A motion for spoliation sanctions under Fed.R.Civ.P. 37(e) was denied in Boshea v. Compass Marketing, Inc., 2024 WL 811468 (D. Md. Feb. 27, 2024). The motion was argued and decided during trial. The suit by a former employee against the employer involved discovery of litigation strategy communications sent by the plaintiff to acrimonious, non-party brothers of the defendant’s CEO.

The duty to preserve was not disputed. Suit had been filed and trial was approaching when the communications allegedly occurred.

Nor was the duty to produce contested. Defendant Compass requested supplemental document production. Id. at *2.

Boshea produced an email that had been sent to the brothers. It had the subject of “revision trial prep.” [emphasis added]. An attached Word document was titled “Compass Trial Preparation.”

The Court wrote that: “The attached document appears to be the story that Boshea will adhere to at trial in this case, and by emailing it to Daniel and Michael, it appears that Boshea was seeking their input on trial strategy and testimony.”

Further, Boshea produced a text message stating: “Also I made the revision on my pretrial write up u advised me Morgan had 25% at start and you were good with everything else…I emailed it to you.” [emphasis added]. In deposition, “Boshea admitted that he was seeking the input of [non-party brothers] Daniel and Michael and that there had been a previous draft of this Word document.” Id. at *2. [emphasis added].

However, Compass asserted that the prior draft had not been produced. Id. It continued to request production.

In response, Boshea’s counsel stated that there were no other emails. The Court wrote that “plaintiff disputed at trial that he sent an earlier version of his trial preparation [memo] to Michael White via email. He thought he discussed the matter by phone. Thus, it is not clear that there is other evidence on this point.” Id. at *5.

On the one hand, Boshea had, in deposition, testified that there had been a previous draft. His email referred to a revision, and, his text message referred to a revision.

On the other hand, Boshea’s trial testimony contradicted that, and his attorney said that there were no other emails.

From this, Compass concluded that “[t]he only explanation for no longer having the emails is that Boshea purposefully deleted them when he was under a duty to preserve emails.” Id. at *3. It also asserted bad faith and prejudice.

Plaintiff Boshea responded that “the three documents which Compass… claims Mr. Boshea failed to preserve are and have long been available from [brothers] Daniel White and/or Michael White, both of whom were deposed by Compass….” Id. at *3. He also argued that there was no prejudice because they were inadmissible and that there was nothing to suggest intent to prevent Compass from knowing of the communications.^[1]

The Court explained that the email, Word document, and text message about revised trial preparation memos had been entered into evidence. Id. at *3-4. It explained: “Compass contends that these exhibits demonstrate that there are other communications that were not produced. Plaintiff argues that these [other] documents [would be] cumulative, as defendant has introduced other evidence that Boshea received help from Michael and Daniel White in preparing for the trial.” Id. at *4.

Fed.R.Civ.P. 37(e) permits sanctions if there is a breach of the duty to preserve and no secondary evidence can satisfactorily replace the missing ESI. Subsection (e)(1) permits curative sanctions if prejudice is found. Rule 37(e)(2) permits “game ending” sanctions upon a finding of intent to deprive the opponent of information. Prejudice can be presumed under Subsection (e)(2).

On the issue of Rule 37(e)(2) “intent to deprive,” the Boshea Court wrote that to impose (e)(2) sanctions, the Court “must conclude that plaintiff engaged in willful or intentional conduct. Willfulness is equivalent to intentional, purposeful, or deliberate conduct.” Id. at *6 (quotations and citation omitted). The Court found “a serious lack of evidence” supporting the assertion that plaintiff destroyed the documents to prevent defendant from receiving them. Id. at *7.

By way of comparison, in the Eleventh Circuit, the “intent to deprive another party of the information’s use in the litigation is the equivalent of bad faith in other spoliation contexts….” Skanska USA Civ. Se. Inc. v. Bagelheads, Inc., 75 F.4th 1290, 1312 (11th Cir. 2023)(some quotations omitted).

In Skansa, the litigant failed to provide “any cogent explanation” for its failure to preserve ESI. “Skanska had an active litigation hold, but took no steps to implement it.” Id. at 1314. “Failure to act can …—by definition—be a violation of Rule 37.” Id. The Eleventh Circuit wrote that “Skanska’s passivity does not change the basic fact that the evidence was destroyed,” and combined with other circumstances, “passivity” supported Rule 37(e)(2) sanctions.

As to alleged prejudice,^[2] the Boshea Court wrote: “Compass has not shown an inability to obtain the documents from another source, such as Michael White and/or Daniel White.” Further, it wrote “the alleged missing documents appear tangential to the matters at issue in this case, and cumulative. To the extent that they are relevant to Boshea’s credibility, the jury was presented with evidence reflecting that Boshea sought assistance from Daniel and Michael White with regard to trial preparation.” It added: “Nonetheless, the communications at issue pertain to a period of time well after the relevant time frame” of the business dispute. Id. at *5.^[3] And, defendant was able to make the same “point with the exhibits that were produced and introduced at trial.” Id.

Rule 37 imposes several preconditions.

It seems that the missing communications, if they existed, were ESI that should have been preserved under Rule 37.

It is not clear if or how they were lost and whether Boshea failed to take reasonable preservation steps under that Rule’s preface. However, that appears to have been implicit in the situation.

It appears that there was evidence that could “replace” the allegedly missing ESI, and the Court seems to have so held. Such a conclusion would preclude sanctions under the prefatory paragraph.

The Court, having the benefit of seeing the evidence at trial, found no prejudice. Sanctions under Rule 37(e)(1) were therefore not available.

The Court held that there was insufficient evidence of “intent to deprive,” foreclosing relief under Rule 37(e)(2).

For an earlier decision in Boshea, see Authentication of a Disputed Email and Attachment.

Notes

^[1] Plaintiff also asserted that “his counsel informed Compass ‘that David Boshea does not have the emails,’ and ‘Boshea never said he destroyed any documents.’” Id. at *3.

^[2] Prejudice is an element under Fed.R.Civ.P. 37(e)(1), but not under (e)(2).

^[3] The Court wrote: “The alleged severance agreement dates from 2007, and Boshea was terminated in March 2020. Suit was filed in February 2021…. The documents, if any, do not appear to relate to events in 2007, when the alleged employment agreement was allegedly executed, or 2020, when plaintiff was terminated.”