Magistrate Judge William Matthewman, in the Southern District of Florida, declined to sanction a party under the amended version of Rule 37(e) for failing to suspend the automatic deletion of text messages.
“While Defendant clearly had an obligation to retain the relevant text messages after this lawsuit was initiated, the Court finds that Defendant simply acted negligently in erasing the text messages either actively or passively. Defendant is an individual who appears to be a relatively unsophisticated litigant. At worst, his actions were negligent. The amended Rule 37(e) does not permit an adverse inference instruction or other severe sanctions for negligence. There is no evidence that Defendant intentionally deleted the text messages in order to deprive Plaintiff of the information’s use in litigation. There is no evidence that he intended to deprive Plaintiff of the text messages or that he acted in bad faith. No sanctions should be imposed pursuant to Rule 37(e)(2).”
Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No.14-62216, 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016).