*1 This is a trade secrets case in which Plaintiffs allege that their former employees, Defendants Kelly and Tsarnas, breached their noncom-pete provisions and improperly shared secret information with their new employer: PNC. The parties’ many discovery disputes necessitated the appointment of a special master. See Docs. 324, 327, 329. Among those disputed matters is whether the defendants should be sanctioned for deleting certain text messages from Defendant Kelly and Tsarnas's phones in early 2018. See Doc. 113 at 2. Before me is the Special Master's Order and Report and Recommendation regarding that dispute. As explained below, Defendants’ Objection to the report (Doc. 592) is overruled and Plaintiffs’ motion for leave to file a response to the Objection (Doc. 593) is granted.

Everyone agrees that the special master stated the proper test for whether a sanction for spoliation of evidence under Rule 37 is warranted: sanctions are appropriate where “(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of evidence.” Turner v. Public Service Co. of Colorado, 563 F.3d 1136, 1149 (10th Cir. 2009) (citation omitted).

In acting on a Special Master's report or recommendations, the Court “may adopt or affirm, modify, wholly or partly reject or reverse, or re-submit to the master with instructions.” Fed. R. Civ. P. 53(f)(1). Federal Rule of Civil Procedure 53, like the statute governing review of a Magistrate Judge's report, does not specify the level of review to be applied to findings of fact or conclusions of law in a Special Master's report when no timely objections have been made. Compare Fed. R. Civ. P. 53(f) with 28 U.S.C. § 636(b)(1). According to Fed. R. Civ. P. 53(f)(4), my review of the Special Master's conclusions of law is conducted de novo. Pursuant to Magistrate Judge Crews’ Order, Doc. 329, the Special Master's factual findings, to the extent the parties have objected to them, are also reviewed de novo.

I. The Special Master's Order

The Special Master was appointed “pursuant to F.R.C.P. 53(a)(1)(C) to resolve all pending and upcoming discovery disputes between the parties and oversee their remaining discovery, including depositions.” Doc. 324 at 2. Many of those disputes are collected in the parties’ discovery briefs. Docs. 113, 115. To resolve the parties’ dispute about alleged spoliation of text messages, the Special Master ordered an evidentiary hearing, which was held on February 2 and February 17, 2021. The parties then filed post-hearing briefs (Docs. 352, 353), responses to those briefs (Docs. 364, 366), a “Supplemental Statement” regarding the motion (Doc. 377) and a response to that supplemental statement. Doc. 384.

On September 8, 2023, the Special Master issued what I will refer to as his Order, though its actual title is the more precise but far more unwieldy “Special Master's Order, Report and Recommendation re: Plaintiffs’ Discovery Brief re: Defendants’ Spoliation of Text Messages.” Doc. 596. The Order summarized the parties’ positions and the evidence the master had received, and made a number of findings and orders.

*2 First, the Order addressed Defendants’ argument that they were deprived of due process because evidence and arguments presented at the hearing and briefing went beyond that set forth in the original discovery briefs. Noting that Defendants had multiple opportunities to respond to the new information, and that there was a 15-day gap between the first day of the hearing and the second, during which Defendants made no objection to the process, the Special Master denied Defendants’ claim that they were denied due process. Doc. 590 at 4-5. The Order next denied Plaintiffs’ claim of prejudice regarding the deletion by Ms. Kelly of texts sent to Luda Semanova because the same texts were recovered. Id. at 5. It also denied Plaintiffs’ request that the PNC Defendants should be liable for any spoliation because there was no evidence that the PNC defendants, rather than the individual defendants, deleted or caused any messages to be deleted. Id. at 6. No one objects to these rulings.

The Special Master then turned to “the more central claims in this case: Whether or not Defendants Kelly and Tsarnas’ conduct constitutes spoliation and, if so, whether or not it was done in bad faith such that an adverse inference instruction is warranted.” Id. The Special Master found this to be “a difficult jigsaw puzzle” which he did not solve definitively. Id. at 6, 11-12. But he did make a number of findings along the way.

He began by determining that “Plaintiffs clearly did” suffer prejudice from the deletion of the texts. Id. at 6. He based this conclusion on a number of factors, including the content of messages among Kelly, Tsar-nas, and Semanova from the same time period that were recovered and which tend to support the inference that the defendants were acting with malice toward SRS. See id. at 7. He also noted that the number of texts recovered between Kelly and Tsarnas “plummeted” during the relevant period, going from 485 in March 2018 to 0 in April. Id. at 9. He also noted a variety of actions taken by Kelly and Tsarnas that support the inference that they intentionally tried to make it difficult to find their communications during that time. See id. at 9–10. He then summarized evidence that points the other way—supporting Defendants’ position that no spoliation occurred. This includes the fact that while SRS's counsel sent letters accusing Kelly and Tsarnas of being in breach of their employment agreement in March of 2018, those letters didn't explicitly threaten lawsuits, that both defendants had their phones set to automatically delete texts, and that both provided innocent explanations for the deletion of texts and switching among messaging apps. Id. at 10–11.

Based on the preponderance of all of the evidence before him, the Special Master found that, “it is more likely than not that Kelly and Tsarnas failed to preserve their text messages when they knew or should have known that litigation was imminent and that they did so intentionally.” Id. at 11. But he went on to say that he believed a reasonable jury could reach the opposite conclusion. Id. He then listed a number of questions to which he said “there are no easy answers,” and explained that “the facts here are anything but certain.” Id. at 12. He then stated that “[a]s a result, I do not believe that an order is appropriate other than the orders I have issued above, nor do I believe a sanctions order is appropriate at this time.” Id. Instead, he chose to make a recommendation

*3 Id. He concluded:

II. The Parties’ Responses

As noted above, after the Order was issued, Defendants filed an Objection within the 21-day period permitted under Rule 53(f)(2). Doc. 592. Two weeks later, Plaintiffs filed a motion for leave to respond to the Objection along with a proposed response. Docs. 593, 594. Defendants opposed Plaintiffs’ motion for leave. Doc. 593.

Plaintiffs’ motion for leave to respond (Doc. 593) is granted. While the rules don't explicitly provide for a response to an objection in these circumstances, hearing from both sides on an important matter[1] is generally a useful part of our adversarial system, if not a requirement of due process. To the extent Plaintiffs’ response might include a request that would better be considered an untimely objection, there are better ways to deal with that than to refuse to allow them to respond to the Defendants’ Objection.

Even though the Special Master ultimately declined to order, or even to recommend ordering, the relief Plaintiffs’ had originally sought (an adverse-inference instruction), Defendants object. They contend the Special Master made two main errors. First, they say, he erred in refusing to find no preservation duty existed. Second, they argue he erred in finding prejudice because SRS did not establish that any relevant communications were deleted. Doc. 592. Plaintiffs respond that both of these conclusions are fully supported by the record so the Objection should be overruled, permitting the question to go to the jury. Alternatively, they say the Court should award an adverse inference as they originally requested. Doc. 594 at 14.

I agree with Defendants that awarding an adverse inference at this point is improper. First, as they point out, if Plaintiffs thought the Special Master erred in failing to order or recommend entry of such a sanction, they were obliged to file their own objections within 21 days of the Order, not ask for it in a later response brief. Second, while my de novo review of the record does not lead me to think that the question whether spoliation occurred is quite as difficult a puzzle to solve as the Special Master seemed to, as explained below, I see no reason to disagree with his ultimate recommendation that final decisions about spoliation and any adverse inference should be put off until trial.

Defendants first argue that Kelly and Tsarnas were not under a duty to preserve their SRS-related messages because at the relevant time in spring 2018 they were under no imminent threat of litigation. I find this argument implausible, to say the least. The requirement that litigation be “imminent” does not require perfect certainty of upcoming litigation. See In Re New Canyonlands by Night, LLC, 451 F.Supp.3d 1020, 1024–25 (D. Utah Nov. 1, 2019).

*4 That a clever lawyer, or banker, could read the 2018 letters and think “well, there's no explicit threat of impending litigation, so go ahead” may be true, and might be worth a few points on a law school exam. But it is not the sort of conduct that Rule 37 or the courts ought to condone. More to the point, it is not a reasonable reading of the letters or the situation in general at the time. The letters are from a law firm. The letters don't use the words “see you in court” but do use words that a reasonable person would interpret similarly, such describing intentions to: “aggressively pursue any legal remedies available to us;” and “immediately pursue all available remedies against you.” And as SRS has pointed out, during the same time period, Defendants were in consultation with attorneys and are withholding communications on the basis they were created in anticipation of litigation. The letters, it is true, left room for the possibility that litigation would not occur. But that possibility does not mean litigation was not imminent.

The cases cited by Defendants, such as Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614 (D.Colo.2007); Wolff v. United Airlines, Inc., 2019 WL 4450255 (D. Colo. Sept. 17, 2019) and Barak v. Rooster's Guide & Outfitting Adventures, 2023 WL 3178026 (D. Colo. May 1, 2023) are inapposite. Cache La Poudre and Wolff do not stand for the proposition that a letter must explicitly threaten litigation and demand preservation of relevant materials to trigger the duty not to destroy relevant materials. They stand for the proposition that the question must be resolved by application of a commonsense view of the totality of the circumstances. Here, that shows that litigation was threatened, if not explicitly, then not very subtly. Barak is even less on point. That a “yelling and screaming” plaintiff had said he'd sue about stolen hemp is not a particularly useful comparison to multiple formal letters from attorneys accusing defendants of knowingly breaching contracts and stating that a client would “aggressively pursue legal remedies.” Compare Barak at *6 with, e.g, Doc. 592-1.

At the very least, I agree with the Special Master that this evidence could support a finding that the Defendants knew litigation was imminent and thus under a duty to preserve relevant information. Since allowing a jury to make that decision is all, ultimately, the Order recommends, the Objection is overruled on that point.

Defendants also object to the Special Master's finding that the deletion of messages was prejudicial to Plaintiffs. They contend that SRS did not carry its burden to establish that any relevant communications were deleted. Doc. 592 at 8-12. Again, while the Special Master did state his conclusion that the deletions “clearly” prejudiced defendants, his ultimate recommendation was simply that, if at trial the Plaintiffs present a prima facie case of spoliation, then the jury could be asked to find whether it had occurred, and if so, to infer that the evidence would have been adverse to Defendants. Doc. 590 at 11–12. In other words, adopting that recommendation simply means reassessing the spoliation question at trial.

Given that, it seems of little import what the rest of the Order says, but to the extent it matters, my de novo review of the record again finds sufficient evidence to support the conclusion that Kelly and Tsarnas deleted at least some relevant evidence. As the Special Master pointed out, the text messages that were recovered from the same time period frequently mention SRS and could be support for the proposition that Kelly and Tsarnas were not only seeking to help their new employer, PNC, but to harm their old one, SRS. See id. at 6-7. Those messages also suggest that Kelly and Tsarnas knew that their former clients would be “bleeding” from SRS, which makes it at least somewhat more likely they had breached their agreements and shared trade secrets with PNC. And it is a reasonable inference that similar messages were among those that may have been deleted. As the Special Master noted, the evidence that there was a precipitous drop in recoverable messages between the two immediately after SRS's counsel sent the letters discussed above is un-contested. See Doc. 390 at 9 (citing Doc. 353 at 12).

*5 Defendants are right that we don't know the actual content of the messages that were deleted, and that a party alleging spoliation must offer “concrete evidence” and not just “a fertile imagination that access to the lost material would have produced evidence favorable to his cause.” McCargo v. Texas Roadhouse, Inc., 2011 WL 1638992 (D. Colo.) at *5 (citation omitted). But if the party seeking an adverse-inference instruction had to prove that the contents of the missing communications were actually adverse information, there would be no need for an inference—the jury would know what was there. And there is concrete evidence here. It is a reasonable inference that the deleted texts would have included similar content to those that were otherwise recovered, as the Special Master recognized. Considering the roles Kelly and Tsarnas played at both SRS and PNC, their focus during the timeframe in question, and the fact that they immediately appear to have either stopped texting or deleting any texts upon receipt of the demand letters from SRS, this case is not like McCargo. It does not take any imagination, let alone a fertile one, to believe they were saying things they did not want SRS to know about.

In any event, the recommendation of the Special Master was, again, simply that the parties be allowed to present their evidence on these points at trial, and then, if warranted, that I may impose an instruction that the jury may or must make an adverse inference under Rule 37(e). That doesn't change the situation much from what it was before the Special Master's Order, and to the extent it does, is supported by the evidence and the law and within the Court's discretion. The Objection on this basis is therefore also overruled.

It is therefore ORDERED that: The Plaintiffs’ Motion for Leave to File Response (Doc. 593) is GRANTED;

The Defendants’ Objection to Special Master Order, Report and Recommendation (Doc. 592) is OVERRULED; and

The Special Master's Order, Report and Recommendation, Doc. 390, is ACCEPTED and ADOPTED.