BARN LIGHT ELECTRIC COMPANY, Plaintiff, v. BARNLIGHT ORIGINALS, et al., Defendants Case No. 8:14-cv-1955-T-35AEP United States District Court, M.D. Florida Filed June 28, 2017 Porcelli, Anthony E., United States Magistrate Judge ORDER *1 For one to describe this case as contentious would suggest a gross understatement. At nearly every turn, the parties argued about discovery production and parameters and, as a result, engaged in extensive motion practice, effectively leading to the issuance of a moratorium on filing any further motions in this case without leave of Court (Doc. 283). Still, the parties persisted. Indeed, as early as October 2015, the parties began litigating issues relating to the discovery presently in dispute (Doc. 133). Currently before the Court is Defendants’ Motion to Compel, or in the Alternative, Motion for Sanctions due to Spoliation (Doc. 372) and Plaintiff's response in opposition thereto (Doc. 375). By the instant motion, Defendants request an award of sanctions – including the most extreme sanction of dismissal of Plaintiff's claims – for the alleged spoliation of e-mails sent to and received from Bay Area Innovations (“BAI”) on behalf of Plaintiff.[1] Since Defendants fail to demonstrate an intent to deprive on the part of Plaintiff, Defendants’ Motion to Compel, or in the Alternative, Motion for Sanctions due to Spoliation (Doc. 372) is denied.[2] I. Background As noted, Defendants initially filed a motion to compel on October 26, 2015, seeking to compel responses to their Third Request for Production and Fourth Request for Production (Doc. 133), which Plaintiff opposed (Doc. 146). Of import, Defendants sought proper production to Fourth Request for Production No. 193, which requested production of all documents relating to BAI (Doc. 133, at 21-22). Originally, Plaintiff objected to such production, asserting the request was vague, ambiguous, undefined and indeterminable in scope, overbroad, unduly burdensome, and not limited in temporal scope. In response to Defendants’ motion (Doc. 133), Plaintiff further argued that, among other things, Plaintiff produced all existing non-privileged documents in its custody, possession, or control that were responsive and that Defendants failed to confer with Plaintiff prior to filing the motion (Doc. 146). Upon review of the parties’ filings, the Court conducted a hearing on January 12, 2016. After hearing oral argument from the parties, the Court granted Defendants’ Motion to Compel (Doc. 133) and permitted Defendants to depose Plaintiff's records custodian regarding the issues raised during the hearing, including but not limited to how Plaintiff maintained its information and records and how documents were produced in this action (Doc. 236). Subsequently, Defendants deposed Plaintiff's records custodian, Michael Koller (“Koller”), who is Plaintiff's director of information technology (“IT”). After concluding the deposition, Defendants filed their Renewed Motion to Compel Discovery Responses and for Sanctions (Doc. 260) on February 17, 2016. By that motion, Defendants asserted that Koller's deposition indicated that Plaintiff's collection efforts “were seriously flawed and grossly inadequate” because Koller (1) collected documents from just four individuals within Plaintiff's organization; (2) never reviewed Defendants’ document production requests; (3) was not aware that, at the outset of the litigation, Defendants sent a preservation letter regarding electronically stored information; (4) did not receive the keywords that attorneys for both sides agreed would be used in locating responsive documents; and (5) failed to search many of Plaintiff's computer servers. Given such alleged shortcomings, brought to light only due to the Court's directive to depose Plaintiff's records custodian, Defendants asserted that Koller's testimony demonstrated inconsistencies with Plaintiff's representations during the January 12, 2017 hearing as to production of all responsive documents. Defendants additionally asserted that their attempts to solicit information from Koller were thwarted by Plaintiff during the deposition. As a result, Defendants sought to enlist a third-party vendor to conduct a forensic examination of Plaintiff's computer systems for responsive documents, at Plaintiff's expense, and to permit a jury instruction that an adverse inference be taken from Plaintiff's failure to produce relevant documents during the course of litigation, as well as an award of attorneys’ fees and expenses. In response, Plaintiff argued that (1) Defendants exaggerated “a number of minor discovery mishaps which were the result of harmless error and caused Defendants no prejudice”; (2) the majority of documents sought by Defendants did not exist; (3) the small number of documents recently identified as inadvertently classified were voluntarily produced by Plaintiff; (4) the balance of what Defendants sought was objectionable; and (5) Plaintiff properly asserted its objections in good faith during Koller's deposition (Doc. 296). *2 Based on the parties’ divergent assertions, the Court subsequently conducted another hearing on March 10, 2016. At the hearing, Plaintiff explained the “linking” of certain e-mail accounts that would have pulled e-mail correspondence to both the hard drive and the e-mail client of the principals of Plaintiff, the ability to save e-mails in the home directory, and Plaintiff's retention policy regarding deleting e-mail accounts of former employees no longer than one year after the employee's termination of employment with Plaintiff (Doc. 382, Ex. C, March 10, 2016 Unredacted Hr'g Tr., at 21-22). Defendants argued that they were unaware of the “linking” until the representation was made by Plaintiff during the hearing and that no justification existed for only searching four custodians (Doc. 382, Ex. C, March 10, 2016 Unredacted Hr'g Tr., at 23-24). During the hearing, the undersigned repeatedly noted that no evidence of bad faith on the part of Plaintiff existed, that Koller's explanation regarding Plaintiff's retention policy was reasonable, and that no evidentiary hearing as to the issue of spoliation was necessary because the undersigned did not see anything that rose to the level of spoliation (Doc. 382, Ex. C, at 58-64). Notwithstanding, as the undersigned noted, Plaintiff offered no explanation as to a group of missing e-mails sent to and received from the e-mail accounts of Plaintiff's employees or as to the discovery related to BAI (Doc. 382, Ex. C, March 10, 2016 Unredacted Hr'g Tr., at 24-26, 37-42, 59-61). Given the lack of explanation, the undersigned directed the parties to meet and confer to identify additional custodians, beyond the primary four custodians previously searched, to see if any other discoverable information existed on Plaintiff's e-mail servers relative to those custodians, and then the production could be done as to those additional custodians within thirty days from the identification of the additional custodians (Doc. 303; Doc. 382, Ex. C, March 10, 2016 Unredacted Hr'g Tr., at 62-69). Following that, on March 31, 2016, the Court conducted a telephonic hearing based upon the parties’ failure to resolve issues resulting from the Court's prior directive. During the telephonic hearing, the parties indicated that they could not agree upon search terms or custodians. Regarding the identification of custodians, Defendants identified approximately thirty individuals as custodians, a number of whom were taken from Plaintiff's witness list, based upon either the authoring of documents or being copied on documents and upon correspondence already produced during the course of this litigation (see Doc. 315, Exs. 1 & 3). Plaintiff argued that the identification of thirty individual custodians constituted overreaching by Defendants and also improperly included individuals who Plaintiff did not employ (see Doc. 315, Ex. 2). After hearing oral argument from the parties, the undersigned noted the parties’ disconnect regarding the production of e-mails, especially given Plaintiff's search of only the initial four custodians, which the undersigned concluded was initially done in good faith (Doc. 333, March 31, 2016 Hr'g Tr., at 13-17, 23-24). The undersigned reiterated that Plaintiff provided no explanation regarding the collection of e-mails from only those four custodians, such that the collection of e-mails was not conducted appropriately, which therefore led to the Court's prior directive that the parties meet and confer to identify additional custodians for a subsequent search of relevant e-mail accounts (Doc. 333, March 31, 2016 Hr'g Tr., at 13-17, 23-24). Upon consideration of each party's arguments, the Court directed that, within forty-five days, Plaintiff conduct the search of its files, produce the e-mail communications from the custodians that Plaintiff deemed appropriate, and identify for Defendants which custodians’ e-mail accounts Plaintiff searched (Doc. 333, March 31, 2016 Hr'g Tr., at 23-26). Plaintiff filed a Notice of Compliance (Doc. 352) on August 8, 2016, asserting that it completed production of all non-privileged documents responsive to Defendants’ document requests and provided Defendants with a certification of compliance as to the Court's prior Order (Doc. 303). According to Defendants, they believed such certification was improper, and sent a letter on August 19, 2016, stating that Defendants were still missing documents, including e-mails (Doc. 390, January 19, 2017 Hr'g Tr., at 6). Later, on December 12, 2016, Defendants filed the instant motion seeking to compel discovery responses or, in the alternative, seeking sanctions (Doc. 372).[3] Essentially, Defendants argue that Plaintiff's production of documents from the additional custodians revealed an effort to delete e-mails relating to BAI. Defendants contend that, despite Plaintiff's assertion that it searched all of the thirty custodians identified by Defendants (see Doc. 372, Ex. B), Plaintiff's production of documents revealed deficiencies, including thousands of missing e-mails and a purported effort to delete documents responsive to Defendants’ request for production. According to Defendants, despite seeking discovery related to BAI as early as July 29, 2015, Defendants only received a total of nine e-mails from Plaintiff, while receiving more than five thousand documents, including thousands of e-mails between BAI and Plaintiff's employees, from BAI. Defendants argue that indicia of deletion of documents relating to BAI exists, including as to documents created after the initiation of this action. Defendants contend that the BAI documents are crucial to their claims and defenses and that the production by BAI does not provide an adequate substitute for the documents deleted by Plaintiff. Given the purported prejudice suffered by Defendants, they seek dismissal with prejudice of Plaintiff's remaining claims or, at the very least, an evidentiary hearing and a forensic collection from Plaintiff's server to determine whether the missing e-mail accounts were on the server and, if so, when the accounts were deleted (Doc. 390, January 19, 2017 Hr'g Tr., at 20-21). Defendants also seek an award of fees and costs for their prior motions regarding the discovery related to BAI (see Docs. 133 & 260). *3 In response, Plaintiff argues that the BAI e-mails are not relevant, the e-mails are duplicate e-mails already produced by BAI, and Plaintiff has consistently engaged in good-faith compliance with the Court's prior orders and with its own continuing discovery obligations (Doc. 375). Plaintiff therefore contends that Defendants failed to demonstrate that (1) the BAI e-mails were spoliated; (2) Plaintiff acted with an intent to deprive; and (3) the e-mails are crucial to Defendants’ claims and defenses. According to Plaintiff, valid explanations were provided to Defendants as to why documents did not exist, including Plaintiff's document-retention policy, the malicious acts of Plaintiff's former IT director, the migration of data to a new e-mail server in 2013, and the limited capacity of Plaintiff's backup drives (see Doc. 296, Ex. 1; Doc. 375, Exs. A & B). Accordingly, Plaintiff contends that Defendants’ motion should be denied in its entirety. Following the filing of the response, on January 19, 2017, the Court conducted yet another hearing. Defendants argued that, only a month prior, they received notice that just fifteen e-mail accounts had been searched because fifteen of the requested thirty e-mail accounts for the identified custodians had been previously deleted (Doc. 390, January 19, 2017 Hr'g Tr., at 7-8). Defendants argued that it was unclear when Plaintiff began its preservation efforts, given Koller's statement that he began preserving sometime in mid-August 2014, such that a possibility existed that some or all of the missing e-mail accounts may have been deleted either immediately before or immediately after the filing of the complaint (Doc. 390, January 19, 2017 Hr'g Tr., at 8-9). Defendants also pointed to the statement by Koller regarding the disabling of an e-mail account once an employee left Plaintiff's employ and subsequent deletion of the account after a period of one year as the only basis offered for a missing e-mail account (Doc. 390, January 19, 2017 Hr'g Tr., at 9-10). Defendants asserted that Koller's statements as to the limited server capacity, server migration, and malicious acts of a former IT director did not justify missing e-mail accounts but rather only justified missing e-mails or documents (Doc. 390, January 19, 2017 Hr'g Tr., at 10). As a result, Defendants argued that they had no way of knowing when the employees whose accounts were missing were terminated as Plaintiff's employees, when each of the employees’ last date of employment occurred, or when their e-mail accounts were deleted, and Plaintiff purportedly offered no explanation (Doc. 390, January 19, 2017 Hr'g Tr., at 10). Based on the information available to them, Defendants offered three dates upon which the duty to preserve arose – (1) September 2012, when Plaintiff received correspondence from an individual at Defendant Hi-Lite Manufacturing Company, Inc. regarding potential issues related to copyright infringement and the use of Defendants’ photography to sell knock-off products; (2) March 2014, when Bryan Scott, a third-party defendant and principal of Plaintiff, communicated via e-mail with counsel regarding the filing fee and status of the complaint, as evidenced in the privilege log provided by Plaintiff; and (3) August 2014, when the Complaint in this action was filed (Tr. 390, January 19, 2017 Hr'g Tr., at 10-17). Such dates were important, Defendants argue, because some documents produced in discovery indicate that some individuals whose e-mail accounts had been deleted were still employed by Plaintiff at each of those trigger dates, and discovery from such individuals was crucial both to proving Defendants’ counterclaim and to defending against Plaintiff's claim (Doc. 390, January 19, 2017 Hr'g Tr., at 13-18). Plaintiff reiterated that it had expended great costs and taken great care to comply with the Court's directives regarding production of the e-mail accounts (Doc. 390, at 39-40, 64-67, 93-94). Despite Plaintiff's contention that the list of the thirty custodians was overbroad, Plaintiff searched for each of the custodians, which led to the conclusion that only fifteen of the e-mail accounts still existed due to a number of factors, including but not limited to Plaintiff's retention policy (Doc. 375, Ex. B; Doc. 390, January 19, 2017 Hr'g Tr., at 65). Plaintiff articulated its position that most of the e-mail accounts did not exist at the initiation of the litigation, which Defendants disputed. After hearing argument from both sides, the undersigned identified the issue of concern, not as to the production and efforts to produce, but rather as to what happened to the other fifteen e-mail accounts that no longer existed and whether sanctions should flow from the deletion of the e-mail accounts (Doc. 390, January 19, 2017 Hr'g Tr., at 71-73, 77-78). After consideration, the undersigned highlighted the remaining concerns, including that nothing in the record demonstrated when the fifteen e-mail accounts were deleted or the specific reasons each account was deleted, that issues remained as to the trigger date for the anticipation of litigation and thus the duty to preserve, and that a decision would be made as to the need for an evidentiary hearing upon the undersigned's review of the pending summary judgment motion and response (Doc. 390, January 19, 2017 Hr'g Tr., at 102-05). *4 Following that, the Court conducted a telephonic hearing on February 16, 2017, to address the need for an evidentiary hearing. During the hearing, the undersigned stated that, upon review of the pending summary judgment and response, the undersigned concluded that the discovery related to the deleted e-mails was relevant going forward as to the pending copyright claims. As a result, the undersigned concluded that an evidentiary hearing was appropriate and would be scheduled as soon as practicable thereafter. Upon agreement of the parties, the evidentiary hearing was scheduled for March 24, 2017. In the interim, however, Plaintiff filed a motion on February 28, 2017, seeking to disqualify Attorney Michael J. Colitz III (“Colitz”) from appearing at the evidentiary hearing because Plaintiff intended to call Colitz as a witness during the evidentiary hearing due to purported misrepresentations made both in filings with the Court and during the January 19, 2017 hearing (Doc. 397). Defendants then filed a motion on March 7, 2017, seeking to postpone the evidentiary hearing scheduled for March 24, 2017, and to allow Defendants to take the depositions of three witnesses, two of whom were current employees of Plaintiff and one of whom was a former employee of Plaintiff, because Plaintiff purportedly asserted that each witness was outside the subpoena power of the Court and thus would not appear at the evidentiary hearing (Doc. 401). Given the rapidly approaching hearing date for the evidentiary hearing and the issues raised by the parties in their respective motions, the Court scheduled a telephone conference for March 9, 2017. After hearing oral argument from the parties, the undersigned granted the request to move the evidentiary hearing scheduled for March 24, 2017, to allow for Defendants to conduct limited depositions of two individuals. The undersigned scheduled a separate evidentiary hearing for March 24, 2017, regarding the alleged misrepresentations made by Colitz during the January 19, 2017 hearing, but required Plaintiff to make a threshold showing that fabrications were made by Colitz before the undersigned would entertain testimony and to provide notice to Defendants of the particular misrepresentations at issue. Additionally, the undersigned prohibited Defendants’ expert from testifying at the rescheduled evidentiary hearing without notice and an expert report on the subject of the testimony. The Court then conducted the first evidentiary hearing on March 24, 2017, regarding the purported misrepresentations by Colitz. During the course of the hearing, the Court took up several other pending matters, which were disposed of by separate order (Doc. 423). With respect to the allegations against Colitz, the undersigned concluded that no intentional misrepresentation occurred and therefore denied the request to preclude Colitz from representing Defendants during the subsequent evidentiary hearing regarding spoliation (Doc. 441, March 24, 2017 Evidentiary Hr'g Tr., at 55-57). As to the need for another evidentiary hearing, the undersigned stated that such hearing was necessary given the imbalanced production of e-mails received from Plaintiff as opposed to the e-mails received from BAI, which indicated a significant discrepancy in the e-mails, and the destruction of e-mail accounts (Doc. 441, March 24, 2017 Evidentiary Hr'g Tr., at 55-57). Subsequently, over the course of two days in April 2017, the Court conducted an evidentiary hearing regarding Plaintiff's purported spoliation. During the proceedings, Defendants presented the testimony of several witnesses, including, most notably, Koller. During Koller's testimony, he explained, at length, information regarding Plaintiff's prior server migrations, Plaintiff's use of e-mail servers and clients, the malicious acts of a former IT director, Plaintiff's e-mail retention policy, the litigation hold requested and implemented, Plaintiff's production of copies of the entire file directory and database structures for Plaintiff to a third-party vendor retained for e-discovery services by Plaintiff, and the search efforts made by him during discovery on behalf of Plaintiff. At the conclusion of the hearing, the parties were directed to submit deposition designations and cross-designations for the Court's consideration and to prepare for the presentation of closing arguments at a separate hearing. On April 26, 2017, the parties presented their respective closing arguments, each reiterating their positions as to the documents relating to BAI. The undersigned then took the matter under advisement for further review. II. Discussion *5 District courts maintain broad discretion to impose sanctions, a power which “derives from the court's inherent power to manage its own affairs and to achieve the orderly and expeditious disposition of cases.” Flury v. Daimler Chrysler Corp., 427 F.3d 939, 944 (11th Cir. 2005) (citation omitted). In imposing sanctions for discovery abuses, such as spoliation, district courts seek both to prevent unfair prejudice to litigants and to ensure the integrity of the discovery process. Id. (citation omitted). “To determine whether and what sanctions are warranted for spoliation of evidence, courts should primarily consider the extent of prejudice caused by the spoliation (based on the importance of the evidence to the case), whether that prejudice can be cured, and the culpability of the spoliator.” Oil Equip. Co. Inc. v. Modern Welding Co. Inc., 661 F. App'x 646, 652 (11th Cir. 2016). In making such determination, “[d]ismissal represents the most severe sanction available to a federal court, and therefore should only be exercised where there is a showing of bad faith and where lesser sanctions will not suffice.” Flury, 427 F.3d at 944 (citation omitted). In this instance, Defendants in fact seek dismissal of Plaintiff's claims based upon alleged intentional spoliation relating to deleted e-mail accounts and documents, or, in the alternative, Defendants request an evidentiary hearing and a forensic collection from Plaintiff's server to determine whether the missing e-mail accounts were on the server and, if so, when the accounts were deleted. As the parties recognize, spoliation involves the destruction or significant alteration of evidence by a party or the failure of a party to preserve property for another's use as evidence in pending or reasonably foreseeable litigation. Oil Equip. Co., 661 F. App'x at 652 (citation omitted). With respect to the imposition of sanctions for spoliation, Rule 37, Federal Rules of Civil Procedure, provides, in relevant part: (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). The Advisory Committee Notes for the 2015 Amendment to Rule 37(e) elaborate further: The new rule applies only if the lost information should have been preserved in the anticipation or conduct of litigation and the party failed to take reasonable steps to preserve it. Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable. Rule 37(e) is based on this common-law duty; it does not attempt to create a new duty to preserve. The rule does not apply when information is lost before a duty to preserve arises. In applying the rule, a court may need to decide whether and when a duty to preserve arose. Courts should consider the extent to which a party was on notice that litigation was likely and that the information would be relevant. A variety of events may alert a party to the prospect of litigation. Often these events provide only limited information about that prospective litigation, however, so that the scope of information that should be preserved may remain uncertain. It is important not to be blinded to this reality by hindsight arising from familiarity with an action as it is actually filed. *** The rule applies only if the information was lost because the party failed to take reasonable steps to preserve the information. Due to the ever-increasing volume of electronically stored information and the multitude of devices that generate such information, perfection in preserving all relevant electronically stored information is often impossible. As under the current rule, the routine, good-faith operation of an electronic information system would be a relevant factor for the court to consider in evaluating whether a party failed to take reasonable steps to preserve lost information, although the prospect of litigation may call for reasonable steps to preserve information by intervening in that routine operation. This rule recognizes that “reasonable steps” to preserve suffice; it does not call for perfection. The court should be sensitive to the party's sophistication with regard to litigation in evaluating preservation efforts; some litigants, particularly individual litigants, may be less familiar with preservation obligations than others who have considerable experience in litigation. *6 Because the rule calls only for reasonable steps to preserve, it is inapplicable when the loss of information occurs despite the party's reasonable steps to preserve. For example, the information may not be in the party's control. Or information the party has preserved may be destroyed by events outside the party's control – the computer room may be flooded, a “cloud” service may fail, a malign software attack may disrupt a storage system, and so on. Courts may, however, need to assess the extent to which a party knew of and protected against such risks. Another factor in evaluating the reasonableness of preservation efforts is proportionality. The court should be sensitive to party resources; aggressive preservation efforts can be extremely costly, and parties (including governmental parties) may have limited staff and resources to devote to those efforts. A party may act reasonably by choosing a less costly form of information preservation, if it substantially as effective as more costly forms. It is important that counsel become familiar with their clients’ information systems and digital data – including social media – to address these issues. A party urging that preservation requests are disproportionate may need to provide specifics about these matters in order to enable meaningful discussion of the appropriate preservation regime. When a party fails to take reasonable steps to preserve electronically stored information that should have been preserved in the anticipation or conduct of litigation, and the information is lost as a result, Rule 37(e) directs that the initial focus should be on whether the lost information can restored or replaced through additional discovery. Nothing in the rule limits the court's powers under Rules 16 and 26 to authorize additional discovery. Orders under Rule 26(b)(2)(B) regarding discovery from sources that would ordinarily be considered inaccessible or under Rule 26(c)(1)(B) on allocation of expenses may be pertinent to solving such problems. If the information is restored or replaced, no further measures should be taken. At the same time, it is important to emphasize that efforts to restore or replace lost information through discovery should be proportional to the apparent importance of the lost information to claims or defenses in the litigation. For example, substantial measures should not be employed to restore or replace information that is marginally relevant or duplicative. Fed. R. Civ. P. 37, advisory committee notes (2015 amendments). Accordingly, to start the analysis, the Court determines when the duty to preserve arose. Essentially, the obligation to make a conscientious effort to preserve electronically stored information relevant to the dispute arises once a party files a lawsuit or reasonably anticipates litigation. See Se. Mech. Servs., Inc. v. Brody, No. 8:08-CV-1151-T-30EAJ, 2009 WL 2242395, at *2 (M.D. Fla. 2009) (citations omitted). Here, although Defendants suggest September 7, 2012, or January 6, 2014, as possible trigger dates for the preservation of electronically stored information, after considering the testimony and evidence of record, the undersigned finds that the earliest trigger date for preservation was March 7, 2014, when Bryan and Donna Scott consulted with Attorney Alejandro Fernandez regarding the pre-filing status of the Complaint (Doc. 372, Ex. M, at 5), or, at the very latest, the trigger date was August 14, 2014, when Plaintiff filed the instant Complaint (Doc. 1). During the January 2017 hearing, Plaintiff's counsel stated that Plaintiff made an effort to preserve documents prior to the date the Complaint was filed and additionally presented the Court with a “litigation hold” letter dated August 14, 2014 (Doc. 390, January 19, 2017 Hr'g Tr., at 69). Further, at the April 2017 evidentiary hearing, Bryan Scott testified that he immediately contacted Koller on the date the lawsuit was filed, or August 14, 2014, after speaking with counsel, to inform Koller about the need for preservation of electronically stored information and then directed his key employees, but not all employees, the next day to save all electronic and paper communications and documents related to the pending litigation (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 180-85, 205-06). During the April 2017 evidentiary hearing, Koller testified that he is the only one with “super user” access and has not deleted any files on the server since the inception of the lawsuit and, importantly, was never asked to delete any files (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 260-61; (Doc. 476, April 13, 2017 Evidentiary Hr'g Tr., at 18-20, 55). *7 Although Plaintiff fails to demonstrate that any preservation efforts began as of March 7, 2014, Defendants failed to identify any real prejudice suffered as a result. Instead, as explained during the April 2017 evidentiary hearing, of the fifteen missing custodians, ten custodians no longer worked for Plaintiff as of the server migration on November 25, 2013 and, as such, their e-mail accounts would not have been migrated to the new server and instead were deleted. Since no duty to preserve arose as of November 25, 2013, such deletion would not constitute error in any way. With respect to three other custodians, Tracey McCain (“McCain”), Ashley George, and Kurt Schilling, those custodians no longer worked for Plaintiff as of August 2014, so Plaintiff deleted those three accounts to create room on its server.[4] As to McCain, Shawn Best (“Best”), who is currently employed by Plaintiff and who was previously the owner and president of BAI, provided testimony at the April evidentiary hearing that the relationship between BAI and Plaintiff began at either the end of 2011 or beginning of 2012 and essentially ended in 2013 (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 132, 147). According to Best, he received an e-mail indicating that McCain became the primary point of contact for BAI as of August 2012, but he also stated that all communication between him and McCain prior to that time occurred in person (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 114-15, 128-29, 148). Best's testimony therefore indicates that he had limited e-mail interaction with McCain and such interactions would have ceased as of 2013, prior to when a duty to preserve arose. With regard to the absence of her account, Koller's testimony from the April evidentiary hearing indicates that she was no longer employed as of the summer of 2014, and, prior to receipt of the litigation hold, Koller deleted McCain's account to create room on the server (Doc. 476, April 13, 2017 Evidentiary Hr'g Tr., at 80-83). The undersigned finds the testimony of Best and Koller credible such that Defendants can neither establish prejudice nor an intent to deprive as to McCain's e-mail account. Nevertheless, any purported prejudice suffered by Defendants would be either greatly diminished or entirely eliminated by the production from BAI. As such, Defendants cannot establish any prejudice suffered as a result of the deletion of McCain's e-mail account. That leaves only the missing e-mail accounts of Jim Turner (“Turner”) and Lauren Mitchell (“Mitchell”) at issue. As to Turner, Donna Scott testified that Turner worked on and off for Plaintiff in engineering (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 92). During his tenure with Plaintiff, Turner worked with BAI and would have saved his work product in the BAI vault (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 92-93). According to Donna Scott, during the period from August 2014 through January 2015, Turner's job responsibilities changed, with Plaintiff reassigning Turner from engineering to shipping such that, during that period, Turner was not developing any products or focusing on engineering any longer (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 93-95). In January 2015, Turner's employment with Plaintiff terminated (Doc. 475, April 12, 2017 Evidentiary Hr'g Tr., at 94-95), so no e-mails would have existed for Turner after that time. Further, according to Koller, he did not delete Turner's e-mail account or any of Turner's e-mails; Koller was not aware of anyone else deleting any e-mails from Turner's account; and Turner's e-mail account was searched as part of the search for the thirty custodians, but no e-mails were retrieved from Turner's e-mail account as no data existed in the account (Doc. 476, April 13, 2017 Evidentiary Hr'g Tr., at 88-90). Although Turner's account was searched and indicated no data existed, the Court is satisfied, given Koller's testimony, that the absence of data was not the result of an intent to deprive by Plaintiff. Further, Defendants failed to articulate a sufficient prejudice that would warrant the requested sanctions premised upon the absence of data in Turner's email account, given (1) the production of emails by BAI, (2) the relevant information regarding Turner's engineering work being maintained in the vault and then subsequently produced, and (3) Turner's involvement with the engineering of Plaintiff's products ceasing within a relatively short period of time after the duty to preserve arose. *8 With regard to Lauren Mitchell (“Mitchell”), she worked for Plaintiff from 2010 through June 2015 as the art director, performing graphic design and product photography (Doc. 479, April 26, 2017 Evidentiary Hr'g, Def. Ex. 51, at 8-9).[5] According to Mitchell, she communicated with BAI by way of e-mail, she primarily communicated with Plaintiff's other employees in person due to the open office space, she rarely deleted her e-mails, she was not instructed to delete any e-mails while employed by Plaintiff, she was not aware of any widespread effort by Plaintiff to delete e-mails, her e-mail account was “pretty quiet” relative to Plaintiff's other employees, and she did not have much communication with BAI over the course of her employment (Doc. 504, April 26, 2017 Evidentiary Hr'g, Court Ex. 1, at 25-26, 32-33, 51-52, 98-99, 105, 106-09).[6] Per Koller, Mitchell's e-mail account was either empty or missing at the time he searched her as a custodian, but, notwithstanding, Mitchell's e-mails would have been preserved, to the extent any existed at the time of the litigation hold in August 2014 and any time thereafter, on Mitchell's computer and secondarily as the result of the “linking” of Mitchell's e-mail account to her supervisor, Katie Schilling (Doc. 476, April 13, 2017 Evidentiary Hr'g Tr., at 72-73, 84-85). Given the testimony of both Mitchell and Koller, which the undersigned finds credible, the undersigned concludes that Defendants can neither establish prejudice nor an intent to deprive as to Mitchell's e-mail account and, again, any purported prejudice suffered by Defendants would be either greatly diminished or entirely eliminated by the production from BAI.[7] Regardless of the trigger date, however, Defendants failed to establish intentional spoliation, as the evidence indicates Plaintiff exhibited no intent to deprive Defendants of the information. Notably, as Plaintiff repeatedly asserted throughout these proceedings, the BAI e-mails were produced through Plaintiff's counsel and at significant expense to Plaintiff. More importantly, Koller provided credible testimony explaining how the information was lost or maintained by Plaintiff and why certain information was no longer available, including but not limited to the server migrations, the e-mail servers and clients used by Plaintiff, and the e-mail retention policy. Furthermore, despite Defendants’ assertions to the contrary, the evidence demonstrates that the missing e-mail accounts involved only peripheral employees whose e-mails were not material to Defendants’ claims or defenses. Additionally, as noted above, Koller testified that he maintains the only “super user” access and has not deleted any files on the server since the inception of the lawsuit and institution of the litigation hold. In sum, and as the undersigned repeatedly noted throughout these proceedings, Defendants consistently failed to point to any intent to deprive on the part of Plaintiff and thus fail to establish a basis for dismissing Plaintiff's claims, nor established that a forensic analysis of Plaintiff's servers is warranted. Although Plaintiff's preservation and production efforts were not perfect, Rule 37(e) does not call for perfection but rather recognizes that “reasonable steps” to preserve suffice. Fed. R. Civ. P. 37, advisory committee notes (2015 amendments). Imperfection does not, however, equate to an intent to deprive. Given Defendants’ failure to establish prejudice or an intent to deprive by Plaintiff, the motion is denied. III. Conclusion For the foregoing reasons, it is hereby ORDERED: 1. Defendants’ Motion to Compel, or in the Alternative, Motion for Sanctions due to Spoliation (Doc. 372) is DENIED. DONE AND ORDERED in Tampa, Florida, on this 28th day of June, 2017. Footnotes [1] In the motion, Defendants also requested further discovery, which the Court previously denied by separate Order (Doc. 423). [2] Upon consideration of Defendants’ request for leave to file the motion to compel, the district judge granted such request, permitted Plaintiff to file the instant motion to compel, and referred the motion for entry of an Order or Report and Recommendation, as appropriate, in her November 28, 2016 Order (Doc. 370, at 3). [3] Defendants’ motion included redacted exhibits, with the unredacted exhibits filed under seal (Doc. 374). Similarly, Plaintiff's response included redactions, with the unredacted response filed under seal (Doc. 382). [4] Defendants did not focus attention or argument on missing e-mails from Ashley George or Kurt Schilling. As a result, the analysis does not focus upon those two individual custodians. [5] The citation is to the page number from the deposition not the page number of the exhibit. [6] The citation is to the page number from the deposition not the page number of the exhibit. [7] Notably, Plaintiff further asserted that the Court should consider the parties’ pending summary judgment arguments regarding whether Hi-Lite granted Plaintiff an irrevocable, nonexclusive implied license to use any alleged copyrighted material (see Docs. 377 & 383). Plaintiff asserts that, if the Court accepts Plaintiff's implied-license arguments and dismisses Hi-Lite's remaining copyright claims, there can be no prejudice in this case based upon any allegedly lost electronically stored information related to those dismissed claims. Plaintiff's argument is well-taken, but, given that the implied-license issue remains unresolved, the undersigned's finding regarding no prejudice is independent of the implied-license arguments.