Presently before the Court is Plaintiff’s “Motion for Sanctions for Defendants’ Spoliation of Relevant Electronically Stored Information.” [Doc. 127]. The Court sets out its reasoning and conclusions below.

I. Background

Plaintiff, the Secretary of Labor (or the “Secretary”), brings this action pursuant to the Employee Retirement Income Security Act of 1974, 29 U.S.C. § 1001, et seq. (“ERISA”). See Compl. [Doc. 21]. Defendant Robert N. Preston was the owner and chief executive officer of Defendant The Preston Partnership Holdings, Inc. (“TPP” or the “Company”), which established the TPP Employee Stock Ownership Plan (“ESOP”) in 2004 to provide retirement income for TPP’s employees. See id. Plaintiff alleges that Defendants breached their fiduciary duties to the ESOP pursuant to ERISA when they knowingly caused the ESOP to purchase TPP stock at inflated prices in 2006 and 2008. See id.

Plaintiff filed its Complaint on December 30, 2014. See id. The Parties engaged in an extensive discovery period after the case was remanded from the Eleventh Circuit and on March 24, 2021, the Parties filed their Proposed Consolidated Pretrial Ordebegins with the Gmail accounts and associated email communications of Andrew Preston, Steven Byerly, and Defendant Robert Preston. r (“CPTO”).[1]   [Doc. 98]. On March 31, 2021, the Court issued a “Notice Setting Trial,” scheduling a bench trial to begin on October 5, 2021. [Doc. 99]. On August 31, 2021, Plaintiff filed several motions in limine [Docs. 100, 101, 102, 103, 116] and on September 14, 2021, the Parties filed a consolidated/joint discovery statement (hereinafter, “Joint Discovery Statement”). [Doc. 111]. Subsequently, Defendants moved to continue the bench trial due to several witnesses’ concerns related to travel and the COVID-19 pandemic. [See Docs. 7; 13 at 2–4]. In an Order dated September 20, 2021, the Court granted Defendants’ motion for a continuance and rescheduled the bench trial for February 22, 2022. [See Doc. 115].

 In an Order dated November 15, 2021, the undersigned ruled on Plaintiff’s motions in limine and addressed the Parties’ Joint Discovery Statement. [Doc. 119]. As pertinent to this order, within the Parties’ Joint Discovery Statement, Plaintiff sought an order from the Court imposing an adverse inference against Defendants as a spoliation sanction, which the Court denied. [See id. at 18–29]. However, thereafter, on December 1, 2021, the undersigned provided Plaintiff with leave to file its instant motion to present evidence supporting Plaintiff’s request for spoliation sanctions, which Plaintiff filed on December 10, 2021. [Doc. 127]. Defendants oppose Plaintiff’s motion for spoliation sanctions and filed a response, to which Plaintiff replied. [See Docs. 129, 133, 134]. Having been fully briefed, Plaintiff’s motion for spoliation sanctions is now ripe for the Court’s consideration.

II. Plaintiff’s Motion for Spoliation Sanctions [Doc. 127]

By his instant motion, Plaintiff seeks sanctions against Defendants for two (2) general categories of electronically stored information (“ESI”) purportedly spoliated by Defendants. [See Doc. 127]. The first category consists of emails from Gmail accounts created by Defendants’ principals, including emails that Andrew Preston and Steve Byerly (a former employee) allegedly deleted, and emails from Defendant Robert Preston’s Gmail account for which he asserts he lost access to in 2008. [See id. at 6–11]. The second category relates to emails and documents predating November 2008 on Defendant TPP’s Company server, which were destroyed when it failed to suspend its automatic deletion program until November 2018. [See id. at 4–6]. Further, Plaintiff now seeks sanctions pursuant to Rule 37(e)(1), including  attorney’s fees, permission to present evidence to the Court for its consideration, and Defendants’ preclusion from offering testimony at trial as to the content of any unpreserved emails, as well as harsher sanctions pursuant to Rule 37(e)(2) for either an adverse inference or entry of default judgment against Defendants.[2]  [See id. at 24–25]. Before turning to the Parties’ arguments, the Court sets forth the relevant legal standard on spoliation sanctions.

A. Legal Standard

Spoliation is the “intentional destruction, mutilation, alteration, or concealment of evidence.” See Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *13 (S.D. Fla. Nov. 16, 2009) (internal citation omitted); see also Green Leaf Nursery v. E.I. DuPont de Nemours & Co., 341 F.3d 1292, 1308 (11th Cir. 2003) (spoliation defined as the destruction of evidence or the significant and meaningful alteration of a document or instrument, without reference to intentionality).

Federal Rule of Civil Procedure 37(e) governs questions regarding spoliation of ESI.[3] See Wooden v. Barringer, No. 3:16-CV-446-MCR-GRJ, 2017 WL 5140518, at *5 (N.D. Fla. Nov. 6, 2017). As relevant here, Rule 37(e) sets forth a step-by-step analysis for determining when (and what)sanctions may be appropriate. See id. Pursuant to Rule 37(e),

If [ESI] 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 finding that the party acted with the intent to deprive another 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.

See FED. R. CIV. P. 37(e).

When evaluating a request for spoliation sanctions, the Court must first answer the following three (3) preliminary questions pursuant to Rule 37(e) before turning to subsections 37(e)(1) or 37(e)(2): (1) whether the allegedly spoliated ESI evidence should have been preserved in the anticipation or conduct of the litigation; (2) whether the allegedly spoliated ESI was lost because a party failed to take reasonable steps to preserve it; and (3) whether the allegedly spoliated ESI evidence cannot be restored or replaced through additional discovery. See FED. R. CIV. P. 37(e); see also Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-CV62216-Marra/Mattthewman, 2016 WL 1105297, at *4–5 (S.D. Fla. Mar. 22, 2016). “If the answer to any of [the above three] questions [] is ‘no,’ then the Court need proceed no further under Rule 37(e), and a motion for spoliation sanctions or curative measures must be denied.” See id. Only if the answer to all three questions is “yes,” must the Court “analyze the facts at hand under subsection (e)(1) if there is a finding of ‘prejudice’ or under subsection (e)(2) if there is a finding of ‘intent to deprive.’” See id.

B. Discussion

As set forth above, the Court must address the three (3) preliminary questions regarding each category of allegedly spoliated ESI before determining appropriate sanctions pursuant to Rule 37(e)(1) and (e)(2). See FED. R. CIV. P. 37(e). The Court begins with the Gmail accounts and associated email communications of Andrew Preston, Steven Byerly, and Defendant Robert Preston.

1. Gmail Account Communications

In August 2021, more than six (6) months after discovery closed in this case, Plaintiff received new evidence from a previously unknown former employee of Defendant TTP, William Brownback. [See Doc. 127 at 6]. At that time, Mr. Brownback contacted Plaintiff’s counsel, stating that he had information relevant to the instant litigation, and subsequently shared emails and other relevant documents that had not been produced by Defendants during discovery. [See id. at 6–7]. In particular, Mr. Brownback supplied email correspondence Defendant TTP’s principals exchanged with each other using Gmail accounts in 2008. [See id. at 7]. After producing the email messages provided by Mr. Brownback to Defendants, Plaintiff asked Defendants to supplement their discovery responses with all responsive communications to and from these previously unknown Gmail accounts for the time between January 1, 2008, through March 31, 2008. [See id. at 8].

In response, Defendants represented that only two (2) current employees of the Company had such Gmail accounts: Andrew Preston and Defendant Robert Preston. [See id.] Defendants produced four (4) emails from Andrew Preston’s Gmail account and stated that those were all of his responsive emails from the above time period. [See Doc. 119 at 18]. However, Gmail emails obtained from former employees demonstrated the existence of additional responsive emails sent to or from Andrew Preston. [See id. at 18–19]. As to Defendant Robert Preston’s Gmail account, Defendants told Plaintiff that he lost all access to it in June 2008. [See Docs. 119 at 19; 127 at 8]. In its November 15, 2021 Order, the Court directed Defendants to: (1) either produce all responsive communications in connection with Andrew Preston’s Gmail account, or file a response under oath providing why they do not have the same; and (2) file an affidavit regarding the circumstances and efforts surrounding their purported inability to access Defendant Robert Preston’s Gmail account. [See Doc. 119 at 33–34].

Thereafter, on November 30, 2021, Defendants filed Affidavits from both Andrew Preston and Defendant Robert Preston. See Affidavit of Andrew Preston (“Andrew Preston Aff.”) [Doc. 125]; Affidavit of Robert Preston (“Robert Preston Aff.”) [Doc. 124]. In his Affidavit, Andrew Preston averred that (following the Court’s November 15, 2021 Order) he and an IT specialist associated with defense counsel searched his Gmail account and found the four (4) responsive emails initially produced to Plaintiff. See Andrew Preston Aff. ¶¶ 8, 11. Andrew Preston also represented that they located a fifth responsive email in his Gmail account, which he unsuccessfully attempted to forward to Plaintiff on August 27, 2021. See id. Andrew Preston stated he had no other responsive emails in his Gmail account from the requested time period and proffered that he has “a habit of deleting emails from [his] email accounts in an effort to organize [them]” and that it is “possible” that he “deleted emails from [his Gmail account] during or shortly after the [January 1, 2008 through March 31, 2008] time period[,]” but had no recollection of doing so. See id. ¶¶ 10–13.

Defendant Robert Preston, in his Affidavit, recounted that his executive assistant created the Gmail account at issue for him in early 2008 to send and receive emails relating to the Company. See Robert Preston Aff. ¶ 3. However, he provides that he lost access to the account in June 2008 and neither he nor his executive assistant could regain access to the account. See id. ¶¶ 4–6. Following the Court’s November 15, 2021 Order, with the aid of an IT specialist associated with defense counsel, Defendant Robert Preston attempted to gain access to the account through the Google support instructions, but he was unsuccessful due to his inability to correctly answer the prompted security question. See id. ¶ 8. Defendant Robert Preston affirms that he has been unable to gain access to the Gmail account and has not accessed the account since June 2008. See id. ¶ 10.

In September 2021, Plaintiff issued subpoenas to several former principals of TPP who had such Gmail accounts, seeking responsive emails, including Greg Clever, Richard Kilpatrick, and Steve Byerly. [See Doc. 127 at 9]. While Plaintiff received forty-nine (49) and forty-four (44) responsive emails from Mr. Clever and Mr. Kilpatrick, respectively, Mr. Byerly produced no documents in response to Plaintiff’s subpoena. [See id. at 9–10]. In an email to counsel for Plaintiff, Mr. Byerly represented that the only messages in his account date back to March 26, 2021, and that he cleaned out his Gmail account regularly over the years. [See id. at 11]; [see also Doc. 127-1 at 45]. Plaintiff now seeks sanctions based on Andrew Preston and Mr. Byerly’s deletion of emails from their Gmail accounts and Defendant Robert Preston’s inability to access his Gmail account. [See generally Doc. 127].

The first threshold question is whether Defendants had a duty to preserve this category of ESI. The Eleventh Circuit has made clear that a duty to preserve documents only “arises once litigation is pending or reasonably foreseeable.” See Graff v. Baja Marine Corp., 310 F. App’x 298, 310 (11th Cir. 2009). “To be reasonably forseseeable, litigation must have been contemplated—mere awareness of potential liability is insufficient to trigger a duty to preserve evidence.” Kraft Reinsurance Ireland, Ltd. v. Pallets Acquisitions, LLC, 845 F. Supp. 2d 1342, 1358 (N.D. Ga. 2011). “Rule 37(e) does not apply, therefore, when information or evidence is lost before a duty to preserve attaches.” See Living Color Enters., 2016 WL 1105297, at *4.

Upon review and based on the current record, the Court does not find that a duty to preserve the Gmail messages of Robert Preston, Andrew Preston, or Steve Byerly at issue arose before they were either deleted or made inaccessible. See Graff, 310 F. App’x at 310. First, as to Defendant Robert Preston’s Gmail account, he avers that he lost access to the account in June 2008, and has been unable to regain access to the account any time since. See Robert Preston Aff. ¶¶ 4–10. The Court finds that litigation was reasonably foreseeable to Defendants in August 2011 when they entered into a first tolling agreement with the U.S. Department of Labor’s Employee Benefits Security Administration regarding acts or omissions concerning the Company’s ESOP. [See Doc. 119 at 25]; see also Declaration of Lydia J. Chastain ¶ 3(“Chastain Decl.”) [Doc. 127-1]. That was more than three (3) years after Defendant Robert Preston averred that he lost access to his Gmail account in June 2008. See Robert Preston Aff. ¶ 4. Therefore, Defendant Robert Preston’s Gmail account and any emails therein became inaccessible or “lost” before any duty to preserve attached. See Living Color Enterprises, 2016 WL 1105297, at *4.

As for the missing and purportedly deleted emails from the Gmail accounts of Andrew Preston and Mr. Byerly, it is not clear to the Court exactly when Andrew Preston or Mr. Byerly deleted the emails. See generally Andrew Preston Aff.; [Doc. 127-1 at 45]. However, both have represented habits of deleting messages to organize their Gmail accounts. See Andrew Preston Aff. ¶ 12; [see also Doc. 127-1 at 45]. If their emails from the time period of January 1, 2008, through March 31, 2008, were deleted before litigation was reasonably foreseeable in August 2011, then a duty to preserve had not yet attached, and Rule 37(e) does not apply. See Living Color Enterprises, 2016 WL 1105297, at *4. Without more, the Court cannot say a duty to preserve the Gmail emails of Andrew Preston and Steve Byerly from the requested time period arose before the information was deleted. See Graff, 310 F. App’x at 310. Therefore, the Court cannot move forward with its spoliation analysis with regards to these Gmail accounts and emails, and denies Plaintiff’s request for sanctions on this basis. See Living Color Enters., 2016 WL 1105297, at *4 (finding that if any of the three (3) preliminary questions are not met, “then the Court need proceed no further under Rule 37(e)”).

2. Company Server Emails

Next, the Court turns to Plaintiff’s arguments for spoliation sanctions relating to emails and documents on the Company’s server which were deleted when Defendants failed to suspend its automatic deletion program, which eliminated documents more than ten (10) years old on its servers, until November 2018. [See generally Doc. 127]. Plaintiff contends that, as a result, Defendants destroyed most of the emails and ESI on the Company’s server from the time of the 2006 and 2008 ESOP stock transactions. [See id. at 4].

 As an initial matter, by its November 15, 2021 Order, the Court found that the three (3) preliminary determinations for spoliation sanctions pursuant to Rule 37(e) were met for this category of ESI. [See Doc. 119 at 25–26]. In particular, the Court determined that the emails and other ESI on the Company’s server relating to the 2006 and 2008 ESOP transactions should have been preserved because litigation was reasonably foreseeable, at the very least, when the Complaint in this matter was filed on December 30, 2014. [See id. at 25]. Thus, Defendants had a duty to preserve the ESI at issue from the Company’s servers. [See id.] Additionally, the Court found that the ESI predating November 2008 was lost due to Defendant TPP’s failure to take reasonable steps to preserve it because it failed to suspend its automatic deletion policy for several years after litigation was reasonably foreseeable. [See id. at 25– 26]. Finally, while Plaintiff was able to gain some emails from third parties, most of the relevant ESI was deleted by Defendant TPP’s automatic deletion program and the Court found that the destroyed ESI could not be restored or replaced through additional discovery based on Plaintiff’s conferral with a forensic expert in 2019, who stated the ESI was unlikely to be recovered (even with great expense). [See id. at 26].

Thus, having already determined the preliminary Rule 37(e) questions with regards to this category of ESI, the Court now turns to its consideration of subsections (e)(1) and (e)(2) of Rule 37. “Rule 37 provides two paths for imposing sanctions, detailed in subsections (e)(1) and (e)(2).” O’Berry v. Turner, Civil Action Nos. 7:15-CV-00064-HL, 7:15-CV-00075-HL, 2016 WL 1700403, at *3 (M.D. Ga. Apr. 27, 2006). “Each subsection carries different requirements and available sanctions.” See id.

“To impose sanctions under Rule 37(e)(1), the court must find that the opposing party was prejudiced by the loss of the ESI.” See id. A party shows prejudice by establishing that the evidence was “crucial” to the moving party’s claims or defenses. See Matter of In re Skanska USA Civ. Se. Inc., No. 3:20-CV05980-LC/HTC, 2021 WL 5226547, at *5 (N.D. Fla. Aug. 23, 2021). However, because establishing that destroyed evidence is crucial can be difficult since it concerns information that no longer exists, “courts must not hold the prejudiced party to too strict a standard of proof regarding the likely contents of the destroyed evidence because doing so allows the spoliators to profit from the destruction of the evidence.” See id. at *6 (quoting Se. Mech. Servs., Inc. v. Brody, 657 F. Supp. 2d 1293, 1300 (M.D. Fla. 2009)); see also Ala. Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 743 (N.D. Ala. Mar. 9, 2017) (“While the burden of establishing prejudice generally falls on the party seeking sanctions, the court is cognizant that [the moving party] will likely never be able to prove what was contained in the destroyed evidence.”).

Here, Plaintiff has established that it has been prejudiced due to the loss of the destroyed emails and documents on the Company’s server. [See Doc. 127 at 15– 16]. Specifically, Plaintiff showed that emails that were recovered from the Company’s server through third parties are crucial to the case and concern the appraisals of the Company upon which Defendants purportedly relied on in making the ESOP stock transactions at issue. [See id.]; see also Declaration of Lydia J. Chastain ¶ 20 (“Chastain Decl.”) [Doc. 127-1]. Because the lost emails and documents would likely be crucial evidence to Plaintiff’s claims and defenses, the Court concludes that Plaintiff has suffered prejudice from the loss of the emails and documents on the Company’s server.

The Court, however, declines to impose sanctions under Rule 37(e)(2), including Plaintiff’s requested sanctions of an adverse inference or default judgment against Defendants, because Plaintiff has not shown that Defendants acted in bad faith or with intent to deprive Plaintiff of the use of the Company server’s ESI. See FED. R. CIV. P. 37(e)(2); see also O’Berry, 2016 WL 1700403, at *4 (noting that Rule 37(e)(2) “only applies if the Court finds that the party failed to preserve the data intentionally, in order to deprive the opposing party of its use in litigation”). Certainly, Defendants’ failure to suspend its automatic deletion program until November 2018 was negligent and careless. However, negligence is not sufficient to allow the Court to impose sanctions pursuant to Rule 37(e)(2). See Ala. Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 730, 745 (“Negligent or even grossly negligent behavior does not logically support [an adverse inference].”).

Plaintiff does not proffer any direct evidence that Defendants intentionally failed to place a litigation hold on the Company server until November 2018 so as to deprive Plaintiff of evidence. [See Doc. 127 at 20–23]. However, Plaintiff argues that Defendants’ failure to suspend the automatic deletion program—when considered in conjunction with the alleged spoliation of the Gmail messages and accounts—gives rise to circumstantial evidence of Defendants’ intent to deprive Plaintiff of the ESI. [See id. at 21].

To establish bad faith through circumstantial evidence, Plaintiff must establish the following four (4) factors: (1) evidence once existed that could fairly be supposed to have been material to the proof or defense of a claim at issue in the case; (2) the spoliating party engaged in an affirmative act causing the evidence to be lost; (3) the spoliating party did so while it knew or should have known of its duty to preserve the evidence; and (4) the affirmative act causing the loss cannot be credibly explained as not involving bad faith by the reason proffered by the spoliator. See Calixto v. Watson Bowman Acme Corp., 2009 WL 3823390, at *16 (S.D. Fla. Nov. 16, 2009); see also Managed Care Sols, Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317, 1323 (S.D. Fla. 2010) (adopting four (4)-factor test for circumstantial evidence of bad faith).

Here, the Court finds that Plaintiff fails to meet the circumstantial evidence test. See Calixto, 2009 WL 3823390, at *16. As noted above, the Court cannot say that Defendants engaged in spoliation with regards to the deleted (or inaccessible) Gmail account emails because Plaintiff has not shown that Defendants were subject to a duty to preserve the information. See supra at 10–12. Moreover, as the Court previously noted in its November 15, 2021 Order, “at least one court in this Circuit has found that ESI deleted pursuant to a defendant’s automatic retention policy does not establish an affirmative act by the defendant under the test for bad faith through circumstantial evidence.” [See Doc. 119 at 28 n.8] (citing Managed Care Sols., Inc., 736 F. Supp. 2d at 1332 (finding that plaintiff could not establish bad faith through circumstantial evidence when the ESI was deleted as part of an automatic deletion policy and there was no evidence that defendant intentionally deleted the emails or intentionally failed to place a litigation hold to ensure that the relevant ESI was deleted)).

Additionally, the Court finds the caselaw Plaintiff proffers to be distinguishable from the matter at hand. [See Doc. 127 at 22] (citing Paisley Park Enters., Inc. v. Boxill, 330 F.R.D. 226, 236–37 (D. Minn. 2019)). In Boxill, the plaintiff moved for spoliation sanctions after the defendants (1) failed to disengage the auto-delete functions on cell phones, and crucially, (2) wiped the memory of the cell phones or discarded them after the suit was filed. See 330 F.R.D. at 236–37. The district court found that the defendants acted with intent to deprive the plaintiffs of this evidence based on both their failure to disengage the auto-delete functions and wiping (or discarding) the cell phones. See id. There, the district court specifically explained that if the spoliating parties had only “fail[ed] to disengage the auto-delete function on their phones,” the loss of the evidence might have been deemed “the result of mere negligence.” See id. However, because the defendants also purposefully wiped or discarded the cell phones after the plaintiffs filed suit, the district court found that it would impose sanctions pursuant to Rule 37(e)(2). See id. In contrast, Plaintiff here shows only that Defendants failed to disengage the automatic deletion program on the Company’s server. [See Doc. 127 at 21]. Without more, the Court finds Plaintiff fails to establish an “intent to deprive” by Defendants. See FED. R. CIV. P. 37(e)(2).

Thus, because Plaintiff has not met its burden to establish an intent to deprive through circumstantial evidence (and presents no direct evidence of the same), the Court finds that sanctions pursuant to Rule 37(e)(2) are not appropriate. See Managed Care Sols., 736 F.Supp.2d at 1323; see also Living Color Enters., 2016 WL 1105297, at *6 (finding that sanctions pursuant to Rule 37(e)(2) should not be imposed when the defendant’s deletion of text messages was negligent, and there was no evidence that he intended to deprive the plaintiff of the text messages or acted in bad faith). Accordingly, the Court denies Plaintiff’s request for an adverse inference or default judgment against Defendants. [Doc. 127].

C. Rule 37(e)(1) Sanctions

Having found that Plaintiff is entitled to sanctions pursuant to Rule 37(e)(1), but not Rule 37(e)(2), the Court now must determine what sanctions to impose. See FED. R. CIV. P. 37(e). “If the court finds that a party is prejudiced by the failure to preserve, the court has broad discretion to impose sanctions, but ‘may order measures no greater than necessary to cure the prejudice.’” Coward v. Forestar Realty, Inc., No. 4:15-CV-0245-HLM, 2017 WL 8948347, at *8 (N.D. Ga. Nov. 30, 2017) (citing FED. R. CIV. P. 37(e)(1)).

Subsection (e)(1) does not limit the court to specific sanctions, but does provide some examples of sanctions that the court might impose. The advisory committee notes explain that the court could: (1) not allow the party responsible for the destruction of the [ESI] to introduce any evidence about that data; (2) allow the party prejudiced to introduce evidence or make an argument to the jury regarding the effect of the loss of the [ESI]; or (3) give instructions to the jury to assist them in evaluating the evidence introduced or arguments made regarding the [ESI]. The only limitations on the sanctions available to the court are that the measure ordered must be no greater than necessary to cure the prejudice.

Id.

By his motion, Plaintiff asks the Court to impose three (3) sanctions on Defendants pursuant to Rule 37(e)(1): (1) attorneys’ fees for time spent issuing subpoenas to third parties, conferring with technical experts, and filing the instant motion; (2) a ruling permitting Plaintiff to present evidence concerning Defendants’ failure to preserve ESI for the Court’s consideration in evaluating credibility and making its decision; and (3) a ruling that precludes Defendants from offering testimony at trial as to the content of any unpreserved emails. [See Doc. 127 at 23– 24]. Upon review, the Court finds the following two (2) Rule 37(e)(1) sanctions to be appropriate and no greater than necessary to cure the prejudice faced by Plaintiff as a result of Defendants’ failure to suspend its automatic deletion program for several years after litigation was reasonably foreseeable: (1) permitting Plaintiff to present evidence at trial concerning Defendants’ failure to preserve ESI for the Court’s consideration, and (2) precluding Defendants from offering testimony at trial as to the content of any unpreserved emails from the Company’s server. See FED. R.CIV. P. 37(e)(1). However, the Court, in its discretion, denies Plaintiff’s requested sanction of attorneys’ fees, finding it to be greater than necessary to cure the prejudice suffered by Plaintiff. See Coward v. Forestar Realty, Inc., 2017 WL 8948347, at *8 (stating that “the court has broad discretion to impose sanctions, but ‘may order measures no greater than necessary to cure the prejudice”).

In sum, the Court finds that spoliation sanctions against Defendants are warranted pursuant to Rule 37(e)(1) based on the loss of the emails and documents on the Company’s server. Accordingly, the Court imposes the sanctions stated above. However, the Court concludes that sanctions pursuant to Rule 37(e)(2) are not justified, and declines to draw an adverse inference against Defendants or enter default judgment. Additionally, the Court does not find, based on the present record, that Defendants had a duty to preserve the Gmail messages of Andrew Preston, Steve Byerly, and Defendant Robert Preston at issue.

III. Conclusion

For the foregoing reasons, the Court GRANTS IN PART AND DENIES IN PART Plaintiff’s “Motion for Sanctions for Defendants’ Spoliation of Relevant Electronically Stored Information.” [Doc. 127]. Specifically, the Court GRANTS Plaintiff’s request for sanctions pursuant to Rule 37(e)(1) in connection with Defendants’ failure to suspend the automatic deletion program on the Company’s server until November 2018 insofar as the Court will allow Plaintiff to present evidence to the Court concerning Defendants’ failure to preserve ESI and preclude Defendants from offering testimony at trial as to the content of any unpreserved emails from the Company’s server. However, the Court DENIES Plaintiff’s request for sanctions related to the Gmail accounts and emails, DENIES Plaintiff’s request for sanctions pursuant to Rule 37(e)(2), and DENIES Plaintiff’s request for attorneys’ fees.

SO ORDERED, this 14th day of January, 2022.

Footnotes

[1]

For additional background and procedural history, the Court refers to its November 15, 2021 Order. [See Doc. 119 at 1–3].