Court Refuses to Impose Sanctions Due to Lost Cell Phone

24 Jun 2015

In Borrell v. Bloomsburg University, Civil Action No. 3:CV-12-2123 (M.D. Penn. June 8, 2015), in which a college student sued her former university for due process violations after the university expelled her for refusing to take a drug test, the Middle District of Pennsylvania considered whether to sanction Plaintiff after she lost her cell phone containing relevant electronically stored information (ESI).

Plaintiff claimed that she mailed the phone to her attorney to process the data on it for her discovery response but that the phone got lost in the mail. Plaintiff did not attempt to back up the ESI on the phone before mailing it.  She also did not track the phone or require a return receipt.

In a motion in limine, Defendants sought to exclude evidence of communications to or from Plaintiff’s lost cell phone. Defendants also requested an adverse inference jury instruction based on the lost ESI. Plaintiff objected, contending that Defendant suffered no harm because she had transferred the ESI from the old phone (the one sent to her lawyer) to a new phone, and had allowed Defendant’s vendor to copy the electronic data from the new phone.

The court looked to the Third Circuit’s guidelines for spoliation sanctions and considered:

  1. The degree of fault by the responsible party;
  2. The degree of prejudice suffered by the opposing party; and
  3. Whether a lesser sanction would suffice.

The court held that Plaintiff bore little fault for losing the cell phone and that Defendants had not suffered any significant prejudice from the lost phone. Accordingly, the court denied Defendant’s motion for sanctions and refused to exclude evidence of communications sent to or from the lost cell phone.

ILS – Plaintiff Electronic Discovery Experts