Court Denies Spoliation Sanctions Where Party Failed to Satisfy Elements of FRCP 37(e)
- ILS Team
In SHACKLEFORD v IVINT SOLAR DEVELOPER LLC, No. ELH-19-954 (D. Md. Jul. 2020), the District Court denied Plaintiff’s motion for spoliation sanctions where only bare-bones allegations were provided.
The case arose from Plaintiff’s claim that Defendant violated the Fair Credit Reporting Act. Plaintiff alleged that one of Defendant’s salespersons appeared at her house attempting to sell solar energy products and convinced Plaintiff to sign a digital box on the salesperson’s iPad based on assurances that her credit would not be pulled and that her signature was required only to verify that he visited her home. Plaintiff discovered several days later that a hard inquiry was made on her consumer credit reports. Plaintiff’s lawsuit followed.
During the case, among other discovery disputes, Plaintiff accused Defendant of refusing to allow her to inspect an iPad containing the version of the credit consent form used by the salesperson. Plaintiff argued that an inspection was necessary because the parties disagreed as to whether the signature page on the salesperson’s iPad contained a disclaimer authorizing a credit pull. Defendant argued that it did not possess the then used Version 4.0 because it had upgraded the software to Version 4.1, and that in any case, the two versions of the customer consent form were identical.
In ruling on a request for sanctions made by Plaintiff regarding Defendant’s refusal to disclose the Version 4.0 consent form, the District Court found that Plaintiff made no effort to apply Rule 37(e) to the facts of the case, which requires the movant to satisfy four threshold elements: “(1) ESI should have been preserved, (2) ESI was lost, (3) the loss was due to a party’s failure to take reasonable steps to preserve the ESI; and (4) the ESI cannot be restored or replaced through additional discovery.”
Plaintiff’s only reference to spoliation sanction in her filing was that Defendant’s failure to disclose the Version 4.0 consent form “raises issues of spoliation pursuant to Rule 37(e).” As a result, because spoliation motions are fact-intensive, the Court found that Plaintiff’s “bare-bones assertion falls far short of mounting a claim for spoliation sanctions.”