West v.Q.E.P. Co.
West v.Q.E.P. Co.
2025 WL 1191777 (S.D. Fla. 2025)
March 18, 2025

Reinhart, Bruce E.,  United States Magistrate Judge

Failure to Preserve
Possession Custody Control
Cloud Computing
Text Messages
Spoliation
Sanctions
Failure to Produce
Proportionality
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Summary
QEP Co. Inc. filed a motion for spoliation sanctions against Charles West for his failure to preserve and produce certain ESI related to the sale of a subsidiary. The court applied Federal Rule of Civil Procedure 37(e) and ultimately denied QEP's motion, finding that West did not have a duty to preserve the ESI and did not act with the intent to deprive QEP of the evidence.
CHARLES WEST, Plaintiff,
v.
Q.E.P. CO. INC., Defendant
CASE NO. 24-CV-80019-DAMIAN/REINHART
United States District Court, S.D. Florida
Entered on FLSD Docket March 18, 2025
Reinhart, Bruce E., United States Magistrate Judge

ORDER ON MOTION TO COMPEL AND FOR SANCTIONS [ECF No. 82]1

*1 Defendant, QEP Co. Inc., moves for spoliation sanctions based on Plaintiff, Charles West's non-preservation and/or non-production of discovery materials. ECF No. 82.
To be clear about terminology, I distinguish “non-preservation” of evidence from “spoliation.” Non-preservation is a factual matter — a party did not keep what it was required to keep. Spoliation is a legal conclusion that can apply to some instances of non-preservation.
I. BACKGROUND
The Complaint alleges that Mr. West helped broker the sale of a former subsidiary of QEP — Harris Flooring Group — to Marquis Industries, Inc. Mr. West says that, with the blessing of two senior QEP executives — Michael Duchaine and Len Gould — he marketed the subsidiary to Marquis. Marquis is a subsidiary of Live Ventures, Inc. Mr. West says Mr. Duchaine promised him a commission if the sale occurred. Marquis eventually bought Harris for $10,000,000. The Complaint alleges that QEP never paid the agreed commission. The legal claims are breach of contract, unjust enrichment, and quantum meruit. ECF No. 1.
QEP denies that it promised to pay Mr. West a commission. ECF No. 34. Everyone agrees there is no written commission agreement.
I have reviewed the Motion, the Response, and the Reply. ECF Nos. 82, 90, 99. For the reasons stated below, QEP's Motion to Compel and for Sanctions is DENIED.
II. PROCEDURAL HISTORY
QEP served 15 requests for production (RFPs) on August 20, 2024. ECF No. 82-1. It also served 8 interrogatories. ECF No. 82-2. After Mr. West responded to QEP's discovery, QEP's counsel sent a letter to Mr. West's counsel asserting that the responses to RFPs 2, 3, 4, 5, 7, 9, and 10 were deficient. ECF No. 82-7. The letter also said there were deficiencies in the responses to interrogatories 6, 7, and 8. Id.[2] Mr. West served supplemental RFP responses on September 30, 2024. ECF No. 82-3. He served supplemental interrogatory responses on November 15, 2024. ECF No. 82-15.
Here is a summary of the contested discovery requests and responses:
RFP 2: communications between West and anyone at Marquis about the Harris transaction.
Initial response: none
Supplemental response: none, but waiting for phone records
RFP 3: communications between West and Live Ventures about the Harris transaction.
Initial response: none
Supplemental response: none, but waiting for phone records
RFP 4: non-privileged communications between West and anyone else about the Harris transaction
Initial response: none
Supplemental response: none, but waiting for phone records
RFP 5: documents and communications evidencing West's purported efforts to negotiate and/or effectuate the sale of Harris to any third party
Initial response: 15 pages of documents
Supplemental response: 6 additional pages; waiting for phone records
RFP 7: documents and communications evidencing West's authority to negotiate and/or effectuate the sale of Harris to any third party
Initial response: 1 document
*2 Supplemental response: same 6 pages as for RFP 5
RFP 9: executed contracts between West and Live Ventures related to Harris
Initial response: none related to the sale of Harris
RFP 10: executed contracts between West and Marquis related to Harris
Initial response: none related to the sale of Harris
Interrogatory 6: identify points of contact at Marquis and/or Live Ventures and describe those relationships
No responses in the record
Interrogatory 7: identify and describe each communication with the persons identified in interrogatory 6
Supplemental response: 5 paragraph description
Interrogatory 8: specify and explain your damages calculation
Supplemental response: 2 paragraph description
Separately, QEP served third party discovery on Steve Kellogg and Chet Graham. Mr. Graham is the co-CEO of Marquis; Mr. Kellogg is the President of Flooring Liquidators, a subsidiary of Live Ventures. ECF No. 82-14. The third parties produced communications with Mr. West about the Harris transaction that Mr. West had not produced.
On November 20, 2024, QEP filed its first motion to compel and for sanctions. ECF No. 55. QEP moved to compel text messages, emails, phone records, and moved for sanctions for failure to comply. Mr. West responded that he had produced the text messages in his possession and had ordered his phone records, which he would review for responsive materials. ECF No. 63. As to the emails, Mr. West said that the emails on his personal account were emails he forwarded from a Harris email account. Id. at 6–7. Upon searching his Gmail account, Mr. West found some emails but not others. Id. Mr. West says those emails may have inadvertently deleted because he received notice from Google that his email reached its storage limit. Id. Mr. West said he has reached out to Google to retrieve the deleted emails and any printed copies of those emails have been produced. Id. Mr. West maintained that he did not purposefully delete any emails. Id. I denied the motion as moot as to the text messages and phone records and denied the motion without prejudice as to the remaining issues for failure to comply with the Local Rules and the procedures outlined in the Court's Standing Discovery Order. ECF No. 64.
Ultimately, Mr. West produced a total of 142 pages of documents, including some text messages and emails. ECF No. 82-3, 82-9, 82-10. He also produced a privilege log for redactions to 3 documents and a copy of a letter from Gmail with the storage limit notification. ECF No. 82-13; ECF No. 90 at 5.
QEP renews its motion for sanctions under Rule 37 for spoliation of evidence. ECF No. 82. It says Mr. West has not preserved nor properly searched emails and text messages. Id.
III. LEGAL PRINCIPLES
Federal Rule of Civil Procedure 37(e) applies to allegations that a party has failed to preserve electronically stored information:
(e) Failure to Preserve Electronically Stored Information. If 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, the court:
*3 (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or
(2) only upon finding that the party acted with the intent to deprive another party of the information's use in the litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was unfavorable to the party; or
(C) dismiss the action or enter a default judgment.
Fed. R. Civ. P. 37(e).
Before a court may impose sanctions under Rule 37(e), it must determine that: “(1) the information sought constitutes ESI; (2) the ESI should have been preserved in anticipation of litigation; (3) the ESI is lost because a party failed to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.” Title Capital Mgmt., LLC v. Progress Residential, LLC, No. 16-cv-21882, 2017 WL 5953428, at *3 (S.D. Fla. Sept. 29, 2017). Once these threshold elements are satisfied, sanctions may be appropriate if the Court finds prejudice or finds that a party acted with the intent to deprive the moving party of the ESI at issue. Id. The intent to deprive is equivalent to bad faith, that is, “the spoliator has a ‘purpose of hiding adverse evidence’ from other parties.” Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1312 (11th Cir. 2023).
A duty to preserve evidence arises when a party reasonably anticipates litigation. See e.g., Point Blank Sols., Inc. v. Toyobo Am., Inc., No. 09-cv-61166, 2011 WL 1456029, at *11 (S.D. Fla. Apr. 5, 2011). “Generally, a party's preservation duties attach only to evidence within that party's possession, custody, or control.” In re Disposable Contact Lens Antitrust, 329 F.R.D. 336, 430 (M.D. Fla. 2018). Of course, “[a] party may be in control of evidence that it does not own or physically possess. For example, a party may be in control of evidence where the party has the legal right, authority, or practical ability to obtain the materials upon demand.” Wooden v. Barringer, No. 3:16-cv-446, 2017 WL 5140518, at *7 (N.D. Fla. Nov. 6, 2017) (internal citations omitted).
QEP bears the burden of showing by preponderance of the evidence that it is entitled to a remedy under Rule 37(e). See Silverstein v. Boehringer Ingelheim Pharms., Inc., No. 19-cv-81188, 2020 WL 13119102, at *5–6 (S.D. Fla. Aug. 5, 2020) (movant always has burden on non-prejudice factors; Court has discretion to allocate burden of proving prejudice).
IV. DISCUSSION
The parties sort the alleged discovery deficiencies into four categories: (1) text messages between Mr. West and either Mr. Kellogg or Mr. Graham, (2) emails that were allegedly deleted from Mr. West's personal email account (t*******@gmail.com), and (3) affidavit email exchanges between Mr. West and either Mr. Kellogg or Mr. Graham, and (4) other miscellaneous materials responsive to the RFPs. ECF No. 90 at 8.
First, under Rule 37(e), the information at issue here is ESI—text messages and emails. Second, QEP says the ESI should have been preserved in anticipation of litigation. I agree. The communications among Mr. West, QEP, Marquis, and Live Venture are relevant to the claims and defenses in this lawsuit. Mr. West bears the burden of proving that (1) QEP agreed to pay him a commission and (2) he helped further the Harris transaction. Therefore, the ESI should have been preserved in anticipation of litigation. Third, it is unclear whether all text messages and emails responsive to QEP's discovery requests are lost. But, some may be. Mr. West concedes that he may have lost some text messages when he switched carriers and lost some emails when he attempted to clear space in his personal Gmail. For the reasons discussed below, even assuming arguendo Mr. West did not take reasonable steps to preserve evidence, QEP has not shown that the relevant and proportional evidence cannot be restored or replaced through additional discovery, nor has it shown prejudice.
1. The Text Messages
*4 Outside of the already-produced text messages addressed in QEP's first Motion to Compel, QEP says that Mr. West testified he may have lost other text messages when he switched phone carriers. Compare ECF No. 55 at pp 3–4 with ECF No. 82 at pp 4–6. So, QEP concludes that the Court should infer that other relevant communications with third parties were improperly withheld and or improperly deleted. I decline to do so. The other evidence in the record does not support drawing this inference. Mr. West agrees he may have lost some text messages, but he did not intentionally or in bad faith delete those text messages. ECF No. 90 at p. 11. Mr. West responds that, to the extent that any texts were missing, those texts were already produced by third parties. Id. at 12. Therefore, Mr. West concludes, QEP cannot demonstrate that the texts cannot be “restored or replaced” through additional discovery nor can QEP identify how the unidentified ESI materially affected its ability to defend against the claims. Id. I agree. QEP has not shown an entitlement to Rule 37(e) sanctions for non-production of the text messages.
2. The Affidavit Email Exchange
QEP identifies an affidavit email exchange among Mr. West, Mr. Graham, and Mr. Kellogg that should have been produced in response to RFP 2, 3, or 4. Mr. West says that document was already produced as part of the third-party production from Mr. Kellogg and Mr. Graham. ECF No. 90 at 13. Mr. West says he also produced the affidavit email exchange on December 10, 2024. Id. at 14. QEP has not shown an entitlement to Rule 37(e) sanctions for non-production of the affidavit email exchange.
3. Emails
While Mr. West was working at Harris, he printed out several emails between him and either Mr. Duchaine or Mr. Gould. Those emails were on his work email address. ECF No. 80-3 at p. 104, 106; ECF No. 90 at p. 8. Mr. West also forwarded those emails to his personal Gmail account. Id. Mr. West no longer has access to the Harris email account because QEP took possession of his work laptop after the Marquis sale. ECF No. 80-2. Mr. West thought that his Harris and Marquis accounts would merge, but that was not the case. Id. After this lawsuit was filed, Mr. West searched his personal email and realized he may have inadvertently deleted some of emails he forwarded himself. Id. Mr. West has since made attempts to retrieve any deleted emails, including contacting Google for assistance, but his attempts were unsuccessful. ECF No. 80-3 at pp. 91, 102. Mr. West said he may have deleted those emails inadvertently when he received notice from Google that he would no longer be able to receive emails unless he cleared up space in his inbox, but he does not specifically recall deleting [or at least purposefully deleting] “anything that is relevant to this case.” Id. at p. 96. Mr. West concludes that he turned all relevant responsive documents in his custody, care, and control. ECF No. 80-2. To the extent that there may be other emails missing, Mr. West argues that those emails exist on QEP's server.
Mr. West's work emails were (and presumably still are) in QEP's possession, custody, and control. Mr. Duchaine and Mr. Gould are QEP executives, so presumably QEP has access to any emails they had with Mr. West about the Harris transaction.
QEP has not shown that the third-party production from Mr. Kellogg and Mr. Graham is inadequate to replace or restore any personal emails that Mr. West did not preserve. And, even if these missing emails cannot be fully restored or replaced, QEP has not shown how it is prejudiced by not having them. These emails would not likely address the most important issue in the case: whether QEP agreed to pay Mr. West a commission. It appears they would primarily be relevant to whether Mr. West helped further the Harris transaction, a proposition that does not appear to materially be in dispute. See Fed. R. Civ. P. 26(b)(1) (one proportionality factor is “the importance of the discovery in resolving the issues” in dispute in the lawsuit).
4. RFPs 2, 3, 4, 5, 9, and 10
RFPs 2, 3, 4 and 5 ask for any communications between Mr. West and non-QEP persons about the Harris transaction. Here, too, these communications are relevant to show whether Mr. West played a role in furthering the Harris transaction. But, it does not appear that they would be relevant to proving that QEP agreed to pay Mr. West a commission.
*5 QEP argues that Mr. West should have preserved, looked for, and produced more of his communications with these third parties. Even assuming all of that is true, QEP fails to show how it is prejudiced by Mr. West not producing evidence that appears to support his claims and does not undercut QEP's defenses.
The same is true of RFPs 9 and 10. Mr. West says he does not now have any executed agreements with Marquis or Live Ventures. Even if such an agreement once existed and was not preserved, QEP is not prejudiced by Mr. West's failure to preserve or produce it. First, QEP can subpoena the same materials from Marquis or Live Venture. Second, QEP's ability to defend the case is not undercut (and may be enhanced) by the absence of these agreements.
V. CONCLUSION
QEP has not shown an entitlement to Rule 37(e) spoliation sanctions. Even assuming arguendo that Mr. West did not take reasonable steps to preserve evidence that he should have preserved, QEP has not shown how it is prejudiced by whatever evidence is missing. Nor has QEP shown by a preponderance of the evidence that Mr. West's motivation was to deprive QEP of evidence in this case. Instead, other evidence shows that Mr. West produced evidence that was unhelpful to his case and allegedly withheld documents that would have helped him. QEP has not shown that he acted in bad faith. Accordingly, QEP's Motion to Compel and for Sanctions is DENIED.
DONE and ORDERED in Chambers at West Palm Beach, Palm Beach County, in the Southern District of Florida, this 18th day of March 2025.


Footnotes

I am entering an Order rather than a Report and Recommendation because I conclude that no sanctions should be imposed. United States Equal Employment Opportunity Comm'n v. GMRI, Inc., No. 15-cv-20561, 2017 WL 5068372, at *20 (S.D. Fla. Nov. 1, 2017).
Mr. West's initial responses to the interrogatories are not in the record.