CENTENNIAL BANK, Plaintiff, v. SERVISFIRST BANK INC., GREGORY W. BRYANT, GWYNN DAVEY, PATRICK MURRIN, and JONATHAN ZUNZ, Defendants Case No: 8:16-cv-88-CEH-CPT United States District Court, M.D. Florida Signed September 06, 2022 Counsel Andrew James Ghekas, John A. Anthony, Stephenie Biernacki Anthony, Cameryn Rebecca Lackey, Nicholas Lafalce, Anthony & Partners, LLC, Tampa, FL, Dominic Anthony Isgro, Dale R. Sisco, P.A. D/B/A Sisco-Law, Tampa, FL, Rachel May Zysk, Diego M. Pestana, Eduardo A. Suarez, The Suarez Law Firm, P.A., Tampa, FL, for Plaintiff. John Morgan Brunson, Law Office of John Morgan Brunson, St Petersburg, FL, Michael Sansbury, Morgan B. Franz, William Thomas Paulk, Spotswood Sansom & Sansbury, LLC, Birmingham, AL, Sean Estes, Hoyer Law Group, LLC, Tampa, FL, Ailen Cruz, Guerra King, P.A., Tampa, FL, for Defendant, ServisFirst Bank Inc. George L. Guerra, Peter Bedford King, Ailen Cruz, Guerra King P.A., Tampa, FL, Jared J. Perez, Jared J. Perez P.A., Clearwater, FL Lawrence Joseph Dougherty, Tampa, FL, Robert A. Stines, Freeborn & Peters LLP, Tampa, FL, John Morgan Brunson, Law Office of John Morgan Brunson, St. Petersburg, FL, for Defendant, Gregory W. Bryant. George L. Guerra, Peter Bedford King, Ailen Cruz, Guerra King P.A., Tampa, FL, Jared J. Perez, Jared J. Perez P.A., Clearwater, FL Lawrence Joseph Dougherty, Tampa, FL, Robert A. Stines, Freeborn & Peters LLP, Tampa, FL, for Defendant, Gwynn Davey. George L. Guerra, Peter Bedford King, Ailen Cruz, Guerra King P.A., Tampa, FL, Jared J. Perez, Jared J. Perez P.A., Clearwater, FL Lawrence Joseph Dougherty, Chemere Ellis, Tampa, FL, Robert A. Stines, Freeborn & Peters LLP, Tampa, FL, for Defendant, Patrick Murrin. John Morgan Brunson, Law Office of John Morgan Brunson, St Petersburg, FL, Sean A. Douthard, Gregg Moran, Dade City, FL, Sean Estes, Hoyer Law Group, LLC, Tampa, FL, for Defendant, Jonathan Zunz. Honeywell, Charlene E., United States District Judge ORDER *1 This cause comes before the Court upon Centennial Bank's Objection to Magistrate Judge Tuite's Order (Doc. 765), Defendants’ Gwynn Davey's and Patrick Murrin's Response (Doc. 766), and Defendant ServisFirst Bank, Inc.’s Response (Doc. 767). Also before the Court is an Objection to the same Order by non-party Dwayne Denny (Doc.764). Upon review and careful consideration, the Court will overrule both Objections and affirm the Order of the Magistrate Judge. I. BACKGROUND A. The Underlying Litigation and Motion Practice In this diversity action, Plaintiff/Counter-defendant Centennial Bank (“Centennial”) sues four former employees— including Defendant Patrick Murrin (“Murrin”) and Defendant Gwynn Davey (“Davey”)— and the former employees’ new employer, Defendant ServisFirst Bank Inc. (“ServisFirst”). Doc. 199. Centennial sets forth various state-law claims arising from the former employees’ simultaneous resignation and relocation to ServisFirst in December 2015 and January 2016. Id. The causes of action against the Defendants include tortious interference, breach of contract, specific performance, misappropriation of trade secrets, conversion, fraudulent inducement, fraudulent omission, breach of fiduciary duty, and civil conspiracy. Id. Discovery of electronically-stored information (“ESI”) has been a subject of contentious motion practice between the parties since the action began. See Doc. 751 at 3. In September 2016, the Court entered an ESI Protocol Order that adopted an agreement between Centennial, Murrin, and Davey regarding procedures for ESI discovery and the appointment of a neutral computer forensics expert. Id. at 4; see Doc. 192 (ESI Protocol Order). Dwayne Denny, who also serves as Centennial's forensics expert, was appointed as the neutral expert. Doc. 751 at 4. The Court directed Murrin and Davey to make their devices and equipment available to Denny for immediate inspection. Id. Denny would then report the results of his review to their counsel, who would prepare materials for production to Centennial. Id. at 5. Denny was not permitted to disclose his findings to Centennial or any other party. Id. Since the entry of the ESI Protocol Order, Centennial has filed various motions seeking leave to compel, investigate, or sanction the defendants, particularly Murrin and Davey, for what it asserts is spoliation. See Docs. 255, 256, 397, 402, 490, 532, 600. In connection with these motions, the Court entered additional discovery orders in January 2019 (Doc. 381, “the January 2019 Order”) and March 2020 (Doc. 667, “the March 2020 Order”). The March 2020 Order directed Murrin and Davey to provide Denny and counsel with immediate access to Murrin's iCloud accounts, Davey's iCloud accounts, and evidence created by the forensic consultant with whom they had previously worked. Id. at 20-21. Several new discovery-related motions followed the entry of the March 2020 Order. First, Centennial moved for an order to show cause as to why Davey should not be held in contempt for violating the ESI Protocol Order, the January 2019 Order, and the March 2020 Order. Doc. 697. Davey responded that a charge of contempt was an unwarranted overreach, and her production obligations were ambiguous. Doc. 704. She contemporaneously filed a motion for clarification on her obligations regarding the same topics referred to in Centennial's motion. Doc. 699. Centennial and the forensics expert, Denny, each responded in opposition. Docs. 705, 706. *2 Centennial also moved for the imposition of sanctions on Murrin, Davey, and ServisFirst. Doc. 711. Centennial alleged a pattern of spoliation and disobedience of the Court's orders that warranted the entry of a default judgment against the three defendants and a blanket payment of Centennial's attorneys’ fees. Id. In opposition, Murrin and Davey asserted that Centennial had failed to provide reliable evidence of any relevant data that was deleted with intent to deprive Centennial of its use and could not be recovered from another source. Doc. 729. Moreover, Murrin and Davey took reasonable steps to preserve any ESI that they were required to preserve and did not act in bad faith. Id. Responding separately, ServisFirst argued that there was no evidence of any wrongdoing by ServisFirst. Doc. 728. On the contrary, it took substantial steps to preserve Davey and Murrin's ESI—to the limited extent that it could—beginning just days after the filing of the lawsuit and well before they were named as defendants. Id. at 3, 10-13. Both ServisFirst and Murrin and Davey argued that Centennial had failed to demonstrate prejudice in any event. Id. at 15-19; Doc. 729 at 23-25. The final motion before the magistrate judge was an amended motion by the forensics expert, Denny, seeking leave to submit an affidavit to the Court under seal or with redactions. Docs. 695, 712. Now represented by counsel, Denny asserted that he was legally obligated to disclose certain information that had been obtained during his review of Murrin and Davey's data, but that the ESI Protocol Order prohibited him from doing so. Id. Centennial joined in Denny's amended motion, while Murrin and Davey opposed it. Docs. 720, 721. B. The Magistrate's Order After hearing oral argument (Doc. 722), the magistrate judge issued an order on February 20, 2021, that resolved all four motions. Beginning with the motion for contempt (Doc. 697), the magistrate judge concluded that it merited denial because of Centennial's failure to confer meaningfully and in good faith before filing it in accordance with Local Rule 3.01(g), Middle District of Florida. Doc. 751 at 14-15. Regardless, the magistrate found that the motion lacked merit because of the complexity of the issues and disagreements between the parties regarding their discovery obligations. Id. at 14. The magistrate judge also provided answers to the questions raised in Murrin and Davey's motion for clarification, thereby granting it in part. Id. at 16-20. The magistrate judge next addressed Centennial's motion for sanctions against Murrin and Davey (Doc. 711). First, the magistrate found that the threshold requirements to trigger a finding of spoliation under Federal Rule of Civil Procedure 37 were not met. Doc. 751 at 23. The magistrate did not agree that the defendants had a duty to preserve evidence as early as the summer of 2015, as Centennial alleged, and it found that Centennial had not established that any relevant ESI was actually lost and unrecoverable from any other source. Id. at 23-26. Even if the threshold requirements had been met, the magistrate judge concluded that Centennial had failed to demonstrate prejudice for the same reason. Id. at 26-27. Nor had it established that the defendants acted in bad faith, particularly given the court's conclusions regarding the motion for clarification. Id. at 28-30. The magistrate judge found that Murrin and Davey had acted negligently at worst, which would not warrant sanctions under Rule 37(e). Id. at 30. Turning to Centennial's request for sanctions against ServisFirst (Doc. 711), the magistrate first noted that the same reasons sanctions were not appropriate for Murrin and Davey also applied to ServisFirst. Doc. 751 at 21. Further, the magistrate judge rejected the argument that ServisFirst controlled Murrin and Davey's litigation strategy and discovery responses as a result of its indemnification agreement. Id. at 31-32. Finally, ServisFirst's prompt placement of a litigation hold upon the filing of the lawsuit was sufficient to preclude the severe sanctions of a default judgment or blanket award of attorneys’ fees. Id. at 32. Lastly, the magistrate judge addressed Denny's amended motion to file an affidavit under seal or with redactions (Doc. 712). The magistrate granted the motion to the extent of permitting Denny to file the affidavit under seal such that it is accessible to the court only, while denying it in all other respects. Doc. 751 at 34. Highlighting that the parties had agreed to the ESI Protocol Order, which clearly forbade Denny from disclosing his findings to Centennial or any other third party, the magistrate found that the Order was not superseded by the Federal Rules of Evidence or any unanticipated circumstances. Id. at 34-36. Having reviewed the affidavit in camera, the magistrate also concluded that Centennial would not be prejudiced by denial of access to its contents because most if not all of what Denny alleged would come out in the adversarial process, to the extent it had not already. Id. at 36. Nor did the magistrate agree that the affidavit supported a claim that Murrin and Davey perpetrated a fraud on the court, a particularly severe form of fraud that rises beyond the nondisclosure of facts. Id. at 37-38. C. Objections to the Magistrate Court's Order *3 Centennial and Denny each filed a timely objection to the magistrate judge's order. Docs. 764, 765. Denny, who is not a party to the case, explains that he filed an objection in order to preserve his future right to challenge some of the magistrate's characterizations of his affidavit. Doc. 764 at 1-2. Denny does not seek to reverse the magistrate judge's determination of his amended motion, but rather asks this Court to vacate its findings that “suggest a lack of credibility of impartiality.” Id. at 2. Denny explains that these findings are neither accurate nor correct, but that he “is prohibited from explaining why due to confidentiality restrictions placed upon him.” Id. at 1. No party responded to Denny's objection. Centennial objects to the magistrate judge's rulings on its motion for contempt and motion for sanctions.[1] Doc. 765. Centennial first asserts that it did not violate the duty to confer in good faith under Local Rule 3.01(g). Id. at 4-6. The defendants’ actions demonstrated they would hinder the conferral process by engaging in gamesmanship and altering their own positions; nor would a conference be able to produce material that defendants have destroyed. Id. at 5-6. Further, Centennial contends that the magistrate erred in denying its motion for contempt on the merits, because the magistrate found that the parties violated the ESI orders but failed to afford a remedy as required by Rule 37(b)(2)(C) of the Federal Rules of Civil Procedure. Doc. 765 at 2. Manufacturing ambiguity in the ESI orders that did not exist, Davey's actions in concealing and disposing of relevant devices ordered to be turned over constituted a violation of Rule 37. Id. at 6, 8-9. The magistrate made no findings that would support the exceptions to the mandatory sanctions resulting from a violation of that rule, which means that its failure to award attorneys’ fees is contrary to law. Id. at 9-10. Centennial next objects to the magistrate judge's ruling on the motion for sanctions against Murrin and Davey. Id. at 11-22. Centennial argues that the magistrate's finding that it had failed to identify any relevant ESI that has actually been lost and cannot be recovered from other sources is contrary to the evidence in the record, as there was ample evidence that Murrin and Davey had deleted relevant data. Id. at 11-12. While it is impossible to know the contents of material that was deleted, Centennial provided evidence that “plausibly suggests” that spoliated ESI could support its case. Id. at 13, 15. Just as many other courts have found, Centennial has demonstrated prejudice from the loss of data even though it cannot know what the data contained; Centennial is also prejudiced because of the time and expense it has undergone to enforce the ESI orders and investigate other sources. Id. at 16-17. Regardless, even in the absence of prejudice, the record is replete with evidence of Murrin and Davey's intent to deprive Centennial of the data that rises beyond mere negligence. Id. at 17-22. The magistrate therefore erred in all aspects of its order regarding Murrin and Davey. Finally, Centennial also argues that the magistrate erred in finding that ServisFirst was not liable for sanctions as the employer-defendant in the action. Id. at 22-23. Centennial emphasizes that the duty to preserve is not tied to the actual commencement of litigation but rather when litigation was anticipated, which was in the fall of 2015. Id. at 23. Yet ServisFirst failed to issue a litigation hold for more than two months, and the litigation hold it issued was inadequate. Id. at 23-24. The magistrate judge also disregarded the fact that ServisFirst managed Murrin and Davey's discovery obligations until November 2016, and was therefore complicit in their violations of court orders through that point. Id. at 24. D. The Defendants’ Responses *4 Murrin and Davey respond together in opposition to Centennial's objection. Doc. 766. With respect to the motion for contempt, they assert that Centennial has failed to show that it complied with the conferral requirement of Local Rule 3.01(g), which is not relieved by the moving party's expectation of futility. Id. at 5. Nor has Centennial demonstrated that the magistrate judge erred in rejecting the substance of the motion. The caselaw Centennial relies on involved conduct that was far less speculative and more egregious than what Centennial asserts. Id. at 6. Further, Centennial disregards the magistrate judge's conclusion that clarification of the ESI orders was necessary, which cuts against Centennial's claim that any clearcut violations of the orders occurred. Id. at 6-7. Turning to the motion for sanctions, Murrin and Davey argue that the magistrate judge's order was not contrary to law because Centennial failed to meet its threshold burden of proving that any relevant evidence was deleted and is unrecoverable. Id. at 7-8. Sanctions were therefore not an available remedy. Id. at 8. ServisFirst also responds in opposition to Centennial's objection, focusing on Centennial's discussion of its purported liability. Doc. 767. ServisFirst argues that Centennial failed to present its current arguments about the litigation hold to the magistrate, rendering them unpreserved. Id. at 2-4. In any event, the arguments are meritless because ServisFirst issued its litigation hold just two weeks after Murrin and Davey became employees, and courts have found that much longer delays are not sanctionable. Id. at 4-5. Moreover, the magistrate judge did not “disregard” ServisFirst's responsibility for Murrin and Davey's alleged violations but rather rejected Centennial's theory. Id. at 5-6. II. LEGAL STANDARD A magistrate judge's ruling on a non-dispositive matter must be affirmed unless “it has been shown that the magistrate judge's order is clearly erroneous or contrary to law.” 28 U.S.C. § 636(b)(1)(A); see also Fed. R. Civ. P. 72(a) (“The district judge in the case must consider timely objections and modify or set aside any part of the order that is clearly erroneous or is contrary to law.”). The “clearly erroneous or contrary to law” standard is extremely deferential. Sterling v. Doe, 6:21-cv-723-PGB-EJK, 2022WL2112091, *2 (M.D. Fla. Feb. 2, 2022); see also Jenkins v. Comm'r, Ala. Dep't of Corr., 963 F.3d 1248, 1264 (11th Cir. 2020) (“clear error...is a highly deferential standard of review”) (quotations omitted). A finding is clearly erroneous if “the reviewing court, after assessing the evidence in its entirety, is left with a definite and firm conviction that a mistake has been committed.” Krys v. Lufthansa German Airlines, 119 F.3d 1515, 1523 (11th Cir. 1997). III. DISCUSSION A. Denny's Objection to Order on Amended Motion to File Affidavit Under Seal Denny objects to purported findings of the magistrate judge regarding his amended motion to file an affidavit under seal or with redactions for reasons he states he cannot disclose. See Doc. 764. This Court cannot conclude that the magistrate clearly erred without knowing the basis of the so-called error. At any rate, the magistrate judge expressly “ma[de] no finding” as to whether Denny exceeded his role as a neutral forensic expert. Doc. 751 at 35 n.18. As such, there is no finding to vacate. Denny's objection is overruled. B. Centennial's Objection to Order on Motion for Contempt Centennial's Objection regarding its motion for contempt is also due to be overruled. First, the Court disagrees that the magistrate judge acted contrary to law when denying the motion because of Centennial's failure to satisfy the conferral requirement under Local Rule 3.01(g). Centennial's arguments to the contrary are meritless. *5 As the magistrate judge explained, Rule 3.01(g) requires parties to “confer” with each other before filing a non-dispositive motion. Local R. 3.01(g) (M.D. Fla. 2021). “Confer means a substantive discussion.” Lopez v. Yummy House Chinese Cuisine, Inc., 8:18-cv-2460-T-36AAS, 2019 WL 2474657, *1 (M.D. Fla. Jan. 14, 2019). As one court explained, The Court construes the conferral obligations set forth in Local Rule 3.01(g) to include a substantive conversation, preferably in person, via telephone, or via other remote means, or at the least by detailed email correspondence, none of which occurred here. To the contrary, the email correspondence that followed merely (a) confirmed that the motion had been filed; (b) discussed AMEX's decision to eliminate one affirmative defense, without explanation; and (c) contained a back and forth debate over whether Local Rule 3.01(g) had been satisfied. Nowhere does it appear that the parties engaged in a substantive discussion about the merits of Plaintiff's motion, or AMEX's affirmative defenses. Gibson v. Am. Express Co., 6:20-CV-2216-CEM-LRH, 2021 WL 2828314, *1 (M.D. Fla. Apr. 21, 2021); see also Greenwood v. Point Meadows Place Condo. Ass'n, Inc., 3:10-cv-1183-MMH-TEM, 2011 WL 5358682, *1 (M.D. Fla. Nov. 7, 2011) (“The spirit of Local Rule 3.01(g) requires the parties actually speak to each other in an attempt to resolve the disputed issues.”). Failure to comply with Rule 3.01(g) is grounds for denial of the motion. See, e.g., Clark v. Hercules, Inc., 2:13-cv-794-JES-MRM, 2021 WL 4325700, *2 (M.D. Fla. Jan. 20, 2021) (one voicemail with no response was insufficient compliance with Rule 3.01(g) and a basis for denying the motion). Here, although cryptically-worded, Centennial's “Certification of Compliance with Local Rule 3.01(g)” appears to refer only to an email sent by Davey's counsel (which led Centennial to file its motion) rather than to any specific attempts by Centennial to confer about the motion itself. Doc. 697 at 17. Nor does Centennial refute Davey's assertion that it did not confer. Doc. 704 at 9-10. Although Centennial takes issue with the magistrate judge's statement that email correspondence is not an effective means of accomplishing the goals of Rule 3.01(g), see Doc. 751 at 14-15, it does not contend that it did engage in any substantive discussions about its motion, through email or any other means. Doc. 765 at 4-5. Rather, Centennial implies that compliance with Rule 3.01(g) would have been futile because of Davey's expected “hinderance to the conferral process.” Id. at 5. But a movant's expectation of futility does not erase their obligation to substantively confer. See Parker v. Parker, 829 F. App'x 389, 392 (11th Cir. 2020) (rejecting party's argument that a 3.01(g) conferral regarding a motion for sanctions would have been futile). Moreover, the magistrate judge determined that the parties might well have been able to settle their differences without judicial intervention if they had fully complied with the local rules. Doc. 751 at 15. The magistrate did not clearly err in denying the motion on Rule 3.01(g) grounds. Centennial's objection to the magistrate judge's alternative ruling on the merits of the motion for contempt is equally unavailing. Centennial fundamentally misunderstands the ruling, which was not a finding that Davey had violated the ESI orders. Accordingly, contrary to Centennial's argument, see Doc. 765 at 7-10, Rule 37(b)(2)(C) did not apply and the court was not required to issue sanctions. Centennial's interpretation of the magistrate judge's clarifications of the ESI orders as a finding that Davey violated them is not supported by the text of the magistrate's order. The magistrate chose to clarify the ambiguities of the ESI orders that had led to disputes between the parties instead of making a finding that Davey had violated them. For example, it found that neither party's interpretation of the temporal scope of production was correct. Doc. 751 at 16-17. It cannot be said, then, that the allegedly violated order was “clear, definite, and unambiguous.” Cf. Doc. 765 at 7. To the extent Centennial asserts that the magistrate judge clearly erred in finding otherwise, the Court disagrees. The magistrate judge's rulings on the motion for contempt are neither clearly erroneous nor contrary to law. C. Centennial's Objection to Order on Motion for Sanctions 1. Sanctions Against Murrin and Davey *6 The Court next finds that the magistrate judge did not clearly err in denying Centennial's motion for sanctions against Murrin and Davey. After thoroughly reviewing Centennial's motion as well as Denny's supplemental affidavit and related exhibits, see Doc. 751 at 26, the magistrate judge concluded that Centennial could not surpass the threshold steps of Rule 37(e) because it had not identified any allegedly deleted data that was both relevant to the case and could not have been secured from another source. Upon this Court's own review, this finding was not clearly erroneous. While Denny's supplemental affidavit appears to demonstrate that data was deleted from some of Murrin's and Davey's devices, see Doc. 710, the fact of deletion, alone, is not sufficient to establish spoliation. Murrin and Davey convincingly argue that any deleted data likely would have been duplicative of data recovered from other sources. See Doc. 729 at 24-25. Centennial is correct that the contents of deleted items are, of course, unknowable, but the Court cannot award severe sanctions based on Centennial's speculation[2] that it would have constituted relevant ESI that was not recovered through other means. The magistrate judge's analysis does not unduly raise Centennial's burden of proof beyond what the drafters of the 2015 amendment to Rule 37 envisioned. Cf. Doc. 765 at 13; see Fed. R. Civ. P. 37(e)(1) advisory committee's note to 2015 amendment (“The rule leaves judges with discretion to determine how best to assess prejudice in particular cases.”); Doc. 751 at 26 (“Centennial raises a concern that Davey did not promptly disclose her iPhone 6, but it does not explain what data potentially existed on that device that could not have been recovered from Davey's emails, her iPhone 5, or other sources.”) (emphasis added). Nor does the out-of-circuit caselaw Centennial relies on compel the opposite conclusion or permit this Court to find that the magistrate clearly erred. Id. at 12-13. Accordingly, the Court need not reach Centennial's arguments that the magistrate judge also erred in declining to make a finding of bad faith. See Doc. 751 at 27. Were it to reach the issue, however, the Court would not conclude that the magistrate judge's alternative ruling was contrary to law. The magistrate made a finding that Murrin and Davey acted with, at worst, gross negligence, rather than an intent to deprive. Id. at 30. Centennial's objection on this issue does not identify a particular error, but merely reiterates the same arguments and evidence that it raised before the magistrate judge. Doc. 765 at 18-21. In finding that Murrin and Davey did not engage in intentional spoliation, the magistrate chose to credit their expert's explanations over the opinions in Denny's supplemental affidavit. Cf. Nationwide Life Ins. Co. v. Betzer, 5:18-cv-39-JSM-PRL, 2019 WL 5700288, *4 (M.D. Fla. Oct. 28, 2019) (in finding intentional spoliation of ESI, noting that the conclusions set forth in the other side's forensic expert's affidavit were unrebutted). This Court cannot find that doing so was clearly erroneous. The ruling on the motion for sanctions against Murrin and Davey is therefore due to be affirmed. 2. Sanctions Against ServisFirst Finally, the magistrate judge did not clearly err in denying Centennial's motion for sanctions against ServisFirst. As a threshold matter, the Court finds that Centennial's arguments regarding the adequacy of the litigation hold were sufficiently preserved. ServisFirst argues that Centennial did not present its current arguments that the litigation hold was belated and inadequately specific to the magistrate judge, because it did not seek the opportunity to reply after learning in ServisFirst's opposition motion that a litigation hold had been issued. Doc. 767 at 3-4. To the contrary, Centennial's current arguments are fully consistent with what it presented to the magistrate judge. In its motion for sanctions, Centennial argued that ServisFirst had a duty to ensure preservation of relevant documents as early as November 2015, when Davey and Murrin began negotiating with ServisFirst. Doc. 711 at 6. Centennial further highlighted Davey's sworn testimony that no one from ServisFirst had told her to preserve ESI or to stop deleting relevant emails. Id. at 8-9. The issues of whether ServisFirst took adequate and timely steps to preserve ESI were therefore squarely before the magistrate. See Doc. 751 at 32 (“Centennial also appears to claim that ServisFirst failed to provide Murrin and Davey with a proper litigation hold.”). ServisFirst's preservation argument fails. *7 However, the magistrate judge did not clearly err in ruling that the steps ServisFirst took to preserve ESI did not “warrant[ ] the severe sanctions of a default judgment or blanket award of attorneys’ fees.” Id.[3] Even assuming Centennial is correct that ServisFirst's duty to ensure Murrin and Davey's ESI preservation arose before their employment, this would amount to a delay of just under two months before ServisFirst issued the litigation hold and related notice. Many courts have found that such a delay constitutes negligence, or even gross negligence, but does not rise to the level of bad faith required for sanctions. See, e.g., Selectica, Inc. v. Novatus, Inc., 6:13-cv-1708-PGB-TBS, 2015 WL 1125051, *7 (M.D. Fla. March 12, 2015); Managed Care Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1329 (S.D. Fla. 2010). Moreover, Davey's deposition testimony that she was never instructed not to delete relevant emails is contradicted by the sworn declaration of a ServisFirst employee that Davey and Murrin were expressly notified to preserve “all documents related to their departure from Centennial Bank and their employment with ServisFirst, including any emails in any personal account and any text messages on a personal phone.” Doc. 727 at ¶ 3; cf. Doc. 765 at 24. The conflicting evidence on this point bolsters the magistrate judge's conclusion that Centennial failed to establish that sanctions against ServisFirst were warranted. IV. CONCLUSION The magistrate judge's order denying the motion for contempt and motion for sanctions was neither clearly erroneous nor contrary to law. Accordingly, it is ORDERED: 1. Dwayne Denny's Objection to Magistrate Judge Tuite's Order (Doc. 764) is OVERRULED. 2. Centennial Bank's Objection to Magistrate Judge Tuite's Order (Doc. 765) is OVERRULED. 3. The Order of the Magistrate Judge (Doc. 751) entered on February 20, 2021, is AFFIRMED. DONE and ORDERED in Tampa, Florida on September 6, 2022. Footnotes [1] Centennial does not object to the magistrate judge's rulings on the motion for clarification or Denny's amended motion to file an affidavit under seal, addressing only its rulings on the motions for contempt and sanctions. See Doc. 765. [2] See, e.g., Doc. 765 at 13 (“This evidence clearly shows the type of ESI that Centennial would have expected to receive from Davey and Murrin if not for the fact that it had been intentionally destroyed”). [3] The magistrate judge's analysis of this question demonstrates that, contrary to Centennial's characterization, it did not find that ServisFirst had no obligation to ensure that ESI was preserved. Cf. Doc. 765 at 21. Centennial also argues that ServisFirst's management of Murrin and Davey's discovery compliance during the period before they were named as defendants in the action rendered it complicit in their alleged misconduct. Id. at 24. This argument fails, because the Court upholds the magistrate judge's ruling that Murrin and Davey's own conduct did not warrant sanctions. See Section III(B)(1), supra.