*1 This case is before the undersigned pursuant to 28 U.S.C. § 636, the Rules of this Court, and Standing Order 13-02.

Now before the Court is Plaintiff's Motion for Spoilation Sanctions Against Defendants Based on Lack of Preservation and/or Production of Text Messages (“ESI”) Related to Management Employees Alicia Fields and Jamie Akins (“Motion for Sanctions”) [Doc. 53]. Defendants have responded in opposition [Doc. 64], and Plaintiff has replied [Doc. 67]. The motion is ripe for adjudication. Accordingly, for the reasons set forth below, the Court DENIES Plaintiff's motion [Doc. 53].

I. BACKGROUND

This lawsuit stems from alleged violations of the Americans with Disabilities Act, as amended (“ADA”), the Tennessee Human Rights Act (“THRA”), and the Tennessee Disability Act (“TDA”) [Doc. 80]. Specifically, the Third Amended Complaint (“Complaint”) alleges that in June 2019, Defendants hired Plaintiff to work at Manorhouse Assisted Living [Id. ¶ 5]. Upon being hired, Plaintiff informed his supervisor, Jamie Akins (“Akins”), that he was receiving care through the United States Department of Veterans Affairs (“VA”) for several issues, including diabetes, post-traumatic stress disorder, and a hernia [Id. ¶ 6]. Plaintiff told Akins that based on comments from his doctor, Mohammad Bhidya, M.D., the hernia would limit Plaintiff's ability to lift [Id. ¶ 7]. Plaintiff states that Akins never indicated that the lifting restriction would be a problem [Id.]. Plaintiff alleges that as time passed, Akins and others began ignoring Plaintiff's lifting restriction and asking him to move heavier items, including furniture, televisions, air conditioners, and beds [Id. ¶ 10]. Plaintiff reminded Akins that he could not lift heavy items, and Akins informed Plaintiff for the first time that he would need to provide a doctor's note [Id. ¶ 11]. Plaintiff obtained a note from Dr. Bhidya in November 2019, and on Wednesday, November 13, 2019, Plaintiff provided the note to Akins, Christine Burgess (“Burgess”) in human resources, and Alicia Fields (“Fields”), who was at that time the lead nurse but later became the executive director at the location where Plaintiff was employed [Id. ¶ 12]. Plaintiff worked the following Thursday and Friday, November 14 and 15, 2019, respectively, without incident [Id.].

On Monday, November 18, 2019, Akins, Fields, and the Director of Finance and Human Resources, Elizabeth Wilkins (“Wilkins”), called Plaintiff into a meeting and showed him a new job description [Id. ¶ 13]. During the meeting when Plaintiff confirmed that Dr. Bhidya provided the lifting restriction, he was told that his job was being terminated because he could not perform an essential function [Id.]. Plaintiff asked about an accommodation or light duty but was told nothing was available [Id.]. Plaintiff alleges that in the job description that Defendants produced on November 18, 2019, “lifting” was not a specific and essential (major) duty of the position [Id. ¶¶ 14-15]. Since terminating Plaintiff, Defendants told him by telephone that he could come back to work, provided that he receives surgery to repair his hernia [Id. ¶ 16].

*2 In January 2020, Plaintiff submitted a charge of discrimination to the Equal Employment Opportunity Commission (“EEOC”), and on October 21, 2020, the EEOC issued a notice of right to sue letter [Id. ¶ 17]. Plaintiff filed his lawsuit on September 18, 2020, and he amended his second amended complaint on December 1, 2021. As mentioned above, the Complaint alleges violations of the ADA, the THRA, and the TDA, stating that Defendants terminated him because of his disability and in retaliation for reminding Akins of his lifting restriction [Id. ¶¶ 18-19]. In addition, Plaintiff states that Defendants failed to participate in the interactive process [Id. ¶ 20]. The Complaint further alleges that Defendants violated the ADA by considering Plaintiff a “direct threat” to himself and others with or without the recommended lifting accommodations [Id. ¶ 21]. Plaintiff requests compensatory and punitive damages, prejudgment interest, and attorney's fees and costs. [Id. at 8].

II. POSITIONS OF THE PARTIES

Plaintiff moves for sanctions pursuant to Federal Rule of Civil Procedure 37(e). Specifically, Plaintiff requests a special jury instruction as follows:

[Doc. 53 at 11-12]. In the alternative to the above sanction, Plaintiff seeks the following: (1) a forensic examination of James Bonnell's (“Bonnell”)[1] and Wilkins's cell phones at Defendants' expense,[2] (2) a forensic examination of Fields's iCloud storage at Defendants' expense, and (3) permitting Plaintiff to present evidence and arguments to the jury regarding the loss of electronically stored information (“ESI”). Plaintiff also requests his attorney's fees incurred in relation to the motion.

For grounds, Plaintiff states that he sent a preservation letter to Defendants in February 2020, before the litigation commenced. In addition, on September 18, 2020, Plaintiff served his First Set of Interrogatories and Requests for Production (“RFPs”) to Defendant Manorhouse at Knoxville, Inc (“Manorhouse Knoxville”). Defendant Manorhouse Knoxville responded on January 19, 2021. Plaintiff argues that despite the RFPs clearly seeking ESI, Defendant Manorhouse Knoxville did not produce any text messages. Plaintiff submits that Fields testified during her deposition that Manorhouse Knoxville provided her with a stipend each month to help pay for cell phone service and that she communicated with her co-workers via her cell phone. Plaintiff argues that Fields also testified that she likely communicated with Wilkins in November 2019 regarding Plaintiff.

Following Fields's deposition, Plaintiffs submits that his counsel sent a letter to defense counsel requesting the text messages that Fields referred to in her deposition. Plaintiff states that for the first time, Defendants produced text messages pulled from Fields's cell phone and/or cell phone records. Plaintiff, however, did not receive any text messages between Fields and Wilkins regarding Plaintiff or his situation. Plaintiff followed up with defense counsel to inquire about the ongoing lack of ESI production and referenced Fields's testimony that other management personal received cell phone stipends from Defendants in the normal course of their operation. Plaintiff states that in response, Defendants produced a number of text messages from other management personnel, including text messages between Bonnell and Wilkins that referenced Plaintiff, including his doctor's note and lifting restrictions. Plaintiff argues that these text messages paint a different picture than the position that Defendants have consistently taken in this litigation, including in their response to a motion for partial summary judgment. Plaintiff argues that the text messages between Bonnell and Wilkins show that they never intended to accommodate Plaintiff's disability, which is inconsistent with Defendants' position that they engaged in the interactive process. In addition, Plaintiff argues that Fields testified it was likely that she and Wilkins discussed Plaintiff and the situation at issue via text message in the Fall of 2019, but Plaintiff has not received these text messages. Plaintiff believes that other management-level personnel are likely to have text messages about Plaintiff, including Akins.

*3 Plaintiff asserts that sanctions pursuant to Rule 37 are appropriate because Defendants had a duty to preserve the data, reasonable steps were not taken by Defendants to avoid the loss of the data, and the lost data cannot be restored or replaced with additional discovery. Plaintiff argues that he has cited specific testimony that establishes the likelihood of the existence of certain evidence—that is, Fields testified that she texted with Wilkins when they received Plaintiff's lifting restrictions and that she likely texted with Akins. Plaintiff argues that Fields switched cell phones during the relevant time period and admitted some of her text messages were deleted. Plaintiff states that Defendants terminated Akins, so they no longer have custody or control over Akins's cell phone. Plaintiff maintains sanctions are appropriate.

In the alternative to the adverse jury instruction, Plaintiff requests the forensic examinations of Bonnell's and Wilkins's cell phones and Fields's iCloud storage and that the Court allow him to argue before the jury about the loss of ESI. Plaintiff states that based on the few text messages that have been produced and the obvious company policy of texting for business purposes,[3] it remains very likely that the text messages are lost.

Defendants respond that no relevant ESI has been destroyed and that they have produced all relevant text messages as part of the discovery in this case. Defendants state that after Plaintiff filed the instant motion, Akins testified that he does not have any text messages relating to this lawsuit. Defendants state that Fields testified that she may have texted with Akins, but she was not sure. Defendants argue that they produced Wilkins's text messages between her and Fields regarding Plaintiff. In addition, Defendants state that they produced Bonnell's text messages relating to communications with Wilkins regarding Plaintiff and that Bonnell does not have any other non-privileged text message relating to Plaintiff or his claims. Defendants argue that there is no evidence that they failed to preserve relevant text messages in this case. Defendants submit that Plaintiff also fails to demonstrate any other prerequisites to Rule 37(e) sanctions. Defendants add that Plaintiff cannot demonstrate the necessary intent to destroy evidence or any prejudice from the alleged lost evidence. Defendants argue that they have now produced the relevant text messages. Defendants request that they be permitted to file a request for attorney's fees pursuant to Rule 37(a)(5)(B).

Plaintiff maintains that Defendants did not take reasonable steps to preserve ESI. Plaintiff argues that, to the extent possible, he has demonstrated that relevant evidence has been lost and that he is prejudiced by the loss of such evidence. Plaintiff disputes Defendants' basis for attorney's fees.

III. ANALYSIS

The Court has considered the parties' positions outlined above and the relevant evidence, and for the reasons explained below, the Court finds that Plaintiff's request [Doc. 53] is not well taken.

As mentioned above, Plaintiff has requested sanctions pursuant to Rule 37(e), which provides as follows:

Fed. R. Civ. P. 37.

Before the Court may turn to sanctions, the Court must find “(a) the existence of ESI of a type that should have been preserved; (b) ESI is lost; (c) the loss results from a party's failure to take reasonable steps to preserve it; and (d) it cannot be restored or replaced through additional discovery.” Konica Minolta Bus. Sols., U.S.A. Inc v. Lowery Corp., No. 15-CV-11254, 2016 WL 4537847, at *2 (E.D. Mich. Aug. 31, 2016).

“When imposing sanctions under Rule 37(e)(1), “the range of curative measures is quite broad” and “much is entrusted to the court's discretion.” Yoe v. Crescent Sock Co., No. 1:15-CV-3-SKL, 2017 WL 5479932, at *14 (E.D. Tenn. Nov. 14, 2017) (quoting Fed. R. Civ. P. 37(e) advisory committee's note). In order to sanction under Rule 37(e)(2), however, the Court must find an intentional act to deprive the other party with the use of the information. Fed. R. Civ. P. 37(e)(2).

With the above law in mind, the Court will next address the relevant facts and then determine whether sanctions are warranted. Finally, the Court will address the parties' requests for attorney's fees.

A. Facts

In a letter dated February 3, 2020, Plaintiff's counsel advised Defendants that Plaintiff was filing a charge with the EEOC and that Defendants needed to take steps to ensure that evidence related to the charge was preserved [Doc. 53-5]. Later, Plaintiff filed suit in state court on September 18, 2020 [Doc. 1-1 at 2]. Defendants removed this case to this Court on October 16, 2020 [Doc. 1]. On September 18, 2020, the same day that Plaintiff filed the complaint in state court, he served Defendants with RFPs. Defendants do not dispute Plaintiff's assertion that when Defendants responded to the RFPs on January 19, 2021, Defendants did not produce a single text message.[4]

The parties deposed Fields on July 8, 2021. Fields testified during her deposition that since the Fall of 2019, she has traded cell phones two times and possibly a third time [Doc. 53-1 at 2]. Fields testified that she turns in her cell phones to her carrier in order to receive an upgrade [Id.]. Plaintiff's counsel asked whether she sent text messages to anyone about Plaintiff, and Fields responded, “I'm sure that myself and Elizabeth [Wilkins] may have discussed him via text message whenever we got the lifting restriction because, to my recollection, she wasn't physically in our building when we received that lifting restriction for him in November of 2019.” [Id. at 3]. Fields testified that someone with Defendants told her to save and preserve her text messages [Id. at 4]. Specifically, the following exchange occurred:

[Id. at 5].

Following Fields's deposition, in a letter to defense counsel dated July 12, 2021, Plaintiff's counsel inquired about the existence of text messages in light of Fields's testimony that employees regularly used text messaging. [Doc. 53-6]. Plaintiff requested production of text messages from Fields's cell phone and from any employee-phone that Defendants provided and/or helped pay for in late 2019 and early 2020 [Id.].

Defense counsel responded on July 16, 2021, [Doc. 53-7]. Specifically, with respect to Akins, Defendants stated that they do not have possession or control over Akins's cell phone, and therefore, they do not know if Akins has text messages relating to Plaintiff [Id. at 1]. Defense counsel explained that Fields was never Plaintiff's supervisor, meaning she had very little reason to text with Plaintiff or about Plaintiff [Id.]. Defense counsel continued that Fields believes she may have texted about Plaintiff with other employees to arrange the meeting with Plaintiff in November 2019, which was consistent with her deposition testimony [Id.]. Defense counsel stated that Fields reviewed her text messages and discovered text messages regarding Plaintiff [Id.]. Defense counsel attached these text messages to her letter, see [id. at 7-8], but the Court notes that the text messages are not related to the allegations presented in this lawsuit.

A few days later, on July 19, 2021, Plaintiff's counsel responded that in the July 12 letter, he also requested text messages, not just from Fields, but also from any employee-phone that Defendants provided and/or helped pay for in mid to late 2019 and early 2020 [Doc. 53-8 p. 1]. Plaintiff stated that Defense counsel's July 16 letter did not confirm any effort to search for text messages that should have been preserved related to Akins, Wilkins, Bonnell, etc. [Id. at 1]. Plaintiff's counsel further responded, “Akins may not work for Manorhouse now, but he was certainly working for Manorhouse when the company started to possess a duty to preserve discoverable ESI such as text messages.” [Id.]. Plaintiff's counsel requested an explanation as to why Defendants did not preserve ESI from management personnel phones given that he sent Defendants a preservation letter on February 3, 2020 [Id.]. In addition, Plaintiff's counsel requested an explanation as to why he was not provided any of the text message exchanges that Fields referenced during her deposition [Id.]. Plaintiff's counsel noted that Defendants were able to produce one exchange from Fields's cell phone dated November 16, 2019, which was two days after Plaintiff's doctor's note and two days before his termination [Id. at 1-2].

*6 Defense counsel responded on July 28, 2021, explaining that Defendants have revisited the issue of producing text messages with several individuals [Doc. 53-9 p. 1]. As a result, Bonnell, Fields, and Wilkins reconfirmed their search for text messages mentioning Plaintiff, and Defendants provided supplemental discovery responses, which included a limited production of additional text messages [Id. at 1]. Specifically, Bonnell provided a few text message exchanges between him and Wilkins regarding Plaintiff [Id. at 14-18]. In the text messages, Bonnell and Wilkins discussed Plaintiff's lifting restriction, inquiries on whether Defendants can accommodate and that they are not required to do so because the injury was not work related, concerns that Plaintiff may have another injury or aggravate his current one, and how to handle the restriction [Id.].

Wilkins provided two text messages between her and Akins that mention Plaintiff and conducting meetings together in September 2019, which do not appear to be relevant to the issues in this case [Id. at 1, 8-9]. Defense counsel stated that Fields had produced two text messages from almost two years ago, but she did not find any other text messages relating to Plaintiff [Id. at 2]. Defense counsel stated that some of Fields's “texts with Ms. Wilkins were deleted when she switched phones. However, Ms. Wilkins has provided text communications between her and Ms. Fields during the relevant time frame.” [Id.]. The Court notes that one text message does not appear to be relevant, see [id. at 10], but in the other text message, dated November 15, 2019, Fields asks Wilkins, “Do you have a free minute to talk about the Curtis situation?” [Id. at 11]. Wilkins responds, “Absolutely—please call me.” [Id.]. Defendants supplemented their discovery responses with the above text messages [Id. at 8-18].

Defense counsel continued that Defendants do not have any reason to believe that Akins had any text messages that are relevant to Plaintiff's claims [Id. at 2]. Defense counsel explained, however, that Defendants did not get the opportunity to preserve the personal phone of Akins prior to his termination, but Plaintiff's counsel should inquire about Akins's texting habits during his deposition [Id.]. Defense counsel stated that there is no evidence that anyone has destroyed anything [Id.].

On August 5, 2021, the parties took Wilkins's deposition [Doc. 53-11]. Wilkins testified that Defendants provided a cell phone stipend because they realized that the employees would use personal cell phones for work [Id. at 2]. Wilkins testified that she used her personal cell phone for work at times [Id.]. Wilkins stated that during November 2019, she “absolutely” used her personal cell phone for text messages, calls, and emails involving work [Id. at 3]. Wilkins also testified that other management-level employees were doing the same based on her observations, including Fields and Bonnell [Id.]. Wilkins stated that Defendants communicated to her to preserve text messages when “this matter” began with Plaintiff and that she communicated that message to others, including to Fields and Bonnell [Id. at 4]. Wilkins also testified that she did not text Fields frequently until Fields accepted the role of executive director [Doc. 64-1 at 10].[5]

The parties deposed Akins on September 15, 2021, five days after Plaintiff filed his motion to compel [Doc. 64-1 at 5]. During Akins's deposition, Plaintiff's counsel inquired as follows, “Before you stopped working at Manorhouse did anyone ever ask you to search your phone for anything about this case or my client, Mr. Roper?” [Id. at 6]. Akins responded, “Not that I can remember, sir. Me and [Plaintiff] left about the same time.” [Id.]. Akins testified that Defendants' employees frequently texted with one another [Id.]. Akins testified, however, that he probably did not text with Fields because “she wasn't one of [his] friends.” [Id. at 7]. Akins stated that he may have texted with Plaintiff but that he did not text with Wilkins and that Wilkins was not a friend [Id.]. Plaintiff's counsel inquired as follows:

[Doc. 67-1 p. 16].

Later, during Akins's deposition, he testified that he does not remember talking to Fields or Wilkins about the lifting restriction from Plaintiff's doctor [Id. at 82]. Plaintiff's counsel asked, “Is it possible that you would have texted with Ms. Fields about [Plaintiff's] note or his request for accommodations? [Id.]. Akins responded as follows:

[Id.]. He provided a similar response with respect to texting Wilkins [Id. at 83].

Finally, Bonnell, the COO for Manorhouse Management, Inc., filed a Declaration, stating as follows:

[Doc. 64-2 at ¶¶ 1, 8-14].

B. Findings

As explained above, before the Court can address sanctions, the Court must find the following: “(a) the existence of ESI of a type that should have been preserved; (b) ESI is lost; (c) the loss results from a party's failure to take reasonable steps to preserve it; and (d) it cannot be restored or replaced through additional discovery.” Konica Minolta Bus. Sols., U.S.A. Inc v. Lowery Corp., 2016 WL 4537847, at *2. Based on the testimony above, the Court finds that there is no evidence that Defendants or their former/current employees destroyed any relevant text messages such that sanctions are warranted. Plaintiff believes that there are additional text messages between Fields and Wilkins and Fields and Akins that will shed light on Defendants' actions, and Plaintiff has specifically requested a spoliation instruction with respect to the alleged missing text messages between Fields and Wilkins. The evidence that Plaintiff cites to support his position, however, does not establish that any text messages were destroyed and/or unrecoverable as required before sanctions are proper under Rule 37(e). The Court will first address the alleged lost text messages between Fields and Wilkins and then turn to the alleged lost text messages between Fields and Akins.

*8 The Court agrees with Plaintiff that the evidence in this case shows that many of Defendants' employees regularly texted using their personal cell phones for which Defendants provided a stipend. However, the fact that many of Defendants' employees communicated by text messaging does not necessarily mean that there are relevant text messages with respect to the instant case. Plaintiff asked Fields during her deposition whether she sent text messages to anyone about Plaintiff, and Fields identified Wilkins, stating that she was sure that she and Wilkins may have discussed Plaintiff when they received the lifting restriction. Fields could not produce this text message, and Defendants have acknowledged that some of Fields text messages may have been deleted when she switched phones. Wilkins, however, produced the text messages between her and Fields, and these text messages are consistent with Fields's deposition testimony. As summarized above, on November 15, 2019, Fields asked Wilkins whether they could talk about Plaintiff's situation. [Doc. 53-9 at 11]. Wilkins directed Fields to call her [Id.]. The next text message between the two is dated November 16, 2019, and it is a picture of a dog [Id.]. These text messages show that Fields did generally text Wilkins about Plaintiff's lifting restriction (i.e., Plaintiff's situation), but then the remaining conversation took place via a telephone call as directed by Wilkins. Accordingly, while it appears that these text messages may have been deleted from Fields's phone, Defendants produced them from Wilkins's cell phone, and therefore, the Court finds sanctions are not warranted under Rule 37(e).

In addition, Plaintiff argues that Fields testified that she texted with Akins about Plaintiff. There are two issues, however, with Plaintiff's argument. The evidence does not show that Fields and Akins exchanged any relevant text messages about Plaintiff. Specifically, Fields testified that she may have texted with Akins about Plaintiff if she needed to notify Plaintiff of something or if there was an appointment. In addition, Fields testified that she “may” have sent text messages to Akins about Plaintiff. [Doc. 53-1 p. 5]. Akins stated, however, that he and Fields “probably” did not text with one another because they were not friends. [Doc. 64-1 p. 6]. Later during his deposition, Plaintiff's counsel asked if Akins texted with Fields about Plaintiff's doctor note or his request for accommodation, and Akins stated that he could not remember. [Doc. 67-1 at 82]. When asked if it was possible, Akins testified, “It's possible, and it's not possible.” [Id.].

Thus, from the above testimony, Fields may have only texted with Akins about Plaintiff on irrelevant matters. Akins stated that he and Fields probably did not text, and he could not remember if he and Fields texted about Plaintiff's request for accommodations. The Court finds such testimony is insufficient to warrant sanctions.

Plaintiff asserts that Defendants had a duty to preserve any text messages at the earliest in February 2020 when Plaintiff's counsel sent them a preservation letter, but they likely had a duty in December 2019, when Fields became aware that Plaintiff had discussed what happened with an attorney. Based on the above findings, the Court need not decide when the duty to preserve rose because there is no evidence that text messages were deleted and/or unrecoverable.

Plaintiff has also requested alternative sanctions pursuant to Rule 37(e)(1), including ordering forensic examinations of the cell phones of Bonnell and Wilkins and the iCloud storage of Fields, all at Defendants' expense. Plaintiff argues that in ordering sanctions pursuant to Rule 37(e)(1), he only needs to show that the spoliated evidence could have been useful to the claim or defense. The Court finds these sanctions are also not warranted. As explained above, prior to the Court issuing any sanctions, the Court must find that relevant ESI is lost and unrecoverable. Fed. R. Civ. P. 37(e) (stating that the court may consider sanctions to cure the prejudice if ESI is lost and not able to be replaced or restored). In the instant matter, there has been no such showing.

As a final matter on this issue, Plaintiff has also requested as a sanction that he be able to present evidence and arguments to the jury regarding the loss of ESI. For the reasons stated above, the Court declines to issue any sanctions. The Court, however, will not prohibit Plaintiff from offering any evidence, including the alleged loss of ESI, at this juncture. Instead, if this remains an issue during final trial preparations, the parties may raise such evidentiary matters when filing motions in limine.

C. Attorney's Fees

*9 Both parties have requested attorney's fees incurred in litigating the motion. The Court finds that neither Plaintiff nor Defendants are entitled to an award of attorney's fees. Specifically, the Court will not award attorney's fees to Plaintiff for the same reasons the Court has denied his motion. The Court also finds Defendants are not entitled to their attorney's fees given that they did not include the relevant text messages in their January 2021 discovery responses, but instead, produced them six months later and acknowledged that Fields deleted some of her text messages when she switched phones. The Court does not find that an award of attorney's fees to Defendants is appropriate.

IV. CONCLUSION

Accordingly, for the reasons explained above, the Court DENIES Plaintiff's Motion for Spoilation Sanctions Against Defendants Based on Lack of Preservation and/or Production of Text Messages (“ESI”) Related to Management Employees Alicia Fields and Jamie Akins [Doc. 53].

IT IS SO ORDERED.

ENTER:

James Bonnell is the Chief Operating Officer of Manorhouse Management, Inc. [Doc. 64-2 ¶ 1].

Missing Text

Plaintiff argues that Defendants had a company policy of texting for business purposes, as several individuals testified that Defendants provided a stipend to pay for employees' personal cell phones and Defendants' management personnel testified to using text messaging for Defendants' business. See [Doc. 54 at 12]. In a letter dated July 28, 2021, to Plaintiff's counsel, defense counsel stated that Defendants do not have a policy prohibiting text messages, but they do “not consider text messages on personal phones to be business records” and that they do “not use text messages as an approved form of creating a business document.” [Doc. 53-9 at 1].

The Court notes that in Defendants' response to the motion, they assert that Akins, Fields, and Wilkins are no longer employed with Defendants [Doc. 64 at 10].

Fields took the executive director role in December 2019 [Doc. 64-1 at 22].