In Hernandez v. DiBiaso, No. 23 C 15284 (N.D. Ill. Mar. 9, 2026), Illinois Magistrate Judge Daniel McLaughlin granted Defendant DiBiaso’s Motion for Spoliation Sanctions in part, finding no intent to deprive, but recommending that Defendant DiBiaso be permitted “[t]o present evidence to the jury” regarding the sale of cellphone and the “[l]ikely relevance of the lost ESI,” but that the jury “[s]hall not be given instructions on any presumption or inference based on the lost ESI.”
Case Discussion and Judge’s Ruling
In this case involving claims of sexual harassment by one of the defendants and negligence by the other defendant, Plaintiff signed a representation agreement with counsel that reminded her to “[k]eep everything…from here on out, don’t delete or throw away any documents or records that might have anything to do with your case.” While she “[t]ook screenshots of all the text messages she had between herself, Dibiaso [sic], Kusper, and others that she thought could possibly be relevant to the case”, she informed her counsel that she had sold her cellphone “[b]ecause her family needed money.”
While she sold her cellphone after litigation commenced, it was before the parties’ agreed ESI protocol could be applied to her phone. Following the sale of the cellphone, Plaintiff attempted to recover the data on the phone through various means (including by working with the parties’ ESI vendor), but she was unsuccessful.
After it was established that neither Plaintiff nor the ESI vendor would be able to recover the data from the cellphone, Defendant DiBiaso filed the instant Rule 37(e) motion, asking that the Court dismiss the claims in Plaintiff’s complaint that are based on text messages, or, in the alternative, to either “strike” from the Complaint “[t]he specific allegations and screen shots of texts” or to instruct the jury that the “[t]exts are incomplete and that the jury must presume information missing from the texts was unfavorable” to Plaintiff.
Judge McLaughlin analyzed the threshold requirements of a Rule 37(e) Motion, finding that the first three requirements – Was the information ESI?, was there a duty to preserve the ESI? and was the ESI relevant? – were not in dispute. The parties also did not dispute the fifth requirement – Was the lost ESI unable to be restored or replaced?
As for the fourth requirement (Was the ESI lost because a party failed to take reasonable steps?), the parties did dispute whether the requirement was met. Judge McLaughlin stated: “Plaintiff argues that her ‘[p]refiling efforts to screenshot relevant text messages satisfy the reasonable measures standard.’…The Court disagrees. This case revolves around the communications between the three parties, including the screenshotted text messages, but not limited to them; as has been evidenced by other discovery motions filed before this Court, call records between the parties are relevant, and have been sought from other sources due, in part, to the loss of Plaintiff’s cellphone…Moreover, if the parties believed from the outset that the screenshots were all the ESI that was needed from Plaintiff’s cellphone, then the Court sees no reason why the parties would agree to an ESI protocol that would search Plaintiff’s cellphone via a contract with an ESI extraction vendor. The parties’ intent to apply the ESI protocol to Plaintiff’s cellphone and engagement of an ESI extraction vendor to effectuate that protocol suggests that there was data beyond that included in the screenshots which the parties sought from Plaintiff’s cellphone.”
However, regarding the question of whether there was an intent to deprive Defendant of the ESI, Judge McLaughlin stated: “Defendant DiBiaso…makes no explicit argument in his Motion that Plaintiff intentionally deprived Defendant of the ESI… Therefore, Defendant DiBiaso’s failure to clearly put forth an express argument as to intent in his Motion is sufficient grounds for the Court to recommend that there be no finding of intent.”
Judge McLaughlin also stated, in finding no intent to deprive: “The Court would also recommend that no intent be found because a ‘credible explanation’ exists for the sale of the cellphone: Plaintiff attests that she had ‘[f]allen on hard times’ and that, because she no longer used the cellphone at issue, she sold the cellphone in order to get money for her family.”
Judge McLaughlin did find that there was prejudice, stating: “Given that the claims in Plaintiff’s complaint rely heavily on text messages exchanged between the parties, with Plaintiff including screenshots of some messages in the complaint itself, the Court recommends a finding of prejudice from the sale of the cellphone… The Court agrees that the loss of the full ESI from the cellphone deprives the Court of the opportunity to comprehensively evaluate the context of the text messages; it is impossible for the Court to say definitively one way or the other whose theory of the case the lost text messages may credit precisely because the text messages are lost.”
So, Judge McLaughlin recommended that Defendant DiBiaso be permitted “[t]o present evidence to the jury” regarding the sale of cellphone and the “[l]ikely relevance of the lost ESI,” and that the Court “[i]nstruct the jury that it may consider this information when making its decision,” but that the jury “[s]hall not be given instructions on any presumption or inference based on the lost ESI.”
So, what do you think? Should sale of a cellphone constitute intent to deprive? Please share any comments you might have or if you’d like to know more about a particular topic.
Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. Hat tip to Michael Berman, who covered the case here.
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.