Salinas, Catherine M., United States Magistrate Judge
v.
THE CITY OF ATLANTA, Defendant
ORDER
This matter is before the Court on Plaintiff’s Motion for Spoliation Sanctions [Doc. 121]. For the reasons stated below, I will DENY this motion.
I. BACKGROUND
This action stems from Plaintiff Michelle Maziar’s former employment with
Defendant City of Atlanta, Georgia (the “City”) as the Director of the Mayor’s
Office of Immigrant Affairs from May 2015 through May 6, 2021. [Doc. 26, Second
Am. Compl.¶ 11]. The claims remaining in this case, following the resolution of a
motion to dismiss, include retaliation in violation of 42 U.S.C. § 1981 (Count III),
retaliation in violation of Title VII, 42 U.S.C. § 2000e et seq. (Count V), retaliation in violation of the Georgia Whistleblower Act, O.C.G.A. § 45-1-4 (Count VI), and
attorneys’ fees (Count VII).
Maziar alleges that the City wrongfully terminated her employment after she complained about (1) an alleged pay disparity between her black co-directors and herself; and (2) the City’s alleged failures to follow federal law or its own policies, which Maziar claimed was harming immigrant residents of the City. [Second Am. Compl. ¶¶ 25–29, 32–35, 62–67, 76–81, 82–94]. The City maintains that it terminated Maziar’s employment, in part, because of Maziar’s reported conduct during a meeting held on April 29, 2021, with a consultant to the City, Bloomberg Associates (the “Bloomberg Meeting”), and during other interactions with Bloomberg Associates. [Doc. 128 at 1–4].[1] According to the City, there is ample evidence that Maziar behaved unprofessionally and inappropriately. See [id.]
Following approximately one year of discovery, the City filed a motion for
summary judgment on November 27, 2023, after which, Maziar filed the instant
motion for spoliation sanctions. [Docs. 108, 121]. The parties had previously
alerted the Court to the issues raised in this motion during a discovery conference
held on November 13, 2023. [Doc. 107, Minute Entry]. The spoliation motion has been fully briefed by the parties, and I set forth below the facts that are relevant to
the motion.
On November 24, 2020, Maziar’s counsel sent the City a demand letter that requested the City to “preserve data and/or ESI . . . related to all aspects of Ms. Maziar’s employment.” [Doc. 115-5 at 3]. The City did not submit a litigation hold memorandum to Qaadirah Abdur-Rahim, Maziar’s supervisor and the person who made the decision to terminate Maziar’s employment, until May 10, 2021. [Doc. 121-1 at 2 n.2; Doc. 121-2, Declaration of Qaadirah Abdur-Rahim (“Abdur-Rahim Decl.”) ¶ 7]. The City instructed Abdur-Rahim to “produce any messages related to Ms. Maziar related to [the Bloomberg Meeting].” [Doc. 121-3, Transcript of Nov. 13, 2023 Discovery Conference (“Tr.”) at 6]. Abdur-Rahim provided three text message exchanges to the City, which the City then produced to Maziar. [Doc. 114- 29; Doc. 121-4; Doc. 121-5]. One message was to Abdur-Rahim from her colleague, Carol Anderson, [Doc. 114-29], and the other two text message exchanges were between Abdur-Rahim and another colleague, La’Shawn Dudley [Docs. 121-4 at 121-5].
Notwithstanding the litigation hold, in or around December 2022, upon
Abdur-Rahim’s separation from the City, the City reset Abdur-Rahim’s work phone
to factory settings and consequently lost access to the text messages and data that were on the phone. [Abdur-Rahim Decl. ¶ 9; Tr. at 18]. According to defense
counsel, the City reset the phone because the City wanted to redistribute the phone
to a new employee. [Tr. at 18]. In January 2023, Abdur-Rahim upgraded her
personal cell phone and did not preserve the text messages on that phone. [AbdurRahim Decl. ¶ 5; Tr. at 10]. Abdur-Rahim also did not ensure that her text messages
were not auto-deleting. See [Abdur-Rahim Decl. ¶ 6].
At issue in the spoliation motion, in particular, is the text message below that Anderson sent to Abdur-Rahim on April 29, 2021, following the Bloomberg Meeting:
[Doc. 114-29; Doc. 121-1 at 3, 4–5]. The message has two corners at the top that are round and two corners at the bottom that are square, indicating that the message was cropped at the bottom. [Doc. 114-29; Tr. at 30]. During her deposition, AbdurRahim testified that she assumed there was additional conversation with Anderson regarding the Bloomberg Meeting:
Q: Okay. Was there any communication with Ms. Anderson before or after in that text chain about that meeting?
A: I don’t recall. I would make an assumption yes, but I don’t recall.
. . .
Q: Okay. All right. I’m asking because it seems a little weird for you to get this one text message out of the blue. It might be like, “Hey. How’d the meeting go,” or you know, some sort of back and forth between you and her.
A: Yeah. I can’t tell you the specifics ‘cause it’s -- if it’s not in there, I can’t tell you the specifics. Yeah. But I agree with you.
[Doc. 114, Deposition of Qaadirah Abdur-Rahim “Abdur-Rahim Dep.” at 213]. In
a declaration provided following her deposition, Abdur-Rahim avers that she “used
a computer editing feature to crop and paste [the message] into [her] files in One
Note related to Michelle Maziar that have been produced in this action.” [AbdurRahim Decl. ¶ 3]. Abdur-Rahim further avers that she “did not cut off any text
message from Ms. Anderson regarding Ms. Maziar” and that she “do[es] not recall
receiving any additional messages from Ms. Anderson regarding Ms. Maziar’s conduct” during the Bloomberg Meeting, other than the message that was produced.
[Id. ¶¶ 3, 4].
While Abdur-Rahim testified during her deposition that the text message at issue was on her “City of Atlanta” phone [Abdur-Rahim Dep. at 213], she clarified in her declaration that the text message was on her personal phone [Abdur-Rahim Decl. ¶ 2]. Abdur-Rahim explained that after reviewing the text message again, she saw that the screenshot of the text message indicated that she had 1,025 unread messages, and Abdur-Rahim avers that she “did not have that many unread text messages on [her] City-issued cell phone.” [Abdur-Rahim Decl. ¶ 2].
The City has not produced any other text messages between Abdur-Rahim and Anderson.[2] Abdur-Rahim no longer has access to text messages from 2021 on her personal cell phone, and defense counsel has represented that they have looked at Anderson’s City-issued cell phone and that there are no responsive messages on that phone. [Tr. at 16, 20, 21]. Defense counsel further has represented that they asked Anderson (who had never been identified as a witness in the case or as someone to whom the litigation hold applied) to look on her personal cell phone for the above-referenced message, and Anderson indicated that she also does not have access to any text messages prior to 2022 on her personal cell phone. [Tr. at 16–17, 20, 21; Doc. 128-3, Declaration of Jacob R. Dean “Dean Decl.” ¶ 5].
II. STANDARD OF REVIEW
“‘Spoliation is the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.’” Graff v. Baja Marine Corp., 310 F. App’x 298, 301 (11th Cir. 2009) (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)). A district court has “broad discretion” to sanction a party for the spoliation of evidence. Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1311 (11th Cir. 2023) (citing Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005)).
Where, as in this case, a court is presented with a spoliation claim involving electronically stored information (“ESI”), the court must look to Federal Rule of Civil Procedure 37(e), as amended in 2015. See Ala. Aircraft Indus., Inc. v. Boeing Co., No. 20-11141, 2022 WL 433457, at *13 (11th Cir. Feb. 14, 2022) (“Federal Rule of Civil Procedure 37(e) governs the procedures and sanctions available when a party spoliates ESI.”); Living Color Enters. v. New Era Aquaculture Ltd., No. 14– cv–62216–MARRA/MATTHEWMAN, 2016 WL 1105297, at *3 (S.D. Fla. Mar. 22, 2016) (“As text messages constitute electronically stored information, the newly amended Federal Rule of Civil Procedure 37(e) applies in this case.”). Rule 37(e) sets forth the particular “measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures.” FED. R. CIV. P. 37(e), advisory committee notes to 2015 amendment.
Rule 37(e) provides:
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.
FED. R. CIV. P. 37(e).
In accordance with Rule 37(e), the court must first determine as a threshold
matter whether (1) the “‘[ESI] that should have been preserved in the anticipation or
conduct of litigation’ was ‘lost because a party failed to take reasonable steps to
preserve it’ and (2) that information ‘cannot be restored or replaced through
additional discovery.”’ Skanska, 75 F.4th at 1311 (quoting FED. R. CIV. P. 37(e)).
If these preconditions are not satisfied, the court does not proceed further in the Rule
37(e) analysis, and the court must deny a motion “for spoliation sanctions or curative
measures.” Watkins v. Fox, No. 8:21-cv-2022-SDM-CPT, 2023 WL 5804498, at *5
(M.D. Fla. Sept. 7, 2023) (internal marks and citation omitted)
“Even if Rule 37’s threshold criteria are satisfied, a court may only award
sanctions under subsection (e)(1) if it finds ‘prejudice’ to another party, or under
subsection (e)(2) if it finds that the spoliating party acted with the ‘intent to deprive’
the opposing side of the ESI in question.” Watkins, 2023 WL 5804498, at *5 (citing
FED. R. CIV. P. 37(e) and Title Cap. Mgmt., LLC v. Progress Residential, LLC, No.
16-21882-CV-WILLIAMS/TORRES, 2017 WL 5953428, at *3 (S.D. Fla. Sept. 29,
2017)). “With respect to subsection (e)(1), a court must assess the extent of the
‘prejudice from the loss of [the ESI],’ which necessarily includes ascertaining the
information’s importance in the litigation.” Watkins, 2023 WL 5804498, at *5
(alteration in original) (citing FED. R. CIV. P. 37(e), advisory committee notes to 2015 amendment, and Nationwide Life Ins. Co. v. Betzer, No. 5:18-cv-39-Oc30PRL, 2019 WL 5700288, at *10 (M.D. Fla. Oct. 28, 2019)). A movant seeking
more severe spoliation sanctions under Rule 37(e)(2)’s “intent-to-deprive” standard
“must show more than negligence or even gross negligence by the alleged spoliating
party.” Watkins, 2023 WL 5804498, at *5 (citing FED. R. CIV. P. 37(e), advisory
committee notes to 2015 amendment). The “intent-to-deprive” standard “is the
equivalent of bad faith in other spoliation contexts” and “‘generally means the
destruction [of evidence] for the purpose of hiding adverse evidence.’” Skanska, 75
F.4th at 1312 (emphasis and alteration in original) (quoting Tesoriero v. Carnival
Corp., 965 F.3d 1170, 1184 (11th Cir. 2020)).
III. ANALYSIS
In this case, Maziar argues that the City and Abdur-Rahim acted in bad faith
when they intentionally deleted, cropped, and lost messages from Abdur-Rahim’s
work and personal cell phones after receiving a litigation hold. [Doc. 121-1 at 1].
Maziar requests that the Court sanction this alleged spoliation of evidence by
granting her a presumption that Abdur-Rahim’s missing text messages contained
information that other people who attended the meeting (Maziar’s proposed “comparators”) behaved similarly to her or worse than she did and ultimately went
without discipline. [Id. at 1, 5, 6, 13–15].
The City states that prior to the deletion of the text messages on AbdurRahim’s work and personal cell phones, the City produced all responsive text
messages from those phones. [Tr. at 3, 34; Doc. 128 at 9]. The City argues that
Maziar has no evidence that the City or any agent failed to preserve messages
concerning her conduct and comments at the Bloomberg Meeting. [Doc. 128 at 1].
The City further argues that Maziar never requested during discovery text messages
concerning anyone else’s statements or conduct at the Bloomberg Meeting, and that
Maziar also has no evidence that any such text messages exist. [Id. at 1, 4, 5–6, 11–
12, 13, 15]. Accordingly, the City maintains that Maziar is not entitled to sanctions
for the deletion of information she never sought.
A. Rule 37(e) Threshold Requirements
Addressing the threshold requirements under Rule 37(e), I first find that the
City had a duty to preserve ESI upon receiving the demand letter from Maziar
containing a specific request for the preservation of ESI materials concerning
Maziar’s employment with the City. This duty was triggered as of November 24,
2020, the date of the demand letter, and this duty was ongoing during the pendency
of this litigation. Larios v. Lunardi, 442 F. Supp. 3d 1299, 1305 (E.D. Cal. 2020) (stating that duty to preserve applies throughout litigation); Andalam v. Trizetto
Grp., Inc., No. 12-cv-01679-WYD-MJW, 2013 WL 6076082, at *2 (D. Colo. Nov.
19, 2013) (“Once the duty to preserve evidence arises, it continues throughout the
litigation, and a party cannot continue its routine procedure of destroying relevant
evidence.”).
Second, there were text messages on Abdur-Rahim’s City-issued and personal cell phones that have been lost or deleted. Although some of Abdur-Rahim’s text messages were saved and later produced to Maziar, a party under a litigation hold is not at liberty to save only responsive text messages and then delete or fail to preserve all other text messages; other messages may still be relevant to the litigation and become responsive upon service of additional discovery requests. “‘While a litigant is under no duty to keep or retain every document in its possession . . . it is under a duty to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery and/or is the subject of a pending discovery request.’” Matter of In re Skanska USA Civ. Se. Inc., 340 F.R.D. 180, 185 (N.D. Fla. 2021) (quoting Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003)). Thus, even assuming the other text messages on Abdur-Rahim’s cell phones were not responsive to the specific discovery requests that had been propounded by Maziar at the time, it is possible that there were other text messages relevant to the litigation that should have been preserved. Because the City (and Abdur-Rahim) continued to have a duty to preserve relevant text messages on Abdur-Rahim’s cell phones at the time those messages were deleted in December 2022 and January 2023, and because it is currently impossible to access any of the messages from those phones, I find that ESI that should have been preserved was lost or destroyed.[3]
I next analyze whether the ESI was lost as a result of the City’s failure to take reasonable steps to preserve it. Here, the City submitted a litigation hold memorandum to Abdur-Rahim (albeit six months after receiving Maziar’s demand letter for preservation of evidence) and then requested that Abdur-Rahim produce any messages related to Maziar’s conduct at the Bloomberg Meeting. The City took no other steps to preserve ESI before text messages were deleted. “With respect to preserving ESI on phones or other electronic devices, courts have normally held that litigants must prevent destruction of ESI on such devices by backing up the data to that device’s cloud network.” Freeman v. Giuliani, No. 21-3354 (BAH), 2023 WL 5600316, at *13 (D.D.C. Aug. 30, 2023). In the instant case, the City did not back up the text messages from either of Abdur-Rahim’s phones. Moreover, there is no indication that the City or its counsel attempted to search either of Abdur-Rahim’s cell phones for relevant evidence. The City instead delegated that responsibility to Abdur-Rahim, and preservation “pitfalls are emblematic and foreseeable when counsel rely on their clients to self-collect and self-monitor preservation of their ESI.” In re Local TB Adver. Antitrust Litig., No. 18 C 6785, 2023 WL 5607997, at *10 (N.D. Ill. Aug. 30, 2023). Even after receiving the cropped message from Abdur-Rahim, the City did not follow up with Abdur-Rahim to locate any text messages before or after that message that provided context for the message. Finally, notwithstanding the litigation hold, the City reset Abdur-Rahim’s City-issued cell phone when she separated from the City in December 2022. Considering the level of sophistication that the City presumably has with regard to litigation,[4] I find that ESI was lost as a result of the City’s failure to take reasonable steps to preserve it.
Finally, the last aspect of the threshold requirement is met here because the
ESI has not been restorable or recoverable through additional discovery. As
discussed previously, the City has searched the City-issued cell phone that belonged to Anderson, the person with whom Abdur-Rahim was communicating, and neither
the text message at issue nor other responsive text messages were found on that
phone. Additionally, the City asked Anderson to look on her personal cell phone for
the above-referenced message, and Anderson indicated that she does not have access
to any text messages prior to 2022 on her personal cell phone. The City argues that
Maziar could have taken depositions of Anderson and others who were at the
Bloomberg Meeting to explore more fully what occurred at that meeting [Doc. 128
at 7–8], but Maziar persuasively argues that “deposing workers well after an event
is not a perfect substitute for reviewing their contemporaneous text messages.”
Skanska, 75 F.4th at 1313. Thus, I find that the text messages from Abdur-Rahim’s
phones cannot be restored or replaced through additional discovery.
Based on the foregoing, I find that Maziar has satisfied the Rule 37(e) threshold requirements, and I thus will proceed to determine whether sanctions are warranted under either Rule 37(e)(1) or Rule 37(e)(2).
B. Prejudice Under Rule 37(e)(1)
As explained earlier, if the court finds “prejudice to another party from loss
of the information,” then the court “may order measures no greater than necessary
to cure the prejudice.” FED.R.CIV. P. 37(e)(1). The focus of Rule 37(e)(1) sanctions
is on the “effect of a violation.” Skanska, 75 F.4th at 1311 (emphasis in original). “In the context of spoliation of ESI, determining what has been lost and the possible
probative value of such information is an often difficult, even impossible, task.”
Burns v. Medtronic, Inc., No. 8:15-cv-2330-T-17TBM, 2017 WL 11633269, at *5
(M.D. Fla. Aug. 9, 2017). Under Rule 37(e)(1), “the burden of proving prejudice is
thus left for the court’s considered discretion.” Burns, 2017 WL 11633269, at *5.
Here, Maziar argues that the City produced “altered and cherry-picked messages while destroying other contemporaneous text messages that would have allowed [her] to challenge the reasoning for her termination.” [Doc. 121-1 at 10]. During the discovery conference that I held with the parties on November 13, 2023, and in briefing on the spoliation motion, Plaintiff’s counsel has made it apparent that Maziar’s true concern with respect to spoliation relates to whether there were any messages concerning the conduct and statements of others who attended the Bloomberg Meeting. [Tr. at 14, 15, 25–26, 37]. Maziar maintains that she was not the only person to provide pushback at the Bloomberg Meeting, yet she was the only person disciplined. [Doc. 121-1 at 4–5, 13–15]. Maziar presumes that there were contemporaneous text messages concerning the conduct of Maziar’s purported comparators at the Bloomberg Meeting. But there is no evidence—deposition testimony or otherwise—that such text messages ever existed. The Court is aware of the difficulty that parties, like Maziar, face in proving what might have existed. See Morrison v. Veale, No. 3:14-cv-1020-TFM, 2017 WL 372980, at *5 (M.D. Ala. Jan. 25, 2017) (“[W]hile the burden falls on the party seeking sanctions, it is also just as true that the non-spoliating party may never be able to fully prove what was contained in the destroyed evidence.”); Se. Mech. Servs. v. Brody, 657 F. Supp. 2d 1293, 1300 (M.D. Fla. 2009) (“In spoliation cases, 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 evidence.”). However, mere speculation is insufficient to support a finding of prejudice. Burns, 2017 WL 11633269, at *6 (“Although it is certainly possible that there could have been a text message containing some type of ‘smoking gun’ to prove retaliatory intent or pretext for an adverse employment action, Plaintiff’s blanket and conclusory statements about what could have existed does not compel a finding of prejudice.”).
More importantly, even if text messages existed concerning the statements
and conduct of other people at the meeting, Maziar has not shown prejudice from
the deletion of those text messages because she did not propound discovery requests
seeking information or communications regarding the statements or conduct of other
City employees at the Bloomberg Meeting. [Doc. 128 at 1, 5–6, 11–12]. Maziar
argues that text messages concerning the behavior of other people at the Bloomberg Meeting would have been responsive to the following discovery requests that she
served:
- Documents “concerning [the] third affirmative defense that Defendant’s decisions were ‘based upon legitimate reasons’” [Doc. 128-2, RFP No. 6]
- Documents “concerning the reason(s) for Plaintiff’s termination and any written communications between and among any employees of Defendant related to the decision to terminate Plaintiff” [Id., RFP No. 10]
- “All communications to or from Qaadirah Abdur Rahim concerning Plaintiff’s demotion and/or termination or the decision making leading to same” [Id., RFP No. 13]
I am not persuaded that general information concerning the Bloomberg Meeting is
responsive to these requests. These requests focused on Maziar’s conduct—not on
the conduct of her purported comparators. To the extent that Maziar sought evidence
concerning the statements and conduct of other City employees at the Bloomberg
Meeting, Maziar had the burden to request such evidence, yet Maziar did not actually
request this evidence during discovery and therefore would not have been entitled to
its production at the time that Maziar first raised this issue before the Court. EVentures World-Wide, LLC v. Toll Bros., No. 2:22-cv-552-JLB-KCD, 2023 WL 4419736, at *2 (M.D. Fla. July 10, 2023) (“To state the obvious, a party cannot
compel the production of documents it never asked for.”).
Just as Maziar would not have been able to compel the City to produce any such text messages, if they still existed, Maziar cannot now claim that she is prejudiced by the deletion of any such text messages. See Fertilizantes Tocantins S.A. v. TGO Agriculture (USA) Inc., No. 8:21-cv-2884-VMC-JSS, 2023 WL 4536354, at *2 (M.D. Fla. July 13, 2023) (ruling that a party is not prejudiced by an inability to access ESI that the party never requested during discovery). I agree with the general principle advanced by the City and stated by another district court, albeit not in the spoliation context, that “it is inappropriate to sanction a party for failing to produce documents that the opposing party never requested . . . .” Stafford v. Bojangles Rests., No. 3:20-cv-266-MOC, 2023 WL 3951183, at *4 (W.D.N.C. June 9, 2023). Therefore, under the circumstances presented, I find that Maziar is not entitled to relief under Rule 37(e)(1).
C. Intent to Deprive Under Rule 37(e)(2)
Maziar also seeks sanctions under Rule 37(e)(2) in the form of the following adverse inference:
Anderson’s text messages [to Abdur-Rahim] would have shown AbdurRahim was told that Plaintiff’s comparators acted the same or worse than Abdur-Rahim was told Plaintiff acted, and that Abdur-Rahim ignored this information, terminating only Plaintiff while sparing her co-workers who did not blow the whistle or file charges of discrimination.
[Doc. 121-1 at 13–14]. Maziar argues that she is entitled to this adverse inference
because the City acted in bad faith by wiping Abdur-Rahim’s City-issued cell phone
and by failing to back up Abdur-Rahim’s personal cell phone notwithstanding
Abdur-Rahim’s production of an incomplete, cropped text message from Anderson
that discussed Maziar. [Id. at 13].
Rule 37(e)(2) provides that an adverse-inference jury instruction is
appropriate “only upon finding that the party acted with the intent to deprive another
party of the information's use in the litigation.” FED. R. CIV. P. 37(e)(2). The
Advisory Committee’s notes make clear that destruction of evidence due to
“negligence or gross negligence” is insufficient to warrant an adverse-inference jury
instruction. See FED.R.CIV. P. 37(e), advisory committee notes to 2015 amendment
In contrast to Rule 37(e)(1) sanctions, Rule 37(e)(2) sanctions “look more to
the cause of the violation.” Skanska, 75 F.4th at 1311 (emphasis in original). Thus,
“[u]nlike subsection (e)(1), subsection (e)(2) does not require a finding that the
opposing party was prejudiced by the failure to preserve the electronically stored
data.” O’Berry v. Turner, Nos. 7:15-CV-00064-HL, 7:15-CV-00075-HL, 2016 WL
1700403, at *4 (M.D. Ga. Apr. 27, 2016). “‘This is because the finding of intent
required . . . can support not only an inference that the lost information was unfavorable to the party that intentionally destroyed it, but also an inference that the
opposing party was prejudiced by the loss of information that would have favored
its position.’” Skanska, 75 F.4th at 1311 (quoting 2015 Committee Notes on Rule
37(e)(2)).
In arguing that the spoliation conduct in this case rises to the level necessary
to find bad faith, Maziar relies heavily on the similarities between the City’s conduct
and the conduct of the spoliating party in the Eleventh Circuit’s recent decision in
Skanska, cited supra. In Skanska, data from five of thirteen custodians’ cell phones
was destroyed. 75 F.4th at 1302. An active litigation hold was in place and actual
litigation had commenced, but the spoliating party did not back up the custodians’
cell phones and did not “suspend its ordinary cell phone data destruction policies—
not even for known electronic data custodians.” Id. at 1302, 1312–13. The company
“‘made no effort’ to collect its custodians’ cell phone data until at least seven months
after the litigation hold was in place.” Id. at 1313. The Eleventh Circuit further
detailed: “Two phones were deliberately reset according to Skanska’s ordinary
employee departure procedures when their owners left the company. Another was
somehow ‘disabled’ and became inaccessible after the owner left Skanska. Yet
another was allegedly lost overboard. And still another had all text messages deleted
under disputed circumstances.” Id. at 1302. Notwithstanding the foregoing, Skanska represented to the district court that no relevant documents had been deleted
or destroyed, but Skanska made this representation “before Skanska had even
bothered to check if its custodians’ cell phone data was still available.” Id. at 1313.
The district court, finding that the only “cogent explanation” for this conduct was
bad faith, sanctioned the company under Rule 37(e)(2). Id. at 1302–03, 1313.
The Eleventh Circuit affirmed the district court’s ruling, emphasizing that the standard of review for the finding of bad faith was clear error. Skanska, 75 F.4th at 1311, 1313. The Eleventh Circuit acknowledged that if its review were de novo, it “would be a close question.” Id. at 1313. The Eleventh Circuit explained:
On the one hand, we find Skanska’s utter failure to implement even the most basic data-protection safeguards egregious—so egregious that an inference of bad faith is easy to make. On the other, this is not a case with direct evidence of bad faith; it is also plausible from this record that Skanska was “just” grossly negligent.
Id. (emphasis in original). Reviewing the district court’s finding of bad faith for
clear error, the Eleventh Circuit found no clear error. Id. The Eleventh Circuit
acknowledged that much of the evidence was destroyed as a result of routine
document destruction policies, but it expressed its skepticism of a claim that the
evidence was not destroyed intentionally, especially after a request had been made
for the evidence to be preserved. Id. (citing Tesoriero, 965 F.3d at 1186). The
Eleventh Circuit likewise highlighted that “Skanska [was] a sophisticated entity” and referenced evidence of Skanska’s sophistication, including that it was “a
multinational company tasked with completing a construction contract worth nearly
$400 million” and that it “boast[ed] on its website that it is ‘one of the largest, most
financially sound construction and development companies in the U.S.’” Skanska,
75 F.4th at 1313–14. The Eleventh Circuit reasoned that such a sophisticated entity,
like Skanska, should have taken fundamental precautions to preserve evidence,
particularly in light of the active litigation hold. Id. at 1314. Finally, the Eleventh
Circuit rejected Skanska’s argument that an affirmative act by the spoliating party
was necessary to support a finding of bad faith based on circumstantial evidence. Id.
Relying on prior caselaw, the Eleventh Circuit pointed out that “failures to act can
be just as harmful as affirmative acts of destruction.” Id. (citing Flury, 427 F.3d at
943, 947, 945 and Tesoriero, 965 F.3d at 1185). The Eleventh Circuit thus found no
clear error and affirmed the district court’s sanctions order.
There are similarities between the spoliating conduct in Skanska and the City’s conduct here. In both cases, there was a lengthy delay in making any effort to preserve data while subject to preservation obligations; a failure to back up employee cell phones; a failure to suspend ordinary cell phone data destruction policies; a deliberate resetting of cell phones in accordance with the routine data destruction procedures following the separation of an employee; and a deletion of text messages due to other circumstances.
While these discovery failures are inexcusable, they do not show bad faith. As an initial matter, just as the Eleventh Circuit acknowledged in Skanska in explaining why the case would have been a close one if a de novo standard of review had applied, the instant case does not involve any direct evidence of bad faith by the City. 75 F.4th at 1313. Moreover, as the Eleventh Circuit also reasoned in Skanska, I find that it is plausible from the record before the Court that the City was simply grossly negligent with respect to evidence preservation, rather than acting with an intent to deprive. Id.
In my view, the content of the three text messages that the City produced from
Abdur-Rahim’s cell phones undercuts the argument that the City had an intent to
deprive Maziar of evidence or that the City was otherwise acting in bad faith. The
City produced two text messages between Abdur-Rahim and another City employee,
La’Shawn Dudley—one that referenced an “intense” call that occurred on April 29,
2021, and another in which Dudley notified Abdur-Rahim that Ernesto Freire, with
Bloomberg Associates, would be contacting Abdur-Rahim to discuss the next steps
for meetings. [Docs. 121-4 and 121-5]. Maziar complains that neither of the
messages contains the search term “Michelle” or “Maziar” and thus suggests that Abdur-Rahim did not use proper search terms in searching her devices. [Doc. 121-
1 at 4]. However, the City’s production of these text messages indicates that the
City arguably produced more ESI than it was required to produce, which is an odd
thing for Maziar to criticize. Furthermore, the one text message that referenced
Maziar (exchanged between Anderson and Abdur-Rahim), which the City also
produced in discovery, is helpful to Maziar’s case. Maziar complains about this
message being cropped and lacking context, but I tend to believe that this cropped
message is not one that the City would have produced if the City were egregiously
seeking to hide potentially adverse evidence or deprive Maziar of the use of evidence
in litigation.
Also, in contrast to the facts presented in Skanska, the City has not made any misrepresentations to the Court concerning the deletion or destruction of evidence. As embarrassed as the City should be, the City appears to have been transparent with respect to its ESI preservation failures, and there is no evidence or indication that the City has misled the Court in any manner.[5]
To be sure, the evidence reflects that the City’s approach to preserving ESI was quite careless. However, “[n]egligent or even grossly negligent behavior does not logically support” a reasonable inference that lost or destroyed ESI was unfavorable to the City. FED. R. CIV. P. 37(e), advisory committee notes to 2015 amendment.
Finally, I find it significant that the advisory committee notes to the 2015
amendment indicate that an adverse inference should not be permitted when it would
“tip the balance at trial in ways the lost information never would have.” FED.R. CIV.
P. 37(e), advisory committee notes to 2015 amendment. The notes explain that when
information has been lost through negligence, that information “may have been
favorable to either party, including the party that lost it.” Id. Here, to the extent that
there is lost ESI concerning what happened at the Bloomberg Meeting, such
information would be inadmissible because Maziar never requested the information
in discovery. In these circumstances, it would be unfair to grant Maziar sanctions in
the form of the adverse inference that she requests. Such an adverse inference would
put Maziar in a better position than she would have been in if the ESI were presently
available. The City’s failure to preserve ESI simply does not justify such relief.
IV. CONCLUSION
Based on the foregoing, I DENY Plaintiff’s Motion for Spoliation Sanctions [Doc. 121].
SO ORDERED, this 24th day of January, 2024.
Footnotes