Documents on Defendant. (Nelson Decl. [Docket No. 23] ¶ 7; see also, Ex. E [Docket No. 23-1], at 21–32). Request Nos. 32, 33, 36, and 37 sought all documents, including text messages, relating to: communications regarding Plaintiff's performance; the May 17, 2017, survey visit; communications regarding Plaintiff's whistleblower claims; and communications between Defendant and third-parties regarding Plaintiff's claims. (Ex. E [Docket No. 23-1], at 30–31). Indeed, Request No. 32 specifically stated that it sought, among other things, text messages. (Id. at 30). After receiving Defendant's production of documents, which contained no text messages, Plaintiff sent his first deficiency letter to Defendant on May 23, 2019, over 2 weeks before Hupka's text messages were destroyed. (See, Ex. I [Docket No. 27], at 12–25). Nevertheless, Defendant still did not take any steps to preserve Hupka's text messages and they were destroyed on June 4, 2019.

*13 Defendant's “failure to consider whether ... [Hupka's] phone[ ] might have discoverable information before destroying [it] was completely unreasonable.” See, Park Enters., Inc., 330 F.R.D. at 234. The unreasonableness of Defendant's failure is even more pronounced by the fact that litigation had not only already commenced, but Plaintiff had already requested relevant communications, including text messages, through discovery and then sent a deficiency letter to Defendant that in part alleged Defendant had failed to adequately respond to those discovery requests. See, Id. Indeed, an adverse inference instruction would be justified on this basis alone. See, e.g., E*Trade, 230 F.R.D. at 589; Stevenson, 354 F.3d at 750.

In addition, Defendant's subsequent behavior provides further support for imposing an adverse inference instruction. Defendant has been less than forthcoming in its discovery responses, and it has consistently resisted providing Plaintiff with even the most basic details related to Hupka and Cochrane's text messages.

On May 19, 2020, this Court Ordered Defendant to undertake additional search efforts to locate responsive text messages, as well as, Hupka and Cochrane's prior cell phones, and to the extent Defendant was unable to locate responsive text messages, to indicate what efforts had been undertaken, whether responsive text messages cannot be recovered and have been destroyed, and to make reasonably diligent efforts to determine when and under what circumstances the text messages were destroyed. (Order [Docket No. 65], at 21–23). On June 9, 2020, Defendant served its Third Supplemental and Amended Responses and Objections to Plaintiff's Request for Production of Documents, Set I. (Niemczyk Decl. [Docket No. 82] ¶ 3; see also, Ex. A [Docket No. 82-1]). However, Defendant's third supplemental responses still did not provide Plaintiff with basic information related to Cochrane's text messages and cell phone, which necessitated Plaintiff's sending a sixth deficiency letter to Defendant. (See, Ex. A [Docket No. 82-1]; Ex. B [Docket No. 82-2]).

On June 26, 2020, Defendant finally provided Plaintiff with the basic information regarding Cochrane's prior cell phones and text messages in its Fourth Supplemental and Amended Responses and Objections to Plaintiff's Requests for Production of Documents, Set I. (Niemczyk Decl. [Docket No. 82] ¶ 6; see also, Ex. D [Docket No. 82-4]). Still, Defendant's third and fourth supplemental responses only reflect a minimal effort to comply with this Court's prior May 19, 2020, Order. For example, Defendant represents that it contacted Hupka and Cochrane's mobile service providers, but Defendant does not indicate which individual contacted the service providers, when the contact occurred, or what questions were asked. (See, Ex. A [Docket No. 82-1]; Ex. D [Docket No. 82-4]). Defendant also indicates that Cochrane has had the same phone since May 19, 2017, and that he has searched his phone and no responsive text messages exist, yet Defendant does not indicate that any efforts were undertaken to determine whether text messages that Cochrane deleted from his current phone pursuant to his personal policy are forensically recoverable. (See, Ex. A [Docket No. 82-1]; Ex. D [Docket No. 82-4]).

Therefore, on the present record, this Court finds that adverse inferences are justified.[8] See, e.g., Stevenson, 354 F.3d at 749–50 (affirming district court's imposition of an adverse inference instruction for the destruction of evidence after litigation had commenced); E*Trade, 230 F.3d at 592–93 (granting adverse inference instructions for failure to preserve evidence after litigation was imminent).

*14 Lastly, this Court must determine the severity of the adverse inference that is to be imposed. There are three types of adverse inference instructions. See, Pension Comm. of Univ. of Motreal Pension Plan v. Banc of Am. Secs., LLC, 685 F. Supp. 2d 456, 470–71 (S.D.N.Y. 2010), abrogated on other grounds by Chin v. Port Auth. of N.Y. and N.J., 685 F.3d 135 (2d Cir. 2012)); accord, Taylor v. Null, 4:17-CV-0231-SPM, 2019 WL 4673426, at *7 (E.D. Mo. Sept. 25, 2019).

Pension Comm. of Univ. of Motreal Pension Plan, 685 F. Supp. 2d at 470–71; see also, Taylor, 2019 WL 4673426, at *7.

In the present motion, Plaintiff seeks the imposition of a mandatory but rebuttable presumption. (See, Proposed Order [Docket No. 84]). Although egregious, the Court does not find that Defendant's failure to preserve Hupka and Cochrane's text message warrants such a harsh inference. As such, the Court finds that the appropriate sanction in this instance is an instruction that that “permits (but does not require) a jury to presume that the lost evidence is both relevant and favorable to the innocent party.”[9]

Therefore, pursuant to its inherent power and Rule 37, the Court GRANTS Plaintiff's Second Motion for Spoliation Sanctions, [Docket No. 78], to the extent it seeks an adverse inference instruction as a sanction for the spoliation of evidence; the Court DENIES Plaintiff's Second Motion for Spoliation Sanctions, [Docket No. 78], to the extent it seeks a more severe instruction that would impose a mandatory rebuttable presumption; and the Court DENIES Plaintiff's Second Motion for Spoliation Sanctions, [Docket No. 78], to the extent it seeks an award of costs and attorneys’ fees.

III. CONCLUSION

*15 For the foregoing reasons, and based on all of the files, records, and proceedings herein, IT IS HEREBY ORDERED THAT Plaintiff's Second Motion for Spoliation Sanctions, [Docket No. 78], is GRANTED in part and DENIED in part, as set forth above.

Although Plaintiff refers to this as a deficiency letter, it is more accurately described as an email. (See, Ex. S [Docket No. 28], at 19). In the email, Plaintiff sought information regarding Defendant's attempts to retrieve text messages from Hupka and Cochrane's phones, dates on which Hupka and Cochrane received new phones, and the identity of the custodian in possession of Hupka and Cochrane's previous phones, as well as, any responsive materials obtained from the phones. (Id.).

Plaintiff also seeks an Order of this Court granting Plaintiff “an award of legal fees and costs incurred in connection with his counsel's efforts to pursue the text message issue.” (See, e.g., Mem. in Supp. [Docket No. 80, at 25). The Court DENIES Plaintiff's request for attorneys’ fees and costs.

As set forth in this Court's prior Order, Defendant's duty to preserve relevant evidence included work-related text messages on its employees’ cell phones. (Order [Docket No. 65], at 18).

Only one of these text messages relates to Plaintiff's termination, while the other two relate to the overcharging of Apollo Liquors. (See, Ex. L [Docket No. 27], at 35–39). Defendant has been granted summary judgement on Plaintiff's whistleblower retaliation claims. (See, Order [Docket No. 95]). However, the existence of those text messages is still relevant to the present matter because they provide evidence that Hupka did use his phone for work related text messages generally. (See, Ex. L [Docket No. 27], at 10).

When asked during his deposition who sent the text message to Hupka requesting that he determine whether Plaintiff was in Rochester, Hupka stated: “Jesse and Dale both called me and texted me.” (Hupka Dep. [Docket No. 24], at 11). However, when later asked if he “remember[ed] getting a text that morning from someone asking about Rochester,” Hupka stated that he “didn't know if it was a text or if it was a phone call” although he acknowledged “[t]hat day [he] said it was a text.” (Id. at 12). Although Hupka's deposition testimony is ambiguous as to whether a text, or multiple texts, were received regarding Plaintiff on the day that he was terminated, Hupka's statement on that day provides, at the very least, further evidence that Hupka did use his phone for work related text messages generally. (See, Ex. L [Docket No. 27], at 10).

Plaintiff has also provided two text message exchanges that took place between himself and Hupka after May 25, 2017, in one Plaintiff asked to use Hupka as a reference on job applications and Hupka responded with a “thumbs up,” and in the other, Plaintiff wished Hupka Merry Christmas. (See, Ex. L [Docket No. 27], at 45–46).

Defendant's general counsel, Bill Rice, represents that he instructed Hupka and Cochrane not to communicate with anyone about, and specifically not to send text messages about, this case. (Rice Decl. [Docket No. 88] ¶ 6). However, neither Hupka nor Cochrane mentioned this restriction during their depositions. (See, Hupka Dep. [Docket No. 24]; Cochrane Dep. [Docket No. 23-1]). Indeed, when directly asked whether he had spoken with various people about Plaintiff's behavior, Hupka responded, “I don't think so.” Hupka then explained, without mentioning Mr. Rice's instructions, that “[Plaintiff] was terminated. There was a lawsuit going on. I'd rather not talk about it.” (Hupka Dep. [Docket No. 24], at 11). Similarly, Defendant represents, without elaboration, in its fourth supplemental responses that Cochrane “has not communicated by text about the claims or defenses in this case since May 19, 2017.” (Ex. 4 [Docket No. 82-4], at 3). However, Defendant's conclusory, self-serving representation is not supported by Cochrane's deposition testimony, in which he repeatedly indicated that he did not remember whether specific communications occurred via text message or some other method, or if specific communications even occurred at all. (See, Cochrane Dep. [Docket No. 23-1]). Thus, on the present record, the Court finds that these representations do not provide a reasonable basis to conclude that the text messages destroyed after June 22, 2017, were not relevant to this case.

Indeed, the only reasonable inference that can be drawn from Defendant's complete failure to take any reasonable steps to preserve Hupka and Cochrane's text messages is that Defendant intentionally allowed Hupka and Cochrane's text messages to be destroyed to deprive Plaintiff of their use in the present litigation. See, e.g.,, Paisley Park Enters., Inc., 330 F.R.D. at 237 (“Any one of these events should have been sufficient to put the [defendants] on notice that they needed to preserve their text messages and phones. The Court can draw only one conclusion from this set of circumstances: that they acted with the intent to deprive Plaintiffs from using this information.”).

The Court notes that Plaintiff seeks this presumption to apply to emails and other written communications, as well as, text messages. (See, Id.). However, the Court does not find that an adverse inference instruction is justified for any communications besides Hupka and Cochrane's text messages that were destroyed after June 22, 2017.