Erasing Cell Phones

Erasing Cell Phones Under Duty to Preserve Still Leads to No Sanctions: eDiscovery Case Law

Shark week, er, eDiscovery Case Week, concludes today! In Jennings v. Frostburg State Univ., No. ELH-21-656 (D. Md. June 27, 2023), Maryland District Judge Ellen L. Hollander found that the defendants had a duty to preserve the data when erasing cell phones once two key custodians left the defendants’ employment. However, finding that “plaintiff has not provided any evidence that defendants deleted the contents of the cell phones with the intent to deprive plaintiff of any evidence contained therein”, Judge Hollander denied the plaintiff’s motion for sanctions.

Case Background

In this employment discrimination action filed by a disabled biology professor whose contract was not renewed, the plaintiff’s contract was not renewed following his second-year evaluation, based on the Department’s nonrenewal recommendation. On November 8, 2018, after Jennings received the Department’s evaluation and nonrenewal recommendation, plaintiff sent a roughly 60-page rebuttal letter to the Dean, Dr. Dorothy Campbell. On November 20, 2018, after plaintiff was informed that Dean Campbell accepted the nonrenewal recommendation, Jennings appealed the decision to Provost Dr. Elizabeth Throop, who ultimately recommended the nonrenewal of plaintiff’s contract, after expressing concern that the adverse decision “might not be defensible in court.”.

The final decision not to renew plaintiff’s contract was made on December 13, 2018. On March 14, 2019, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) against the University. On March 20, 2019, the EEOC issued a Dismissal and Notice of Rights, advising Jennings that he had 90 days to pursue his claims under the Americans with Disabilities Act (“ADA”). Plaintiff subsequently filed suit on October 30, 2020.

On December 14, 2022, just before the close of discovery, Defendants provided Plaintiff with an Affidavit indicating that they, by their own admission, had destroyed relevant evidence when they erased the university issued cell phones of Dean Campbell (on March 1, 2019) and Provost Throop (on June 2, 2020) which occurred when each left their respective positions with the university. Plaintiff filed a Motion for Sanctions based on spoliation of evidence.

Judge’s Ruling

In considering duty to preserve, Judge Hollander stated: “Defendants’ obligation to preserve evidence, in general, indisputably arose on March 19, 2019, when defendants first received notice of plaintiff’s EEOC Charge… Therefore, by the time that Dr. Throop’s cell phone was erased on June 2, 2020, defendants had an obligation, in general, to preserve evidence. Yet, defendants did not implement a litigation hold until ‘early 2021,’ upon learning of this civil action, which was nearly two years after they were informed of plaintiff’s EEOC Charge.”


However, Judge Hollander, noting that “Jennings argues that the duty was triggered even earlier: he contends that defendants should have reasonably anticipated litigation as of November 2018, when he submitted his rebuttal letter opposing the nonrenewal recommendation”, stated: “I agree”.

Continuing, she stated: “Plaintiff’s written appeal of the nonrenewal decision ‘expressly raised the subject of discrimination’” and that “Defendants’ clear understanding of the discrimination allegation is further supported by Provost Throop’s reaction to the written appeal. Defendants admitted that ‘Dr. Puthoff recalls Dr. Throop, based on an inaccurate assumption that disability may have been a factor in the nonrenewal of Plaintiff’s contract, expressed concern that the decision might not be defensible in court.’…Therefore, it is clear that defendants understood plaintiff’s written appeal as alleging discriminatory treatment… Throop’s concern that ‘the decision might not be defensible in court’…implies that, based on the written appeal, defendants anticipated the possibility of litigation… I conclude that defendants’ duty to preserve material evidence arose at the time plaintiff submitted his rebuttal letter in November of 2018.”

However, Judge Hollander also stated: “In order to impose sanctions for spoliation with respect to ESI, there is a heightened standard of culpability… in order to impose sanctions for spoliation of ESI, the Court must conclude that defendants engaged in willful or intentional conduct… Here, however, plaintiff has not provided any evidence that defendants deleted the contents of the cell phones with the intent to deprive plaintiff of any evidence contained therein. As far as I can tell, plaintiff argues only that the data was improperly deleted, and that the intent element is satisfied by the experience and knowledge of Dr. Throop and FSU counsel with respect to litigation procedure.”

As a result, Judge Hollander denied plaintiff’s sanctions motion for defendants’ erasing cell phones.

So, what do you think? Should erasing cell phones when there is a duty to preserve lead to sanctions? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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