[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]

Ms. Jennifer L. Hernandez sued Michael Kusper, alleging that Mr. Kusper sexually harassed her in violation of the Federal Fair Housing Act. She alleged that defendant Alex DiBiaso, the landlord, was vicariously liable.

The allegations were disputed and the court wrote that: “As a result of these disputes, the content of the parties’ cellular devices, and specifically the text messages exchanged among the parties, is particularly relevant evidence.” Hernandez v. DiBiaso, 2026 WL 710248 (N.D. Ill. Mar. 9, 2026).

SUMMARY

After being told by her counsel that she had a duty to preserve ESI, and after the Complaint was filed, Ms. Hernandez sold her cell phone. She explained that she sold the phone because she needed money for her family. There was no backup. 

The missing communications were at the “heart” of her Complaint. Defendant DiBiaso moved for sanctions. Ms. Hernandez had taken screenshots before selling the phone

Efforts to recover the missing data from Apple failed. Ms. Hernandez did not go to her ex-boyfriend based on fears of abuse.

The Hernandez court held that all five threshold requirements of Fed.R.Civ.P. 37(e) had been met. Ms. Hernandez argued that screenshots would suffice. The court noted that the parties entered into an ESI protocol to search the phone and that fact rebutted her argument. It found that her actions were not reasonable and that there was no secondary evidence available.

However, because Ms. Hernandez offered “credible” reasons for the sale of the cell phone, there was no “intent to deprive” Mr. DiBiaso under Rule 37(e)(2) and as such, so-called “game ending” sanctions were not available.

The court wrote that establishing prejudice under Rule 37(e)(1) is a “tricky business” because definitionally the ESI is gone. Nevertheless, self-curated screen shots did not suffice to avoid Rule 37(e)(1) sanctions. Curative sanctions were recommended.

SALE OF THE CELL PHONE

Despite the advice of counsel, Ms. Hernandez’ cell phone was not preserved. The Hernandez court explained:

Plaintiff first engaged counsel for this lawsuit in May 2023 and 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.” … Around that time, 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.” … Thereafter, in May 2024, Plaintiff informed her counsel that she had sold her cellphone “[b]ecause her family needed money.” …. It is undisputed that Plaintiff sold her cellphone after litigation commenced, but 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. … (Plaintiff explaining that she went to the Apple store to see if she could obtain the cellphone’s messages and data from Apple iCloud). The only avenue for recovering the cellphone data that was not explored by Plaintiff was contacting the ex-boyfriend who gave Plaintiff the phone in the first instance; Plaintiff explained at her deposition that he was physically abusive to her and that she does not want him to know where she or her kids are located….

Mr. DiBiaso moved for sanctions under Fed.R.Civ.P. 37(e). He asked for either dismissal of claims based on the texts or striking that part of the Complaint and instructing the jury on a mandatory adverse inference.

The Hernandez court described the requirements of that Rule and then applied them.

THE FIVE THRESHOLD REQUIREMENTS OF RULE 37(e)

The court held that the five threshold requirements of Rule 37(e) were met.

It was undisputed that the missing information was ESI and that the duty to preserve had been triggered because litigation had commenced when the cell phone was sold. It was undisputed that the missing communications “between the parties … are at the heart of the complaint.”

The parties disputed the reasonable efforts standard. Ms. Hernandez argued that the prefiling screenshots sufficed. However, the court disagreed:

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. Additionally, even the screenshotted text messages themselves omit relevant ESI, such as the date and time of some messages.

The court added that, if the parties believed at the outset that screenshots would suffice, “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.” 

As such, the sale of the cellphone, without backup or forensic extraction was held to be unreasonable. In short, the Hernandez court wrote that “Plaintiff failed to take reasonable steps to backup the additional ESI on her cellphone prior to selling the cellphone.”

It was undisputed that the missing ESI could not be restored or replaced. Numerous efforts had been made, without success.

Ms. HERNANDEZ DID NOT ACT WITH “INTENT TO DEPRIVE” Mr. DIBIASO

Next, the Hernandez court analyzed and applied subsection (e)(2) of Rule 37(e). Mr. DiBiaso sought “stringent” sanctions. The court explained:

Intent must be established before a court can impose sanctions, such as adverse jury instructions, default, and dismissal under Rule 37(e)(2) … If intent is established for these sanctions, prejudice need not be separately established because prejudice is assumed from the intent.

The court first wrote that Mr. DiBiaso did not expressly argue intent in his opening motion and did not raise it until a reply memorandum. This was “too little, too late.”

However, the Hernandez court also wrote that, even if it considered the untimely argument, it would not be persuaded. It addressed two of Mr. DiBiaso’s arguments:

First: “Defendant DiBiaso primarily suggests that intent is demonstrated because Plaintiff sold her phone after litigation started and allegedly thwarted Defendant DiBiaso’s efforts to identify the ‘owner’ of the ‘account’ (presumably the cellphone’s iCloud account) following the sale of the cellphone…. As to the first point, if all a finding of intent required was a violation of the duty to preserve, then every Rule 37(e) violation would be intentional. Fed. R. Civ. P. 37(e). But the Rule does not presume intent in every violation; instead, it establishes intent as a stand-alone element that must be demonstrated in addition to a duty to preserve where a party seeks the most serious sanctions.” [emphasis in original].

Second: “Turning next to the allegation that Plaintiff thwarted Defendant DiBiaso’s efforts to identify the iCloud account owner, Plaintiff explains that she was reluctant to disclose information about the individual who may also have access to the iCloud account because that individual was an abusive ex-boyfriend that Plaintiff did not want to have contact with and who was unlikely to provide help with accessing the iCloud account even if he could do so…. This explanation credibly evinces a lack of intent to deprive Defendant DiBiaso of the ESI; Plaintiff did not want to identify another individual with potential (though, according to Plaintiff, unlikely) access to the iCloud account because the individual was an abusive ex-boyfriend, not because Plaintiff wanted to deprive Defendant DiBiaso of access to the ESI.” [emphasis added].

The court then examined Ms. Hernandez’s argument. Ms. Hernandez had a credible explanation for the sale. She had “fallen on hard times” and no longer used that cellphone. “She sold the cellphone in order to get money for her family.” Thus, sanctions were not available under Fed.R.Civ.P. 37(e)(2).

WAS Mr. DIBIASO PREJUDICED WITHIN RULE 37(e)(1)?

The court wrote:

Having recommended that there be no finding of intent to deprive Defendant DiBiaso of the ESI, the Court turns to Defendant DiBiaso’s last avenue for sanctions, being a demonstration of prejudice warranting measures “[n]o greater than necessary to cure the prejudice.” Fed. R. Civ. P. 37(e)(1).

The court explained that:

Establishing prejudice is tricky business. All involved—the court, the party that failed to preserve, and the seeking party—are at a disadvantage because none know precisely what the lost ESI contained or showed. It is difficult for a court to determine prejudice when the ESI no longer exists and cannot be viewed. [emphasis added; cleaned up; citation omitted].

Ms. Hernandez argued “that no finding of prejudice should be made because Defendant DiBiaso can only present a ‘suspicion’ of what the lost text messages may contain.”

That argument did not carry the day: “The Court is therefore unpersuaded that there is no prejudice simply because Defendant DiBiaso cannot affirmatively attest to what the lost ESI contains. 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.” [emphasis added].

The court wrote that prejudice exists when “a party’s ability to obtain the evidence necessary for its case has been thwarted….” It found that to “clearly” be the case here, because the claims “rely heavily on text messages” and other electronic communications.

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. Where, as here, the claims at the heart of this case rely heavily on text messages and other electronic communications for which the ESI was lost, the Court recommends a finding that the loss of Plaintiff’s cellphone prejudices Defendant DiBiaso. [emphasis in original].

Based on prejudice, with the threshold requirements having been met, sanctions were appropriate under Rule 37(e)(1).

THE SANCTION

Rule 37(e)(1) sanctions are curative only. The court wrote:

As a result, the Court recommends 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.” [citation omitted].

It added: “Finally, ‘[b]ecause a decision on the appropriate means for presenting this evidence and argument to the jury is outside the scope of the referral of this case to the undersigned, the undersigned leaves it to the district judge to determine the appropriate means for presenting the evidence and arguments at trial on this issue.’”

One question that I had is why Mr. DeBiaso could not attempt to prove prejudice by showing some of Ms. Hernandez’s texts that were presumably stored on Defendants’ cell phones.

Assisted by GAI and LLM Technologies per EDRM’s GAI and LLM Policy.