ANEVA M. DAVIS v. HEALTHCARE SERVICES GROUP, INC CIVIL ACTION NO. 2:16-cv-2401 United States District Court, E.D. Pennsylvania Signed August 28, 2017 Filed September 05, 2017 Counsel Marc A. Weinberg, Saffren and Weinberg, Jenkintown, PA, for Aneva M. Davis. Brandon Shaby Shemtob, Kenneth D. Kleinman, Stevens & Lee PC, Philadelphia, PA, for Healthcare Services Group, Inc. Davis, Legrome D., Judge ORDER *1 AND NOW, this 28th day of August 2017, after consideration of Defendant's Motion for Sanctions Against Plaintiff for Spoliation of Evidence or, in the Alternative, Motion In Limine (Doc. No. 19), Plaintiff's Response in Opposition (Doc. No. 23), and Defendant's Reply in Support thereto (Doc. No. 26), it is hereby ORDERED that the motion for sanctions is GRANTED IN PART and DENIED IN PART. Pursuant to Federal Rule of Civil Procedure 37(e)(1), it is hereby ORDERED that Plaintiff is excluded from introducing into evidence the photographs taken of Plaintiff's former cell phone. I. Factual Background On or about March 15, 2010, Plaintiff Aneva Davis was hired as a part time housekeeper at Defendant Healthcare Services Group, Inc. (Doc. No. 1, Complaint, ¶16). Plaintiff's supervisor was Mr. Chris Towns. (Compl., ¶18). Starting in January 2012, Mr. Towns began making comments to Plaintiff such as “you look nice” and “you have nice lips.” (Compl., ¶20). Thereafter, Mr. Towns began making these comments via text messages to Plaintiff's cell phone. (Compl., ¶21). Some of Mr. Towns' comments became very sexually graphic, but only a portion of his comments were made via text message. (Compl., ¶¶22–23). Plaintiff alleges that all of Mr. Towns' comments were uninvited and unwelcome. (Compl., ¶25). Plaintiff also alleges that she told Mr. Towns to stop making such comments. (Compl., ¶26). On at least two occasions—the latter of which occurred on February 12, 2013—Plaintiff reported Mr. Towns to her union representative, who was named “Rick.” (Compl., ¶¶23, 37). Plaintiff claims Rick then reported the harassment to Scott McKinsey, who was a supervisor at Plaintiff's workplace. (Compl., ¶33). Nevertheless, Mr. Towns' comments continued after Plaintiff reported him. (Compl., ¶¶34, 38). On June 7, 2013, Plaintiff's employment was terminated. (Compl., ¶39). Plaintiff reported the alleged harassment to the United States Equal Employment Opportunity Commission (EEOC), which provided Plaintiff with a Notice of Right to Sue on February 19, 2016. (Compl., at Ex. A). On May 17, 2016, Plaintiff filed her Complaint with this Court, claiming, in part, violations of Title VII of the Civil Rights Act of 1964. (Doc. No. 1). On April 26, 2017, following discovery, Defendant filed the instant Motion for Sanctions. (Doc. No. 19). During the course of discovery, it was uncovered that Plaintiff was no longer in possession of the phone from which she received Mr. Towns' allegedly sexually explicit text messages. In a sworn affidavit, Plaintiff states that she first switched cell phones in November of 2012, but kept the old cell phone which contained the text messages from Mr. Towns. (Doc. No. 23-1, Davis Aff., ¶¶6–7). However, in February 2014, Plaintiff moved residences and in the process “lost” the old cell phone. (Davis Aff., ¶7). The phone was “lost” after the Plaintiff retained counsel. (Doc. No. 19-2, Davis Dep., 43:10–12). Plaintiff states that she only realized the phone was missing in November 2016, when her counsel instructed her to bring the cell phone to her scheduled deposition for the instant case. (Doc. No. 23-1, ¶8). Mr. Towns—who is not a party to this case—lost his phone before August 2013; he does not have copies of the text messages. (Doc. No. 26-1, Towns Decl., ¶¶4–7). Verizon Wireless—the phone service provider used by Mr. Towns in 2012—represented to Defendant that it only retains text message activity logs for a period of one year, and therefore Verizon cannot retrieve text information from 2012. (Doc. No. 26-1. Dwyer Decl., ¶6). *2 At some point prior to losing the phone, Plaintiff took a series of photographs of her now missing cell phone, with the sexually explicit text messages from “Chris” visible on the phone's screen. Plaintiff took these images using her laptop computer. (Doc. No., 23-1, Davis Dep., 131:6). That laptop computer has since broken. (Davis Dep., 131:12). Plaintiff believes that she took photos of all of the text exchanges with Mr. Towns, but she cannot absolutely recall this fact. (Davis Dep., 180:1–6). However, at a minimum, there is no photograph of Mr. Towns texting Plaintiff his address, which Plaintiff claims was sent. (Davis Dep., 95:16–22). Similarly, there is no photograph of Plaintiff texting Mr. Towns to stop messaging her, but Plaintiff claims that she sent such a text. (Davis Dep., 114:15–20). In addition to whether Plaintiff photographed all relevant text messages, Defendant also asserts that Plaintiff deleted some of the relevant text messages before taking the photographs. In support of its claim, Defendant points to a series of texts sent by “Chris” unbroken by any text from plaintiff. (Doc. No. 19-2, Ex. A, at 2–3). Defendant asserts that this text series necessarily implies a two-person conversation, wherein Mr. Towns is responding to prompts; Defendant claims these photographs imply Plaintiff deleted relevant texts. In response to this accusation, Plaintiff claims she cannot remember deleting such texts. (Davis Dep., 106:6). Based on Plaintiff's failure to preserve the phone which contained the original text messages, and based on the implication the Plaintiff deleted text messages before photographic the exchanges, Defendant has filed the instant motion for sanctions. II. Legal Standard of Review Under past Third Circuit precedent, sanctionable spoliation analysis has followed the four-part test articulated in Bull v. United Parcel Serv., Inc. See 665 F.3d 68, 73 (3d Cir. 2012). As part of this spoliation analysis, “actual suppression or withholding” of evidence was required, meaning it was insufficient that “the document or article in question ha[d] been lost or accidentally destroyed.” Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 334 (3d Cir. 1995). Accordingly, spoliation has previously required a finding of bath faith; “withholding require[d] intent.” Bull, 665 F.3d at 79. However, on December 1, 2015—before the commencement of the instant case—Federal Rule of Civil Procedure 37(e) governing the applicability of sanctions for spoliation of electronically stored information entered into effect. See Fed. R. Civ. P. 37(e). Although the Third Circuit has yet to address the topic, the 2015 Amendment to the Federal Rule of Civil Procedures appears to have partially superseded this Circuit's prior spoliation analysis standards as to electronically stored information, such as text messages. See Fed. R. Civ. P. 37(e), Advisory Committee Notes (“[Rule 37(e)] authorizes and specifies measures a court may employ if information that should have been preserved is lost, and specifies the findings necessary to justify these measures. It therefore forecloses reliance on inherent authority or state law to determine when certain measures should be used.”); see also Mazzei v. Money Store, 656 F. App'x 558, 560 (2d Cir. 2016); Regeneron Pharm., Inc. v. Merus N.V., 864 F.3d 1343 (Fed. Cir. 2017); Accurso v. Infra-Red Servs., Inc., 169 F. Supp. 3d 612, 618 (E.D. Pa. 2016) (“the most recent iteration of the Federal Rules of Civil Procedure specifically addresses the applicability of sanctions for spoliation of electronically stored information”). Rule 37(e) applies when “[1] electronically stored information that [2] should have been preserved in the anticipation or conduct of litigation [3] is lost [4] because a party failed to take reasonable steps to preserve it, and [5] it cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). If the requirements of the rule are met, then the remedy the Court is empowered to impose turns on whether there is prejudice or the intent to deprive another party of the electronically stored information (ESI). If there is prejudice to another party but no intent to deprive, Rule 37(e)(1) allows the Court to only order “measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1). Comparatively, if there is intent to deprive another party of the information, then more punitive cures are permitted, including but not limited to dismissing the action or entering default judgment. See Fed. R. Civ. P. 37(e)(2). Based on the explicit division of authorized cures between Rule 37(e)(1) and Rule 37(e)(2), “[c]are must be taken [ ] to ensure that curative measures under subdivision (e)(1) do not have the effect of measures that are permitted under subdivision (e)(2) only on a finding of intent.” Fed. R. Civ. P. 37(e), Advisory Committee Notes. Despite the distinction between Rule 37(e)(1) and Rule 37(e)(2), the scope of Rule 37(e)(1) may still include “barring [the] non-preserving party from introducing designated matters in evidence.” DVComm, LLC v. Hotwire Commc'ns, LLC, 2016 WL 6246824, at *6 (E.D. Pa. Feb. 3, 2016); see also Fed. R. Civ. P. 37(e), Advisory Committee Notes (“precluding a party from offering any evidence in support of, the central or only claim or defense in the case” is not allowed under 37(e)(1), but “it may be appropriate to exclude a specific item of evidence to offset prejudice caused by failure to preserve”). III. Discussion *3 Due to Plaintiff's inability to produce the cell phone which contained electronically stored text messages and accompanying metadata, Defendant has moved for sanctions against Plaintiff. Defendant contends that the most appropriate sanction is dismissal of Plaintiff's claims and the awarding of attorneys' fees. Defendant's motion requires the Court to determine both whether the requirements of Rule 37(e) are met, and, if Rule 37(e) applies, the appropriate remedy under either subsection (e)(1) or (e)(2). A. Rule 37(e) Applicability The power to sanction pursuant to Rule 37(e) for failure to preserve electronically stored information applies when “[1] electronically stored information that [2] should have been preserved in the anticipation or conduct of litigation [3] is lost [4] because a party failed to take reasonable steps to preserve it, and [5] it cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e). Each of these five requirements must be met for the imposition of a sanction on Plaintiff. First, Plaintiff concedes that “the text messages on her phone constitute ESI.” (Doc. No. 23, at 5). Second, Plaintiff concedes that such ESI “should have been preserved.” (Id.). Third, Plaintiff contests that the ESI is “lost” because she took photographs of her phone, and therefore the content of the text messages are not “lost” for purposes of Rule 37(e). The Court finds this argument unpersuasive. Selectively taken photographs of the text messages does not serve as a sufficient substitute for the electronically stored information that was on Plaintiff's old phone. To start, Plaintiff all but admits that she did not photograph every text between Plaintiff and Mr. Towns; there are no photographs of when Mr. Towns texted Plaintiff his address nor when Plaintiff texted Mr. Towns to stop messaging her. (Davis Dep., 95:16–22; 114:15–20). Additionally, while the Third Circuit has yet to clarify the definition of “lost” as to Rule 37(e), the Third Circuit has previously held that “producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information.” See Bull, 665 F.3d at 73. Therefore, under related Third Circuit case law, even a fully accurate copy may not supplant the need for the original. In this case, Defendant correctly contends that the use of copies rather than the original: prevents assurance that all texts were copied for purposes of context, prevents determining whether any text messages were deleted—a reasonable inference drawn from the photographed text conversation (Doc. No. 19-2, Ex. A, at 2–3)—and prevents the collection of potentially relevant metadata from the original electronic version of the texts. These are critical distinctions between the original and the available copies which support the finding that the ESI is “lost” for purposes of Rule 37(e). Fourth, there is no evidence that Defendant took reasonable steps to preserve the ESI. Plaintiff claims she lost the cell phone which stored the relevant ESI when she moved in February 2014. (Davis Aff., ¶7). However, Plaintiff only noticed the phone was missing in November 2016, when she was instructed to bring the phone to her deposition. (Doc. No. 23-1, ¶8). The fact that the phone was not stored in a secured location to prevent accidental misplacement, paired with the fact that Plaintiff never considered the device's whereabouts for the thirty-four months—while the instant case was ongoing—between her move and her deposition, demonstrates that reasonable steps to preserve the ESI were not taken. Cf. Fed. R. Civ. P. 37(e), Advisory Committee Notes (if “information the party has preserved may be destroyed by events outside the party's control,” then Rule 37(e) may not apply). *4 Lastly, the lost ESI in Plaintiff's old cell phone cannot be restored or replaced through additional discovery. The only two other potential sources of the ESI is Mr. Towns' cell phone and the relevant cell phone service provider. As for Mr. Towns' cell phone, he declares under penalty of perjury that he lost, before August 2013, the cell phone he was using during the relevant time period. (Doc. No. 26-1, Towns Decl., ¶¶4–7). As for the cell phone service provider, Danielle Dwyer, attorney for Defendant, declares under penalty of perjury not only that Verizon Wireless was Mr. Townes' service provider in 2012, but that Verizon keeps neither text messages nor message activity logs of its customers for longer than one year. (Doc. No. 26-1. Dwyer Decl., ¶6). Plaintiff does not dispute these declarations. As a result, the lost ESI from Plaintiff's cell phone cannot be replaced through additional discovery. Rule 37(e) applies to the electronic text messages on Plaintiff's old cell phone. B. Remedy Given that Rule 37(e) applies, Defendant contends that dismissal of Plaintiff's claims is the most appropriate remedy for the spoliation of the ESI. To grant such a cure, Rule 37(e)(2) requires the Court to find that Plaintiff intended to deprive Defendant of the use of the text messages in this litigation. Based on the available record, the Court cannot determine that Plaintiff's treatment of the relevant ESI was intentional. Plaintiff declares that she lost the cellphone which stored the ESI during a move in February 2014, before the instant Complaint was filed. (Davis Aff., ¶7). Although Defendant questions Plaintiff's explanation concerning the cell phone's whereabouts, Defendant offers no evidence to place Plaintiff's sworn declaration in genuine factual dispute. Defendant analyzes the content of the texts seen in the photographs—some texts appear to be part of a two-person conversation but with Plaintiff's messages missing—to draw the reasonable assumption that Plaintiff deleted some texts. However, Plaintiff has not admitted to deleting any texts, Defendant's deletion claims rests on limited circumstantial and inferential grounds, and there is no proof that, even if texts were deleted, they were deleted with the intent of depriving another party of their use in potential litigation. Consequently, the Court cannot find that the MSI was lost intentionally to deprive Defendant of its use, and as a result, the remedy of dismissing the action pursuant to Rule 37(e)(2) is not available. In scenarios where the loss of relevant ESI is not intentional, Rule 37(e)(1) alternatively grants Courts the power to “order measures no greater than necessary to cure the prejudice,” to the extent the loss of ESI created any such prejudice. Assuming without deciding that Defendant, as the moving party, bears the burden of proving prejudice, Defendant has met its burden. See Fed. R. Civ. P. 37(e), Advisory Committee Notes (“the rule does not place a burden of proving or disproving prejudice on one party or the other”); cf. Jacobs v. City of Pittsburgh, 143 F. Supp. 3d 307, 311 (W.D. Pa. 2015)(“as the party seeking sanctions, plaintiff bears the burden of proving spoliation”). The lack of access to the ESI prevents Defendant from confirming the source and recipient of the text messages, it prevents Defendant's ability to confirm whether the text messages have been deleted or altered, and it prevents Defendant's ability to establish context for the text messages seen in the photographs, to the extent there is any additional context to establish. These detriments cause Defendant some level of prejudice. Although prejudice exits, prejudice is a sliding scale which, depending on the injury, could range from mild to severe. Under Rule 37(e)(1), “the degree of prejudice is to be considered in fashioning a remedy.” DVComm, LLC, 2016 WL 6246824, at *6. This assessment necessarily includes “an evaluation of the information's importance in the litigation.” Fed. R. Civ. P. 37(e), Advisory Committee Notes. In this case, the lost electronically stored text messages are quite significant to the litigation as they potentially support Plaintiff's assertion that Mr. Towns harassed her in one of the two ways alleged—remotely via text and in-person at work. As it relates to the remote harassment, the loss of the ESI prejudices the Defendant's ability to both fully investigate the allegations and to potentially raise a complete defense based on that full investigation. *5 In the discretion of the Court, the properly calibrated cure for the prejudicial effects caused by Plaintiff's loss of the ESI is to exclude Plaintiff's admission into evidence the photographs of the cell phone. See Fed. R. Civ. P. 37(e), Advisory Committee Notes (as for the calibration of cures to prejudice, “much is entrusted to the court's discretion”). Although this cure is significant in degree, in appropriate cases “forbidding the party that failed to preserve information from putting on certain evidence” may be necessary. Fed. R. Civ. P. 37(e), Advisory Committee Notes. Moreover, despite the importance of the texts to Plaintiff's case, this order does not rise to the impermissible level of “precluding [Plaintiff] from offering any evidence in support of, the central or only claim or defense in the case.” Fed. R. Civ. P. 37(e), Advisory Committee Notes. Plaintiff can still present evidence of, among other allegations, Mr. Towns' comments toward Plaintiff at work, Mr. Towns' inappropriate physical behavior towards Plaintiff, and the contemporaneous reporting of Mr. Townes' actions to Plaintiff's union representative. C. Alternative Motion In Limine As Defendant's motion for sanctions is granted in part, the Court does not reach Defendant's alternative motion in limine at this time. IV. Conclusion For the foregoing reasons, Defendant's Motion for Sanctions Against Plaintiff (Doc. No. 19) is hereby GRANTED IN PART and DENIED IN PART. Pursuant to Rule 37(e)(1), it is hereby ORDERED that Plaintiff is excluded from introducing into evidence the photographs taken of Plaintiff's former cell phone. BY THE COURT: