Mahathi opposed the Motion for sanctions. D.I. 365. Mahathi, among other things, argued the information is not lost because Mahathi's attorneys in India provided a directive to Mahathi's IT to preserve all evidence, including evidence on local computers, due to Mahathi's potential criminal complaint against Allscripts in India. See, e.g., id. Thus, and according to sworn affidavits submitted by Mahathi, the computers did not get reformatted. Id. Mahathi apparently retains the information.

Judge Robinson studied Allscripts’ Motion and recommended we deny it. Judge Robinson reasoned she must first address whether any electronic stored information is lost under Rule 37(e). D.I. 383 at 5 ¶ 7. She concluded no information is lost. Id. She reasoned she is “hard pressed to find that Plaintiffs have carried their burden of proving loss” based on the “record made by the Parties – [with] Plaintiffs relying on Mr. Maddi's original directive and Defendants countering with declaratory explanations.” Id. ¶ 8. Judge Robinson specifically noted Allscripts did not “ask[ ] in this motion for access to the computers” and “[Mahathi] declined to provide such access based on undue burden, conduct which was not tested through the Parties’ vigorous motion practice.” Id. She then performed a prejudice analysis and considered whether Mahathi acted with intent. See, e.g., D.I. 383.

Allscripts now objects to Judge Robinson's recommendation we deny its Motion for sanctions. Allscripts first argues it cannot rebut Mahathi's sworn affidavits the computers have not been reformatted without access to the computers for forensic evaluation. D.I. 389 at 4 (“In its response, Mahathi filed affidavits and screen shots supposedly proving that laptops were not destroyed, but never produced forensic copies of the laptops. The affidavits provide no details whatsoever about the laptops or screen shots ... Of course, without the laptops or any detailed information about the ‘evidence’ Mahathi purported to provide in response, it is not possible to fully refute that evidence. And regardless, even if Defendants did not wipe the laptops. Allscripts still does not have access to important evidence–forensic copies of the laptops–to disprove Mahathi's claim that none of the laptops bore copies of the source code.”). Allscripts also argues Judge Robinson erred in her prejudice analysis because she is “simply stating the obvious: without the opportunity to see what ESI is on the laptop, [Allscripts] cannot provide any forensic proof that the laptop contains unique ESI. In Allscripts’ view, Judge Robinson errantly penalized it and rewarded Mahathi for failing to produce the laptops for forensic inspection. Id. at 5. Allscripts argues Judge Robinson “errant[ly] allocat[ed] blame” on Allscripts in her legal analysis of whether sanctions are appropriate under [Rule 37(c)]” because she “errantly condoned Defendants’ refusal to allow Plaintiffs to forensically inspect the laptops, and blamed Plaintiffs for their resulting inability to forensically prove that Defendants’ destroyed laptop ESI.” Id. at 6. They finally argue she “errantly found Defendants’ destruction was not intentional or in bad faith.” Id.

Mahathi opposes the objections and again renews its request for fees for responding to Allscripts’ motion for sanctions. D.I. 393. We overrule Allscripts’ objections and adopt Judge Robinson's recommendation in full because Allscripts fails to show loss of electronically stored information.

Rule 37(e) provides: “If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon a finding that the party acted with the intent to deprive anther party of the information's use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment.” Fed. R. Civ. P. 37(e); see also CIGNEX Datamatics, Inc. v. Lam Rsch. Corp., No. 17-320, 2019 WL 1118099, at *2 (D. Del. Mar. 11, 2019) (“Under this Rule, a party's loss of ESI may be sanctionable when: (1) litigation is ongoing or anticipated. (2) the party failed to take reasonable steps to preserve the ESI, and (3) the information lost cannot be restored or replaced through additional discovery.”) (emphasis added). It is the moving parties’ burden to prove sanctions are appropriate under Rule 37(e). Cianci v. Phoenixville Area Sch. Dist., No. 20-4749, 2022 WL 824026, at *5 (E.D. Pa. Mar. 18, 2022) (further citation omitted).

Allscripts, thus, must first show electronically stored information has been lost. Allscripts relies on deposition testimony, which Mahathi has explained away with sworn affidavits. Allscripts now says Judge Robinson is “penalizing” and “blaming” it for its lack of access to the computers to prove “Defendants’ destroyed laptop ESI” in denying the motion for sanctions. Id. at 6. It is not Judge Robinson's, or our, responsibility to prove Allscripts’ motion for sanctions or grant relief not requested. Allscripts bears the burden to prove electronically stored information has been lost. Allscripts knew at the time it moved for sanctions Mahathi asserted the computers had not been erased, and it knew Mahathi refused to provide Allscripts access to the computer hard drives for forensic evaluation. We are unsure why Allscripts moved for sanctions under Rule 37(e) when it now concedes in its objections it cannot prove Mahathi destroyed electronically stored information–and thus, cannot prove it has been lost–without forensically reviewing the computer hard drives, Allscripts decided to jump right to sanctions rather than a motion to compel access to the computers. And Allscripts, as Judge Robinson noted, never asked for access to the computers in its Motion for sanctions. Allscripts failed to meet its burden demonstrating any electronically stored information is lost as required by Rule 37(e). We overrule its objections and adopt Judge Robinson's report and recommendation in full.

Mahathi renews its request for fees in responding to Allscripts’ motion for sanctions as well as Allscripts’ objections. Because Judge Robinson has not first considered this request, we refer it to Judge Robinson for a timely recommendation on whether Mahathi is entitled to fees in opposing Allscripts’ Motion for sanctions.