Hold the Phone: No Sanctions for Destroyed ESI When Content Is Unknown and Other Routes to Discover ESI Are Available
Zamora v. Stellar Mgmt. Grp., 2017 U.S. Dist. LEXIS 55361 (W.D. Mo. Apr. 11, 2017) In this case for wrongful retaliation and discharge, the defendant moved to impose sanctions on the plaintiff pursuant to FRCP 37(e). Previously, the defendant’s request for the plaintiff’s work phone was granted and then withdrawn after the plaintiff’s motion to clarify was granted. The defendant claimed that the plaintiff deleted text messages and a Facebook message and destroyed cell phones containing discoverable information while the lawsuit was in progress. The plaintiff denied that the messages were deleted intentionally, and argued the destruction did not prejudice the defendant. The court acknowledged the destruction of discoverable information; however, the court was unable to draw a conclusion of prejudice in absence of unknown material that was available through other means of discovery. The court held that the finding of prejudice was premature, and that until prejudice can be established, determination of intent was unnecessary. The court denied the defendant’s motion for the sanctions under Rule 37(e); however, the court also criticized the plaintiff’s reliability and commitment to preserving information. The court therefore granted the defendant’s request for access to additional discovery, including the work phone, to assist in obtaining the sought after information.