Avena M. DAVIS v. HEALTHCARE SERVICES GROUP, INC CIVIL ACTION NO. 16-2401 United States District Court, E.D. Pennsylvania Filed November 30, 2018 Counsel Marc A. Weinberg, Saffren and Weinberg, Jenkintown, PA, for Avena M. Davis. Brandon Shaby Shemtob, Kenneth D. Kleinman, Stevens & Lee PC, Philadelphia, PA, for Healthcare Services Group, Inc. Surrick, Richard B., United States District Judge ORDER *1 AND NOW, this 30th day of November, 2018, upon consideration of Defendant's Motion for Clarification of the Court's September 5, 2017 Order (Mot. to Clarify, ECF No. 28),[1] and all documents submitted in support thereof and in opposition thereto, it is ORDERED that the Motion is GRANTED IN PART and DENIED IN PART as follows: *2 1. The Motion is GRANTED insofar as Plaintiff is precluded from offering at trial any evidence, whether photographic, testimonial or otherwise, depicting or specifying the content of text messages that Plaintiff allegedly received from, or exchanged with, her former supervisor. 2. The Motion is DENIED insofar as Plaintiff will be permitted to testify that she received from, or exchanged with, her former supervisor text messages that she perceived as sexually explicit and/or harassing, and that she contemporaneously reported this and other alleged activity to her union representative.[2] If Plaintiff so testifies, Defendant will be permitted to present evidence and argument concerning Plaintiff's failure to preserve the text messages, and the Court will instruct the jury that it may consider such evidence along with all the other evidence in the case.[3] IT IS SO ORDERED. Footnotes [1] This action was initially before the Hon. Legrome D. Davis, who issued the Order that is the subject of this Motion. (9/5/17 Order, ECF No. 27). Judge Davis's Order granted in part and denied in part Defendant's Motion for Sanctions Against Plaintiff for Spoliation of Evidence or, in the Alternative, Its Motion in Limine to Preclude Plaintiff from Introducing Evidence Regarding Text Messages. (Mot. for Sanctions, ECF No. 19.) The Motion for Sanctions sought the dismissal of Plaintiff's claims with prejudice for spoliation of text message evidence or, in the alternative, an adverse inference instruction to the jury and the exclusion of “any and all evidence, including but not limited to documentary and testimonial evidence, related to the alleged text messages and photographs thereof.” (Id.) In ruling on the Motion for Sanctions, the Court applied Federal Rule of Civil Procedure 37(e) and determined that: (1) as Plaintiff concedes, “the text messages on her phone constitute [electronically stored information (ESI)]” that “should have been preserved,” (9/5/17 Order 6); (2) the ESI is “lost” for purposes of Rule 37(e), notwithstanding that Plaintiff selectively took photographs of some of the text messages that were on her since-disposed-of-phone, (id. at 6-7); (3) Plaintiff did not take reasonable steps to preserve the ESI, (id. at 7); and (4) “the lost ESI in Plaintiff's old cell phone cannot be restored or replaced through additional discovery),” (id.). However, the Court determined that the severe sanctions of Rule 37(e)(2)—such as dismissal or an adverse inference instruction—are not available because the record does not permit a “find[ing] that the [ESI] was lost intentionally to deprive Defendant of its use.” (Id. at 8.) Turning to the propriety of curative measures under Rule 37(e)(1), the court determined that Plaintiff's spoliation prejudiced Defendant because “[t]he lack of access to the ESI prevents Defendant from confirming the source and recipient of the text messages, ... [from] confirm[ing] whether the text messages have been deleted or altered, and ... [from] establish[ing] context for the text messages seen in the photographs....” (Id.) In order to cure this prejudice, the Court precluded Plaintiff “from introducing into evidence the photographs taken of [her] former cell phone.” (Id. at 9-10.) The Court noted that Plaintiff would be permitted to “present evidence of, among other allegations, [her supervisor's] comments toward Plaintiff at work, [his] inappropriate physical behavior towards Plaintiff, and the contemporaneous reporting of [the supervisor's] actions to Plaintiff's union representative.” (Id. at 10.) Subsequently, Defendant filed the instant Motion seeking to clarify that the Order precludes any evidence, including testimony, relating to the text messages. Thereafter, upon the retirement of Judge Davis, the case was transferred to the undersigned. [2] Paragraph 1 above precludes Plaintiff from presenting evidence to prove the content of the disputed text messages. Permitting Plaintiff to testify as to their alleged existence does not implicate Federal Rule of Evidence 1002. See Fed. R. Evid 1002, 1972 Advisory Committee Notes (“Application of [Rule 1002] requires a resolution of the question whether the contents are sought to be proved.”) [3] See, e.g., Lokai Holdings, LLC v. Twin Tiger USA LLC, No. 15-9363, 2018 WL 1512055, at *17 (S.D.N.Y. Mar. 12, 2018) (precluding testimony as to content of unpreserved emails); Coward v. Forestar Realty, Inc., No. 15-0245, 2017 WL 8948347, at *10 (N.D. Ga. Nov. 30, 2017) (allowing party prejudiced by spoliation to present evidence and argument regarding loss of ESI); Fed. R. Civ. P. 37(e), 2015 Advisory Committee Notes (explaining that curative measures under Rule 37(e)(1) may include instructing the jury that it may consider evidence regarding the loss and likely relevance of spoliated ESI).