*1 This is an invasion of privacy case alleging federal statutory and state common law claims arising out of Defendants’ unauthorized access to Plaintiff's personal email account. (DE 1, ¶¶ 11-13.) Before the Court is Plaintiff Amanda Carson, f/k/a Amanda Leche's (“Carson” or “Plaintiff”) Motion to Strike [28] Amended Answer to Complaint, Counterclaim, pursuant to Fed. R. Civ. P. Rules 30 and 37, wherein Carson seeks an Order finding Defendant Emergency MD, LLC (“EMD” or “Defendant”) destroyed relevant evidence, causing prejudice to Plaintiff. (DE 106, p. 1.) Thus, Plaintiff moves for sanctions based on spoliation, requesting this Court strike Defendants’ Amended Answer and consequently dismissing Defendants EMD, David Brancati (“Brancati”), Johanna Calgie (“Calgie”), and Jason Blasenak's (“Blasenak”) counterclaims. (Id. at 12.)

The parties have briefed the motion; and therefore, the motion is ripe for review and decision. After reviewing the motion and memoranda submitted, the Court denies Plaintiff's Motion to Strike Amended Answer to Complaint and Counterclaim (DE 106) for the reasons stated herein.

In 2016 Plaintiff Carson and her former husband (“Dr. Leche”) entered into a business relationship with the named Defendants when they moved his anesthesia and pain management practice into an existing building owned by EMD in Greenville, South Carolina, and opened a pain management practice at EMD's Boiling Springs location. On or about January 2, 2017, Carson (then “Amanda Leche”) entered into a Physician Assistant Independent Contractor Agreement with EMD.[1] Carson worked primarily out of the Boiling Springs location and regularly used her personal email account on shared work computers. (DE 110-5, p. 2.) Carson's contract was terminated on May 1, 2017. (DE 1, ¶ 11.)

On May 30, 2017, Megan Montagano (“Montagano”), an employee of EMD Staffing, claims she went to use a shared work computer, believing she was signed in on her own email account on that computer. However, after not recognizing some of the emails and thinking her account had been hacked, she printed off the emails and took them to her supervisor, Dr. Jason Blasenak (“Blasenak”). (DE 110-6, 51:21-25 - 52:1-13; 44:24-25 - 45:1-9.) Specifically, Montagano printed 24 emails totaling 106 pages (“Carson's Emails”). After inspecting the emails, Blasenak discovered they were from Carson's personal email account, which was apparently still logged in on the shared work computer. Montagano claims she promptly went back to the shared work computer where she discovered Carson's Emails and logged out of Carson's personal email account. (Id. at 64:6-12.)

*2 On March 9, 2018, Dr. Leche, and Konig PM, LLC, filed a lawsuit in state court (Civil Action No. 2017-CP-23-01439) against all four named Defendants in the present case. EMD then filed a complaint against Carson as a third-party defendant (Civil Action No. 2018-CP-23-01439, “2018 Complaint”), based partially on the “impropriety learned of through the content of [Carson's Emails].” (DE 110, p. 5-6.) Carson's emails were extensively quoted and referred to in the 2018 Complaint. Additionally, EMD produced Carson's Emails to Carson during discovery of the 2018 Complaint.

On May 20, 2020, Carson filed the instant lawsuit alleging various claims, some stemming from allegations that Defendants unlawfully accessed her personal email account in violation of the S.C. Homeland Security Act, S.C. Code § 17-30-10 et seq., the Stored Communications Act, 18 U.S.C. § 2701 et seq., the Computer Fraud and Abuse Act, 18 U.S.C. § 1030 et seq., and common law Invasion of Privacy. (DE 1.) On February 8, 2021, Carson sent a Request for Inspection to Defendant EMD, requesting to inspect the “shared work computer” used to access and print Carson's Emails. (DE 110-7, p. 2.) EMD responded to Carson's Request for Inspection, objecting on numerous grounds, and stating:

(DE 110-8, p. 7.) Carson now moves for sanctions against EMD for spoliation of evidence, contending, inter alia, that EMD had a duty to preserve the shared work computer on which Montagano accessed her personal email account.

Spoliation

“Spoliation refers to the destruction or material alteration of evidence or to the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation.” Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). “A party may be sanctioned for spoliation if the party (1) had a duty to preserve material evidence, and (2) willfully engaged in conduct resulting in the loss or destruction of that evidence, (3) at a time when the party knew, or should have known, that the evidence was or could be relevant in litigation.” Blue Sky Travel & Tours, LLC v. Al Tayyar, 606 F. App'x 689, 697–98 (4th Cir. 2015) (citing Turner v. United States, 736 F.3d 274, 282 (4th Cir. 2013)). The Federal Rules of Civil Procedure provides one source of power authorizing the district court to sanction a party for the spoliation of evidence. See e.g., Fed. R. Civ. P. 37. District courts also have “[t]he right to impose sanctions for spoliation aris[ing] from a court's inherent power to control the judicial process and litigation, but the power is limited to that necessary to redress conduct ‘which abuses the judicial process.’ ” Silvestri, 271 F.3d at 590 (citations omitted) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 45–46 (1991)). Thus, “[w]hile a district court has broad discretion in choosing an appropriate sanction for spoliation, ‘the applicable sanction should be molded to serve the prophylactic, punitive, and remedial rationales underlying the spoliation doctrine.’ ” Id. (quoting West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999)).

*3 “The range of options available to a district court includes dismissal, but such a harsh sanction should be imposed only if ‘a lesser sanction will [not] perform the necessary function.’ ” King v. Am. Power Conversion Corp., 181 F. App'x 373, 376 (4th Cir. 2006) (quoting Silvestri, 271 F.3d at 590). “Because of the extreme nature of dismissal as a sanction for spoliation, it is usually appropriate ‘only in circumstances of bad faith or other ‘like action.’ ” Id. (quoting Silvestri, 271 F.3d at 593). Thus, the Fourth Circuit has prescribed the following approach for district courts considering dismissal as a sanction for a given instance of spoliation: “dismissal is appropriate only if ‘either (1) ... the spoliator's conduct was so egregious as to amount to a forfeiture of his claim, or (2) ... the effect of the spoliator's conduct was so prejudicial that it substantially denied the defendant the ability to defend the claim.’ ” Id. (citing Silvestri, 271 F.3d at 593).

Failure to Preserve Electronically Stored Information – Rule 37(e), Fed. R. Civ. P.

Federal Rule of Civil Procedure 37(e) governs a federal district court's power to sanction a party for destroying or failing to preserve electronically stored information (“ESI”), specifically, “[i]f electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery ....” Fed. R. Civ. P. 37(e). Thus, in order to warrant sanctions under Rule 37(e), four threshold elements must be established: “(1) the information should have been preserved, (2) the information was lost, (3) the loss occurred because a party failed to take reasonable steps to preserve it, and (4) the information cannot be restored or recovered through additional discovery.” In re Ethicon, Inc. Pelvic Repair Sys. Prods. Liab. Litig., MDL No. 2327, No. 2:12-cv-00497-JRG, 2016 WL 5869448, at *3 (S.D. W. Va., Oct. 6, 2016).

If these threshold elements are met, Rule 37(e) authorizes two avenues for remedy. First, “upon finding prejudice to another party from loss of the information, [the court] may order measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). Second, “only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation,” the court 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)(2) (emphasis added).

As a threshold matter, Carson filed her motion pursuant to Fed. R. Civ. P. 37 but does not articulate the specific Rule 37 provision(s) under which she moves for sanctions. Instead, Carson's brief moves for sanctions under the common law spoliation doctrine. EMD contends that “because Plaintiff is seeking information contained on the hard drive of a computer, the evidence at issue is electronically stored information (‘ESI’),” and therefore, “Rule 37(e) provides the specific – and sole – basis to sanction a party for failing to preserve [ESI].” (DE 110 p. 15.) Although the physical computer at issue may be subject to the common law spoliation doctrine while the electronically stored information on the hard drive is subject to Rule 37(e), Fed. R. Civ. P., nevertheless, for sanctions to be appropriate, both standards require a duty to preserve the evidence in anticipation of or relevant to litigation. See Blue Sky Travel & Tours, LLC, 606 F. App'x at 697–98 (common law doctrine of spoliation requires “a duty to preserve material evidence ... at a time when the party knew, or should have known, that the evidence was or could be relevant in litigation”); see also Fed. R. Civ. P. 37(e) (Rule 37(e) applies to “electronically stored information that should have been preserved in the anticipation or conduct of litigation”).

*4 Under either standard, Carson has failed to show that EMD had a duty to preserve the shared work computer and the ESI therein in the four years between the printing of Carson's Emails and the filing of Carson's lawsuit. Carson contends that when Carson's Emails were delivered to Blasenak, “[a]ny reasonable view of these facts would trigger an investigation and instructions to preserve all relevant evidence.” (DE 106, p. 9.) Additionally, Carson claims “there were several triggering dates when EMD and their legal counsel knew or should have known to preserve this computer,” including when EMD filed the 2018 Complaint based partially on the content of Carson's Emails. (Id. at p. 11.) The Court disagrees. “Generally, it is the filing of a lawsuit that triggers the duty to preserve evidence.” Turner, 736 F.3d at 282. However, the duty to preserve material evidence arises “not only during litigation but also extends to that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.” Id. (quoting Silvestri, 271 F.3d at 591.)

On May 25, 2017, when Montagano accessed Carson's personal email account, which Carson left open on a company computer, and turned over Carson's Emails to Blasenak, Carson was bound by EMD's Electronic Communications Policy (the “Policy”). (DE 110, p. 19.) The Policy provides in pertinent part:

(DE 110-4, p. 16 (emphasis added).) Thus, subject to the Policy, at the time Montagano accessed and printed Carson's Email's and handed them to Blasenak, EMD had no reason to believe they violated any of the statutes or common law torts regarding unlawful access to Carson's personal email that are found in her complaint. Equally, when EMD filed its lawsuit against Carson in 2018 and produced the emails in discovery in early 2019, it was not reasonable for EMD to anticipate litigation regarding allegations of unlawful access of Carson's personal email because, again, EMD reasonably believed its actions were lawful under the Policy. Furthermore, none of the claims in Dr. Leche and Konig PM, LLC's lawsuit against the currently named Defendants or the 2018 Complaint involved the shared work computer or unlawful access of personal email accounts.

Not until Carson filed the current lawsuit on May 20, 2020, could EMD have reasonably anticipated litigation regarding allegations of unlawful access to Carson's personal email accounts that may have triggered a duty to preserve the shared work computer. At that point, four years after Montagano accessed Carson's Emails on the shared work computer, it was reasonable that the shared work computer was subject to EMD's usual business practice where computers were moved, updated, replaced, and/or destroyed. Accordingly, Carson has failed to show that EMD had a duty to preserve the shared work computer and the ESI stored therein until the filing of Carson's lawsuit, at which time it was reasonable that the evidence was lost or destroyed.[2]

*5 Moreover, notwithstanding Carson's failure to satisfy the baseline standard for either common law spoliation or Rule 37(e), Fed. R. Civ. P.,[3] Carson has failed to satisfy the additional requirements warranting dismissal as a sanction, i.e., that EMD acted in bad faith or intended to deprive Carson of the information's use in litigation. See King, 181 F. App'x at 376 (citation omitted) (under common law, “dismissal as a sanction for spoliation [ ] is usually appropriate only in circumstances of bad faith or other like action”); Fed. R. Civ. P 37(e)(2) (regarding failure to preserve ESI, the court may dismiss the action as a sanction “only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation”). Rather, EMD has adequately explained why it does not currently have enough information to determine which computer was the shared work computer because of its usual business practices that involve moving, updating, replacing, and/or destroying computers. Accordingly, even if Carson met the requirements of common law spoliation or Rule 37(e), Fed. R. Civ. P., “the extreme nature of dismissal as a sanction for spoliation” is unwarranted here. King, 181 F. App'x at 376.

For the reason stated herein, Plaintiff's Motion to Strike [28] Amended Answer to Complaint, Counterclaim (DE 106) is DENIED.

IT IS SO ORDERED.