*1 Pending before the Court are Plaintiff's Motion for Review of Non-Dispositive Order of Magistrate Judge (Doc. No. 54) and Motion to Revoke Discretionary Referral to the Magistrate Judge for Case Management (Doc. No. 52). Defendant filed a response to the motion for review (Doc. No. 60) and to the motion to revoke referral to the magistrate judge (Doc. No. 61).

For the reasons stated below, the motion for review (Doc. No. 54) is DENIED; the rulings of the Magistrate Judge (Doc. No. 51) are AFFIRMED; and Plaintiff's motion to revoke referral (Doc. No. 52) is DENIED.

Plaintiff brings a claim for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. against her employer Prime Now, LLC.[1] Plaintiff alleges she was retaliated against and ultimately terminated after she reported sexual harassment and retaliation.[2] (Compl., Doc. No. 1 at ¶¶ 15, 24). Plaintiff's underlying sexual harassment complaint, which she later informed her employer she did not intend to pursue, included allegations that a non-employee delivery driver sent her inappropriate text messages. (Id. at ¶¶ 10, 13, 14, 24). Defendant denies that Plaintiff's termination was retaliatory and asserts Plaintiff was fired because she refused to cooperate with the sexual harassment investigation and provided inconsistent and false statements. (Doc. No. 14 at 4; Doc. No. 18 at 9-10).

A. Standard of Review

Plaintiff seeks review of the Magistrate Judge's April 29, 2020 Order (Doc. No. 51) ruling on Defendant's motion for discovery sanctions (Doc. No. 44) and Plaintiff's motion to expand the case management order and for leave to file an amended complaint (Doc. No. 39). The Magistrate Judge reserved ruling on Defendant's motion for discovery sanctions, directed Plaintiff to produce her son's cell phone for forensic analysis, and denied Plaintiff's motion to expand the case management deadlines and amend the complaint. (Doc. No. 51). Under Rule 72(a) of the Federal Rules of Civil Procedure, the Court may reverse or modify the ruling of the Magistrate Judge if it is clearly erroneous, contrary to law, or in the interests of justice. See also 28 U.S.C. § 636(b)(1)(A) (“A judge of the court may reconsider any pretrial matter ... where it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.”). A ruling is clearly erroneous if, upon review of the record, the district court is left with a definite and firm conviction that a mistake has been made. United States v. Hurst, 228 F.3d 751, 756 (6th Cir. 2000).

B. Order to Produce Justin Tenpenny's Cell Phone for Forensic Analysis

*2 The text messages between Plaintiff and the driver, Jared Ryan, have been the subject of ongoing discovery disputes in this case. Plaintiff has consistently argued that the text messages are not relevant to her claim of retaliation and Defendant contends the text messages are probative of her credibility and may reveal a personal relationship that undermines her alleged good faith belief that she was subject to harassment in violation of Title VII, and provide support for Defendant's stated reason for firing her. (See Joint Discovery Dispute Stmt., Doc. No. 18 at 10).

Sometime before filing this case on May 20, 2019, Plaintiff or someone provided access to her phone (later revealed to be Plaintiff's friend Rebecca Jones), took screenshots of select text messages between Plaintiff and her alleged harasser and deleted the original messages from the phone.[3] As part of discovery, Defendant requested all communications between Plaintiff and Mr. Ryan. Plaintiff provided photocopies of the screenshots of the text messages. The parties agree that the copies produced do not constitute the entirety of the communications between Plaintiff and Mr. Ryan.[4] (See Pl. Mem., Doc. No. 56 at 2 (“Screen shots were preserved for most of the texts”) and at 5 (“Plaintiff has provided screen shots of all the texts she maintained, and to the extent the screens are cut off, those are gone”)).

The deletion of the text messages, however, was not the subject of the early discovery disputes. In the first discovery dispute statement,[5] Defendant complained that Plaintiff had only produced “snippets of communications” and that she should be required to provide her full text message history with Mr. Ryan and the device(s) she used to communicate with him for third-party forensic examination of the text messages.[6] (Doc. No. 18 at 9-10). If Defendant was aware that the messages had been deleted, it did not say so. Nor did Plaintiff allege that she was unable to produce the messages because they had been deleted. Instead, Plaintiff objected to the request for production of the compete text messages on grounds that her relationship with Mr. Ryan is not relevant to the claim for retaliation and that forensic analysis of her cell phone was, therefore, unnecessary and would violate her constitutional right to “private intimate association.” (Id. at 5). Plaintiff reiterated these arguments in her subsequent motion for protective order and supporting memorandum of law regarding forensic analysis of her cell phone. (Doc. Nos. 24, 24-1).

*3 The Magistrate Judge granted plaintiff's motion for protective order in part and ordered a forensic examination of Plaintiff's phone with the restriction that the examiner was to retrieve only communications between Plaintiff and Mr. Ryan. (Doc. No. 29). The forensic examination of Plaintiff's phone took place on January 13, 2020. (Doc. No. 45-4 at ¶ 6). The examiner reported that “after he completed the examination of Mrs. TenPenny's [sic] iPhone 7, her lawyer Mrs. Constance Mann stated to me that Mrs. TenPenny [sic] had taken screenshots from her iPhone 7 of the Relevant Text Messages and subsequently deleted the text messages.” (Id. at ¶ 12). He determined that the iPhone contained image files of the screenshots of the text messages but that “the actual text messages depicted in these screenshots were not themselves present in the image.” (Id. at ¶ 15). He also searched the “iCloud backup” and determined that the text messages did not exist in the iCloud backup. (Id. at ¶ 19).

Plaintiff's deposition took place on January 30, 2020, after the forensic examination of her cell phone. During the deposition, Plaintiff disclosed for the first time that the text messages were deleted by her friend Rebecca Jones and that Ms. Jones made screenshots of the texts and sent the screenshots to Plaintiff's son's cell phone.[7] (Pl. Dep., Doc. No. 45-5 at PageID# 398-99).

On March 10, 2020, Defendant moved for sanctions for failure to disclose relevant evidence, failure to preserve electronically stored information, and failure to obey a discovery order. (Doc. Nos. 35, 36). The Magistrate Judge denied the motion for sanctions because it was filed without first requesting a discovery conference and was otherwise in contravention of the discovery dispute resolution procedures required by the Initial Case Management Order and the Court's February 18, 2020 Order (Doc. No. 33). (Doc. No. 38).

The parties filed a Joint Discovery Dispute Statement on March 30, 2020 (Doc. No. 41). Defendant stated, “It was not until Plaintiff's deposition on January 30, 2020, that Plaintiff disclosed, for the first time, that a friend, Rebecca Jones, took screenshots of some of Plaintiff's texts with Mr. Ryan; sent them to Plaintiff's son, Justin Tenpenny's, cell phone; and then deleted the texts from Plaintiff's cell phone.”[8] (Id. at 2). Defendant requested leave to file a motion for sanctions arguing that Plaintiff's failure to disclose that the messages sought for forensic examination were on her son's cell phone resulted in “unnecessary expenditure of defense resources” and “wasted the time of the Court.” (Id. at 3).

Plaintiff responded that the motion for sanctions was a “litigation strategy designed to harm and intimidate Plaintiff” and that she has “complied with every order and the Federal Rules of Civil Procedure.” (Id. at 4). Plaintiff contended that she did not “refuse” to provide the complete text messages, but instead filed an objection on grounds of relevance and Defendant did not seek to compel a response. Plaintiff further stated that she “timely supplemented her responses once the Court found the texts relevant” when she disclosed Rebecca Jones on January 30, 2020 (presumably referring to Plaintiff's deposition testimony) and supplemented her interrogatories on February 13, 2020.[9] (Id. at 5). Plaintiff also argued that she complied with the precise wording of the Magistrate Judge's Order to “disclose and produce every electronic device she used to communicate with Mr. Ryan.” (Id.) Plaintiff reasoned that she only communicated with Mr. Ryan on her own cell phone and no one ever asked her if the text messages might be found elsewhere. (Id.)

*4 Finally, Plaintiff argued there can be no claim of spoliation because “the evidence never existed.” In the same paragraph, she asserts that deletion of the text messages (the same ones she claims never existed) was not destruction of evidence because after she destroyed the texts, she told human resources that she no longer wished to pursue the sexual harassment claim. Plaintiff asserted, “At the time the texts were removed, the harassment had stopped, she was not reporting harassment, did not want to report harassment, had not been disciplined, terminated, not had she filed an EEOC complaint.” (Id. at 6).

After reviewing the discovery dispute statement, the Magistrate Judge allowed Defendant to file a motion for sanctions for the conduct described. (Doc. No. 42). Defendant filed a renewed motion for sanctions requesting the Court dismiss the action pursuant to Rule 37(b)(2)(A)(v) and Rule 37(e)(2)(C) and award Defendant attorneys' fees and costs associated with opposing Plaintiff's Motion for Protective Order (seeking to prevent forensic analysis of her cell phone), conducting the forensic analysis, and filing the motion for sanctions. (Doc. Nos. 44, 45). Plaintiff filed a response. (Doc. No. 49). The Magistrate Judge reserved ruling on the motion for sanctions and ordered Plaintiff to either produce complete copies of all text messages or make her son's cell phone available for forensic examination within 14 days. (Doc. No. 51).

Plaintiff filed a motion for review of the Order, claiming that “The Court's order of a forensic examination of a non-party's phone is clearly erroneous, when based upon a misunderstanding of the underlying claim, is unsupported by the facts of this case, and the order commands a blanket production of the phone with no limitation to relevant issues.”[10] (Doc. No. 54 at 2). Plaintiff also filed a motion to stay the forensic examination. (Doc. No. 55). The Court denied the motion to stay and Ordered that the forensic examination of Justin Tenpenny's cell phone was subject to the same conditions regarding the examination of Plaintiff's cell phone. (Doc. No. 57).

The Court's Order of May 5, 2020, resolved Plaintiff's objections regarding the scope of the forensic analysis of the cell phone. The examination should have occurred by this time rendering the remaining objections moot. However, because the objections are similar to those raise in the motion to revoke referral, the Court will consider them now.

First, Plaintiff has persistently argued that the text messages themselves are not relevant to the retaliation claim. She asserts that a successful claim of retaliation does not require a viable underlying harassment claim; therefore, the Magistrate Judge's statement that the “texts are the basis of this claim” is in error. (Doc. No. 54-1 at 7). The texts are the basis of the claim in the sense that they were, in part, the groundwork or foundation of Plaintiff's initial sexual harassment claim, which in the retaliation context is the “protected activity.” Stating that the text messages form the basis of the claim in no way implies that Plaintiff must prove sexual harassment to be successful on her retaliation claim. However, proving the sexual harassment claim or not does not render the text messages upon which that claim was based irrelevant to the retaliation claim.

A retaliation claim under Title VII requires the plaintiff to establish: (1) that she engaged in a protected act; (2) that her protected act was known by the defendant; (3) that she experienced a materially adverse employment action.; and (4) a causal connection between the protected activity and the adverse employment action. Hubbell v. FedEx SmartPost, Inc., 933 F.3d 558, 568 (6th Cir. 2019). Once a plaintiff establishes a prima facie case of retaliation, the burden of production shifts to the defendant “to proffer some legitimate, nonretaliatory reasons for its actions.” Id. If the defendant does so, the burden of persuasion shifts back to the plaintiff to show that the proffered reasons were pretext for retaliation. Id. Although the retaliation claim does not require a successful underlying sexual harassment claim, to obtain Title VII's retaliation protection, Plaintiff must have had a “reasonable and good faith belief” that the reported harassment was a Title VII violation. Barrett v. Whirlpool Corp., 556 F.3d 502, 516 (6th Cir. 2009) (“A plaintiff must demonstrate that her opposition was reasonable and based on a good-faith belief that the employer was acting in violation of Title VII.”).

*5 The scope of discovery under the Federal Rules of Civil Procedure is broad: “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Moreover, discovery is not limited to evidence needed to establish Plaintiff's case in chief. The defendant also has a right to discovery to seek materials relevant to its defense.

Plaintiff alleges her former co-worker, Jared Ryan, sent a series of inappropriate text messages, she complained about the text messages to her employer Prime Now, and, although she told her employer she did not wish to pursue the sexual harassment complaint, she was terminated for reasons related to the complaint. Among other things, Defendant claims she was fired for non-retaliatory reasons – she was untruthful and refused to cooperate during the harassment investigation – and challenges that Plaintiff's sexual harassment complaint was made in good faith. The Magistrate Judge found, and the Court agrees, that the text messages are relevant to the good faith element of Plaintiff's retaliation claim and relevant to Defendant's defense theories. Accordingly, the text messages fall within the scope of discovery under Rule 26.

Plaintiff also objects that “the texts were ordered based on a misunderstanding of facts, when the Court believe [sic] the Plaintiff destroyed the texts during litigation” and that the “entire foundation of the order is fantasy.” (Doc. No. 54-1 at 8, 9). Plaintiff refers to the following statements in the Order:[11]

(Doc. No. 51 at 14, 15).

The Court finds no evidence in the contested Order that the Magistrate Judge based her decision to order the forensic examination of Plaintiff's son's cell phone on a mistaken belief that Plaintiff deleted the relevant text message during the litigation. To the contrary, as stated above, the text messages are relevant and discoverable, and Plaintiff belatedly disclosed that they were forwarded to her son's cell phone. Moreover, while the Magistrate Judge's statements could viewed as evidence of misunderstanding of the timing of the deletion, they could also be read as stating that Plaintiff's admission that she deleted the texts came after Defendant requested them. Indeed, from the written filings in this case, the timing of the deletion and Plaintiff's disclosure of the deletion was only clearly presented to the Court in the most recent filings. The second statement to which Plaintiff objects does not even contain a temporal aspect, but merely states that Plaintiff admitted to deleting evidence that was requested by an opposing party in litigation. It implies nothing about when Plaintiff deleted the messages.

*6 Although not raised by Plaintiff in the motion for review, the Court will also address Plaintiff's complaint that the Magistrate Judge ordered forensic analysis of Justin Tenpenny's cell phone even though it was not requested in the Defendant's Renewed Motion for Sanctions. Plaintiff is correct that Defendant's motion for discovery sanctions did not seek access to Justin Tenpenny's cell phone; it sought dismissal of the case and an award of attorney's fees and costs. Access to the phone, however, was part of the underlying dispute on which the motion for sanctions was premised and was raised by the parties in the Joint Discovery Dispute Statement filed on March 30, 2020. (Doc. No. 41 at 3). The Magistrate Judge was well within her discretion to order the requested discovery and reserve ruling on the motion for sanctions. It appears to the Court that this outcome was likely to Plaintiff's benefit.

For the reasons stated, the Magistrate Judge properly ordered forensic review of Justin Tenpenny's cell phone. The Order is AFFIRMED.

C. Order Denying Expansion of the Case Management Order and Leave to File an Amended Complaint

On August 8, 2019, the Court issued an initial case management order that required any motions to amend or add parties be filed by January 10, 2020. (Doc. No. 14). On December 31, 2019, Plaintiff moved to extend the deadline. (Doc. No. 28). Plaintiff's motion failed to comply with Local Rule 7.01. The Magistrate Judge granted the motion and extended the deadline to February 21, 2020, but warned counsel that future noncompliance with the requirements of the Local Rules would not be overlooked in the future. (Doc. No. 29 at 1, n. 1).

On February 17, 2020, Plaintiff moved for leave to file an amended complaint. (Doc. No. 32). The motion did not comply with Local Rules 7.01(a) and 15.01, which require each motion be accompanied by a memorandum of law and state that the moving party has conferred with opposing counsel and indicate whether the requested relief is likely to be opposed. On March 13, 2020, the Magistrate Judge denied Plaintiff's motion without prejudice for failure to comply with the local rules and advised that any later filed motion to amend must also demonstrate good cause under Federal Rule of Civil Procedure 16(b)(4).[12] (Doc. No. 38).

On March 23, 2020, Plaintiff filed a Motion to Expand the Case Management Deadline, which included as attachments a memorandum of law in support of the motion, a motion for leave to amend the complaint and memorandum in support of that motion, and the proposed amended complaint. (Doc. No. 37). Plaintiff sought leave to amend the complaint to add Amazon.com, Inc. and Amazon.com Services, LLC as defendants and assert additional allegations of sexual harassment. (Doc. Nos. 39-4, 39-5, 39-9). The proposed amended complaint also removed some references to the text messages from Mr. Ryan.[13] (See Doc. No. 39-9). The Magistrate Judge denied Plaintiff's motion for leave to amend the Complaint, finding that Plaintiff had not shown good cause under Fed. R. Civ. P. 16. Plaintiff filed a motion for review. (Doc. No. 54).

Federal Rule of Civil Procedure 15 provides that leave to amend “shall be freely granted when justice so requires.” Fed. R. Civ. P. 15(a). However, when leave to amend is sought after the deadline in the Court's scheduling order, as is the case here, the party seeking leave to amend must show good cause under Federal Rule of Civil Procedure 16(b)(4). The good cause requirement of Rule 16 is satisfied only if the original deadline “cannot reasonably be met despite diligence and that the opposing party will not suffer prejudice by virtue of the amendment.” Ross v. Am. Red Cross, 567 F. App'x 296, 306 (6th Cir. 2014); see also, Leary v. Daeschner, 349 F.3d 888, 906 (6th Cir. 2003) (“[A] court choosing to modify the schedule upon a showing of good cause[ ] may do so only ‘if it cannot be reasonably be met despite the diligence of the party seeking the extension.’ ” (quoting Fed. R. Civ. P. 16 advisory committee note)).

*7 The Magistrate Judge concluded that Plaintiff had not shown good cause for failing to file a proper motion for leave to amend within the deadlines set in the case management order. In reaching this conclusion, she noted that Plaintiff's proposed amendment was not based on newly discovered information – Plaintiff was aware of the “potential” that Amazon.com terminated Ms. Tenpenny since at least August 2019 and the additional allegations of sexual harassment are based on events that took place before Plaintiff filed the original complaint. In addition, the Magistrate Judge observed that Plaintiff offered no explanation, other than carelessness, for her failure to file a motion which complied with the Local Rules by the already extended deadline. The Magistrate Judge concluded that Plaintiff's carelessness did not constitute good cause, particularly when she had previously been admonished for failure to comply with the Local Rule and warned that further noncompliance may not be excused. The Magistrate Judge also considered potential prejudice to Defendants and found that they would be prejudiced by amendment of the Complaint after the deadline because the case was in the late states of final discovery and the dispositive motion deadline was imminent.[14]

The Magistrate Judge's denial of the initial motion for leave to amend on grounds that it did not comply with the Local Rules was not clearly erroneous or contrary to law, particularly when Plaintiff had previously failed to comply with the very same Local Rule and the Magistrate Judge warned that future noncompliance would not be excused. Nor was the determination that Plaintiff failed to show good cause under Fed. R. Civ. P. 16(b)(4), and denial of leave to amend on that basis, clearly erroneous or contrary to law. As this is sufficient grounds to affirm the ruling, the Court will not address the futility analysis.

Plaintiff's motion to revoke referral to the magistrate judge (Doc. No. 52) states: “The “animus of the Magistrate [Judge] towards Plaintiff and her counsel clouds her judgment resulting in material mistakes that will ultimately be the responsibility of this District Judge. In the most recent order [Doc. No. 51, which is the subject of the motion for review], the Magistrate [Judge] did not have a proper grasp on the cause of action and misstated controlling material facts.” (Doc. No. 52 at 1). Plaintiff argues, “Relief in this motion will preserve judicial economy if the issues can simply be resolved on their merits, rather than misinformation either promulgated by or unchecked by the Magistrate [Judge].” (Id.). Plaintiff describes the Order as “scathing,” “with virtually no correct fact, no citation to the record, and clear evidence that the Magistrate [Judge] does not have a grasp on the elements of the underlying cause of action.” (Doc. No. 56 at 4).

The Court has thoroughly reviewed the record in this case and finds the Plaintiff's criticism unfounded. While the Court will resist the urge to engage in a line by line analysis of each of Plaintiff's complaints, the Court notes Plaintiff's assertion that the Order has “no citation to the record” is not only factually incorrect, Plaintiff's own memorandum is significantly lacking in this regard.[15]

With regard to the discovery dispute, Plaintiff admits relevant evidence was destroyed. She disputes only the timing of the destruction, which was discussed above with regard to the discovery of text messages and did not form the basis of the Magistrate Judge's order.[16] Plaintiff also contends that her failure to produce the entire contents of the text messages should not be characterized as a “refusal” because the messages have been deleted and Plaintiff is unable to produce them. (Doc. No. 52 at 2) (“One cannot produce what one does not have.”). Curiously, Plaintiff also claims “everyone thought [the text messages] would be on her phone, even if deleted.” (Pl. Resp. to Def. Mot. for Sanctions, Doc. No. 49 at 10). The statement that Plaintiff deleted the texts in the cloud may not be technically correct in that Plaintiff may not have taken special steps to specifically remove the messages from cloud storage. However, deletion of the messages from the cell phone resulted in them also being (eventually) removed from cloud storage. That Plaintiff did not have to take additional steps to remove the message from cloud storage is inconsequential, and in any event, was not the basis for the Order.

*8 Plaintiff also complains that the Magistrate Judge wrote that she was “indifferent to procedural requirements” when she failed to comply with the Local Rules on more than one occasion and expressed “faux outrage”[17] that Defendant would deign to seek discovery sanctions. (Doc. No. 52 at 3). Finally, Plaintiff claims that Magistrate Judge Holmes “claimed she did not like [Plaintiff's] counsel, because of gamesmanship.” (Doc. No. 56 at 3, n. 1). Defendant denies that Magistrate Judge Holmes “has ever said any such thing.” (Doc. No. 61 at 4).

The examples cited by Plaintiff reflect the Magistrate Judge's displeasure with Plaintiff's legal tactics. There is no evidence of personal animosity toward Plaintiff or her counsel. Notably, Defendant was also admonished, and its motion denied, for failure to follow the local rules and court procedure. (See Doc. No. 38). Moreover, the Magistrate Judge did not impose sanctions even though she agreed that Plaintiff's actions were “egregious,” and instead gave Plaintiff an additional opportunity to provide the requested discovery. (See Doc. No. 51).

The Court construes Plaintiffs motion to revoke referral, which alternatively requests referral to a different magistrate judge, as a motion for disqualification under 28 U.S.C. § 455(a), which provides that a federal judge must disqualify herself from a proceeding where “[her] impartiality might reasonably be questioned.” Disqualification is based upon an objective, rather than a subjective, standard and is required “where a reasonable person with knowledge of all the facts would conclude that the judge's impartiality might reasonably be questioned.” Burley v. Gagacki, 834 F.3d 606, 616 (6th Cir. 2016) (citation omitted). Therefore, a judge will not be disqualified “based on the subjective view of a party, no matter how strongly that view is held.” United States v. Sammons, 918 F.2d 592, 599 (6th Cir. 1990) (citation omitted). In Liteky v. United States, 510 U.S. 540 (1994), the Supreme Court held that recusal for “bias” and “prejudice” is not required: (1) when the court makes a judicial ruling with which a party disagrees; or (2) when opinions are formed by the judge on the basis of facts introduced or events occurring in the course of current or prior proceedings “unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible.” 510 U.S. at 555.

The circumstances presented here do not show that Magistrate Judge Holmes “has a personal bias or prejudice concerning a party” to warrant disqualification. The Court has reviewed the alleged misstatements and allegations of error and found them to be either inconsequential or not in error. There is no evidence that Magistrate Judge Holmes's impartiality would be questioned by a reasonable person with knowledge of the facts. Moreover, the bulk of the case management responsibilities of the Magistrate Judge have concluded—the discovery deadlines have passed and the parties have filed motions for summary judgment.

Accordingly, the Motion to Revoke Discretionary Referral to Magistrate Judge Homes (Doc. No. 61) is DENIED.

For the reasons stated, Plaintiff's Motion for Review of the Magistrate Judge's Order (Doc. No. 54) is DENIED and the Memorandum Order of the Magistrate Judge denying leave to amend and ordering production of the cell phone for forensic examination (Doc. No. 51) is AFFIRMED. Plaintiff's Motion to Revoke Discretionary Referral to Magistrate Judge Homes for Case Management (Doc. No. 52) is also DENIED.

*9 It is so ORDERED.

“Amazon Prime Now” was originally named as Defendant. Upon agreement of the parties, Prime Now LLC was substituted as the correctly named Defendant. (See Case Mgmt. Order, Doc. No. 14 at 1). Plaintiff later sought leave to amend the Complaint to add as defendants Amazon.com, Inc. and Amazon.com Services, LLC. (See Proposed Am. Compl., Doc. No. 39-9).

In the Proposed Initial Case Management Order, Plaintiff characterized her claim as one of “retaliation for reporting sexual harassment.” (Doc. No. 12 at 1; see also Joint Discovery Dispute Statement, Doc. No. 18 (“Ms. Tenpenny claims retaliation for making a sexual harassment complaint.”)).

Plaintiff does not recall exactly when the text messages were deleted. Plaintiff's memo in support of her motion to revoke discretionary referral states, “Everyone agrees by July 2, 1018, everyone was on notice that the texts were no longer on the Plaintiff's phone.” (Doc. No. 56 at 10). Plaintiff testified in her deposition, however, that she “assumed they were deleted” by July 2, 2018, that she “could not recall for sure,” but that she “said that the text messages are deleted.” (Doc. No. 45-5 at 3).

The Court notes that Plaintiff responded to Defendant's Interrogatories that “Ms. Tenpenny has produced all documents within her possession” and “has provided photographic copies of all the texts.” (Doc. No. 49-4 at ¶ 18). This appears to be inaccurate as Plaintiff concedes the photocopies do not include all of the texts.

The parties also raised several discovery disputes unrelated to the current motions.

In the motion to revoke referral, Plaintiff takes issue with the Magistrate Judge's statement that “Defendant limited their inquiry to communications between the Plaintiff and the Driver” and asks, “Where did this happen in this record?” (Doc. No. 56 at 9 (citing Doc. No. 51). The statement cited by Plaintiff is not contained within the cited Order. Moreover, in the Joint Discovery Dispute Statement, Defendant requests “third-party forensic examination of the text messages to ensure Plaintiff has provided her counsel all – not just selected – text exchanges with the subject driver.” (Doc. No. 18 at 10) (emphasis added).

It is not clear from the filings when the text messages were deleted (Plaintiff now says sometime between March 18 and July 2, 2018) or when Defendant learned the message had been deleted from Plaintiff's phone. Defendant clearly states, however, that it learned for the first-time during Plaintiff's deposition, that Ms. Jones had deleted the messages and that she sent them to another device. (Doc. No. 41 at 2).

Plaintiff did not initially disclose Ms. Jones as a person with knowledge or information related to the claims in the Complaint, but has since updated the Interrogatory responses to include this information. Plaintiff's February 13, 2020, Supplement to Production of Documents stated, “Per the request for deficiency, we are not in possession of the address for Rebecca Jones, and do not feel she is a relevant witness with information related to your interrogatory questions. Her last known phone number is [number]. We further supplement out interrogatory responses with any and all answers provided in the deposition.” (Doc. No. 49-5).

At this time, the Court does not consider whether a three-week delay between the Court's ruling that the text messages were relevant and discoverable and the disclosure during Plaintiff's deposition was in fact “timely” in light of the imminent examination of Plaintiff's cell phone. The Court also notes that an additional two weeks passed between the disclosure of Rebecca Jones as a witness on January 30, 2020, and the provision of her contact information on February 13, 2020.

The Motion for Review also requested review of the denial of leave to amend the complaint, which is considered in a separate section of this Memorandum.

Plaintiff lists three additional statements as evidence of error, but does not discuss the statements to indicate what the perceived errors are or how they allegedly resulted in the order for forensic analysis of Justin Tenpenny's cell phone.

The Order denied Defendant's motion for discovery sanctions for the same reason – failure to comply with local rules and procedures. (Doc. No. 38).

The Proposed Amended Complaint does not include the allegation from the Original Complaint that “Throughout January and February, J. Ryan began stalking Ms. Tenpenny by sending her inappropriate texts.” (Compare Doc. No. 1 with Doc. No. 39-9). It does, however, include the allegation that “Mr. Larson looked at the text from Ryan and claimed they would have to be reported.” (Doc. No. 39-9 at ¶ 14).

When the Magistrate Judge issued the ruling on April 29, 2020, the June 1, 2020, dispositive motion deadline approximately one month away. The deadline was later extended to July 1, 2020. (Doc. No. 64).

For example, Plaintiff complains the Order at docket entry 51 “wrongfully claims, plaintiff refuses to provide the texts and Defendant limited their inquiry to communications between the Plaintiff and the Driver,” when the Order does not contain the alleged erroneous statement. (Doc. No. 56 at 9). Plaintiff also states that “Everyone agrees by July 2, 2018, everyone was on notice that the texts were no longer on the Plaintiff's phone” without citation. (Id. at 10). Moreover, given that Plaintiff's complaint it the Court's alleged misstatement, she fails to provide citation to the record regarding when the Court was informed that the messages had been deleted from Plaintiff's cell phone.

The Court takes no position on whether, at the time the text messages were deleted, Plaintiff was under an obligation to preserve them.

Plaintiff states that the Magistrate Judge called her “arguments faux,” when she actually referred to “faux outrage.” (Doc. No. 51 at 15).