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Even Without Ill Intent, Plaintiff’s Failure to Preserve ESI on Cell Phone Still Leads to Sanctions

Posted on August 14th, 2017

preserve esi on cell phoneIn Montgomery v. Iron-Rooster Annapolis, LLC., Civil No. RDB-16-3760 (D. Md. May 9, 2017) the Plaintiff sued her former employer for unpaid overtime under the Fair Labor Standards Act and the Maryland Wage and Hour Law. She was employed from March of 2015 to March of 2016. Defendants claimed that Plaintiff was acting as a restaurant manager, and was therefore considered an exempt employee. Plaintiff denied that she was a manager. Defendants brought this motion for sanctions for spoliation for Plaintiff’s failure to preserve a personal cell phone she used during the time of her employment. Defendants alleged that the phone could have contained text messages or other communications between Plaintiff and other employees that would show she was acting as a manager. Defendants also alleged that the cell phone could have contained communications and text messages between her and another former employee, who had previously settled pre-litigation a similar claim of unpaid overtime wages.

When questioned under oath about the cell phone, Plaintiff testified that she began to have problems with the phone in August of 2016. After consulting with her service provider Verizon, she decided to upgrade and turned the phone in to Verizon, in exchange for a $200 credit. Plaintiff produced documents that supported each of her claims regarding when the phone was turned in (August 15, 2016), when it was shipped to Verizon (September 2016), when it was received and ultimately when the account was credited (October 4, 2016). Although the Court found the Plaintiff’s testimony credible, this did not absolve her of responsibility to preserve ESI on her phone.

Included in the Court’s findings were that Plaintiff was on notice of the litigation and the Defendant’s claim that she was an exempt employee as early as May, 2016. Further, in June, 2016, Plaintiff requested that Defendants preserve any ESI. Plaintiff’s phone was deactivated in August of 2016, and returned to Verizon with all the texts and any potentially relevant information on it in September of 2016.

The Court was unable to conclude whether the ESI could be restored or replaced, since Defendants’ counsel did not investigate whether Defendants’ employees who were alleged to be communicating with Plaintiff had any texts or ESI in their possession. The Court accepted the testimony of Plaintiff, that any loss of ESI was not with the intent to deprive the Defendants.

Pursuant to FRCP 37(e), the Court ordered sanctions that are no greater than ‘necessary to cure the prejudice.’ If the ESI can not be otherwise restored or replaced, the Court ordered that the jury will be instructed that the Plaintiff had a duty, but failed to preserve the potential ESI on her phone. The Court’s ruling also included that it may also instruct the jury as to any inference to draw from the Plaintiff’s failure to preserve texts on her phone.  Plaintiff’s innocent disposal of the phone was not dispositive, since she had a duty to preserve potentially relevant evidence.

ILS–Plaintiff ESI Discovery Experts

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