The opinion
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
SAFELITE GROUP, INC.,
:
Plaintiff,
Case No. 2:21-cv-4558
v. Chief Judge Sarah D. Morrison
Magistrate Judge Elizabeth A.
Preston Deavers
NATHANIEL LOCKRIDGE, et al.,
:
Defendants.
OPINION AND ORDER
Safelite Group, Inc. is a nationwide auto glass repair and replacement
provider. Caliber Collision Centers recently expanded its collision repair business to
include auto glass repair and replacement. In 2021, Nathaniel Lockridge left his
position as a Safelite Store Manager—and started working for Caliber. Safelite
brought suit alleging that Lockridge, at Caliber’s direction, used Safelite’s
proprietary information to persuade Safelite employees and customers to take their
talents and their business to Caliber.
The matter is now before the Court on Safelite’s Motion Seeking Spoliation
Sanctions against Lockridge. (Mot., ECF No. 287.) Lockridge and Caliber responded
(Lockridge Resp., ECF No. 294; Caliber Resp., ECF No. 195) and Safelite replied1
(Reply, ECF No. 299). For the reasons below, Safelite’s Motion is GRANTED.
1 Lockridge and Caliber have moved to strike new evidence submitted with
Safelite’s reply. (ECF No. 301.) Because the new evidence is responsive to the
arguments and evidence raised in Lockridge and Caliber’s responses, the joint
motion to strike is DENIED.
I. BACKGROUND
In 2020, Lockridge was assigned to be Store Manager at a Safelite location in
Tucson, Arizona. (SAC, ECF No. 126, ¶ 261.) Safelite alleges that Lockridge viewed
the assignment as a “demotion and was upset at the change.” (Id., ¶ 262.) In the
spring of 2021, Lockridge contacted his old Tucson-colleague, Defendant Jeffrey
Nowak, to inquire about joining Caliber. (Id., ¶ 264.) Conversations progressed, and
Caliber offered Lockridge a position as General Manager in Tucson. (Id., ¶¶ 265,
268–271.)
In August 2021, Lockridge held a staff meeting at which he announced that
he had resigned from Safelite and was “going to work for his wife’s cleaning
company.” (Id., ¶¶ 273–73.) But Lockridge had accepted Caliber’s offer on July 30.
(ECF No. 287-2, PAGEID # 4087.) He first began working at Caliber on August 16.
(ECF No. 294-1, PAGEID # 4512.)
Ten days later, on August 26, Lockridge sent an email to Chris Abal, a
recruiter at Caliber:
Hey Chris,
Here are the leads for tech in Tucson. These are all techs that I have
worked with and all would make a great addition to the team. I have
also talked to all of them and they know you will be reaching out to
them.
Richard Gracia- . . . Master Tech
Alex Royal- . . . Master Tech
Tirell Lovett- . . . Senior Tech
Kevin Mancera- . . . Tech
William Gibes- . . . Tech (Tentative) Trying to buy a house
Thank you sir.
(ECF No. 287-2, PAGEID # 4088.) The next day, Lockridge texted Richard Gracia,
saying:
Hey bro, when you fill out the app go to the website and look for jobs in
Phoenix
(ECF No. 294-7, PAGEID # 4632.)
Safelite caught wind of Lockridge’s activities, and believed that his new
employment and recruiting activities violated Lockridge’s contractual obligations to
Safelite. On August 27 (the same day Lockridge texted Gracia), Safelite sent
Lockridge a cease-and-desist letter. (August 27 Letter, ECF No. 287-2, PAGEID
# 4091.) The letter provides:
Dear Mr. Lockridge:
It has come to our attention that you may be engaged in vehicle glass
business activities at Caliber Collision Glass in direct violation of the
terms of the Non-Competition, Non-Disclosure, Non-Solicitation and
Assignment of Inventions Agreement dated March 1, 2016
("Agreement") executed between you and Safelite Group, Inc.
("Safelite").
The purpose of this letter is to place you on formal notice that you are
bound by the restrictions set forth in the Agreement, including those
that preclude you from, directly or indirectly, owning, controlling,
participating in, being associated with, or rendering services to any
business engaged in competition with Safelite within the geographic
area to which you were assigned while employed at Safelite for twelve
(12) months following the end of your employment with Safelite. From
what we currently know, your role at Caliber Collision Glass fits within
this definition, thus, you are prohibited from working there.
Additionally, under the Agreement, you may not, directly or indirectly,
solicit or divert from Safelite any customer or business whatsoever or in
any way interfere with its relationship with Safelite. Similarly, you may
not solicit or attempt to solicit any associate of Safelite to terminate
employment with Safelite or to employ any person who was employed
by Safelite at the time your employment ended.
As you know, in your Operations Manager role, you had access to highly
confidential and proprietary information of Safelite. You participated in
numerous management meetings, were actively involved in strategic
planning for the company and received reports and other documents
containing sensitive historical and prospective business intelligence
pertaining to Safelite. Under the confidentiality terms of your
Agreement, you are strictly prohibited from using or disclosing any of
Safelite's proprietary information, including but not limited to its
customer lists and confidential parts and pricing information for your
own benefit or the benefit of a competitor. Your obligation to maintain
the confidentiality of Safelite's proprietary information is unconditional
and remains intact indefinitely.
Safelite also believes that much of the confidential information that you
had access to and learned while employed at Safelite would qualify as
"trade secrets" as that term is defined both by Arizona statutes and
common law. Safelite has taken many measures to protect the secrecy
of its customer lists and information, marketing plans, pricing strategies
and other proprietary business information, including making certain
information available only to select management-level associates, such
as you. As a result, Safelite takes important measures to have its key
associates enter into non-complete and non-disclosure agreements, as
you did, and Safelite will continue to exercise its legal rights to enforce
such agreements.
During your employment with Safelite, you had access to Safelite's
confidential information, as noted above. In addition, your job duties
required that you maintain relationships with the associates you led, as
well as customers, relationships which are considered protected by law.
Accordingly, Safelite hereby demands that you immediately cease and
desist:
(1) Directly or indirectly owning, controlling, participating in,
associating with, or rendering services to, as an officer,
consultant, employee, partner, owner, or otherwise, for Caliber
Collision Glass or any of Safelite's competitors within the
geographic area to which you were assigned while employed by
Safelite for a period of twelve (12) months;
(2) Directly or indirectly using, divulging or disclosing confidential
information to any unauthorized person or to any individual not
employed by Safelite, or for your own benefit or for the benefit of
any person;
(3) Directly or indirectly soliciting, marketing, submitting bids to,
calling upon, offering to provide, or providing any services to
Safelite's clients or customers, or potential clients or customers,
for whom you (or any of Safelite's other employees or agents under
your supervision while you were employed with Safelite)
performed any services or to whom you (or any of Safelite's other
employees or agents under your supervision while you were
employed with Safelite) sold Safelite's products; and
(4) Directly or indirectly, soliciting or attempting to solicit any
associate of Safelite to terminate employment with Safelite or to
employ any person who is employed by Safelite for a period of
twelve (12) months.
Safelite requires that you provide it with assurances that you will abide
by the terms of your Agreement for the full twelve (12) months after the
date of your termination of employment with Safelite, which was August
13, 2021. Please provide this written acknowledgement to me no later
than the close of business on Friday, September 10, 2021.
Although Safelite desires to resolve this matter without litigation, if you
fail to provide the requested assurances, specifically agreeing to cease
and desist working for businesses in competition with Safelite and from
soliciting Safelite associates to work for your new company, Safelite
intends to pursue this matter vigorously against you and Caliber
Collision Glass, which may include filing a lawsuit seeking monetary
damages and injunctive relief. As such, we encourage you to seek the
counsel of a competent attorney.
(Id.) Lockridge forwarded this August 27 Letter to Caliber within days. (ECF No.
294-1, ¶¶ 10–11.)
Safelite filed suit against Lockridge on September 13, 2021. (ECF No. 1.)
Lockridge was served with the Complaint shortly thereafter. (ECF No. 6.) He
notified Caliber, who referred him to counsel. (ECF No. 294-1, ¶ 12.) Lockridge met
with counsel on October 7, 2021. (Id., ¶ 13.) Counsel “advised [him] orally of [his]
obligation to retain and not destroy, delete, or throw away any documents, records
or communications that dealt with the allegations in the lawsuit.” (Id.) Lockridge
received his first written litigation hold from Caliber in November 2021. (Id., ¶ 15.)
Then, during a February 3, 2022 conference with his counsel to review discovery
responses, Lockridge “learned [that his] personal phone was set to auto-delete text
messages after 30 days.” (Id., ¶ 17.)
During discovery, Safelite asked Lockridge to produce all communications
with Alex Royal and Kevin Mancera “including but not limited to, text messages
and text conversations[.]” (Mot., PAGEID # 4045.) Safelite also asked Lockridge to
produce all communications between him and “any person or entity that evidence,
refer, or in any way related to [his] employment with Caliber.” (Id.) In response to
these requests, Lockridge did not produce any text messages with Alex Royal, Kevin
Mancera, Tirell Lovett,2 Richard Gracia, or Nicole Jensen.
Lockridge admits that he made no effort to preserve his text messages until
February 3, 2022, and that his cell phone was set to delete any text messages older
than 30 days. (Lockridge Resp., PAGEID # 4500.) As a result, he did not preserve
any text messages sent or received before January 4, 2022.
Safelite now asks the Court to find that Lockridge spoliated evidence, impose
an adverse-inference sanction, and award costs and expenses.
II. LEGAL STANDARD
A party to civil litigation has a duty to preserve information, including
electronically stored information (“ESI”), when he knows (or should know)
2 Lockridge disputes that Safelite requested texts with Lovett, but he admits
that he talked to Lovett about job opportunities with Caliber. Safelite’s request
would fairly encompass texts about Caliber job opportunities.
that the information “may be relevant to future litigation.” John B. v. Goetz,
531 F.3d 448, 459 (6th Cir. 2008) (internal quotations and citations omitted)
(cleaned up). When that duty is breached, and relevant information has been
spoiled, or spoliated, “a district court may exercise its authority to impose
appropriate discovery sanctions.” Id. A party seeking sanctions for spoliation
of ESI must show that:
1) ESI that “should have been preserved in the anticipation or conduct of
litigation” was lost;
2) The party responsible for preserving the information “failed to take
reasonable steps to preserve” it; and
3) The information “cannot be restored or replaced through additional
discovery.”
Fed. R. Civ. P. 37(e). If a movant satisfies these three threshold elements, a
court can sanction the non-producing party in one of two circumstances,
depending on the cause and effect of the spoliation.
First, a court can impose sanctions if the loss of information prejudices the
movant, regardless of the non-producing party’s intent. Fed. R. Civ. P. 37(e)(1).
Courts have “broad discretion to craft proper sanctions for spoliated evidence.”
Adkins v. Wolever, 554 F.3d 650, 651 (6th Cir. 2009) see also Fed. R. Civ. P. 37(e)(1)
advisory committee’s note to 2015 amendment. But, in this circumstance, the
sanction must be “no greater than necessary to cure the prejudice.” Fed. R. Civ. P.
37(e)(1).
Second, a court can impose sanctions if the non-producing party intended to
deprive the movant of the information’s use in the litigation, regardless of whether
the movant can show prejudice. Fed. R. Civ. P. 37(e)(2). When a court finds
intentional spoliation, it can order more severe sanctions, such as an adverse-
inference instruction to a jury. Id. A court cannot impose the Rule 37(e)(2) sanctions
without a demonstration of intent—a “showing of negligence or even gross
negligence will not do the trick.” Applebaum v. Target Corp., 831 F.3d 740, 745 (6th
Cir. 2016).
III. ANALYSIS
A. Safelite satisfies the three threshold elements of Rule 37(e).
There is no dispute that Lockridge’s text messages before January 4, 2022,
are lost—nor is there any dispute as to how that happened. Lockridge admits that
his personal cell phone was set to delete text messages after 30 days, until that
function was disabled on February 3, 2022. (ECF No. 287-5, PAGEID # 4451.) The
Court must now ask whether that loss constitutes spoliation of relevant evidence.
1. The text messages should have been preserved.
a) The August 27, 2021 Cease and Desist Letter put
Lockridge on notice of potential litigation.
Courts use an objective standard to determine the point at which a party is
put on notice that evidence may be relevant to future litigation. Byrd v. Alpha
Alliance Ins. Corp., 518 F. App’x 380, 384 (6th Cir. 2013). The question thus
becomes, when the non-producing party “should have known that the evidence may
be relevant to future litigation”—not when he subjectively learned of the litigation.
John B., 531 F.3d at 459 (emphasis added) (citation omitted).
Lockridge was put on notice of potential litigation when he received the
August 27 Letter. Cf. Graham, 2021 WL 4810498, at *6 (finding that defendants
had a duty to preserve information when they internally discussed “a non-compete
suit that might come down the road”). The August 27 letter was detailed and
specific, describing Safelite’s concern that Lockridge was, among other things,
soliciting employees in violation of his contract. Safelite laid out its view of
Lockridge’s contractual obligations and demanded assurance-of-compliance from
him by a date certain. Safelite also demanded that Lockridge cease and desist from
any further violations, and closed with explicit reference to “a lawsuit seeking
monetary damages and injunctive relief.” Where “a letter openly threatens
litigation, then the recipient is on notice that litigation is reasonably foreseeable
and the duty to preserve evidence relevant to that dispute is triggered.” Goodman v.
Praxair Services, Inc., 632 F. Supp. 2d 494, 511 (D. Md. 2009).
Lockridge argues otherwise. In his view, the August 27 Letter did not prompt
him, and should not impose a duty on him, to preserve evidence because he is a lay
person. (Lockridge Resp., PAGEID # 4499.) First, the proposition runs counter to
the objective approach described above. Second, Lockridge misreads the only
authority he cites in support. Franklin v. Shelby County Board of Education
counsels that a party’s inexperience in litigation is one factor in evaluating whether
he took reasonable steps to preserve evidence—not whether he had a duty to
preserve. No. 20-cv-02812-JPM-tmp, 2021 WL 6066673, at *6 (W.D. Tenn. Sept. 28,
2021); cf. Rule 37(e), advisory committee notes to 2015 amendments (noting that
courts “should be sensitive to the party’s sophistication with regard to litigation in
evaluating preservation efforts”) (emphasis added).
b) The text messages are relevant to the litigation
threatened in the Cease and Desist Letter.
The Court next asks whether the lost text messages were relevant to
Safelite’s claims. Relevance, in this context, means something different than the
Rule 401 definition. Automated Sols. Corp. v. Paragon Data Sys. Inc., 756 F.3d 506,
514 (6th Cir. 2014). To show that the text messages are relevant to its claims,
Safelite must “adduce sufficient evidence from which a reasonable trier of fact could
infer that the destroyed or unavailable evidence would have been of the nature”
Safelite alleges. Id. (internal quotation and citation omitted) (cleaned up). Given the
inherent difficulty in proving the contents of what is no longer, Safelite “may rely on
circumstantial evidence to suggest the contents of destroyed evidence.” Beaven v.
U.S. Dep’t of Justice, 622 F.3d 540, 555 (6th Cir. 2010). Safelite need not prove that
the lost text messages would be dispositive of its claims. McCarty v. Covol Fuels No.
2, LLC, 644 F. App’x 372, 379 (6th Cir. 2016).
Here, the Court finds that the lost text messages are relevant to Safelite’s
claims. The August 27 Letter demanded, among other things, that Lockridge cease
and desist from “[d]irectly or indirectly, soliciting or attempting to solicit any
associate of Safelite to terminate employment with Safelite[.]” Safelite has proffered
evidence that Lockridge was soliciting Safelite employees around the time he
received the August 27 Letter. For example, on August 26, Lockridge sent Caliber
recruiter Chris Abal a list of five Safelite technicians, saying he had “talked to all of
them and they know you [the recruiter] will be reaching out to them.” Texts from
August 27 show that Lockridge encouraged Gracia to apply to Caliber through its
website. Safelite has also submitted declarations from other technicians who say
Lockridge approached them about working for Caliber around this time. (ECF Nos.
299-4, 299-5, 299-6.)
Safelite’s evidence casts a pall over Lockridge’s lost texts with Mancera,
Royal, Lovett, and Jensen.3
Kevin Mancera. Mancera and Lockridge exchanged seven texts on August 27,
and 63 more on September 1—the same day Caliber offered Mancera a job. (ECF
No. 287-4, PAGEID # 4423–25.)
Alex Royal. Royal appeared on the list of technicians that Lockridge emailed
to Abal on August 26. Lockridge and Royal then exchanged a substantial number of
texts between September 7 and September 30. (Id., PAGEID # 4435–40.) Given that
Royal is Lockridge’s son-in-law, that may not seem unusual. But the three weeks of
regular texting stands in stark contrast to the three-month period of silence that
followed—after September 30, the next text between the two was sent on December
23. (Id.)
Tirell Lovett. Lovett also appeared on the list that Lockridge sent to Abal.
Lockridge and Lovett spoke on the phone and exchanged texts throughout the time
Lovett continued to work at Safelite. (Id., PAGEID # 4443–44.)
3 Gracia provided Safelite with his texts to and from Lockridge. They are not
properly considered lost.
Nicole Jensen. Jensen joined Caliber on September 27, 2021. (ECF No. 295-3,
¶ 3.) And although she had not worked at Safelite for three years, Jensen came to
Caliber as the Tucson General Manager. (Id., ¶¶ 3, 4.) The evidence that Lockridge
solicited Tucson technicians supports an inference that his texts with Jensen may
have pertained to that activity.
Lockridge argues that he was texting these individuals as friends—about
family and shared interests. But Safelite’s evidence is sufficient for a reasonable
jury to infer that the lost text messages would have also shown a continuation of
Lockridge’s solicitation activities.
2. Lockridge failed to take reasonable steps to preserve the
text messages.
Rule 37(e) requires that a party take “reasonable steps” to preserve evidence.
The rule “does not call for perfection.” Fed. R. Civ. P. 37(e) advisory committee’s
note to 2015 amendment. To determine whether a party took reasonable steps to
preserve evidence, courts should consider that party’s familiarity with litigation,
level of control over the lost evidence, resources, and any evidence of the routine,
good-faith operation of an information retention system. Id. A court may also “need
to assess the extent to which a party knew of and protected against” the risk of
destruction of evidence. Id.
Here, Lockridge made no effort to preserve his text messages, which were
under his exclusive control. And while he does not have experience with litigation,
he had the wherewithal and the resources to discuss his obligations with Caliber
after receiving the August 27 Letter and, ultimately, to retain counsel.
Lockridge maintains that he did not know his phone automatically deleted
text messages after 30 days, and the loss was an honest mistake. Lockridge is an
experienced businessman—he is now the General Manager for Caliber in Phoenix
and he previously served as an operations manager and store manager for Safelite.
His plea of ignorance strains credulity. It is not plausible that a modern,
professional smartphone user like Lockridge could carry on for four years without
realizing that his text messages disappeared after 30 days. See, e.g., DeMartino v.
Empire Holdings & Invs., LLC, No. 22-cv-14301, 2024 WL 712456, at *6 (S.D. Fla.
Jan. 26, 2024) (finding a defendant “to be an intelligent professional who regularly
used cell phone technology as part of his everyday work and personal life” such that
he “should have taken reasonable steps to preserve the text messages on his
phone(s)”).
Lockridge’s failure to preserve his text messages is exacerbated by his
lawyers’ failures. Counsel are obligated to both implement a litigation hold and
“monitor[] a party’s efforts to retain and produce the relevant documents.”
Schnatter v. 247 Grp., LLC, No. 320CV00003BJBCHL, 2022 WL 2402658, at *19
(W.D. Ky. Mar. 14, 2022) (quoting John B. v. Goetz, 879 F. Supp. 2d 787, 868 (M.D.
Tenn. 2010) and Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y.
2004)). “Once a ‘litigation hold’ is in place, a party and [his] counsel must make
certain that all sources of potentially relevant information are identified and placed
‘on hold[.]’” Zubulake at 432.
When Lockridge first met with counsel on October 7, 2021, they orally
advised him of the “obligation to retain and not destroy, delete, or throw away any
documents, records, or communications that dealt with the allegations in the
lawsuit.” (ECF No. 294-1, PAGEID # 4513.) That advisement was inadequate. First,
“an oral litigation hold is insufficient to reasonably protect against the spoliation of
evidence.” Borum v. Brentwood Vill., LLC, 332 F.R.D. 38, 46 (D.D.C. 2019). Further,
“[a] litigation hold—whether verbal or written—that fails to instruct a party to
disable auto-deletion functions is not much of a litigation hold.” DR Distribs., LLC
v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839, 933 (N.D. Ill. 2021).
3. The text messages cannot be restored or replaced
through additional discovery.
Even when ESI is lost due to a party’s failure to take reasonable preservation
steps, sanctions should not be imposed if the information can be restored or
replaced through additional discovery efforts proportional to the information’s
import. Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. Here,
Safelite has demonstrated that the lost text messages cannot be restored or
replaced. Safelite was unable to obtain the text messages by other means, including
from the other parties to those texts or from Lockridge’s mobile carrier. 4 (See Mot.,
PAGEID # 4045.) Further, there is no substitute for the messages themselves. As
the Northern District of Illinois has said:
4 Safelite obtained the text messages between Lockridge and Gracia pursuant
to a subpoena. (Reply, PAGEID # 4725.) Safelite concedes that this resolves the
spoliation claim as to Gracia’s texts, but that it should be awarded fees and costs for
securing the texts. (Id.)
The content of text messages cannot be replaced simply by eliciting
testimony from the Defendants, and by having Plaintiff accept that
testimony rather than relying on the actual messages to use as they
deem fit. Without the lost text messages, Plaintiff is deprived of the
opportunity to know ‘the precise nature and frequency’ of those private
communications, which occurred during a critical time period.
Schmalz v. Vill. of N. Riverside, No. 13 C 8012, 2018 WL 1704109, at *4 (N.D. Ill.
Mar. 23, 2018) (citation omitted).
B. Safelite satisfies the two elements of Rule 37(e)(1).
1. Lockridge was negligent in failing to preserve the text
messages.
The Court can impose the most severe sanctions only if it finds that
Lockridge intended to deprive Safelite of the use of the text messages. Fed. R. Civ.
P. 37(e)(2); see also id., advisory committee’s note to 2015 amendment. To find that
a party acted with intent to deprive another of evidence, a court must find by clear
and convincing proof that the party acted “with the specific purpose of gaining an
advantage in the present litigation.” Franklin, 2021 WL 6066673, at *3 (internal
quotation, citation, and alteration omitted). “But where information loss can be
credibly explained by something other than bad faith, a finding of intent is not
appropriate.” Id. (internal quotation and citations omitted).
Lockridge maintains that he did not intend to deprive Safelite of his text
messages, saying he was simply “not aware that [his] personal cell phone had a
setting that auto-deleted text messages after thirty days, so changing that setting
did not enter [his] mind.” (ECF No. 294-1, ¶ 14.) Safelite argues that “Lockridge’s
repeated attempts to lead Safelite away from uncovering the truth about his actions
proves an intent to deprive Safelite of evidence[.]” (Reply, PAGEID # 4734.) Safelite
points to the various occasions during this ordeal when Lockridge was either
dishonest or less than forthcoming. (Id.) But evidence that Lockridge tried to
conceal his new employer from Safelite does not equate to evidence that he tried to
deprive Safelite of his text messages. Lockridge, his counsel, and Caliber have not
been model participants in the discovery process—and Lockridge must face the
consequences for their collective failure to take reasonable steps to preserve
evidence. The record before the Court contains clear and convincing evidence that
Lockridge was negligent—though, not intentional—in failing to preserve his text
messages. See EPAC Techs., Inc. v. Thomas Nelson, Inc., No. 3:12-CV-00463, 2018
WL 3322305, at *3–4 (M.D. Tenn. May 14, 2018).
2. Safelite was prejudiced by Lockridge’s failure to preserve
the text messages.
Because Safelite has not shown that Lockridge intended to deprive it of
evidence, the Court turns to whether Safelite has been prejudiced by the loss of the
text messages. See Fed. R. Civ. P. 37(e)(1). “Prejudice can be properly understood as
a party’s ability to obtain the proofs necessary for its case . . . which is another way
of saying the loss of ESI could negatively impact a party's ability to make its case,
or prejudice that party because of the loss of information.” J.S.T. Corp. v. Robert
Bosch LLC, No. 15-13842, 2019 WL 2324488, at *6 (E.D. Mich. May 30, 2019),
report and recommendation adopted, No. 15-13842, 2019 WL 2296913 (E.D. Mich.
May 30, 2019). Establishing prejudice when ESI has been destroyed and the
contents are unknown is challenging. On this point, the Advisory Committee
advises:
The rule does not place a burden of proving or disproving prejudice on
one party or the other. Determining the content of lost information may
be a difficult task in some cases, and placing the burden of proving
prejudice on the party that did not lose the information may be unfair.
In other situations, however, the content of the lost information may be
fairly evident, the information may appear to be unimportant, or the
abundance of preserved information may appear sufficient to meet the
needs of all parties. Requiring the party seeking curative measures to
prove prejudice may be reasonable in some such situations. The rule
leaves judges with discretion to determine how best to assess prejudice
in particular cases.
Fed. R. Civ. P. 37(e), advisory committee’s notes to the 2015 amendment.
Safelite has demonstrated that it is prejudiced by Lockridge’s failure to
preserve his text messages. Records subpoenaed from Lockridge’s phone carrier
show that he exchanged extensive text messages with relevant individuals during a
critical time period. The discovery that was produced demonstrates that Lockridge
was communicating with Caliber about Safelite’s technicians during that same
critical period, and that he was talking to the technicians about going to Caliber.
Safelite is entitled to discovery of his communications, including his text messages;
it is not required to rely on his testimony that the messages were unrelated to the
issues in this litigation.
Moreover, “[p]rejudice under Rule 37(e) may be found where a party has been
required to ‘piece together information from other sources to try to recover relevant
documents.’” Yoe v. Crescent Sock Co., No. 1:15-CV-3-SKL, 2017 WL 5479932, at *11
(E.D. Tenn. Nov. 14, 2017) (internal quotation and citation omitted). See also
Paisley Park Enterprises, Inc. v. Boxill, 330 F.R.D. 226, 236 (D. Minn. 2019)
(“Plaintiffs are not forced to go to already existing discovery and attempt to piece
together what information might have been contained in those messages, thereby
increasing their costs and expenses.”). Safelite has been required to do just that.
C. Sanctions are appropriate.
1. A permissive adverse-inference instruction is no greater
than necessary to cure the prejudice.
Because the Court finds that Lockridge’s negligent failure to preserve the
text messages prejudices Safelite, a sanction under Rule 37(e)(1) is appropriate. See
Pullins v. Klimley, No. 3:05-CV-082, 2008 WL 85871, at *5 (S.D. Ohio Jan. 7, 2008)
(Rose, J.) (explaining that even “negligence or inadvertent destruction of evidence is
sufficient to trigger sanctions”). The severity of the sanction is determined on a
case-by-case basis, depending in part on non-producing party’s level of culpability.
Adkins, 554 F.3d at 652–53. “[A] proper spoliation sanction should serve both
fairness and punitive functions.” Id., at 652. Where, as here, a court finds that the
movant was prejudiced by the loss of evidence, it may order “measures no greater
than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). A court has discretion
to fashion an appropriate sanction, and “[t]he range of such measures is quite broad
if they are necessary for this purpose.” Fed. R. Civ. P. 37(e), advisory committee’s
note to 2015 amendment. Nevertheless, courts must “ensure that curative measures
under subdivision (e)(1)” do not have the effect of those measures (enumerated in
subdivision (e)(2)) reserved for use on a finding of intent. Id.
The Court has considered the record as a whole in assessing the extent to
which Safelite has been prejudiced by the lost text messages. Accordingly, Safelite
will be permitted to introduce evidence at trial of the August 27 Letter and of
Lockridge’s failure to preserve his text messages. Safelite may also argue for
whatever inference it hopes the jury will draw. Lockridge will also be permitted to
present evidence on the matter, and argue that the jury should not draw any
inference from his failure to retain his text messages. This sanction is appropriate
but no greater than necessary to cure the prejudice. Cf. EPAC Techs., Inc. v.
HarperCollins Christian Publ'g, Inc., 810 F. App’x 389, 403 (6th Cir. 2020) (finding
the district court did not abuse its discretion by instructing the jury that it “may”
infer that the lost evidence was unfavorable to the non-producing party, as the
permissive instruction was “no greater than necessary” to cure the prejudice”).
2. Safelite is entitled to attorneys’ fees and costs.
When a motion for Rule 37 sanctions is granted, a court may award the
reasonable expenses incurred in making the motion. Fed. R. Civ. P. 37(a)(5)(A). The
Court will award Safelite attorneys’ fees and costs associated with all discovery
related to the dispute over Lockridge’s text messages, including the fees and costs
incurred in bringing the instant motion.
IV. CONCLUSION
Because the Court finds that Lockridge spoliated evidence and Safelite was
prejudiced by the spoliation, Safelite’s Motion (ECF No. 287) is GRANTED.
Pursuant to Rule 37(e)(1), the parties will be permitted to present admissible
evidence of Lockridge’s duty to preserve his text messages, and negligent failure to
do so, and argument on whatever inference the jury should take from that evidence.
Safelite is also AWARDED attorneys’ fees and costs. Safelite is ORDERED
to submit a statement of its attorneys’ fees and costs so incurred within two
weeks of the date of this Order.
Lockridge and Caliber’s Motion to Strike (ECF No. 301) is DENIED.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
CHIEF UNITED STATES DISTRICT JUDGE