SUSIE GARRIT, as Administrator of Darius Cole-Garrit, et al, Plaintiffs, v. CITY OF CHICAGO, et al, Defendants No. 16 CV 7319 United States District Court, N.D. Illinois, Eastern Division Filed March 06, 2018 Counsel Christina J. Smedley, Matthew M. Amarin, Haytham Faraj, The Law Offices of Haytham Faraj, Chicago, IL, for Plaintiffs. Jonathan Clark Green, Chicago Corporation Counsel, Raoul Vertick Mowatt, City of Chicago Department of Law, Chicago, IL, for Defendant City of Chicago. Jason Michael Marx, Jennifer Kristine Bagby, Mark David Winistorfer, Maxwell Evan Lisy, City of Chicago, Department of Law, Chicago, IL, for Defendants Matthew O'Brien, James Bansley. Mason, Michael T., United States Magistrate Judge REPORT AND RECOMMENDATION ON PLAINTIFF'S MOTION FOR RELEIF REGARDING DECEDENT'S CELL PHONE *1 For the reasons set forth in more detail below, this Court respectfully recommends that Defendants' Motion for Relief Regarding Decedent's Cell Phone [74] be granted in part.[1] Defendants' Motion for Rule to Show Cause [66] is denied as moot. Status hearing set for 3/28/18 at 10:00 am. Background Plaintiffs Susie Garrit, Unique Hatchett, Domoneec Harris and Falicia Lewis brought this action against the City of Chicago and several Chicago police officers, alleging defendants used excessive force, which resulted in the death of Darius Cole-Garrit. Cole-Garrit was shot by Chicago police officers on August 19, 2014. Plaintiff Garrit is the mother and appointed administrator of the estate of Cole-Garrit. Plaintiffs Hatchett, Harris and Lewis are each mothers of one of Cole-Garrit's three minor children. Plaintiffs have filed a seven count complaint against defendants. The whereabouts of Cole-Garrit's cell phone has led to a number of motions in this case. Ms. Hatchett, one of the plaintiffs, testified at her deposition that she had the cell phone in her possession. After the deposition, when plaintiffs refused to produce the cell phone, defendants subpoenaed the phone. Plaintiffs again refused to produce the cell phone and instead, filed a motion to quash a subpoena [59]. On 10/26/18, this Court denied the motion to quash and held that defendants were entitled to inspect some aspects of Cole-Garrit's cell phone. (See Order, Doc. No. 66.) The Court noted that defendants had adequately demonstrated that certain contents of the cell phone are relevant to the claims and defenses in this case. In particular, we held that defendants should be permitted to inspect Cole-Garrit's photographs, texts, calls, emails or other records that would reflect any contact he had with plaintiffs and/or his girlfriend, and any GPS information on the phone from the day he died. In light of plaintiffs' concerns about Cole-Garrit's privacy interest, we also held that defendants were not permitted to inspect his internet history, or to otherwise have unlimited access to the contents of his phone. Counsel for both parties were ordered to meet and confer regarding an appropriate setting for this inspection, and plaintiff Hatchett was ordered to produce the phone for inspection by 11/3/17. Pursuant to our 10/26/17 order, the parties met and conferred, at which time, plaintiffs' counsel informed defense counsel that Ms. Hatchett could no longer locate Cole-Garrit's cell phone. Thereafter, defendants filed a motion for rule to show cause as to why Ms. Hatchett failed to comply with defendants' subpoena to produce documents and for her failure to comply with the Court's order of 10/26/17. *2 On 11/16/17, the Court held a hearing on defendants' motion for rule to show cause. At the hearing, Ms. Hatchett testified that she did recall her deposition when she stated that she had the phone in her possession. She also testified that at the deposition, she was instructed to preserve the condition of the phone. She stated that the only people who knew that she had the phone was plaintiff, Susan Garrit (decedent's mother). She testified that Susan Garrit gave her the phone a day or two after Cole-Garrit's death. Ms. Hatchett also testified that plaintiffs' counsel had never asked her about the phone prior to the deposition. She testified that at the time of her deposition, she thought the phone was in a box in the closet of her uncle's house but when she went back to the house to retrieve it, the phone and the box were gone. She further testified that she has no idea where the phone is or who might have taken it. She stated she was living at her uncle's house for about a year, and that she no longer lives there. She was not living there at the time of her deposition, and she could not explain why she stated at the deposition that the phone was “at home,” when in fact it was at her uncle's house. After the hearing, defendants filed the instant Motion for Relief Regarding Decedent's Missing Cellular Phone [74]. In their motion, defendants assert that plaintiffs had a duty to preserve the cell phone because they could have reasonably known or foreseen that the evidence would be material and relevant to this action. Defendants note that plaintiffs knew the phone would be material evidence as soon as the case was filed because the complaint alleges that Cole-Garrit called his girlfriend from the phone and told her that defendants had made threats against him at a basketball court prior to his death. Additionally, defendants assert that they served production requests on plaintiffs, seeking “all physical evidence regarding the incident alleged in the complaint,” and plaintiffs therefore should have produced, or at the very least disclosed the existence of, the cell phone. Defendants assert that plaintiffs had a duty to preserve relevant evidence, and in breaching this duty, they acted grossly negligent, which warrants sanctions. Lastly, defendants claim that as a result of this breach, they have suffered prejudice because the phone is essential to denying several of plaintiffs' claims, especially the claim of premediated murder. Defendants claim that the cell phone will disprove plaintiffs' claims regarding certain events and Cole-Garrit's actions on the day of his death. Defendants are seeking an a jury instruction regarding spoliation or missing evidence. Defendants are also seeking costs related to litigating this issue. In response, plaintiffs argue that sanctions are not appropriate for several reasons. First, defendants argue that Ms. Hatchett is not a party to the case; she is only the representative of her minor child who is a party to this case. Defendants claim that because Ms. Hatchett is not a party, defendants cannot seek sanctions against the actual plaintiffs for Ms. Hatchett's failure to preserve evidence. Second, they argue that even if she is a party, defendants never specifically requested the phone or any ESI until after Ms. Hatchett's deposition, and plaintiffs cannot be sanctioned for failure to preserve evidence that defendants had never requested. Plaintiffs argue that although defendants had requested physical evidence, plaintiffs had objected to these requests as too broad, and in any event, the cell phone is properly characterized as ESI, not physical evidence. Lastly, plaintiffs argue that because the information defendants are seeking is ESI, the Court must apply the recently amended Rule 37(e), which governs the failure of a party to preserve ESI. Plaintiffs contend that defendants have not met this standard set out in this rule because defendants have not established any prejudice or bad faith. We address each of these arguments below. Discussion At the outset, we note that Ms. Hatchett's testimony at the motion hearing was somewhat difficult to follow. She was unclear about why she testified in her deposition that the phone was at her house, when her testimony at the hearing was that the phone was actually at her uncle's house. It was also difficult to follow her testimony about when she discovered that the phone was not where she thought it was, when she became aware of the subpoena and when she notified her lawyer that she could not find the phone. As a result, the Court finds that Ms. Hatchett is not a very credible witness. *3 We also quickly disregard plaintiffs' first argument that Ms. Hatchett is not a party to this case. Plaintiffs assert that because she is not a party, Ms. Hatchett is not subject to the same preservation requirements, and her failure to preserve the phone cannot result in sanctions against the actual plaintiff, Susan Garrit. Plaintiffs have already argued this in support of their motion to quash the subpoena and it was also addressed at the motion hearing. We disregarded this argument then and we dismiss it again here. Unique Hatchett is listed under “Parties” in plaintiffs' complaint [1], she is listed in the caption on plaintiffs' pleadings and plaintiffs' counsel is representing her. Even though the claim is brought on behalf of her minor child, she is nevertheless a party and is subject to the same standards as any other party under the Federal Rules of Civil Procedure. This includes the duty to preserve any evidence she has control over and which she reasonably knows is material (and relevant) to this legal action. Bryant v. Gardner, 587 F. Supp. 2d 951, 967-68 (N.D. Ill. 2008). Having determined that Ms. Hatchett is a party, we move on to the heart of the parties' arguments – that is, whether sanctions are warranted here. Rule 37(b)(2) provides that a party may seek sanctions where “a party ... fails to obey an order to provide or permit discovery.” Fed. R. Civ. P. 37(b)(2). Because defendants are seeking text messages, emails and electronically stored photographs and call logs, we agree with plaintiffs that the discovery sought here is ESI (or electronically stored information). As a result, the newly amended Rule 37(e) of the Federal Rules of Civil Procedure applies to this issue. This rule provides a new standard regarding sanctions for spoliation of electronic evidence. It states: Rule 37(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: (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). Applying this standard to the facts of this case, we find that the ESI here should have been preserved because it is relevant to the case, and that Ms. Hatchett lost the ESI because she failed to take reasonable steps to preserve it. The next inquiry is whether subsection (e)(1) or (e)(2) applies. The difference between these two provisions is whether the Court can find that the party acted with intent in losing the ESI. Here, we find that there is no evidence in the record that Ms. Hatchett intentionally destroyed or failed to preserve the phone. As a result, the provisions in the second prong, Rule 37(e)(2), have no application here. The first prong, however, may apply because we have already established that the information on the phone is relevant to the parties' claims and defenses. As a result, this information should have been preserved and we find that Ms. Hatchett (with the help of plaintiff's counsel) should have taken reasonable steps to preserve the phone. We also find that defendants are prejudiced because they have adequately demonstrated their intent to rely on the phone in support of their defense. Under these circumstances, in ruling on a motion for sanctions, Rule 37(e)(1) allows the Court to “order measures no greater than necessary to cure the prejudice,” apparently leaving it to the Court's discretion to fashion an appropriate sanction. The Committee Notes to this Rule provide additional guidance, and place some limits on the Court's discretion. Fed. R. Civ. P. 37(e), Advisory Committee Note, 2015 Amendment. Importantly, the Notes provide that the measures employed under subsection (e)(1) should not have the effect of the sanctions that are permitted under subsection (e)(2). Id. Because subsection (e)(2) only allows for an adverse jury instruction upon the finding of intent to lose or destroy ESI, we cannot impose this as a sanction under subsection (e)(1). In other words, because we have found that the record does not support a finding that Ms. Hatchett engaged in intentional spoliation, an adverse jury instruction is not proper here. *4 In circumstances such as this, where there has been no intentional spoliation, the Committee Notes provide additional guidance on what would be an appropriate sanction. The Committee Notes state that Rule 37(e)(1) “would not prohibit a court from allowing the parties to present evidence to the jury concerning the loss [of relevant ESI] and instructing the jury that it may consider that evidence, along with all the other evidence in the case, in making their decision.” The Notes explain that this type of measure, “would not involve instructing a jury it may draw an adverse inference from loss of information;” rather, this measure only allows the party to inform the jury about the loss of the ESI. Applying this Rule and the Advisory Notes to our case, we find that defendants should be permitted to present evidence to the jury regarding the loss of ESI on the phone, and the jury should be instructed that it may consider such evidence along with all other evidence in the case in making its decision. See e.g., Nuvasive, Inc. v. Madsen Medical, Inc., No. 13-cv-2077, 2016 WL 305096, at *2 (S.D. Ca. Jan. 26, 2016) (holding that a similar instruction was appropriate where plaintiff had failed to preserve text messages, but there was no evidence of intentional spoliation); Cahill v. Dart, No. 13-CV-361, 2016 WL 7034139, at *5 (N.D. Ill. Dec. 2, 2016) (holding that because the Court found certain video footage was lost but the loss was unintentional, the jury would be instructed that defendant had a duty to preserve the video but did not). This evidence and instruction should remedy some prejudice that the defendants claim to have suffered as a result of the lost phone. In addition, although discovery is now closed, defendants are granted leave to conduct limited, additional discovery in order to obtain some of the missing information from the phone through other means, such as subpoenaing the cell phone carrier for call logs and text messages. Finally, we address defendants' request for attorney's fees associated with Ms. Hatchett's failure to preserve the phone. Under Rule 37, “the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees.” Fed. R. Civ. P. 37(a)(5); see also Rickels v. City of S. Bend, Ind., 33 F.3d 785, 786 (7th Cir. 1994) (explaining that under Rule 37(a)(4), which is now 37(a)(5), “the loser pays”). Here, defendants spent a considerable amount of time briefing the motions and preparing for the evidentiary hearing related to Ms. Hatchett's failure to preserve the phone. This includes the time spent on their motion for rule to show cause [66], the time spent preparing for and attending the evidentiary hearing on 11/16/17, and the time spent briefing their motion for relief regarding the missing cell phone [74]. Much of this could have been avoided had plaintiffs' counsel taken steps to ensure that the cell phone was recovered from Ms. Hatchett earlier in the litigation. For these reasons, we will grant defendants' request for attorney's fees relating to this issue. See Cahill v. Dart, No. 13-CV-361, 2016 WL 7034139, at *5 (N.D. Ill. Dec. 2, 2016) (imposing fees where the Court found certain video footage was lost but the loss was unintentional). Defendants' request for reimbursement for the cost of an expert to explain the lost evidence at trial is denied. Conclusion For the reasons set forth above, Defendants' Motion for Relief Regarding Decedent's Missing Cellular Phone [74] is granted in part. Specific written objections to this Report and Recommendation may be served and filed within 14 days from the date that this order is served. Fed. R. Civ. P. 72. Failure to file objections with the District Court within the specific time will result in a waiver of the right to appeal all findings, factual and legal, made by this Court in the Report and Recommendation. Lorentzen v. Anderson Pest Control, 64 F.3d 327, 330 (7th Cir. 1995). Footnotes [1] Motions for sanctions under Rule 37 are “dispositive” and require a magistrate judge to issue a report and recommendation. Snider v. Danfoss, LLC, No. 15-4748, 2017 WL 2973464, at *8 n. 12 (N.D. Ill. July 12, 2017); Tallman v. Freedman Anselmo Lindberg LLC, No. 11-3201, 2012 WL 1080289, at *1 (C.D. Ill. Mar. 30, 2012) (“the Seventh Circuit has held that a ruling on a motion for sanctions constitutes a dispositive matter”).