*1 Plaintiff Zox LLC moves to enforce this Court's prior discovery order (ECF 73) by compelling Defendant Daniel Zox to produce text messages between or among himself and his brothers, John and Andrew, that Daniel described he had—at least on that day—in his December 10, 2021 deposition. (ECF 127). The pertinent portions of that deposition—included as Exhibit B to the Sandelands declaration filed in support of Plaintiff's motion (ECF 127-1 at 11-31)—are reproduced in full below.

Defendant Daniel Zox now claims that he has none of the text messages he referred to in his December 10th deposition—and thus nothing to produce. (ECF 129-1). That is because he and his brothers always used the Signal text application to “communicate securely with each other years before this litigation began.” (Id. at 2). But because “Signal allows people to send texts to each other that automatically expire after a period of time,” Defendant says he “do[es] not have any messages to search or produce.” (Id.). So, according to Defendant, if Plaintiff's attorney had only asked him “additional questions regarding the text messages” he described exchanging with his brothers during the deposition, Plaintiff would have learned that Daniel has in his “possession” no text messages that he “could have located and produced in this case.” (Id.). Thus, when he answered “yes” to whether “there are text message that exist between [him]self and John Zox about the House of Kuipers,” he “was referring only to a few messages that had not expired as of the moment of the deposition.” (Id.). At that moment, Daniel now claims, “there were only a few in existence” that wouldn't have been automatically purged by Signal's default functionality. (Id.). And for good measure, if he had just been asked about the “substance” of those few remaining messages, Daniel “would have testified that” the messages “discuss[ed] case strategy received from [their] attorneys, logistics, etc.” (Id. at 3).

*2 Afterward, on December 24, 2021, Daniel—through his attorney—supplemented his written response to Plaintiff's original request for production that sought certain communications with one of his brothers about the subject matter of this case. (ECF 127-1 at 39). The Court had to compel that supplemental response (ECF 73) because Daniel's original response to the request (and virtually all others) was rife with general and boilerplate objections and failed to specify whether documents would even be produced subject to those objections. (ECF 56-2 at 36). That kind of response has been banned since December 2015. See 2015 Adv. Comm. Notes to Fed. R. Civ. P. 34. So in his court-ordered supplemental response—made two weeks after his deposition—Daniel said (conditioned again on a bevy of prohibited general and boilerplate objections):

(ECF 127-1 at 39). The referenced privilege log, in turn, listed 12 documents purporting to be attorney-client privileged communications exchanged in July 2020, September 2020, and January 2021. (ECF 127-1 at 55-56). A few weeks later, in meet-and-confer correspondence about this discovery dispute over the text messages, Daniel's attorney responded cryptically by email on January 27, 2022, that they had “served supplemental responses to the document requests setting forth what would be produced subject to our objections. Daniel does not have any text messages that are within what we agreed to produce in our supplemental responses.” (ECF 127-1 at 61).

But given Daniel's deposition testimony about the disputed text messages (as reproduced above), Plaintiff became suspicious of the veracity of his after-the-fact supplemental responses and of the meaning behind his attorney's vague and ambiguous disclaimers. Plaintiff thus moved on February 1, 2022 to enforce the Court's December 14, 2021 discovery order (ECF 73) by compelling Daniel to produce the text messages he described during his December 10th deposition, to swear to the completeness of such production under oath, and to pay Plaintiff's attorney's fees incurred to bring this motion (as well as the prior motion to compel). (ECF 127 at 2). Because fact discovery closed on December 27, 2021 (ECF 41), and trial is scheduled to begin on March 8, 2022, with a final pretrial conference to be held on February 24, 2022 (ECF 126), the Court ordered an expedited opposition to Plaintiff's motion and submitted this matter for decision without further reply or oral argument. (ECF 128). It is in that opposition, filed today, that Defendant Daniel Zox disavows literal possession of any of the text messages described in his deposition. (ECF 129). Thus, not only does he have nothing he could disclose to the Court in camera (which was an option), but Daniel has nothing to produce. Full stop.

It is an understatement perhaps to say that things just don't add up here. But even taking everything in Daniel's sworn declaration (ECF 129-1) at face value, he never even tries to explain why he (or his brothers) failed to preserve their Signal text messages that still existed when they anticipated this litigation—as far back as July 2020 according to his privilege log—or at least those that existed as of February 2021 when the complaint was filed here. What's worse, even by Daniel's own admission, at least a “few” Signal messages existed as of December 10th. That is the only reason why he answered in the then-present tense at his deposition that “there are text messages that exist” between him and his brothers “at that moment.” But for unexplained reasons, he evidently allowed Signal's default functionality to purge those texts in the next 14 days after his deposition—so that by December 24 apparently no more potentially relevant text messages could have survived. Or if any did survive, no need to be concerned he says, because—trust him—they just pertained to “case strategy received from attorneys,” or discussed case “logistics,” or involved the ever-descriptive category of “etc.” And, of course, somehow the automatic elimination of text messages escaped or evaded the attention of Daniel's attorneys. All this cannot but remind one of what Benjamin Franklin supposedly said about fish (or visitors) after three days.

*3 Even so, any whiff (stench?) of potential spoliation still leads the Court to a dead end as far as this motion is concerned. Fact discovery is closed. No matter how strong its coercive powers, the Court cannot compel Defendant to produce something he swears—under penalty of perjury—that he does not possess. (Neither he nor counsel, curiously, says anything about control or custody of the text messages, though.) And in just under three weeks, the parties have a final pretrial conference with the district judge in anticipation of an early March trial date. So there is no time for further discovery motion practice under the current scheduling order. And even if there were, the types of remedies that Plaintiff would presumably seek for spoliation of evidence—adverse jury instructions, preclusion of evidence, default judgment, or the like—could be provided (as a prudential if not legal matter) only by the district judge. See Fed. R. Civ. P. 37(e) (sanctions for spoliation of electronically stored information); see also Fed. R. Civ. P. 37(b)(2)(A) (sanctions for violating discovery order); Fed. R. Civ. P. 26(g)(3) (sanctions for improper attorney or party certification in discovery).

For all these reasons, Plaintiff's motion to enforce the Court's discovery order must be denied, as must the related request for monetary sanctions in the form of attorney's fees Plaintiff incurred to litigate this dispute (whether from this motion or from the prior motion to compel or both). These denials are without prejudice, however, to Plaintiff seeking allowable relief directly from the district judge (including, if appropriate, an order specifically referring the matter back to the Court with explicit instructions, despite the close of fact discovery and the imminent trial date).

IT IS SO ORDERED.