In the Matter of In Re Skanska USA Civil Southeast Inc., et al., No. 3:20-CV-05980-LC/HTC (N.D. Fla. Aug. 23, 2021), Florida Magistrate Judge Hope T. Cannon, calling this a “text book case of spoliation”, granted in part the claimants’ spoliation motion, seeking sanctions against Skanska, including the ultimate sanction of a dismissal, for the destruction or loss of cell phone data and the deletion of text messages, finding bad faith on the part of Skanska for failing to preserve cell phone data for five custodians, but awarding adverse inference and monetary sanctions instead of dismissal.

Case Background

In this case involving construction contractor Skanska and potential economic damages after its barges knocked out the Pensacola Bay Bridge during Hurricane Sally, the claimants sought the production of certain electronic discovery from Skanska, including the production of cell phone data. The parties agreed to an ESI Protocol that included the production of text messages and the claimants’ first request for production of documents included a request for relevant text messages. In response, Skanska selected thirteen custodians for whom it would provide cell phone data.

After making that selection, however, Skanska informed claimants and the Court that cell phone data had either been wiped clean, deleted, or lost for five custodians. Skanska also erroneously reported that another custodian did not have a cell phone, but he did have a personal cell phone, for which some messages may not have been preserved. And at least thirteen messages were deleted from the remaining seven custodians as well.

Judge’s Ruling

In beginning her analysis, Judge Cannon stated: “This is a text book case of spoliation. It is undisputed Skanska anticipated litigation by, at least, September 16, 2020, when it designated inside counsel as a ‘triage center’ for information relating to the investigation of the allisions at issue…Despite anticipating litigation, despite issuing a written litigation hold on October 14, 2020, despite Claimants filing their first suit in November 2020, and despite receiving discovery requests in April 2021, Skanska failed to suspend its normal document destruction procedures, failed to collect cell phone data from key custodians, failed to ensure its employees understood the litigation hold, and failed to take any steps to prevent the destruction of cell phone data. Moreover, while some of the text messages were included in production of data from other custodians, there is no dispute there are text messages which are no longer available from any source.”

Continuing, Judge Cannon stated: “Skanska has provided evidence that the custodians at issue received the written litigation hold albeit almost a month after it had anticipated litigation. Claimants, however, have provided evidence that Skanska took no other steps to (1) let these custodians know they had information which would need to be collected and preserved; (2) to collect these custodians’ cell phones after the litigation hold was in place; (3) or to, at a minimum, explain to these custodians what a litigation hold means. Thus, the Court finds that Skanska did not take reasonable steps to preserve the cell phone data for these custodians.

Five of thirteen cell phones were wiped, lost or otherwise made unavailable. Since these phones were issued by Skanska, it is clear Skanska had possession, custody, or control of the phones…Although the reason each phone is no longer available is different, one fact remains the same – had Skanska collected the data from these phones, it would not have mattered if the cell phones had been reset, disabled, or fallen into the water. Thus, the fact that Skanska may not have hit the “delete” button in each case does not insulate it from responsibility.” She also noted that “Claimants have presented evidence showing that the custodians, whose phones were lost or reset or who deleted their messages, were either unaware of or failed to understand the litigation hold.”

With regard to Skanska’s argument that the claimants had not shown that Skanska affirmatively caused the data to be lost and that such affirmative conduct cannot be explained, Judge Cannon stated: “The Court disagrees…The Court finds the lack of any cogent explanation for these failures, other than ‘oops,’ points to one answer – Skanska acted in bad faith.”

However, despite this “text book case of spoliation”, Judge Cannon stated that she “does not find Skanska’s conduct to warrant a dismissal of this action, even if Skanska could still defend Claimants’ suits in state court.” Instead, she opted for the “lesser sanctions of an adverse inference and monetary sanctions” (which turned out to be over $92,000 which was awarded).

So, what do you think? Do you agree this is a “text book case of spoliation”?  Or was the Court too harsh? Please share any comments you might have or if you’d like to know more about a particular topic.

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