Quincy James Gordon, Plaintiff, v. Hyatt Corporation, et al., Defendants Civil Action No. 4:22-cv-00092 United States District Court, S.D. Texas, Houston Division Filed February 18, 2025 Ho, Yvonne Y., United States Magistrate Judge MEMORANDUM AND ORDER ON MOTION FOR SPOLIATION SANCTIONS *1 On August 27, 2024, Plaintiff Quincy James Gordon filed a motion under Fed. R. Civ. P. 37(a), asserting that Defendants Hyatt House Franchising, LLC (“Hyatt”), Houston H Galleria Opco, LP, SRE 4610 TX Opco GP Pledgor, LLC, IH WL Acquisition Manager, LLC (“Aimbridge”), Wendy Liu, and Noor Hasan should be sanctioned for spoliating evidence. Dkt. 174; see also Dkt. 188 (Defendants' response); Dkt. 190 (Gordon's reply). Gordon amended his motion for spoliation sanctions, Dkt. 185, to which Defendants responded, Dkt. 197, and Gordon replied, Dkt. 204. Defendants filed a motion to strike both Gordon's amended motion for sanctions and his original reply in support of sanctions, Dkt. 193, to which Gordon filed a response, Dkt. 202, and Defendants filed a reply, Dkt. 217. After carefully considering the motions, responses, replies, the record, and the applicable law, the Court denies Defendants' motion to strike (Dkt. 193) and denies Gordon's original (Dkt. 174) and his amended motion (Dkt. 185) for sanctions. Background The full factual background is detailed in the undersigned's recent Memorandum and Recommendation (“M&R”) on the parties' motions for summary judgment. See Dkt. 260 at 2-11. A few select facts recounted in that Recommendation, coupled with those pertinent to Gordon's motion for sanctions, are summarized here. A. The events at Hyatt House on May 20 and May 21, 2020 This suit stems from a series of incidents on May 20 and May 21, 2020, at a Hyatt House hotel in Houston, Texas. See Dkt. 260 at 2. Defendant Wendy Liu managed that hotel, and Defendant Noor Hasan worked there. Id. at 2-3. After checking into the hotel on May 20, Gordon alleges that he left the hotel to get some food. See id. at 3. Upon his return, Gordon was confronted by police investigating a theft at a local business who had tracked a white SUV to the hotel's parking garage. See id. at 4. Police accused Gordon of fleeing the scene when they attempted to arrest him, whereas Gordon testified that police never told him he was not free to leave. See id. at 4-5. Gordon was ultimately arrested for the offense of evading arrest. See id. at 5. During their investigation, police spoke to Liu at the front desk. See id. at 6. Among other things, Liu told the officers that Gordon was the driver of the car, even though Gordon had told Liu, upon checking in, that his car was a red Hyundai Sonata. See id. After Gordon was taken away by police, Liu and Hasan removed Gordon's possessions from his hotel room. See id. at 6-7. Liu decided to impose on Gordon a $1,000 cash-only “disturbance fee” as a condition for returning his possessions. See id. at 7-8. The legitimacy of that fee is hotly disputed. See id. at 8-9 (detailing Liu's shifting explanations for the fee and noting the contradictory testimony from Aimbridge's Vice President about the parameters for imposing such a fee). The next day, May 21, 2020, Gordon was released from jail and returned to the hotel. While standing outside the lobby doors, he spoke with Hasan, who refused to return his belongings unless he paid the cash-only fee. See id. at 9-10. According to Hasan, Gordon threatened to kill her—an assertion that Gordon denies. See id. Hasan then called the police. Upon their arrival, Hasan told the officer about Gordon's threats, stated that Gordon had been involved in a robbery, and described Gordon as a scammer and a prostitute. See id. at 10. Hasan stated that she wished to press charges, and Gordon was arrested again—this time for making a terroristic threat. See id. at 10-11. *2 Gordon never received the belongings that the hotel had seized. According to Hasan, those possessions were still being held in the hotel's storage when she resigned from her position on June 8, 2020. See Dkt. 174-1 at 30. Later, she heard from an employee named “Giselle” that Liu had distributed the items to other hotel employees. See id. at 29-30; see also Dkt. 168-1 at 3 (Hasan identifying Giselle Griffin as the employee who told her about Gordon's possessions). Public records confirm that Gordon's charges of evading arrest and terroristic threat were dismissed on December 14, 2021. See Dkt. 174-1 at 11 (Hasan deposition, reviewing documents from Harris County system); Dkt. 185-19 at 1 (December 14, 2021 dismissal of terroristic threat charge in State v. Gordon, Cause No. 2311-5750-1010 (Cnty. Crim. Ct. at Law No. 11, Harris Cnty., Tex.)); State v. Gordon, Order, Cause No. 2311-4630-1010 (Cnty. Crim. Ct. at Law No. 11, Harris Cnty., Tex. Dec. 14, 2021).[1] B. Gordon's pre-suit phone call and subpoenas At the time of the underlying events, the Hyatt House location had about forty-two surveillance cameras. See Dkt. 185-2 at 24 (Liu's deposition). None of them captured audio. See Dkt. 197-6 at 1 (Liu's declaration); see also, e.g., Dkt. 185-24 at 3 (Aimbridge's policy forbidding audio recordings). Before his second arrest on May 21, 2020, Gordon contacted the Hyatt customer service line to complain about the series of events. Gordon shared his account of his May 20, 2020 arrest and complained that Liu had refused to return his belongings unless he paid $1,000. Dkt. 185-10 at 1. Gordon asked personnel to “review the camera's [sic] showing he was not with the girls who were arrested for robbery in stores in the area.” Id. The call log recounts that “[i]f this is not resolved for [Gordon], he has stated he will receive assistance from a lawyer but all he wanted was his belongings and the refund.” Id. The record reflects that certain Hyatt House cameras captured video pertinent to Gordon's subsequent suit. On May 20, 2020, Liu had showed police officers camera footage while they were investigating the robbery. Dkt. 168, Ex. 1 at 33:12-23 (Nguyen bodycam showing Liu displaying footage on a laptop). At that time, Liu accused Gordon of driving the white car that police officers had followed from the site of the theft to the Hyatt House hotel. See id. at 33:30-33:46; see also Dkt. 185-10 at 3 (Liu's subsequent email to Hyatt stating “[o]ur camera footage shows Mr. Gordon driving in the same car as the female guests”). Liu also told officers that there was camera footage of “them” getting out of the vehicle in the hotel's garage and running into the building. See id. at 33:15-33:36; see also Dkt. 174-2 at 38-40 (Liu's deposition testimony about this footage). One of the investigating officers asked Liu for the footage, but Liu responded that she would only provide them pursuant to a warrant. See Dkt. 185 at 5 (citing Dkt. 168, Ex. 6 at 53:22-53:30 (Tyneway bodycam)). On June 25, 2020, and again on July 16, 2020, subpoenas seeking certain surveillance footage were served on an unnamed manager at the Hyatt House location. Dkt. 174-15; Dkt. 174-16 (PX-23 and 24; subpoenas); Dkt. 174-17; Dkt. 174-18 (executed returns of service). The subpoenas, which were sought by Gordon's criminal defense attorney, Dkt. 174-13; Dkt. 174-14, directed Hyatt Houston to produce “any and all surveillance videos from 5/21/20 from 6 PM to 10 PM from garage as well as lobby relating to” Gordon's pending criminal case for making a terroristic threat against Hasan on May 21, 2020. Dkt. 174-15; Dkt. 174-16. *3 There is no record of any subpoenas sought or served on Hyatt House during that timeframe for video footage recorded the day of Gordon's first arrest on May 20, 2020. Nor is there any indication that Gordon made any subsequent requests for or demanded that Hyatt House, Aimbridge, or Liu preserve any video footage until this suit was filed. C. Developments post-suit Gordon filed this suit on January 10, 2022. Dkt. 1. He asserted three federal claims: (1) 42 U.S.C. § 1981; (2) Title II of the Civil Rights Act; and (3) 42 U.S.C. § 1983. Dkt. 36 at 12-15. He also asserted numerous state law claims for (1) false imprisonment; (2) conversion; (3) unjust enrichment; (4) breach of contract; (5) defamation; (6) intentional infliction of emotional distress; and (7) negligent infliction of emotional distress. Id. at 15-19. Shortly after serving the complaint, Gordon's attorney, Obaid Shariff, spoke by phone with Hasan, in a call that Shariff surreptitiously recorded.[2] At that time, Hasan was not represented by counsel. Before the conversation concluded, Shariff requested that Hasan retain all text messages on her phone. See Dkt. 168-1 at 18. Hasan's subsequent deposition testimony indicated, however, that she “had already gotten rid of everything” by that time. Dkt. 174-1 at 31; see also id. at 31-32 (testifying that she had not destroyed any text messages or emails after speaking to Shariff). During discovery, Gordon propounded requests for production of the video footage from the time of events. The Hyatt Defendants responded that they did not have the footage. See Dkt. 154 at 6 & n.1 (noting those defendants' representation). Gordon later requested the Hyatt House's video retention policy. Dkt. 185-23 at 1-3 (Plaintiff's Second Request for Production, served on June 24, 2024); id. at 7 (RFP No. 73 and 74). Defendants did not timely respond to the requests for production. Id. Gordon then sent a deficiency notice on August 13, 2024. See Dkt. 202 at 8. In the interim, Defendants filed their motions for summary judgment. Dkt. 166, 167 (filed July 29, 2024). About a month later, and in tandem with his summary judgment responses, Dkt. 175, 176, and motion to strike certain summary-judgment evidence and allegations, Dkt. 173, Gordon filed his original motion for spoilation sanctions. Dkt. 174 (filed August 27, 2024). Gordon's original spoliation motion asserts that Hyatt Defendants knew that the hotel surveillance footage should have been preserved either as of May 20, 2020, when police had requested the footage while investigating the first incident, or at least after Gordon's criminal defense attorney had issued a subpoena for production of the videos less than a month later. Id. at 1-5, 8. The motion further accuses Hasan of wrongfully deleting text messages after her January 2022 recorded conversation with Gordon's attorney. Id. at 6, 8. As relief, Gordon proposed a permissive adverse inference instruction, or, alternatively, that Defendants' motions for summary judgment be denied. See id. at 9. The certificate of conference states that Gordon's counsel conferred with Defendants' counsel about the motion for sanctions and that Defendants were opposed to the requested relief. Dkt. 174 at 11. *4 Contemporaneously with those filings, however, Gordon submitted a letter to the Court complaining that Defendants failed to respond to his June 24, 2024 supplemental requests for production of documents. On September 10, 2024, this Court entered an order setting the discovery issue for a hearing on September 13, 2024, Dkt. 179, the same date as the deadline for completing discovery, Dkt. 117 (amended scheduling order). Later that day, Defendants produced certain documents, including Aimbridge's video retention policy that states, in pertinent part: “All recordings must be saved for a minimum of 90 days.” As part of the hotel's investigation of incidents, “the CCTV video should be reviewed by a member of the EC team. Regardless of the severity of the alleged incident, the video should be copied to two CDs or Flash Drives.” Should law enforcement wish to obtain guest records or video footage, employees should “[p]olitely request that the police provide a subpoena and advise that we will happily cooperate.” Dkt. 185-24 at 3-4. Upon receiving this policy, Gordon's counsel contacted the Edwards Law Group, the firm that had represented Gordon in the criminal case. See Dkt. 202 at 9. Gordon's prior counsel, Edward Okwueze, provided a declaration, dated September 13, 2024, stating he is “the custodian of the records” for the Edward Law Group, that two subpoenas requesting the video footage were served in June 2020 through the hotel manager, and that on September 1, 2020, Liu called his office and refused to provide the surveillance videos. See Dkt. 185-25 at 1-9; see also Dkt. 185-15 (June 22, 2020 subpoena); Dkt. 185-16 (June 23, 2020 subpoena). The declaration embeds a screenshot of a call log, dated September 1, 2020, stating: Lady called that was subpoenaed that she does not want to give us the videos because we are his defense not prosecution. Dkt. 185-25 at 2. The number from which the “Lady” called belongs to Wendy Liu. Compare id., with Dkt. 174-2 at 3 (Liu's deposition). The remainder of Okwueze's declaration authenticates and characterizes the embedded log entry as a business record created and retained in the regular course of business by his law firm. See Dkt. 185-25 at 2. Four days after Defendants produced the policy, and before the deadline for filing Defendants' response to the original sanctions motion, Gordon filed an amended version of his motion. Dkt. 185 (filed September 14, 2024). In addition to Gordon's previously asserted contentions, the amended motion relies on Aimbridge's newly produced retention policy and the declaration of Gordon's former criminal defense attorney to bolster the request for spoliation sanctions. See id. at 8-11 (new arguments). Gordon did not confer with Defendants before filing the amended motion. Defendants filed a response to Gordon's original motion for sanctions, Dkt. 188. Shortly after Gordon filed his reply brief, Dkt. 190, Defendants filed a motion to strike both the amended motion for sanctions and Gordon's reply, Dkt. 193 (filed September 30, 2024). Gordon responded to the motion to strike, Dkt. 202, and Defendants filed a reply, Dkt. 217. Amidst these filings, Defendants filed a joint amended response to Gordon's amended motion for sanctions, Dkt. 197, to which Gordon replied, Dkt. 204. Subsequently, the undersigned issued an opinion that denied Gordon's motion to strike certain summary-judgment evidence and allegations, recommended that the Court grant summary judgment and dismiss certain claims, and recommended that others proceed to trial. Dkt. 260. If the M&R is adopted, (1) all claims against Defendants Houston H Galleria Opco, LP and SRE 4610 TX Opco GP Pledgor, LLC would be dismissed; (2) summary judgment would be granted against Gordon on his claims under 42 U.S.C. § 1983, and for negligent infliction of emotional distress, unjust enrichment, and intentional infliction of emotional distress; and (3) summary judgment would be granted against Gordon on his claims against Hasan under 42 U.S.C. § 1981, Title II of the Civil Rights Act, and for breach of contract. Id. at 49-50. If the M&R is adopted, only the following claims would remain for trial: *5 Against Defendants Hyatt, Aimbridge, and Liu only: 42 U.S.C. § 1981; Title II of the Civil Rights Act, 42 U.S.C. § 2000a; and breach of contract; and Against those three Defendants plus Hasan: conversion, false imprisonment, and defamation. See id. at 23-27, 29-38, 40-47. Analysis I. Defendants' motion to strike Gordon's amended motion for spoliation sanctions A. The Court declines to strike Gordon's amended motion. Defendants mount several procedural challenges to Gordon's amended motion for sanctions, arguing that (1) Gordon failed to properly confer with them before filing it; (2) Gordon failed to seek leave to file the amended motion; (3) certain allegations should be stricken as “refuted” or “impertinent” under Fed. R. Civ. P. 12(f); and (4) Gordon's “unclean hands” warrant striking his amended motion for “equitable relief” in the form of spoliation sanctions. Dkt. 193 at 6-11. Presuming that the amended motion should be stricken, Defendants request that Gordon's reply in support of his sanctions motion (Dkt. 190) also be stricken because it relies on arguments and evidence in his amended motion. See Dkt. 193 at 8-9. Several of Defendants' contentions are facially flawed. As Gordon correctly observes, Defendants' invocation of “unclean hands” as a basis for denying a request for spoliation sanctions as “equitable relief” misconceives the basis for such a request. See Dkt. 202 at 6. The authority to impose such sanctions stems, not from this Court's equitable power, but from the explicit language of Rule 37(e) of the Federal Rules of Civil Procedure. And the bulk of Defendants' accusations about Gordon's “unclean hands” go to the merits of his request for sanctions. See Dkt. 193 at 10 (claiming that evidence “refute[s]” Gordon's positions), at 11 (complaining the amended motion “promote[s] corrected misconceptions” from Hasan's phone call with Gordon's counsel). Those arguments provide no basis for striking Gordon's amended motion. Gordon is also correct that Rule 12(f)'s mechanism does not apply. See Dkt. 202 at 12. That rule applies only to a “pleading.” See Fed. R. Civ. P. 12(f). Motions, by definition, are not “pleadings” covered by Rule 12(f). See Fed. R. Civ. P. 7(a)-(b) (listing cognizable “[p]leadings,” as distinct from “[m]otions”). In addition, Defendants' complaints simply disagree with Gordon's depiction of the evidence by citing other record evidence. Settled law holds that Rule 12(f) is not a proper vehicle for resolving disputed facts, even those contained in pleadings. See Augustus v. Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962) (“A disputed question of fact cannot be decided on a motion to strike.”). As for the remaining contentions, the Court agrees with Defendants that Gordon was required, but failed, to confer with Defendants before filing his amended motion for spoliation sanctions.[3] See Judge Alfred H. Bennett's Court Procedures & Practices ¶ 5(C) (incorporating S.D. Tex. L.R. 7.1(D)(1)). But even if the amended filing were stricken on that basis, the Court nevertheless would give Gordon an opportunity to submit a compliant version with the requisite certificate of conference. This is doubly true because Gordon filed his amended motion for sanctions before the motions deadline expired. Compare Dkt. 185 (filed September 14, 2024), with Dkt. 117 (September 30, 2024 motions deadline). Moreover, it was evident from the start that Defendants would oppose the relief sought in Gordon's amended motion, as it augments the original motion that Defendants had already opposed. Indeed, Defendants filed a full response to both the original and the amended sanctions motion. See Dkt. 188, 197. Defendants therefore cannot show a failure to confer prejudiced them, when such a conference would have changed nothing. Accordingly, Defendants' requests to strike both the amended motion for sanctions and Gordon's reply brief referencing contentions in his amended motion are both denied. B. Defendants' request to strike Okwueze's declaration is denied. *6 Short of striking the amended motion in full, Defendants assert that Okwueze's declaration should be stricken. According to Defendants, the declaration is improper because (1) Gordon failed to identify Okwueze as a witness; and (2) a specific portion of the declaration contains hearsay.[4] See Dkt. 217 at 4-5. These objections are unfounded. Defendants' allegation that Gordon failed to timely disclose Okwueze “as a witness with personal knowledge,” Dkt. 217 at 5, is inapposite because Rule 26 does not require a party to disclose witnesses offered solely for impeachment purposes. See Fed. R. Civ. P. 26(a)(1)(A)(i) (requiring disclosure of “each individual likely to have discoverable information ... unless the use would be solely for impeachment”); Dkt. 204 at 2 n.2 (Gordon making this point). Here, Gordon offers Okwueze's declaration solely to impeach Liu's testimony that she was unaware of and never received a subpoena for video footage regarding the underlying events. Defendants' objection is unfounded. Alternatively, Defendants assert that certain information contained in Okwueze's declaration should be excluded as hearsay. See Dkt. 217 at 4-5; see also Dkt. 197 at 14-15 (incorporating hearsay challenge in motion to strike). The challenged portion embeds a screenshot of a September 1, 2020 call log recounting a call from the number “713-401-4310,” stating that a “Lady” called about a subpoena and “does not want to give us the videos because we are his defense not prosecution.”[5] Dkt. 185-25 at 2. This screenshot is essentially a document that Okwueze's declaration then explains. Because Liu admitted that the phone number in the call log is hers, Dkt. 174-2 at 3 (Liu's deposition), Gordon uses that screenshot to refute Liu's sworn testimony that she did not receive or know about the subpoena for video footage. See Dkt. 185 at 9-10 & n.4; see also Dkt. 202 at 10-11 (accusing Liu of perjury); Dkt. 185-2 at 41 (Liu testifying that “I didn't receive a subpoena”); id. at 42 (Liu claiming she had not heard about a subpoena concerning Gordon in June of 2020). For multiple reasons, the call log is not hearsay. First, Gordon is correct that Okwueze's declaration substantiates that the call log qualifies as a business record excepted from the hearsay rule, i.e., a record made “at or near the time” by someone with knowledge, that was “kept in the course of a regularly conducted activity of a business,” and that was made as a “regular practice” of the business's activity. See Fed. R. Evid. 803(6); Dkt. 204 at 2 n.1; Dkt. 185-25 at 1 (attesting that Okwueze is the “custodian of records” for the Edward Law Group); id. at 2 (substantiating Fed. R. Evid. 803(6)'s requirements). Okwueze need not have created the call log himself to lay the business-record foundation, “nor must he personally attest to the accuracy of the information contained in the record[ ].” New Orleans Cold Storage & Warehouse Co. v. NLRB, 201 F.3d 592, 601 n.9 (5th Cir. 2000) (quotation omitted) (rejecting hearsay challenge). *7 Second, the statement within the call log is not hearsay because Gordon does not offer it to prove its truth. Gordon relies on the call log, not to show that Liu refused to provide the video footage for the stated reason, but to show that Liu had, in fact, received and was aware of the subpoena for video footage. Such a statement offered to show Liu's awareness of the subpoena is not hearsay. See In re Morrison, 555 F.3d 473, 483 (5th Cir. 2009) (“Testimony offered to prove that the party had knowledge or notice is not hearsay ....”); see also, e.g., GoldCrown Props., Inc. v. Mut. of Omaha Bank, 784 F. App'x 873, 876 (5th Cir. 2019) (affirming admission of statement offered to show that an official “had been given notice of alleged wrongdoing”). Furthermore, the call log is not hearsay even if it were offered for its truth because it reflects Liu's own statement. Such a statement by an opposing party is not hearsay. See Fed. R. Evid. 801(d)(2)(A); see also Dkt. 204 at 2 n.1 (Gordon noting this rule). And because the subpoena was served on the Hyatt House hotel, Liu's statement about the subpoena, made within the scope of her employment, can also be used against Aimbridge, who employed Liu, and against Hyatt, if it was also Liu's employer. See Dkt. 260 at 21-22 (M&R noting undisputed evidence that Aimbridge was Liu's employer and identifying questions of fact as to whether Hyatt employed Liu). To be sure, it is hardly conventional to present a document by embedding a screenshot within a declaration. Nevertheless, this is a problem of form, rather than substance. The most pertinent guidance derives from the summary-judgment context, where proffered evidence “need not yet be in a form admissible at trial,” so long as its proponent shows “that it can be put into an admissible form by the time of trial.” In re Deepwater Horizon, 48 F.4th 378, 385 (5th Cir. 2022) (citing Lee v. Offshore Logistical & Transp., L.L.C., 859 F.3d 353, 355 (5th Cir. 2017)). And as the foregoing analysis shows, the remainder of Okwueze's declaration confirms that the embedded document can be presented in admissible form as a business record containing non-hearsay statements. The Court does, however, note that Gordon did not produce the call log until submitting it with his amended motion for sanctions—one day after discovery closed. Compare Dkt. 117 (September 13, 2024 discovery cut-off), with Dkt. 185-25 (filed September 14, 2024). And generally, a party who fails to produce a document cannot then use it to support a claim or defense, whether in a motion or at trial. See Fed. R. Civ. P. 37(c)(1). But given the disposition of Gordon's amended motion, as concluded below, see infra Part II.B., the Court declines to determine whether the tardy production should preclude admitting the call log, whether here or at trial. For present purposes, it is enough to conclude that Defendants have not shown that Okwueze's declaration should be stricken, and that any timeliness objection is overruled as moot. II. Gordon's amended motion for spoliation sanctions Gordon's amended motion seeks spoliation sanctions against “Defendants,” globally, and Hasan, specifically. See generally Dkt. 185. His broadest request argues that Defendants' “[b]ad faith” failure to preserve video surveillance footage from the Hyatt House hotel location on May 20 and May 21, 2020, merits sanctions under Rule 37(e). See id. at 14. In addition, Gordon argues that Hasan should be sanctioned for failing to preserve text messages. See id. at 15. Defendants respond that: (1) there was no duty to preserve the surveillance footage, asserting that Gordon's contrary positions mischaracterize the evidence; and (2) Gordon failed to show that Hasan possessed any text messages that were allegedly deleted when she had a duty to preserve them. See Dkt. 197 at 9-17. Alternatively, Defendants argue that the harshest sanctions are inappropriate with respect to the loss of surveillance footage because there is no evidence that any video was deleted in bad faith and would be material to Gordon's claims, given their lack of audio recording. See id. at 17-20. A. Legal standards: Spoliation sanctions *8 “Spoliation is the destruction or the significant and meaningful alteration of evidence.” Rimkus Consulting Grp., Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010). The framework for evaluating alleged spoliation of electronically stored information (“ESI”) is detailed in Rule 37(e), which “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.” Fed. R. Civ. P. 37(e), advisory cmte. notes to 2015 amendment. Rule 37(e) provides: If [ESI] 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). As applied to electronically stored information, sanctions under Rule 37(e) have four predicates: “(1) there is ESI that should have been preserved; (2) that ESI has been lost; (3) the ESI was lost because of a party's failure to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced through additional discovery.” BHI Energy I Power Servs. LLC v. KVP Holdings, LLC, 730 F. Supp. 3d 308, 319-20 (N.D. Tex. 2024) (quotation omitted). Rule 37(e)'s language provides two paths to spoliation sanctions. The first does not contain a mens rea requirement, as the party who lost evidence need not have done so willfully, deliberately, intentionally, or in bad faith. See Fed. R. Civ. P. 37(e)(1); see also BHI Energy, 730 F. Supp. 3d at 321 (making this observation). Rule 37(e)(1) sanctions do, however, require proof that the loss of evidence was prejudicial, i.e., that the loss impairs the other party's ability to present its claim or defense. See Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App'x 565, 575 (5th Cir. 2020) (“A party suffers prejudice where it cannot present evidence essential to its underlying claim.”) (quotation omitted); Rimkus Consulting, 688 F. Supp. 2d at 618 (addressing impact on a defense). The burden of showing prejudice cannot be too onerous, “lest the spoliator be permitted to profit from its destruction.” Quantlab Techs. Ltd. v. Godlevsky, 2014 WL 651944, at *11 (S.D. Tex. Feb. 19, 2014) (cleaned up). Nonetheless, “showing that the lost information is relevant and prejudicial is an important check on spoliation allegations and sanctions motions.” Rimkus, 688 F. Supp. 2d at 616. Speculative assertions that the lost evidence would have supported the injured party's claims or defenses are inadequate to justify the severest sanctions. Id. In contrast, Rule 37(e)(2) authorizes courts to impose the most severe sanctions—including an instruction permitting or requiring a jury to presume that the lost evidence was unfavorable—against a party that acted “with the intent to deprive another party of the information's use in the litigation ....”[6] Fed. R. Civ. P. 37(e)(2). Negligence, gross negligence, or even recklessness does not suffice. See BHI Energy, 730 F. Supp. 3d at 322. But if the requisite intent is shown, courts often presume that the lost evidence is prejudicial. See id. *9 The party seeking spoliation sanctions bears the burden of proving that Rule 37(e)'s requirements are met. See id. at 324. The standard of proof is a preponderance of evidence. See id. B. Gordon fails to show that Defendants had a duty to preserve the surveillance footage before this suit was filed. With respect to the lost surveillance footage, a critical threshold question is whether Defendants had a duty to preserve it at a time when the footage was lost. For this requirement, Rule 37(e) draws upon the common law duty to preserve. See Fed. R. Civ. P. 37(e), advisory cmte. notes to 2015 amendments. Under the common law, the duty to preserve arises when “the party charged with spoliation should have reasonably anticipated litigation.” See Coastal Bridge Co., 833 F. App'x at 574. This trigger “varies based on the facts and circumstances.” Id. Gordon does not assert, nor has he shown, that any defendant deleted the surveillance video after this suit was filed. Instead, Gordon insists that circumstances at the time of events, or during the few months thereafter, triggered a pre-suit duty to preserve the evidence. The Court disagrees. First, Gordon wrongly assumes that the duty to preserve would encompass every one of the 42 cameras at the Hyatt House hotel. But the record at most indicates that certain, specific surveillance footage depicting cars entering the garage and individuals walking from the garage to the hotel on May 20, 2020 could be pertinent to his claims. That video footage, if available, could in theory refute Liu's allegedly defamatory statements to police that accused Gordon of driving the white SUV with the women pursued by police for the May 20, 2020 theft. See, e.g., Dkt. 168, Ex. 1 at 33:12-23, 33:15-33:36 (Officer Nguyen bodycam footage that captures Liu displaying video on a laptop and claiming that video captured Gordon and the women getting out of the white car and running into the hotel); Dkt. 185-10 at 3 (Liu informing Hyatt that camera footage showed Gordon “driving in the same car as the female guests”); Dkt. 174-3 at 38-40 (Liu testifying that Gordon ran with the women from the garage through a hallway); see also Dkt. 260 at 43-45 (M&R identifying fact issues surrounding Liu's accusations that Gordon was involved with the robbery, as basis for the defamation claim). But Gordon makes no attempt to show what any other surveillance camera would have captured. Absent a demonstration that any other lost footage is relevant, Gordon cannot meet his burden to show that Defendants violated a duty to preserve that footage or, alternatively, that such a failure to preserve was prejudicial.[7] See, e.g., Hill v. Ross Dress for Less, Inc., 2013 WL 6190435, at *3 (S.D. Fla. Nov. 26, 2013) (denying spoliation sanctions, in part because plaintiff failed to show “that Defendant had a duty to preserve surveillance video that does not actually show the area where the incident [i.e., the slip-and-fall] occurred”); Mitchell v. Royal Caribbean Cruises, Ltd., 2013 WL 12066018, at *2 (S.D. Fla. May 7, 2013) (characterizing as “dubious” the notion that the defendant ship had a duty to preserve “any and all possible CCTV footage that could possibly be used in the event of a lawsuit, even for impeachment purposes, i.e. hours before and hours after a particular incident”). *10 Even with respect to the garage and hallway surveillance footage on May 20, 2020, some of Gordon's cited facts are legally irrelevant to whether Defendants had a duty to preserve the footage. Gordon relies heavily on Aimbridge and Hyatt's internal procedures that (1) direct personnel collect video if there is an incident concerning “a guest's injury/loss” and to contact the Risk Management team when a security incident occurs, Dkt. 185-11 at 1; and (2) require video to be saved for “a minimum of 90 days” and copied and saved after an “incident,” Dkt. 185-24 at 3-4.[8] See Dkt. 185 at 5, 7-8, 10-11 (repeatedly referencing these policies); Dkt. 204 at 4-5 (invoking the policies). Whether an accused spoliator followed its own retention policies can inform the existence or non-existence of bad faith or intent. See, e.g., Coastal Bridge, 833 F. App'x at 575 (noting that “[a]dherence to normal operating procedures may counter a contention of bad faith”). But it does not inform the separate question of whether “litigation was reasonably foreseeable” such that a duty to preserve arises. See Etheridge v. Dolgencorp LLC, 699 F. Supp. 3d 492, 499 (E.D. La. 2023) (“While adherence to standard operating procedures may be relevant for deciding whether a party who destroyed evidence acted in bad faith, the duty to preserve inquiry correctly asks whether litigation was reasonably foreseeable.”); Ross v. Lowe's Home Ctrs., LLC, 2016 WL 4479509, at *1 (E.D. La. Aug. 24, 2016) (distinguishing compliance with “internal company policies” requiring employees to “retain any product involved in an incident” from whether the employees “received notice of future litigation or should have known that the fan may be relevant to future litigation”). The remaining facts fail to show that Defendants reasonably should have anticipated this suit before Gordon filed it on January 10, 2022. For instance, Gordon cites a document reflecting his complaint to Hyatt's help line on May 21, 2020. See Dkt. 185 at 5 (citing Dkt. 185-10 at 3). The call log indicates that Gordon asked Hyatt to “review the camera's” footage to confirm that he was not with the women who were arrested for the May 20, 2020 theft. Dkt. 185-10 at 1. It also states that Gordon “will receive assistance from a lawyer but all he wanted was his belongings and the refund.” Id. Merely threatening to consult with a lawyer, however, is not specific enough to put Hyatt on notice that Gordon would file this suit. See Rowe v. Albertsons, Inc., 116 F. App'x 171, 175 n.3 (10th Cir. 2004) (“We decline to find notice of a potential lawsuit based merely on the not-uncommon threat ‘you will hear from my lawyer.’ ”). Nor can the Court conclude that oral requests by police investigators, on May 20 and May 21, 2020, to view video footage trigger a duty to preserve videos for purposes of this suit. See Dkt. 185 at 5, 7-8 (Gordon's reliance on police requests). At that point, Gordon was the target of police investigation—for evading arrest on foot (on May 20) and for making a terroristic threat (on May 21). Any preservation duty triggered by requests from investigating officers—assuming that such a duty exists—would be owed to the State of Texas, as the prosecuting body, rather than the person whom the police were investigating. At that point, the circumstances do not indicate that Defendants should have anticipated that Gordon, the arrestee, would turn around and sue them two years later. Gordon's reliance on the subpoenas issued by his criminal defense attorney fares no better, particularly with respect to any video footage recorded on May 20, 2020, the day of his first arrest.[9] See Dkt. 185 at 8-11. Those subpoenas sought only certain footage recorded between “6 PM to 10 PM” on “5/21/20,” which is the date of Gordon's second arrest for making a terroristic threat. See Dkt. 174-15; Dkt. 174-16. Thus, even if subpoenas seeking evidence in a prior criminal proceeding could conceivably give rise to a duty to preserve evidence in a subsequent civil suit—an issue that the Court declines to resolve—Gordon's subpoenas could not have done so with respect to surveillance footage that was never requested.[10] *11 In sum, Gordon has not shown that Defendants reasonably should have anticipated his filing of this suit during the days and weeks after the underlying incident occurred, as necessary to trigger a pre-suit duty to preserve the surveillance footage. Indeed, Gordon cites no cases suggesting that a duty to preserve arises under remotely similar circumstances. Gordon's request for sanctions over the lost surveillance video is denied. C. Hasan did not spoliate text messages. Gordon's request for spoliation sanctions against Hasan is even less tenable. See Dkt. 185 at 11-12. This is because uncontroverted evidence shows that Hasan no longer had the relevant text messages by the time a duty to preserve them arose. During a phone call just after this suit was filed, which Gordon's counsel surreptitiously recorded, Hasan stated that she had exchanged text messages with a co-worker (Giselle) who told Hasan “what happened to [Gordon's] stuff.” Dkt. 168-1 at 3. Hasan also indicated that Giselle had told her Liu was fired for stealing cash from the hotel. Id. at 5. At the end of the call, Gordon's counsel asked Hasan to retain her text messages and emails. Id. at 18. According to Gordon, this directive triggered Hasan's duty to preserve the text messages. See Dkt. 185 at 11. But even during the call, Hasan stated that she did not know how to pull up the text messages, thereby insinuating that they were no longer on her phone. See id. at 15 (“I don't know how to pull them up, so ... I think once you delete them from your phone, they delete from iCloud.”); see also id. at 16 (expressing uncertainty as to how to “pull up” those text messages). During her subsequent deposition, Hasan confirmed that the text messages were deleted before she spoke with Gordon's counsel. Dkt. 174-1 at 31; see also id. at 31-32. Gordon offers no evidence contradicting Hasan's sworn testimony that the text messages were gone before she talked to Gordon's attorney. There is no basis to conclude that the text messages were lost or deleted after Hasan had a duty to preserve them. Gordon's request for sanctions against Hasan is therefore denied. Conclusion and Order For the foregoing reasons, it is ORDERED that Defendants' joint motion to strike (Dkt. 193) both Gordon's amended Fed. R. Civ. P. 37(e) motion for sanctions, and Gordon's reply to Defendants' response to Dkt. 174, is DENIED. It is further ORDERED that Gordon's amended Fed. R. Civ. P. 37(e) motion for sanctions (Dkt. 185) is DENIED. It is further ORDERED that Gordon's original Fed. R. Civ. P. 37(e) motion (Dkt. 174) is DENIED AS MOOT. Signed on February 18, 2025, at Houston, Texas. Footnotes [1] The Court takes judicial notice of the state court's dismissal of Gordon's evading arrest charge, which the parties did not provide in conjunction with their briefing. See Fed. R. Evid. 201(b). [2] The Court denied Defendants' request to impose sanctions against Shariff and to strike Hasan's recorded statement. See Dkt. 152 at 26-27 (rulings at hearing); April 9, 2024 Docket Entry (noting denial of motion for sanctions). [3] Defendants assume that Gordon needed leave of court to file an amended motion. See Dkt. 193 at 7 (describing the amended motion as “unauthorized”) (emphasis removed). That is far from apparent. At that point, Defendants had yet to file a response, and Gordon submitted his amended motion before the motions deadline expired. Compare Dkt. 117 (September 30, 2024 motions deadline), with Dkt. 185 (amended motion filed September 14, 2024). Under these circumstances, no rule prohibited Gordon from superseding his original motion with an entirely new version. [4] Defendants also rhetorically invoke their right to procedural due process under the Fourteenth Amendment. See Dkt. 217 at 4 (citing U.S. Const., amend. XIV). But Defendants have received notice of Okwueze's declaration and have responded to it, including by moving to exclude it on various ground. Due process requires no more than that. [5] Defendants have waived any broader hearsay challenge by failing to identify what other portions of the declaration constitute hearsay. See Cortez-Burlingame v. Galveston Cnty., 2020 WL 2062263, at *3 (S.D. Tex. Apr. 27, 2020) (“Simply screaming ‘hearsay’ at the top of your lungs without pointing out the alleged hearsay statement is insufficient.”). [6] Before the 2015 amendment to Rule 37(e), courts required a showing of “bad faith” to impose the severest spoliation sanctions, at a time when those sanctions were premised on courts' inherent authority. See BHI Energy, 730 F. Supp. 3d at 323-24. The Fifth Circuit's post-amendment decisions appear to treat the “bad faith” and “intent to deprive” standards as interchangeable. See id. at 323 & n.3 (collecting Fifth Circuit decisions); see also, e.g., Guzman v. Jones, 804 F.3d 707, 713 (5th Cir. 2015) (“Bad faith, in the context of spoliation, generally means destruction for the purpose of hiding adverse evidence.”). [7] Gordon's failure to detail what other lost footage would have shown is particularly problematic because it is undisputed that the cameras did not record audio. See Dkt. 197 at 19-20. This means video footage from May 21, 2020—when Gordon allegedly demanded his belongings, made threats to Hasan, and was arrested as a result—would not have been relevant to his claims. Nor has Gordon offered anything beyond speculation suggesting that the loss of video from May 21, 2020 prejudiced his ability to prove his case. [8] Gordon mischaracterizes testimony from Aimbridge's representative when claiming that the videos were saved for six months. See Dkt. 185 at 7, 10-11 (citing Dkt. 185-5 at 38). In reality, the testimony states that DVRs in general can save recordings for “up to six months,” but it “[d]epends on the DVR.” Dkt. 185-5 at 38. The representative testified, explicitly, that he did not know how this specific Hyatt House location kept its video. See id. Likewise, Gordon inaccurately depicts Hasan's testimony when claiming it indicated the Hyatt House hotel retained video footage “permanently.” Dkt. 185 at 7 (quoting Dkt. 168-1 at 14). In reality, Hasan did not know how long this hotel retained the footage. See Dkt. 168-1 at 14 (“I don't know about Hyatt ....”); id. (stating she did not know how many days' worth of footage Hyatt retained). [9] As noted above, nothing indicates that footage from May 21, 2020, would be relevant or that its loss was prejudicial to Gordon in this suit. See supra n.7. [10] To reiterate, this opinion does not purport to determine whether Gordon should be allowed to present, at trial, his evidence suggesting that Liu lied about never receiving the subpoenas. Compare Dkt. 185-25 at 2 (September 1, 2020 call log indicating that a “Lady” calling from “713-401-4310” contacted Edwards Law Group about the subpoenas), and Dkt. 174-2 at 3 (Liu admitting the phone number is hers), with Dkt. 185-2 at 41 (Liu testifying that “I didn't receive a subpoena”), and id. at 42 (Liu claiming she had not heard about a subpoena concerning Gordon in June of 2020), and Dkt. 197-6 at 1-2 (Liu's September 16, 2024 declaration maintaining that “I did not receive a subpoena for the surveillance video(s) at issue ... and have no personal knowledge on whether a subpoena was served for said surveillance video(s)”). That is an issue for the presiding District Judge to decide.