*1 Before the Court is a Motion for Spoilation Sanctions (R. Doc 73), filed by Defendant Union Pacific Railroad Company (hereinafter “UP”) seeking an Order from this Court imposing sanctions on Plaintiff Elmer Kellar (hereinafter “Kellar”) for the intentional destruction of cellphone data just twenty-two (22) days before filing suit.

The Motion is opposed. R. Doc. 84, 105. A Supplemental Memorandum in Support of the Motion was filed. R. Doc. 96, 99 The Motion was heard with oral argument. R. Doc. 92.

I. Background

A. The incident

This case arises out of a single vehicle accident that occurred at around 2:05 PM on January 17, 2021, while Kellar was commuting from work in Livonia, Louisiana to his home.[1] R. Doc. 1 at 2. Kellar left work by his usual rote, heading north on Highway 77, when his car crossed the southbound lane, left the roadway, and careened into farming equipment parked on the side of the road. Id. at 3.

There was a witness heading in the opposite direction who saw Kellar's car cross the lane and crash into the machinery. R. Doc. 73-1 at 1. However, the witness could not say what caused Kellar to leave the roadway.[2] Id. Kellar contends that UP worked him for sixteen (16) straight hours, from 10:00 PM on January 16, 2021, to 2:00 PM on January 17, 2021. R. Doc. 105. Kellar contends that UP consistently worked him in excess of twelve (12) continuous hours on numerous occasions, starting as early as November 2020. Id. Kellar presently contends that the incident in controversy occurred because he fell asleep while driving due to his fatigue from working long hours, causing his vehicle to go off the road and slam into large roadside farm equipment. Id.

By contrast, Kellar testified during his deposition that he did not remember what happened and only remembered waking up three (3) days later in the hospital. See R. Doc. 73-2, Exhibit A – Elmer Kellar Deposition. While Kellar was in the hospital, Kellar's brother retrieved his cell phone from his car and brought it to him. R. Doc. 73-3, Exhibit B - Sheral Kellar Deposition, at 25 & 26. Kellar retained counsel in May 2021, and although counsel advised Kellar of his duty to preserve evidence they did not take the phone and copy its contents before allowing him to use the phone. Id. On October 14, 2021, just twenty-two (22) days before the lawsuit was filed, Kellar performed a hard reset on his phone. R. Doc. 73. By definition, this means that Kellar restored his phone to its original system state by erasing all data, settings, and applications that were previously stored on the device. UP now seeks termination sanctions for Kellar's spoliation of cellphone evidence. Id.

B. Cellphone Discovery

UP learned that Kellar was taking pictures and using Facebook around the time of the accident by reviewing Kellar's social media production, which consisted of a limited portion of a download of his Facebook and Instagram accounts. R. Doc. 73-1 at 6. For example, Kellar took a selfie at work and posted it at 11:40 AM on January 17, 2021, just hours before the incident. Id. However, the original selfie is no longer on Kellar's phone and the same is true of numerous photos and videos Kellar posted to social media. Id. These photos and videos were temporarily retained by the social media companies, but the originals were lost. Id.

*2 UP believed that Kellar's cellphone might contain evidence as to the cause of the single vehicle incident in controversy. R. Doc. 73-1 at 9. On April 22, 2022, UP propounded discovery to Kellar seeking data from his social media accounts, including native copies of Kellar's Facebook account for the six-month period leading up to January 17, 2021. R. Doc. 26-1. UP also requested Kellar's phone data, including the call log, text messages, and photos from the same period. Id.

The evidence shows that Kellar had his phone with him in the car, and it wound up on the rear passenger floorboard of after the crash. R. Doc. 73-3, Exhibit B - Sheral Kellar Deposition, at 25 & 26. Kellar's phone was found some time after the incident on the floorboard of his car at the wrecker yard where it had remained out in the weather. R. Doc. 84. The phone Kellar was using that day is the same one at issue in this Motion. Id. at 26.

Two (2) years after the incident, Kellar's cellphone data has become a central issue in this case. However, Kellar was clearly on notice that his cellphone use would be a central issue from the very beginning of this litigation because the incident in controversy was a single vehicle accident. Despite negotiating an agreement, Kellar did not provide the data as requested. R. Doc. 26. UP subsequently filed a Motion to Compel, asserting therein that the data from Kellar's Samsung 20 phone suggested that he was using the phone behind the wheel immediately before the collision. Id.

In resolution of UP's Motion to Compel, the parties retained Kevin Brown (“Brown”) with a joint directive to perform: (1) a complete data extraction from the phone and (2) a Google Takeout of the data and information of the Google account associated with the phone. Mr. Brown performed these tasks, and he is serving as the independent custodian for all data recovered from the phone (the “Extraction”) and Google account (the “Takeout”). R. Doc. 73-1 at 4. The Extraction consists of data and files maintained and stored on the phone itself, e.g., photos, videos, calls, texts, and application information. Id. Google Takeout is a tool that allows for users to move their data in and out of Google products, and generally consists of information associated with the phone but stored independently by Google. Id. On June 30, 2023, Kellar's counsel delivered Kellar's phone, a Samsung Galaxy Note 20 Ultra (“Phone”). Id.

Brown prepared a report consisting of all data for these days, which he delivered to Kellar's counsel in full on August 1, 2023. R. Doc. 73-1. On August 22, 2023, Kellar's counsel authorized Brown to release the geolocation data to UP's counsel. R. Doc. 73-1 at 4. Kellar's counsel later produced Brown's .pdf narrative report on August 29, 2023. Id. This report established that the Takeout for these three (3) days contained geolocation data, Gmail, and search histories. Id. at 5. However, it appeared to contain no Extraction data, since there were no photos, videos, text messages, app activity, etc. Id.

Brown's search for these dates did return three (3) videos that were created on January 16 and 17, 2021, but that were not downloaded to the Phone until months later and after the factory reset. R. Doc. 73-1 at 5. The metadata indicates that the videos were created at 8:37:35 PM and 8:36:21 PM on January 17, 2021 (the night of the accident), and at 1:10:05 PM on January 16, 2021 (the day before the accident). Id. Two (2) of the videos were downloaded to the Phone on November 2, 2021, and one (1) was downloaded to the Phone on June 15, 2023, as reflected by the Extraction data for these dates.[3] Id.

*3 Brown explained that there was a gap in the Extraction from June 2, 2020, through approximately October 14, 2021, with no files from this period. R. Doc. 73-1 at 5. Brown initially concluded that either: (1) the Phone was factory reset on October 14, 2021; or (2) Kellar was using a different phone from June 2, 2020, to October 14, 2021. Id.

It is undisputed that Kellar was not using another phone at the time of the accident. Brown's first conclusion as to what happened to the missing data was rendered on August 22, 2023. R. Doc. 73-4 at 26-30. Brown initially opined that the missing data was deleted, but noted that he would need to investigate further. Id. Brown later modified his conclusion on September 5, 2023, concluding that the Phone was factory reset because there were no emails from June 2, 2020, through October 13, 2021, and the data before June 2020 was associated with a Samsung Galaxy Note 10. Id. at 12-22. Consequently, Brown found that all data stored on Kellar's Phone itself from June 2, 2020, through October 14, 2021, was irrevocably lost and could not be recovered. Id.

C. Takeout Geolocation and Device Activity Data

Kellar did not delete his Google account information, so the Takeout data remained intact, which included data generated from January 15-17, 2021. R. Doc. 73-1 at 4. The Takeout data includes geolocation data and Google application data such as YouTube activity, Google searches, and Gmail. Id. The Takeout data also contains account activity, access logs, calendar data, bookmarks, history, files stored in google drive, photos, data from locations and settings from location history and place review from maps. It also contains messages and attachments from Gmail YouTube watch and search history, videos, and comments among other things.

The Takeout data can help establish a timeline and indicate, at least in part, what Kellar was doing at the time of the incident. The Takeout contains thousands of time-stamped geolocation data points showing Kellar's movements to and from work and everywhere in between. R. Doc. 73-1 at 6. Using this data, Brown created a Google map illustrating all the geolocation points at their logged coordinates. Id. at 7.

Tabular or graphical material not displayable at this time.

Figure 1 Filtered Takeout Geolocation Points Produced by Joint Expert Kevin Brown As seen in Figure 1 above, Points 1387-1389 on Mr. Brown's report and map show Kellar leaving work on the 17th and then getting into the accident. R. Doc. 73-1 at 6-7. The map isolates these three (3) points and shows them in context, with 1387 located in the southern portion of the yard, 1388 located just to the right of Highway 77, and 1389 located near the site of the incident. Id.

Point 1389, the first ping located at the accident site, shows four (4) separate “100 confidence” tilting event and finally one 100 still event. R. Doc. 73-1 at 8. Google defines “still” as meaning that the phone was still or not moving. Id. Google defines “tilting” as “the device angle relative to gravity changed significantly. This often occurs when a device is picked up from a desk or a user who is sitting stands up.” Id. “Confidence” is a “value from 0 to 100 indicating how likely it is that the user is performing this activity. Id. This value will be < 100. Id. A larger value indicates that it's likely that the detected activity is correct, while a value of < 50 indicates that there may be another activity that is just as or more likely. Id.

*4 UP contends that but for the Phone being erased just before the lawsuit was filed, there would have been information dovetailing with the geolocation and device activity to explain the reason for Phone's titling. R. Doc. 73-1 at 9. UP contends that if it had access to the missing cellphone data it could conclusively show that Kellar did not fall asleep at the wheel and was distracted by his Phone at the time of the incident. Id. UP further contends that a hard reset of the Phone is an intentional act which warrants dismissal of Keller's claim against it. Id.

Kellar contends that UP waited for two (2) years after the incident in controversy to seek his cellphone records. R. Doc. 84. Keller states that he advised UP that their efforts to secure his cellphone records were too late because the cellphone carrier's retention policy expired after two (2) years. Id. According to Keller, on January 19, 2023, UP inquired whether Kellar still had the Phone he was using on the date of accident so that it could coordinate an inspection of the Phone by an expert. Id.

Keller contends that in conformity with their joint expert agreement, Kellar's counsel was provided with the Extraction and Google Cloud services report to review the extracted data for privileged communications. R. Doc. 84 at 3. Kellar's counsel contends that when reviewing the extracted data, they did not see any incoming or outgoing text messages or phone calls from Kellar's Phone for January 15-16, 2021, the two days before the subject accident. Id. Kellar contends that there were innumerable reasons why what was on his Phone was no longer there. Id. at 7.

Keller also contends that his Phone developed a “green screen” in October 2021 and that, in an effort to address the problem, he did internet research and recalled turning it on and off and engaging in other efforts to try to fix the screen problem. R. Doc. 84 at 8. Kellar also contends that he was not successful in restoring his device, so he took it to “UBREAKIFIX” electronics repairs store. Id. Kellar contends that the receipt he was given by UBREAKIFIX stated:

R. Doc. 84 at 8-9. Kellar contends that the use of the word “performed” is an indication that whatever was done on his Phone had already occurred and was recognition that a “factory restore” may have occurred while in the possession of UBREAKIFIX. Id. Kellar also contends that the date of the claimed deletion by Brown coincides with the repair effort by UBREAKIFIX on October 15, 2021. Id. Kellar contends that his FACEBOOK communication with his friend, Derrick Green, on October 16, 2021, seeking to get his phone number again, indicates that his Phone had undergone a “factory reset” and that it was not done by him. Id.

Kellar therefore contends that he did not intentionally destroy the data on his Phone during the period of June 2, 2020-October 14, 2021. R. Doc. 84 at 9. Kellar also contends that when the data was lost, he was several months out from sustaining a traumatic brain injury with a processing disorder, memory deficits, and cognitive problems. Id. Kellar contends that, given his cognitive injuries and other injuries he was recovering from, he did not possess the clarity of mind to intentionally engage in deleting data on his Phone. Id.

Finally, Kellar's counsel suggests that the theory of tilting and Phone activity is a presumptive suggestion that Kellar engaged in distracted driving. R. Doc. 84 at 11. Kellar's counsel further suggests that they (Kellar's counsel) drive using their phone all the time and do not to any degree regularly drive off the road. Id. Therefore, Kellar's counsel asserts that the Takeout tilting information is not probative. Id.

II. Standard of Review

*5 Allegations of spoliation, including the destruction of evidence in pending or reasonably foreseeable litigation, are addressed by federal courts through the court's inherent power to regulate the litigation process if: (1) the conduct occurs before a case is filed; or (2) for another reason, there is no statute or rule that adequately addresses the conduct. See Chambers v. NASCO, Inc., 501 U.S. 32, 43–46 (1991). If an applicable statute or rule can adequately sanction the conduct, that statute or rule should ordinarily be applied, with its attendant limits, rather than the court's more flexible or expansive inherent power. Chambers, 501 U.S. at 50; see Klein v. Stahl GMBH & Co. Maschinefabrik, 185 F.3d 98, 109 (3rd Cir. 1999) (“[A] trial court should consider invoking its inherent sanctioning powers only where no sanction established by the Federal Rules or a pertinent statute is ‘up to the task’ of remedying the damage done by a litigant's malfeasance ... ”) (quoting Chambers, 501 U.S. at 50)). If the court's inherent power, rather than a specific rule or statute, provides the source of sanctioning authority, then under Chambers, the court's ability to sanction is limited by the party's degree of culpability, which must be greater than mere negligence. Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App'x 565, 573 (5th Cir. 2020) (citing Catoire v. Caprock Telecommunications Corp., No. 01-3577, 2002 WL 31729484, at *1 (E.D. La. Dec. 2, 2002)).

In contrast, Rule 37 applies when a party has violated a court order, such as a discovery ruling, during a period of active litigation. FED. R. CIV. P. 37(b)(2); Brandt v. Vulcan, Inc., 30 F.3d 752, 756 & n.7 (7th Cir. 1994); see also Settles v. United States, No. 17-1272, 2018 WL 5733167, at *3 (W.D. Tex. Aug. 29, 2018). “To determine whether a referred motion for sanctions is dispositive or non-dispositive, the sanction chosen by the magistrate judge, rather than the sanction sought by the party, governs the determination of whether [Federal Rule of Civil Procedure] 72(a) or 72(b) applies.” Siegel v. Compass Bank, No. 3:18-cv-1023-X, 2021 WL 4498914, at *1 (N.D. Tex. Jan. 11, 2021) (“To allow otherwise would permit the party seeking sanctions to engage in a game of labels that would improperly dictate the standard of review.”) (cleaned up); accord Jim S. Adler, P.C. v. McNeil Consultants, LLC, No. 3:19-cv-2025-K-BN, 2023 WL 2699511, at *14 n.8 (N.D. Tex. Feb. 15, 2023) (collecting cases). Therefore, the undersigned has authority to enter a nondispositive order granting attorneys' fees or other nondispositive sanctions under Federal Rule of Civil Procedure 37(e) or deny a request for what might be considered a dispositive sanction. See 28 U.S.C. § 636(b); Merritt v. Int'l Bhd. of Boilermakers, 649 F.2d 1013, 1016-17 (5th Cir. Unit A 1981) (per curiam) (finding that a magistrate judge has authority to enter a non-dispositive order granting attorneys' fees as a sanction under Federal Rule of Civil Procedure 37).

III. Analysis

The Federal Employers' Liability Act provides railroad employees with a federal cause of action for injuries “resulting in whole or in part from the negligence” of the railroad companies. 45 U.S.C. § 51. The Act imposes upon employers a continuous duty to provide a reasonably safe place to work. Buck v. Kansas City Southern Railway Co., No. 20-1298, 2021 WL 5237249 (W. D. La. Nov. 10, 2021). A plaintiff may establish liability under the Act by: 1) proving negligence; or 2) proving the defendant violated a specific statutory duty. See Kernan v. Am. Dredging Co., 355 U.S. 426, 432, 78 S.Ct. 394, 2 L.Ed.2d 382 (1958).

To prove a Federal Employers' Liability Act negligence claim, a plaintiff must prove the common law elements of negligence. Miller v. Union Pac. R.R. Co., 972 F.3d 979, 987 (8th Cir. 2020). Alternatively, “[i]f a plaintiff proves a railroad violated a statutory duty, then the plaintiff need not prove the common law elements of foreseeability, duty, or breach.” Miller, 972 F.3d at 984 (citing Edwards v. CSX Transp., Inc., 821 F.3d 758, 760 (6th Cir. 2016)). A violation of a safety statute “creates liability under FELA ... without regard to whether the injury flowing from the breach was the injury the statute sought to prevent.” Kernan, 355 U.S. at 433, 78 S.Ct. 394. Thus, “a railroad's violation of a safety statute ... is negligence per se.” CSX Transp., Inc. v. McBride, 564 U.S. 685, 703 n.12, 131 S.Ct. 2630, 180 L.Ed.2d 637 (2011).

*6 A plaintiff seeking to recover under the Federal Employers' Liability Act must also prove that the defendant's negligence caused, in whole or in part, the plaintiff's injuries. Tennant v. Peoria & Pekin Union Railway Co., 321 U.S. 29, 32, 64 S.Ct. 409, 88 L.Ed. 520 (1944). “Under FELA, a railroad will be liable if it or its agent's negligence played any part, even the slightest, in producing the employee's injury.” Miller, 972 F.3d at 984 (quoting Ybarra v. Burlington N., Inc., 689 F.2d 147, 149 (8th Cir. 1982)) (cleaned up). “FELA's language on causation ... ‘is as broad as could be framed.’ ” McBride, 564 U.S. at 691, 131 S.Ct. 2630 (2011) (quoting Urie v. Thompson, 337 U.S. 163, 181, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949)); see Fletcher v. Union Pac. R.R. Co., 621 F. 2d 902, 909 (8th Cir. 1980) (“The test of causation under the FELA is whether the railroad's negligence played any part, however small, in the injury which is the subject of the suit.”).

In this case, Kellar alleges that the UP statutory violation occurred because he worked from 10:00 PM on January 16, 2021, to 2:00 PM on January 17, 2021. R. Doc. 103 at 2. The evidence provided by Kellar to mitigate against UP's claim of spoliation was the text messages of Kellar's girlfriend, Wykira Robinson. Id. at 12. These messages are not available on Kellar's Phone.

A. Duty to Preserve Evidence

UP contends that Kellar intentionally failed to preserve the cellphone data from the Phone in his possession at the time of the accident. R. Doc. 73. UP contends that even if the Phone was subject to a factory reset, Kellar should be sanctioned for resetting the Phone without creating a backup, causing the complete loss of critical ESI. R. Doc. 73-1 at 1. UP alleges that Kellar's actions were intentional and hampered UP's ability to present their position at trial. Id. at 12. UP asserts that Kellar knew that his Phone was in the car on the date of the incident and therefore knew or should have known it could or did contain relevant information. Id. at 14. UP further contends that Kellar's mother, who is an attorney, began speaking with attorneys about this case in late May 2021. Id. Therefore, UP contends that Kellar's duty to preserve was triggered at this time. Id. UP contends that the destruction of the data should result in the dismissal of Kellar's claim against it, given that Kellar knew the filing of his lawsuit was imminent at the time the data was destroyed. Id. at 15-16.

Kellar does not contest that he had a duty to preserve the evidence. R. Doc. 84 at 14. He also does not contest that the duty to preserve may have been triggered at the time the data was destroyed. Id. Instead, Keller simply contends that he had no intent to delete the data and render it unavailable for this case. Id. at 14-15.

A duty to preserve arises when a party knows or should know that certain evidence is relevant to pending or future litigation. Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 & n.7 (S.D. Tex. Feb. 19, 2010) (citing John B. v. Goetz, 531 F.3d 448, 459 (6th Cir. 2008)); accord Toth v. Calcasieu Parish, No. 06-998, 2009 WL 528245, at *1 & n.6 (W.D. La. Mar. 2, 2009) (citing Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. Oct. 22, 2003)). A party's obligation to preserve evidence that may be relevant to litigation is triggered once the party has notice that litigation may occur. See Victor Stanley, Inc. v. Creative Pipe, Inc., 269 F.R.D. 497, 521-22 (D. Md. Sept. 9, 2010) (noting that the duty to preserve “ ‘may arise from statutes, regulations, ethical rules, court orders, or the common law ... a contract or another special circumstance,’ ” and that the “common law imposes the obligation to preserve evidence from the moment that litigation is reasonably anticipated”) (citations omitted), adopted in relevant part, 2010 WL 11747756 (D. Md. Nov. 1, 2010); O'Brien v. Ed Donnelly Enters., Inc., No. 2:04-cv-85, 2010 WL1741352, at *3 (S.D. Ohio Apr. 29, 2010) (citation omitted).

*7 A party clearly is on notice of the relevance of evidence once it receives a discovery request. McGinnity v. Metro-North Commuter R.R., 183 F.R.D. 58, 60 (D. Conn. Aug. 18, 1998) (quoting Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 72 (S.D.N.Y.1991), aff'd, No. 89 Civ. 4252 (PKL), 1992 WL 51570, at *3–4 (S.D.N.Y. Mar. 9, 1992) (“[N]o duty to preserve arises unless the party possessing the evidence has notice of its relevance”)). However, the complaint itself may also “alert a party that certain information is relevant and likely to be sought in discovery.” McGinnity, 183 F.R.D. at 60. For example, in In re Kmart, the court held that a party's duty to preserve specific types of documents does not arise unless the party controlling the documents has notice that the documents are relevant, which ordinarily comes from discovery requests or from the complaint itself. 371 B.R. 823, 842, 844 (Bankr. N.D. Ill. July 31, 2007).

Although a party's duty to preserve may often be triggered before litigation, courts have emphasized that the mere possibility of litigation is not sufficient to trigger the duty because the “undeniable reality is that litigation is an ever-present possibility in our society.” Salvatore v. Pingel, No. 08-cv-00312-BNB-KMT, 2009 WL 943713, at *4 (D. Colo. Apr. 6, 2009) (quoting Cache La Poudre Feeds, LLC v. Land O'Lakes, Inc., 244 F.R.D. 614, 621 (D. Colo. Mar. 2, 2007)); see RealNetworks, Inc. v. DVD Copy Control Ass'n, 264 F.R.D. 517, 523–24 (N.D. Cal. May 5, 2009). One court indicated that “the duty to preserve evidence may arise when a substantial number of key personnel anticipate litigation,” but explained that “speculation by one or two employees regarding a lawsuit ‘does not generally impose a firm-wide duty to preserve.’ ” Crown Castle USA Inc. v. Fred A. Nudd Corp., No. 05-CV-6163T, 2010 WL 1286366, at *9 (W.D.N.Y. Mar. 31, 2010) (quoting Zubulake, 220 F.R.D. at 217).

However, pre-filing communications between the litigants can provide constructive notice that litigation is likely, and demand letters stating a claim may be sufficient to trigger an obligation to preserve. Goodman v. Praxair Services, Inc., 632 F. Supp. 2d 494, 511 (D. Md. July 7, 2008); Asher & Assocs. v. Baker Hughes Oilfield Operations, Inc., 2009 WL 1328483, at *3 (D. Colo. May 12, 2009) (finding that letter from counsel stating that plaintiff had been “significantly damaged,” provided defendant with an “interim damage calculation,” claimed that “damages continue[d] to accrue,” demanded immediate payment within a five-day deadline, and identified specific claims that plaintiff “would assert if it initiated ‘such legal or other action to enforce its rights’ ” was sufficient to trigger a duty to preserve because the defendant “should have understood that future litigation was reasonably foreseeable and substantially ‘more than a possibility’ ”).

It is undisputed that Kellar did not preserve the cellphone data from June 2, 2020, through October 14, 2021. The crux of Kellar's argument is that while the duty to preserve may have existed on October 14, 2021, he did not breach the duty to preserve because his Phone had a technological glitch called a “green screen” which made him take it in for servicing. R. Doc. 84 at 8-9. Kellar contends that it was this servicing that caused the data loss, because his Phone was subjected to a hard reset. Id.

In this case, neither party addresses when the duty to preserve attached. However, a plaintiff's duty to preserve might be triggered as soon as the plaintiff believes that a basis for a viable claim has arisen and seriously contemplates pursuing litigation, such as by taking steps to consult or retain counsel or experts. See Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591-92 (4th Cir. 2001) (finding that the plaintiff was on notice of his need to preserve a vehicle shortly after his accident, particularly after he concluded that the failure of the airbag to deploy contributed to his injuries); see also Cohn v. Guaranteed Rate, Inc., 318 F.R.D. 350, 354 (N.D. Ill. Dec. 8, 2016) (finding, on a motion for sanctions in part under FRCP 37(e), that the plaintiff's consultation with counsel and explicit references to her intention to pursue litigation against the defendant were sufficient to trigger her preservation obligations).

*8 Additional factors counsel should consider in determining whether a plaintiff's contemplation of or preparation for litigation might have triggered preservation obligations include whether the plaintiff has:

For example, in Virtual Studios, Inc. v. Stanton Carpet Corp., the court found that the plaintiff's duty to preserve was triggered years before litigation, when the plaintiff's representative first became aware of the defendant's impermissible use of the plaintiff's copyrighted images while looking at the defendant's in-store displays and website. No. 4:15-CV-0070-HLM, 2016 WL 5339601, at *5-10 (N.D. Ga. Jun. 23, 2016).

A party must take reasonable steps to preserve all relevant ESI under FRCP 37(e), including emails, shared files, social media, and data sources. Marten Transp., Ltd., v. Plattform Advert., Inc., No. 14-cv-02464-JWL-TJJ, 2016 WL 492743 (D. Kan. Feb. 8, 2016). See Congregation Rabbinical Coll. of Tartikov, Inc. v. Vill. of Pomona, 138 F. Supp. 3d 352, 387-88 (S.D.N.Y. Sept. 29, 2015) (holding that the duty to preserve applied to social media posts and text messages). The preservation duty includes an obligation to identify, locate, and maintain “information that is relevant to specific, predictable and identifiable litigation.” Stedeford v. Wal-Mart Stores, Inc., No. 2:14-cv-01429-JAD-PAL, 2016 WL 3462132 (D. Nev. Jun. 24, 2016)

The Court finds that in this case the duty to preserve Kellar's cellphone data attached on May 2021 when his mother, who is not only an attorney but a worker's compensation law judge, sought legal representation to assist her son. At the latest, the duty to preserve the cellphone data occurred when counsel was actually retained to represent Kellar. Further, considering that the accident was a single vehicle accident, it was reasonably foreseeable that his Phone might have evidence of Kellar's action just before the accident or that the issue of distracted driving would be a central issue in the case.

Neither Kellar nor his counsel provided any evidence of the steps they took from May 2021 up through October 2021 to preserve evidence of the data from the Phone in Kellar's possession from the incident in January 2021. The Court also finds the fact that Kellar's lawyers knew that they would file the subject lawsuit on November 5, 2021, but failed to take any steps themselves to preserve the cellphone data to be problematic.

For example, Kellar's lawyers did not issue a formal litigation hold instructing their client to take steps to preserve his cellphone data, nor did they take steps to prevent the destruction of Kellar's cellphone data. While Kellar's lawyers repeatedly told Kellar to not destroy evidence, there is notably no written documentation of these repeated instructions to preserve evidence. Instead, Kellar's counsel allowed him to continue using the Phone and three (3) weeks before the lawsuit was filed the data from Kellar's Phone from June 2020 through October 2021 was deleted. Kellar and his attorneys had a duty to preserve the cellphone data by May 2021, and they failed in that duty.

*9 Additionally, the evidence presented at the initial hearing suggests that UP was originally comfortable with seeking the data from the cellphone provider, Metro PCS. R. Doc. 97 at 7. It is not clear whether UP was aware that the Phone had been located in the car at the tow yard at the time it issued the subpoena in November 2022.

Nevertheless, UP was advised by Metro PCS that the cloud data had been deleted. R. Doc. 97 at 7. Metro PCS advised counsel that they have a retention policy of holding data for twenty-four (24) months, which had passed. Id. There was no evidence that either Kellar or his counsel attempted to preserve the Cloud data even though the lawsuit was filed in November 2021 and pending for about a year at the time the initial subpoena was issued. Therefore, Kellar and his counsel breached their duty to preserve the cellphone and cloud data evidence.

B. Spoliation and Intent

UP contends that Kellar purposefully deleted sixteen months of cellphone data and engaged in additional subsequent deletions of data from his Phone. R. Doc. 106 at 2. See R. Doc. 73. UP contends that the timing of Kellar's deletions, along with his clear perjury in this case, establishes that this deletion was intentional. Id. at 4. See R. Doc. 73-1 at 14. UP contends that there is simply no explanation other than a bad faith intent to destroy evidence that can explain the missing cellphone data for the day of the accident, considering that Kellar engaged in three (3) separate deletions: a hard reset performed three (3) weeks prior to filing suit, deleting information on his Google account the day after meeting with his attorneys, and deleting his Phone application use. R. Doc. 106 at 4. UP further contends that even if the hard reset was performed to fix a green screen, Kellar could have and should have created a backup before doing so, given that he knew or should have known that the data on his Phone was relevant evidence. R. Doc. 73-1 at 12.

Kellar raises two (2) primary arguments in opposition. R. Doc. 105. First, Kellar contends that UP has not shown by clear and convincing evidence that on October 14, 2021, he had knowledge and/or bad faith intent to deprive UP of relevant electronically stored evidence. Id. at 8. Kellar contends that if he had intended to delete the data, then the data on his Phone might have disappeared much sooner and he would have deleted all of his electronic presence. Id.

Kellar also contends that the totality of the evidence does not show him as a person with a culpable state of mind with the intention to destroy “unknown information/data. R. Doc. 105. Kellar contends that to find that his good faith effort to fix his green screen by a factory reset was an intentional attempt to destroy relevant material, UP would have to show that he knew that information did not exist anywhere else, and that his cellphone data would show his Phone use at the critical time within 10 to 20 seconds of the crash. Id. Keller also points out that five (5) days before the factory reset, he was hospitalized for staph infection and was discharged with a prescription for narcotic pain medication. R. Doc. 105, 16, Plaintiff's Exhibit #6.

In essence, Kellar admits that evidence was lost but contends that the loss was inadvertent and bends toward a finding of negligence and carelessness. R. Doc. 105. Keller further asserts that there were no Court Orders to preserve ESI at the time, and that the Court should distinguish between Kellar's intent to perform a reset to fix the green screen and UP's allegation that Kellar intended to deprive it of evidence of his Phone use at the time of the incident. Id. at 14.

*10 Second, Kellar contends that UP has failed to satisfy it burden of proof concerning prejudice. R. Doc. 105. Kellar alleges that UP's claim of prejudice created by missing cellphone data is undermined by the fact that UP admits it possesses relevant geolocation data to prove Kellar was using his Phone at the time of the collision. Id. at 13. Kellar also contends that UP's claim that Kellar's Phone use caused the accident is insufficient to carry UP's burden in this litigation. Id.

Allegations of spoliation are addressed in federal courts through either Federal Rule of Civil Procedure 37 or the Court's inherent powers. FED. R. CIV. P. 37(b), (e). Rule 37 provides a basis for sanctions during the discovery period of active litigation where a party has failed to comply with a court order or to preserve electronically stored information. Id. See also Settles v. United States, No. 17-1272, 2018 WL 5733167, at *3 (W.D. Tex. Aug. 29, 2018). When conduct occurs before a case is filed, it may be addressed through the court's inherent power to regulate the litigation process. Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App'x 565, 573 (5th Cir. 2020) (citing Chambers, 501 U.S. at 43-46); see also Union Pump Co. v. Centrifugal Tech. Inc., 404 F. App'x 899, 905 (5th Cir. 2010) (citing Hodge v. Wal–Mart, 360 F.3d 446, 449 (4th Cir. 2004) (“The imposition of a sanction ... for spoliation of evidence is an inherent power of federal courts.”)).

The spoliation of evidence doctrine governs the intentional destruction of evidence. Menges v. Cliffs Drilling Co., No. 99-2159, 2000 WL 765082, at *1 (E.D. La. Jun. 12, 2000) (citing Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 156 (4th Cir. 1995) and Schmid v. Milwaukee Elec. Tool Corp., 13 F.3d 76, 78 (3d Cir. 1994)). If a party intentionally destroys evidence, the trial court may exercise its discretion to impose sanctions on the responsible party. Menges, No. 99-2159 at *1. The seriousness of the sanctions that a court may impose depends on the consideration of:

Id. (quoting Schmid, 13 F.3d 76, 78 (3d Cir. 1994)). See Doe v. Purdue, et al., No. 2:17-CV-33-JPK, 2021 WL 2767405 (N.D. Ind. Jul. 2, 2021) (ordering an adverse inference sanction where the plaintiff provided a second production of Snapchat data (because the first one had expired links) which revealed that eleven (11) videos and images had been deleted).

For example, in Corey Brown v. Certain Underwriters at Lloyds, London, et al., the Court addressed a spoliation claim in litigation involving a fraud investigation by the insurers after an incendiary fire. No. 16-CV-02737, 2017 WL 2536419, at *1 (E.D. Penn. Jun. 12, 2017). The two (2) insurers Certain Underwriters at Lloyds, London and Underwriters of Lloyds (collectively “Lloyds”) suspected that the insured, Corey Brown, had started the fire. Corey Brown, No. 16-CV-02737 at *1. When Lloyds denied Corey Brown's claim, he filed suit. Id. During discovery, Lloyds requested that Corey Brown produce his cellphone. Id. Just before his production, Corey Brown filed an objection claiming that he lost his cellphone “months ago.” Id. Lloyds then filed a motion seeking sanctions against Corey Brown for spoliation of evidence. Id.

*11 To demonstrate the grounds for spoliation sanctions, Lloyds argued it was prejudiced by the loss of location information contained in the phone as well as the substance of text messages and calls received or made at the time of the loss. Corey Brown, No. 16-CV-02737 at *3. The court concluded that Corey Brown had control over his cellphone, and that the information lost would have been “highly relevant to determine the merits” of the claim for insurance proceeds as well as Lloyds' counterclaim for fraud. Id. at 5.

Corey Brown argued that there was no prejudice because Lloyds had “ample opportunity” to examine the phone but declined to do so. Corey Brown, No. 16-CV-02737 at *5. The court rejected that argument finding Lloyds was “no less prejudiced by the loss of relevant evidence

because they could have chosen to request” the cell phone at an earlier date. Id. The court noted that Corey Brown should not have been surprised by the request for his cell phone, because Lloyds had specifically requested that Corey Brown preserve any evidence that was on his cellphone for possible discovery at his examination under oath taken two (2) years before. Id. at 1. Additionally, Lloyds had requested the cellphone information within the time permitted for discovery. Id. at 5.

Having found that the lost information was relevant, the court then considered whether Corey Brown intentionally suppressed or withheld the evidence. Corey Brown, No. 16-CV-02737 at *3-4. Corey Brown produced an affidavit in which he swore that he lost the phone, and “did not intentionally dispose of it.” Id. at 3. The court rejected that self-serving affidavit finding:

Id. In making that finding the court noted that Corey Brown and his attorney did not notify Lloyds of the loss of relevant evidence that he had a known duty to preserve until hours before the requested time of production, even though its loss had supposedly been known for at least four (4) months. Id. Corey Brown offered zero explanation as to how he came to lose his phone. Id. at 4. He also offered no indication that he took even rudimentary steps to preserve the evidence that existed on his phone, as was his obligation, or to take any measures to find the phone after it was somehow lost. Id.

Because of Corey Brown's action, the court found that Lloyds was prejudiced, and that such prejudice was significant “enough to weigh in favor of sanctions.” Corey Brown, No. 16-CV-02737 at *6. While Lloyds wanted the court to issue the ultimate sanction – the dismissal of Corey Brown's claim – the court elected to issue an adverse jury instruction as it would “likely be sufficient to cure the prejudice” to Lloyds. Id. The court would therefore instruct members of the jury that “they may infer that if [Lloyds] were permitted to inspect Mr. Brown's cell phone, any evidence would have been unfavorable to Plaintiff.” Id.

In this case, the evidence presented at the initial hearing suggests that UP was originally comfortable with seeking the data from the cellphone provider, Metro PCS. R. Doc. 97 at 7. It is not clear whether UP was aware that the Phone had been located in the car at the tow yard at this time it issued the subpoena to Metro PCS in November 2022. Nevertheless, UP was advised by Metro PCS that the cloud data had been deleted. Id. Metro PCS advised counsel that they have a retention policy of holding data for twenty-four (24) months, which had already passed. Id.

*12 After determining that no data was available from the Google cloud, the focus then shifted to the actual Phone that was in Kellar's car at the time of the incident. R. Doc. 73-1 at 3. After working out an agreement regarding the extraction of the Phone data and the retention of a joint data extraction expert, counsel learned that data for the pivotal period of June 2020 through October 14, 2021, was missing from the actual device. Id. at 5-6.

The Court notes that during the sanctions hearing in this matter, the parties' jointly retained expert admitted that it was possible that the discreet period where the data was missing could be the result of a deletion rather than a hard reset as posited by Kellar. R. Doc. 97 at 49, 52. He also confirmed that a reset would have deleted all data on Kellar's Phone, and that there was data before and after the date of the accident but not on the actual day of the accident. Id.

Kellar's attorneys admitted that they were new to navigating e-discovery. R. Doc. 97 at 40. The lawyers represented to the Court at the sanctions hearing that they included a notice to Kellar in their retainer agreement that he should not destroy evidence, and that every time they spoke with him they reminded him of his duty not to destroy the cellphone data. However, once the preservation duty was triggered, Kellar and his counsel were obligated to preserve evidence related to future litigation. See In the Matter of In Re Skanska USA Civil Southeast Inc., 340 F.R.D. 180, 186 (N.D. Fla. Aug. 23, 2021) (ordering adverse inference sanction where the court found that the custodians knew they had a duty to preserve the cell phones and no other steps such as collecting the data and preserving it took place). See also Beaven v. U.S. Dep't of Justice, 622 F.3d 540, 553 (6th Cir. 2010). Each litigant “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.” Schnatter v. 247 Group LLC, No. 3:20-CV-00003-BJB-CHL, 2022 WL 2402658 (W.D. Ky. Mar. 14, 2022) (citations omitted).

Kellar admitted that his attorneys told him not to delete anything. R. Doc 97. During the initial hearing on the subject Motion, Kellar denied ever hearing about the concept of a factory reset and denied ever researching how to do a factory reset. Id. at 74, 75. Kellar testified that on October 13, 2021, his Phone developed a green screen which allowed the Phone to run, vibrate, and making noise but that the screen was not usable. Id. at 76. Kellar also testified that he was not too worried about keeping his operating system up to date. Id. at 77.

In his affidavit, Kellar described himself as a general phone user who was not familiar with the terms “factory reset” and “factory restore.” R. Doc. 84-10. Kellar attested that when he received his phone back from UBREAKIFIX, he explained to his friend that he believed that UBREAKIFIX performed a factory reset. Id. ¶ 8. Kellar further acknowledged that his Phone was in use when he was driving at the time of the accident. Id. ¶ 10.

Kellar testified that after turning his Phone off and on, the green screen remained so he took the Phone to UBREAKIFIX. R. Doc. 97 at 76. Kellar admitted that despite knowing that he was supposed to preserve the data on his Phone, he dropped it off without any instruction to UBREAKIFIX. Id. at 78. Specifically, Kellar did not tell them to not delete anything on the Phone and nor did he take any steps to save his data before handing over his Phone. Id. at 79. Kellar also denied communicating with his lawyers before bringing his Phone to UBREAKIFIX. Id. at 80. Kellar further denied giving any consideration to the possibility that turning over his Phone could result in the deletion of data, or any other effect of a hard reset on his Phone. Id. at 82. Therefore, while Kellar denied having any intent to destroy evidence, Kellar admitted that he did not take any steps to preserve evidence either. Id. at 87.

*13 Kellar further testified that before the accident he would describe himself as “the king of selfies.” R. Doc. 97 at 88. Keller confirmed that before the accident he would be snapping and posting whether he was at work or at home. Id. He also admitted that he might forward a post because he thought it was cute. Id. at 89.

Kellar testified that he believed his brother David went to the yard to retrieve his Phone out of his car. R. Doc. 97 at 92. Kellar testified that his Phone was not damaged when it was returned to him. Id. at 93. Kellar confirmed that when his Phone was recharged after sitting in his wrecked car, it turned on and he was able to use it. Id.

Kellar's suggestion that UBREAKIFIX performed a factory reset on his Phone is patently false. In fact, UBREAKIFIX did not delete any information on Kellar's Phone. See R. Doc. 99-4. UBREAKIFIX further confirmed that they did not perform a factory reset, instead Kellar did so. Id.

Spencer McInvaille (“McInvaille”) a digital forensics and geolocation expert, was called to testify by UP. R. Doc. 11. McInvaille testified that on October 14, 2021, at roughly 10:39 PM in Baton Rouge Louisiana, a factory reset was performed at Kellar's house.[4] R. Doc 103 at 5, 12. The implication was that the reset was performed by Kellar. Id.[5] In fact, McInvaille testified that the device ID changed due to the factory reset. Id. at 16.

In support of this conclusion, McInvaille pointed to a text message sent by Kellar to a friend in which he said, “I need yo number back.” See R. Doc. 99-2. Kellar then sent another text saying, “factory reset.” Id. McInvaille pointed out that these communications occurred two (2) days after the factory reset. R. Doc. 103. Interestingly, Kellar did not testify that he knew after speaking with his friend, Nich Douglas, that the screen on his Phone was going out or that he admitted to having gotten the screen fixed the day before. See R. Doc. 99-2.

While UP was not able to get all the text messages from the Phone, Kellar's counsel later produced a few text messages from Kellar's girlfriend, Wykira Robinson, beginning at 12:30 AM on the day of the incident. R. Doc. 105 at 12. Kellar's counsel admits that they were not able to piece the puzzle completely back together, but they have given UP as much as was available. Id.

*14 McInvaille further testified that Kellar logged into Facebook from another device while his Phone was resetting. Id. at 18. According to McInvaille, Kellar had an Android 11 SM-986U1 device, which is the one that was factory reset, and an Android 9, which signed into Facebook while the other Phone was resetting. See R. Doc. 103. McInvaille testified that this device may not have been a phone and could be a tablet or something similar. Id.

McInvaille testified that the location deletion history showed that Kellar deleted data from his Phone before giving it to his attorney on June 22, 2023. Id. He also testified that some form of deletion occurred at some point on March 8, 2023, according to the location deletion history. Id. McInvaille testified that while there may have been other deletions, this deletion was the last. Id. McInvaille also testified that there is evidence of messages that Kellar received through Instagram, TikTok, Twitter, Snapchat, and other accounts that existed either at the time of the accident or soon thereafter that are no longer available. Id. at 27.

McInvaille testified that he looked at the Kellar's “my activity page” of the Takeout, which shows installed and uninstalled applications using the Google Play Store. R. Doc. 103 at 28. In doing so, McInvaille learned that there were 150-200 applications uninstalled from Kellar's device between January 17, 2021, to October 14, 2021. Id. at 28-29. He testified that even though some of the uninstalls may have been an attempt to clear up space, it was the subsequent deletion of information after Kellar's duty to preserve had attached. Id. According to McInvaille, removing and installing data harms the information on the device. Id.

McInvaille testified that given Kellar's interactions on the account for the days leading up to the accident, the odds that he did not interact online on the day of the accident are infinitesimal. R. Doc. 103 at 31-32. McInvaille described the Takeout as a journal of the user's activity rather than a business record. Id. at 33-34. A review of the evidence admitted shows that three (3) days before the accident, Kellar engaged in online activity thirty-three (33) times. See Defense Exhibit #7 at 001. On January 15, 2021, two (2) days before the accident, Kellar engaged in online activity fifteen (15) times. Id. On January 16, 2021, the day before the accident, Kellar interacted online thirteen (13) times. Id. at 002.

McInvaille was able to locate a selfie taken by Kellar on January 17, 2021, at 10:17 AM several hours before the accident. See Defense Exhibit #7 at 003. Kellar also took another selfie at 10:59 AM on that same day. Id. These photos were located during the Takeout even though they were not available on Kellar's Phone. Id. The photos located in the Takeout were removed from the Phone when Kellar performed the factory reset. Id.

The evidence also includes communications between Kellar and his girlfriend, Wykira Robinson (“Robinson”). See Defendant Exhibit #7 007-015. These communications act as a snapshot showing some evidence of Kellar's online activity that was deleted and is not available on Kellar's Phone. Id. The earliest text message starts at 12:30 AM on January 17, 2021. Id. Kellar continued speaking with Robinson by text throughout the workday up until 2:10 PM, when she sent him a picture of a sleeping baby and he replied, “that man is always sleeping.” Id. at 014. In fact, there were fourteen (14) text message communications between Kellar and Robinson on the day of the accident, with his last text to her occurring around 11:36 AM. Id. Robinson's next attempt at communicating with him was at was at 5:00 PM and then 9:07 PM that night. Id. at 015.

*15 The evidence shows that Kellar was off from work at 2:00 PM. According to Kellar's testimony, he left the railroad at 2:03 PM and his vehicle was traveling towards the accident location. R. Doc. 103 at 48. McInvaille testified that he did not know exactly when the accident occurred, and there is a gap in text communications available from 11:36 to 2:10 PM. Further, no information regarding apps visited or messages sent through those apps exists on Kellar's Phone.

The evidence also shows that Kellar did not bring his Phone in to UBREAKIFIX until the day after he performed a factory reset, on October 15, 2021, at 10:34 AM. R. Doc. 99-4, Deposition of Myles Baker. Myles Baker (“Baker”), a representative of UBREAKIFIX, testified that Kellar brought in his Phone with a green screen, which means that it was the LCD brought in repair. Id. However, the green screen does not prevent the Phone from working. Id. The actual LCD screen was replaced but otherwise the Phone functioned as normal. Id. at 26.

Baker testified that nothing at UBREAKIFIX could have anything to do with a factory reset nor could the work they performed have cause a factory reset. Id. at 36. Finally, Baker testified that the customer would have been notified if any device needed to be reset, or even before repair started, or have done the factory restore themselves. Id. at 38:6-9.

The evidence unequivocally illustrates that Kellar took it upon himself to do a hard reset and lied about it. In fact, Kellar lied not once by three (3) times: when he professed to have no knowledge about a hard recent, his convenient denial of having performed a hard reset, and his attempt to cast blame on UBREAKIFIX for resetting his Phone. The warning before doing such a procedure clearly indicates that data could be lost. Kellar also was not truthful about his knowledge about a reset, that he actually did a hard reset despite his lawyers' instructions to “not destroy evidence”, or his skill level in using the Phone. In fact, Kellar's testimony during the spoliation hearing regarding his purported ignorance about how to delete data on his Phone was unbelievable for a guy who referred to himself as a “selfie king.” There is no question that the digital evidence present on Kellar's Phone was destroyed or deleted by Kellar.

The evidence presented for the days leading up to the accident show that Kellar used Google maps, conducted searches, and visited Kalaya Pagee's OnlyFans page. See Defense Exhibit #7 at 001-002. It also shows that Kellar downloaded Dragon Ball Legends App and other games. Id. However, there is no evidence of Kellar's searches, pages visited, social media used, or games downloaded for the day of the subject accident.

Kellar, who has used a cellphone since his early teens, described himself as the “selfie king.” Therefore, there is a high probability that there would be evidence of his Phone use around the time of the accident, given his social media use pattern. Furthermore, the evidence shows that on March 8, 2023, when the lawsuit was pending and Kellar had just met with his attorneys the previous day, Kellar accessed his Google account and deleted additional information including his Google location history. R. Doc. 103, at 114-15:24-8.

The Court therefore finds that Kellar purposely deleted cellphone data evidencing his use on the day of the accident and that he intended to delete or spoliate evidence in violation of Rule 37(e). The Court further finds that while Kellar's attorneys breached their duty to preserve, they played no role in the spoliation of the evidence. In fact, it is undisputed that they repeatedly reminded Kellar of his duty to preserve evidence. Finally, the Court finds that despite Kellar's knowledge of his duty to preserve, he actively took steps to delete the data on his Phone and feign ignorance.

C. Remedies

*16 In this case, the Court has determined that Kellar intended to destroy evidence. The next issue is what sanction should be imposed because of his conduct.

UP contends that dismissal is warranted, given the nature of Kellar's Federal Employer's Liability Act (FELA) claim and claim that the Hours-of-Service-Act was violated. R. Doc. 106 at 4-5. Specifically, UP contends that because these claims have a featherweight standard, and they are barred from asserting a defense of contributory negligence, a showing of slightest negligence on its part would result in liability. Id.

UP contends that Kellar not only perjured himself, but repeatedly destroyed evidence three (3) times: once just before filing suit; again before handing his cellphone to his lawyers for cloning; and again by deleting apps from his Phone. R. Doc. 106 at 20-22. UP also contends that Kellar's level of deceitfulness, false statements, and sophistication are sufficient to warrant case terminating sanctions. Id.

Kellar contends that the dispositive relief sought by UP is extreme and should be denied. R. Doc. 105. Kellar contends that the record taken as a whole does not support any remedy other than the parties arguing the claim. Id. Kellar contends that the Court should not intervene in any way, and instead allow the parties to present their evidence and resolve the matter at trial. Id. Kellar further contends that while evidence was spoliated, it was not intentional. Id. Kellar also contends that because this is a FELA case, the decision-making role of the jury is much greater than in an ordinary negligence case and the right to a jury determination is a basic, fundamental right. Id.

The determination of an appropriate sanction for spoliation, if any, is confined to the sound discretion of the trial judge and is assessed on a case-by-case basis. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D. N.Y. Oct. 22, 2003). Generally, the court should impose the least harsh sanction that provides an adequate remedy. Grief v. Nassau Cnty., No. 15-CV-7240(JS)(AYS), 2022 WL 307154, at *3 (E.D.N.Y. Feb. 2, 2022) (citation omitted). See Sawyer v. Locy, No. 919CV879MADATB, 2021 WL 4458822, at *2 (N.D.N.Y. Sept. 29, 2021) (“If a party has an obligation to preserve evidence, the degree of the party's culpability and the amount of prejudice caused by its actions will determine the severity of the sanctions to be imposed”). As other courts have recognized, “ ‘[w]itness credibility is critical to the resolution of a motion for spoliation sanctions, particularly where the alleged spoliator's intent is at issue.’ ” Nuvasive, Inc. v. Absolute Med., LLC, No. 6:17-cv-2206-Orl-41GJK, 2021 WL 3008153, at *6 (M.D. Fla. May 4, 2021) (quoting In re Delta/AirTran Baggage Fee Antitrust Litig., No. 1:09-md-2089-TCB, 2015 WL 4635729, at *14 n.3 (N.D. Ga. Aug. 3, 2015)); see also Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 778 (N.D. Tex. Feb. 22, 2011) (same as to non-ESI spoliation claim). And here, Kellar's lack of credibility, together with the abundant other evidence that he purposefully spoliated ESI, is a huge factor in the undersigned's proposed resolution of the Rule 37(e) motion.

*17 The United States Court of Appeals for the Fifth Circuit recently explained, by quoting Victor Stanley, Inc. v. Creative Pipe, Inc., that “[a] party suffers prejudice where it cannot present ‘evidence essential to its underlying claim.’ ” 269 F.R.D. 497, 532 (D. Md. Sept. 9, 2010). See Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App'x 565, 575 (5th Cir. 2020). The Victor Stanley court further explained that “[p]rejudice can range along a continuum from an inability to prove claims or defenses to little or no impact on the presentation of proof” and that, “[g]enerally, courts find prejudice where a party's ability to present its case or to defend is compromised.” 269 F.R.D. at 532 (cleaned up; quoting Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 613 (S.D. Tex. Feb. 19, 2010)); accord Ashton v. Knight Transp., Inc., 772 F. Supp. 2d 772, 801 (N.D. Tex. Feb. 22, 2011).

Under Rule 37(e)(1), after finding prejudice to another party from loss of the ESI, “[a] curative measure recognized by the Advisory Committee notes is barring evidence” – that is, “forbidding the party that failed to preserve information from putting on certain evidence.” DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 958 (N.D. Ill. Jan. 19, 2021) (cleaned up). A common curative measure courts impose is instructing the jury that it can consider the circumstances surrounding the loss of the ESI. DR Distributors, LLC, 513 F. Supp. 3d at 958. The Rules Advisory Committee explained in its notes to the 2015 amendments to Rule 37(e) that “[s]ubdivision (e)(2) applies to jury instructions that permit or require the jury to presume or infer that lost information was unfavorable to the party that lost it” and “covers any instruction that directs or permits the jury to infer from the loss of information that it was in fact unfavorable to the party that lost it” but “does not apply to jury instructions that do not involve such an inference.” FED. R. CIV. P. 37(e), advisory committee notes, 2015 amendments.

Courts also routinely award attorney's fees and expenses under Rule 37(e), to cover the time and effort necessary to bring the issue of spoliation before the court. Balance CXI, Inc. v. Int'l Consulting & Rsch. Grp., LLC, No. 1:19-CV-0767-RP, 2020 WL 6886258, at *15 (W.D. Tex. Nov. 24, 2020) (footnote omitted), rep. & rec. adopted, 2021 WL 2194900 (W.D. Tex. Feb. 3, 2021); accord Adler, No. 3:19-cv-2025-K-BN, at *10 & n.1.

Additionally, terminating sanctions are available only when the party who lost the information acted with the intent to deprive another party of the information's use in the litigation. Omnigen Research v. Yongqiang Wang, 321 F.R.D. 367 (D. Or. May 23, 2017). In TLS Management & Marketing Services, LLC v. Mardis Financial Services, Inc., Judge Reeves wrote that, “[a] court does justice by finding truth. That search requires evidence. Intentionally destroying evidence, then, is more than a devious litigation strategy but a lethal attack on a court's purpose and must be responded to in kind.” No. 3:14-CV-00881-CWR-LRA, 2018 WL 3673090 (S.D. Miss. Jan. 29, 2018).

The Court has conducted an exhaustive search for FELA cases involving spoliation by the plaintiff and was not able to find any. In the non-FELA cases cited by UP where the plaintiff intentionally deleted evidence, lied, or performed a hard reset on a cellphone, several courts have found that terminations sanctions was warranted.

For example, UP cites to Burris v. JPMorgan Chase & Company, a case involving a whistleblower who was terminated for allegedly complaining to his employer regarding its efforts to push investors in to risk financial products. 566 F.Supp.3d 995 (D. Ariz. Oct. 7, 2021). The plaintiff, Johnny Burris (“Burris”), claimed that as a result, he was blacklisted from the financial industry in violation of the whistleblower retaliation provisions of the Sarbanes Oxley Act of 2002 and the Dodd-Franck Act of 2010. Burris, 566 F.Supp.3d at 1000. The court found that Burris had violated the court's order setting a forensic exam, and had used anti-forensic software to destroy data, wiping multiple devices and failed to turn over others. Id. at 1018.

*18 The court upheld the dismissal on the basis that Burris had deleted ESI without a backup, including, among other methods, by factory resetting a cellphone and then lying about it. Burris, 566 F.Supp.3d at 1015-19. The court found that Burris had systematically destroyed ESI from a host of phones, laptops, email accounts, and external devices using software programs. Id. The data destruction occurred prior to filing the lawsuit and continued throughout the litigation. Id.

In particular, the court found that Burris had deleted evidence prior to releasing the devices to a court-appointed expert, who was investigating the scope of plaintiff's effort to destroy evidence. Burris, 566 F.Supp.3d at 1000. As to the cellphone at issue in Burris, the court-appointed expert found that every phone was subjected to a factory reset permanently deleting the content of each device. Id. at 1006. The Court found that the purposeful deletion of data threatened to interfere with the rightful decision of the case and that a dismissal was warranted. Id. at 1019.

In Owens v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, the plaintiffs filed suit challenging the effectiveness of LSU's Title IX and sexual misconduct response program. No. 21-242-WBV-SDJ, 2023 WL 8440968, (M.D. La. Sept. 29, 2023). At the time, Julia Sell and Michael Sell were co-head coaches of the LSU women's tennis team who had allegedly failed to report assaults and harassments of students that they were informed of and had encouraged others to ignore abuse and assaults. Owens, No. 21-242-WBV-SDJ at *753. During the litigation and after the Sells were dismissed from the lawsuit, the plaintiffs filed a motion for sanctions concerning data from LSU-issued cell phones used by the Sells in the course of their employment. Id. Specifically, the plaintiffs asserted that the text messages could not be retrieved from any source other than the phones themselves. Id.

During the litigation, a sanctions motion was considered due to the failure to preserve data from LSU-issued cell phones used by the Sells in the course of their employment. Owens, No. 21-242-WBV-SDJ at *753. While the LSU Board issued litigation holds to undefined LSU recipients, it failed to provide the court with evidence of any further action. Id. at 758. The court noted that LSU could have required immediate backup of all of the Sells’ cell phone data pursuant the court's oral instruction to preserve ESI, or after the Agreed ESI Order. Id.

The court further noted that its ESI Order explicitly stated that data sent to and from cell phones should be retained and provided suggestions for backup storage. Owens, No. 21-242-WBV-SDJ at *758. Alternatively, the Court noted that LSU could have had the Sells return the phones they used during the relevant period. Id. Instead, the Sells maintained sole possession of their LSU-issued phones for around a year after the initiation of the litigation—and several months after they were dismissed as parties—with no apparent plan for preserving the data contained in the phones. Id.

When the Sells left their positions at LSU, they returned their cell phones to the University, ostensibly without removing relevant data from them. Owens, No. 21-242-WBV-SDJ at *758. Julia Sell testified that once the Husch Blackwell investigation began, she got a personal cell phone that she did not use for LSU business and did not delete anything from her LSU phone other than personal items, e.g., family photos or voicemails from her mother. Id. She further asserted that she did not delete LSU-related data from her phone or return the phone to factory settings before returning the device to LSU. Id. Michael Sell similarly testified that he returned his LSU phone to the IT department without deleting anything other than personal photos. Id. He explicitly acknowledged knowing that he was not supposed to delete anything work-related from the phone. Id.

*19 One month after the Sells returned their phone to LSU, an LSU employee turned on Michael Sell's phone and found that it contained no data. Owens, No. 21-242-WBV-SDJ at *758. After months of back and forth with the plaintiffs' attorneys inquiring about the data on the returned phones, the defendant finally arranged for the plaintiffs' counsel to inspect the phones themselves, at which time plaintiffs' counsel confirmed that the phones had been wiped of all data. Id. at 759. The Court found that someone at LSU had data wiped the phones because of a failed litigation hold that was not monitored, nor was their proper communication to relevant staff the need to preserve key data. Id. The data was irrevocably lost. Id.

In finding prejudice, the court noted that the plaintiffs were left with an incomplete record of the communication of key players and that it stretched the bounds of reason to think that the LSU-issued cell phones had no relevant communication. Owens, No. 21-242-WBV-SDJ at *760-61. Because the court determined that there was no evidence of the defendant's intent to deprive, the court found that an adverse inference sanction would be inappropriate. Id. The court however ordered the defendants to pay reasonable expenses for the failure to preserve the ESI. Id.

In Folino v. Hines, the plaintiff initiated a suit under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030, against thirteen (13) John Doe defendants after his personal e-mail account was accessed without his permission. No. 17-1584, 2018 WL 5982448, (W.D. Penn. Nov. 11, 2018). After the court granted the plaintiff's Motion for Expedited Discovery to uncover the personal identifying information of the John Doe defendants, the plaintiff filed an Amended Complaint against defendants Michael Hines and Alison Ly (“Ly”). Folino, No. 17-1584 at *1.

Ly never responded to the Amended complaint, but she later agreed to a settlement based on her counsel's representation that she had no involvement in or knowledge of any hacking of Folino's computers. Folino, No. 17-1584 at *1. As a result of these representations, the plaintiff agreed to settle the case against Ly in exchange for the ability to examine Ly's computers to gather evidence and confirm her representations. Id. After retaining an expert to conduct a forensic examination of Ly's three (3) devices - two (2) iPads and a laptop computer - the plaintiffs learned that the two (2) iPads were both wiped of all data when a factory reset was performed the day before the settlement agreement was entered. Id. Without the data, plaintiff could not verify Ly's claims that she was not involved in the hacking, or trace any potential third-party hacker. Id.

The court found that Ly had control over the devices and that the data wiping was performed after Ly knew how important the evidence on the devices was to the plaintiff. Folino, No. 17-1584 at *3. Therefore, the court found that Ly had intended to delete the data. Id. The timing of the data destruction was at the conclusion of the negotiation of an offer to settle in a case that was contingent on Ly's willingness to have a forensic examination performed on the devices. Id. After concluding that other sanctions would not be sufficient nor serve to deter future conduct, the court awarded a default judgment against Ly. Id. at 3-5.

Turning to the present case, this Court finds that the cases cited by UP in which terminating sanctions were issued largely involved the violation of a court order. The Court also notes that neither party presented a case involving a FELA claim where destruction of ESI resulted in either the dismissal or permission of the case to proceed on the merits. However, the Court has located a FELA case that is instructive, albeit not an ESI case.

*20 In Anderson v. BNSF Railway Company, the plaintiff, Bradley Anderson (“Anderson”) filed a FELA claim asserting that he was injured when he hit his head on a sign placed too close to the railroad tracks. 681 F. Supp.3d 899 (S.D. Iowa July 6, 2023). Anderson moved for dispositive sanctions for spoliation due to the actions of the claims manager of the defendant, BNSF Railway Company (“BNSF”), who photographed the sign three (3) days after the accident during his investigation of the scene. Anderson, 681 F. Supp.3d at 905-06. While photographing the scene, the claims manager used a tape measure to measure the distance between the signpost and the tracks and then removed the sign, placing it in a preservation storage location. Id. He did not check to confirm that the photographs captured the measurements he was attempting to show and nor did he write down the measurements. Id.

Anderson filed suit three (3) years after the incident, and during discovery the claim manager testified that he was not able to testify about the distance between the centerline and the sign based on the photographs. Anderson, 681 F. Supp.3d at 905-06. He also testified that the photos were insufficient for him to testify about the distance between the sign and the railroad tracks. Id. Anderson alleged that BNSF should be sanctioned because it removed the sign which prevented him from proving that BNSF was negligent per se or generally negligent because of the placement of the milepost sign. Id.

BNSF argued that it preserved relevant evidence by taking measurement and photographs at the site of the incident. Anderson, 681 F. Supp.3d at 907. It argued that Anderson's case presentation was not impacted because he could easily determine the location of the sign at the time of the incident by looking at the photos and the photo log. Id. The court entered a default judgment against BNSF, finding that as a matter of law BNSF's placement of sign breached its duty to provide Anderson a reasonably safe place to work. Id. at 910. The court found that the evidence established that BNSF acted with the intention of obstructing or suppressing the truth when it moved the sign because the claims manager only took a handful of pictures. Id. at 910-11. The court also found that the photographs did not show the measurements and nor did he confirm that they were present on the photos. Id.

The court found that the removal of the sign was the only possible obstruction alleged to have impeded Anderson's clearance and was critical to his ability to prove his FELA claim. Anderson, 681 F. Supp.3d at 911-12. The Court found that BNSF's spoliation has resulted in an irreparable loss of evidence and substantial prejudice to Anderson. Id. at 917-18. The court found that BNSF's removal of milepost sign 205 before Anderson had the ability to inspect the incident scene combined with its complete failure to record any reliable measurements severely undermined Anderson's ability to prove the essential elements of his claim. Id. at 918-19. The court found that Anderson was unable to prove the location of the milepost sign due to BNSF's spoliation, and that without this evidence Anderson could not prove the contested elements of breach or causation. Id. Therefore, the court found that a default judgment was the appropriate sanction commensurate to the damage caused by BNSF's spoliation and the severity of its abuse of the judicial process. Id.

Notably in Anderson, the Court found that the evidence was needed to prove the statutory violation was spoliated. Anderson, 681 F. Supp.3d at 918-19. It was for this reason that the terminating sanction was found appropriate. Id.

In this case, the issue is whether the accident happened because of a statutory work violation, UP's negligence, or distracted driving by Kellar. Under FELA, the slightest finding of negligence or a specific statutory duty would result in a finding of liability.

*21 None of the cases relied upon by UP that issued terminating sanctions involved a featherweight liability determination. However, under FELA the question is whether the railroad's negligence played any part, however small, in the injury.

While Kellar claims that he was required to work from 10:00 PM on January 16, 2021, until 2:00 PM on January 17, 2021, and that the accident occurred because of his fatigue due to UP's statutory violation, there is evidence in the record to the contrary. More specifically, there is evidence in the record that mitigates against the fatigue assertion as the cause of the accident. Text messages from Kellar's girlfriend show that Kellar had left work and made it home by 8:30 PM on January 16, 2021. See Plaintiff's Exhibit #3.

Around 7:06 AM on January 17, 2021, Kellar's girlfriend told him one more shift, “you got this big daddy.” See Defense Exhibit #7 at 010. The evidence shows that by 8:00 AM on January 17, 2021, Kellar was back at work expressing that he was tired and was going in and out on the forklift. Id. At 10:54 AM, Kellar's girlfriend sent him a picture of his son and Kellar replied at 11:36 “man always knocked out” and she responded that she was about to wake him up. Id. at 013.

While the loss of cellphone data removed evidence that would suggest Kellar's use at the time of the accident, this alone does not prevent UP from being able to defend the case as pled and an adverse inference would be sufficient to cure the prejudice to UP. The undersigned recommends that the District Judge provide an adverse inference to the jury that Kellar intentionally deleted data from his Phone shortly before the lawsuit was filed and during the case. The undersigned recommends that the District Judge further instruct the jury to infer that if the data existed on Kellar's Phone, the evidence would have been unfavorable to him.

Kellar's failure to preserve his cellphone data is particularly egregious given his admission that he knew he had an obligation to preserve it, that he failed to consider doing so, and that he performed a hard reset and later deleted other data before handing the Phone to his attorneys. Of course, Kellar pretended to be a minimally skilled cellphone user and lied to the Court about his knowledge of how to do a hard reset. Furthermore, pursuant to Rule 37e(1) the Court recommends that Kellar pay the reasonable expenses, including attorney's fees and costs, that UP incurred as a result of his failure to preserve ESI from his Phone.

IV. Conclusion

Accordingly,

IT IS RECOMMENDED that Defendant's Motion for Spoliation Sanctions (R. Doc. 73) be GRANTED IN PART and DENIED IN PART.

IT IS RECOMMENDED that Defendant Union Pacific Railroad Company's request to find that Plaintiff Elmer Keller INTENTIONALLY SPOLIATED EVIDENCE be GRANTED.

IT IS RECOMMENDED that Defendant Union Pacific Railroad Company's request to issue terminating sanctions be DENIED.

IT IS FURTHER RECOMMENDED that the District Judge issue an Adverse Inference, as described in the opinion.

IT IS FURTHER RECOMMENDED that Plaintiff Elmer Keller pay Defendant Union Pacific Railroad Company's REASONABLE EXPENSES, INCLUDING ATTORNEY'S FEES AND COSTS pursuant to Rule 37e(1), as a result of his failure to preserve ESI from his phone.

*22 IT IS FURTHER RECOMMENDED that Defendant Union Pacific Railroad Company file a motion to set reasonable attorneys' fees and costs no later than fourteen (14) days from the adoption of this Recommendation, and that any opposition to the Motion be filed no later than seven (7) days from the filing of the Motion. Defendant Union Pacific Railroad Company's motion should include the following: (1) an affidavit attesting to its attorney's education, background, skills, and experience; (2) sufficient evidence of rates charged in similar cases by other local attorneys with similar experience, skill, and reputation and; (3) the documentation required by Local Rule 54.2.

A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within fourteen (14) days after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court, provided that the party has been served with notice that such consequences will result from a failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1430 (5th Cir. 1996).

New Orleans, Louisiana, this 26th day of July 2024.