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

The EEOC sued Mia Aesthetics Clinic on behalf of Kiera Webb, alleging disability discrimination. The court issued three discovery decisions.

• One important holding is that a party cannot blindly rely on its document destruction policy as a defense to a motion for spoliation sanctions. Simply stated, that is no longer a “safe harbor.” 
• A second important holding is that deposition testimony is not an adequate replacement for contemporaneous records that went missing after the duty to preserve was triggered.

In Round I, EEOC v. Mia Aesthetics Clinic ATL, LLC, 2025 WL 1661474 (N.D. Ga. May 30, 2025), the EEOC prevailed on several discovery disputes. It did so, in my opinion, because its attorneys did their homework and supported their litigation position with facts. See “Diligent Search,” But No Responsive Data, is Insufficient Response (Jun. 10, 2025). Metrics matter.

In Round II, EEOC v. Mia Aesthetics Clinic, ATL, LLC, 2025 WL 2417759 (N.D. Ga. Aug. 18, 2025)(“Mia Aesthetics II”), Mia Aesthetics, in my words, tried to “rewrite” a court order. That unsuccessful effort led to appointment of a third-party ESI vendor at defendants’ cost. See Litigants’ Effort to Effectively “Rewrite” Court Order Led to Appointment of Third-Party Vendor (Aug. 21, 2025)(“The EEOC appears to have done everything right. To give only one example, when Mia Aesthetics provided a response that the EEOC felt was deficient, instead of prematurely going back to court, it contacted Mia Aesthetics and requested ‘cure.’”).

Round III arises out of those decisions. EEOC v. Mia Aesthetics Clinic ATL, LLC, 2026 WL 1045366 (N.D. Ga. Apr. 7, 2026)(“Mia Aesthetics III”). The court wrote:

Now before the Court is another in a long line of discovery disputes between the EEOC and Defendants (“Mia Aesthetics”). The discovery disputes began on April 28, 2025 with a Motion to Compel filed by the EEOC…. After full briefing, the Court ordered Mia Aesthetics to “conduct another, thorough search of their files for responsive data.” …. In particular, the Court required Mia Aesthetics to conduct another search for Salesforce data, email files, Google Voice data, and Slack data…. As part of that Order, the Court gave the EEOC two weeks following the deadline for Defendants’ renewed production to file objections to the production….

The EEOC filed objections to the renewed production…. After full briefing on those objections…, the Court entered yet another Order. …. This time, the Court found that Mia Aesthetics had failed to Comply with the Court’s prior Order…. As a result of Defendants’ failure to comply with the Order…, the Court required Defendants to hire a third-party e-discovery vendor to assist them in conducting a renewed search for responsive information…. At the conclusion of this Order…, the Court allowed the EEOC to file renewed objections by September 29, 2025….

That brings us to the briefing now before the Court. On September 29, 2025, the EEOC filed another set of objections to the newest attempt at compliance by Mia Aesthetics, which includes a request for spoliation sanctions…. Those objections are now fully briefed and ripe for the Court’s review.

The outcome of those objections was a Report by the U.S. Magistrate Judge that favored the EEOC:

Seeing as the EEOC has been prejudiced by the lost data, the Court RECOMMENDS the Court impose the following discovery sanction: (1) there is a genuine issue of material fact for purposes of summary judgment with respect to the reasonability of Webb’s request to work remotely, whether such an accommodation would have imposed an undue hardship on Defendants, and Webb’s attendance during her employment with Defendants…; and (2) the parties are allowed to “present evidence to the jury concerning the loss and likely relevance of [the lost] information and instruct[ ] the jury that it may consider that evidence, along with all other evidence in the case, in making its decision.” Fed. R. Civ. P. 37 advisory committee’s note to 2015 amendment.

It is further ORDERED that the discovery period be extended for 30 days for the limited purpose of the EEOC completing the three remaining depositions following the District Judge’s ruling on this report and recommendation.

Essentially, the EEOC swept the table because it showed “what happened (or did not happen) between the Court’s August 18, 2025 Order… and that Order’s September 18, 2025 production deadline.” Id. at *1. Mia Aesthetics produced 22 emails, one of which had been previously produced, consisting of 44 pages. The court wrote: “No Salesforce, Slack, or Google Voice data was included in this September 18 production.”

Before filing the instant motion, the EEOC asked Mia Aesthetics to explain why ESI was missing. Mia Aesthetics responded that it had hired a third-party vendor. It provided PST files to the vendor, and the vendor also searched Salesforce. Mia Aesthetics’ counsel contacted Salesforce, Slack representatives and made efforts to locate Google Voice data. Id. at *1.

While the court provides additional details, the result was not good: “Ultimately, Counsel for Defendants basically explains that while Defendants did find some additional responsive materials in the form of emails, the Salesforce, Slack, and Google Voice data had simply been destroyed by their various custodians.”

In Mia Aesthetics III, the EEOC sought sanctions based on the missing non-email ESI.

The court comprehensively analyzed the date on which the duty to preserve was triggered. Id. at *4-5. The more interesting issue was the disposition of Mia Aesthetics’ defense based on its information governance policy. It argued that the EEOC improperly “asks the Court to punish Defendants’ failure to suspend routine operation of various ancillary data systems.” 

The Mia Aesthetics III court rejected that “safe harbor” defense, writing:

Defendants point to their “routine operation of various ancillary data systems” and the fact that there was no indication that Webb’s Salesforce data had any bearing on her accommodation request or decision to terminate her employment…. For one, Defendants cannot simply rely on their own document preservation practices as a good reason for the data no longer existing. This would create a perverse result where companies with poor or inadequate document preservation policies would in fact be rewarded for adopting those very policies. More importantly, though, both binding and persuasive case law forbids reliance on such policies. [emphasis added].

Prior to 2015, the “safe harbor” provision of Fed.R.Civ.P. 37 prohibited sanctions under the Rules, except in extraordinary circumstances, when ESI went missing due to the routine, good faith operation of an information technology system. After the Duke Conference, Fed.R.Civ.P. 37(e) replaced that shallow “safe harbor.” Historical ESI Highlights – Part X – Dec. 2015 Amendments to the Federal Rules of Civil Procedure (Jun. 2, 2022)(“perhaps most significantly, the old ‘safe harbor’ provision of Rule 37 was demoted to an Advisory Committee note and replaced with a fully-revamped sanctions rule, Fed.R.Civ.P. 37(e).”).

For more information on the demise of the “safe harbor” rule, please visit:

• Felder Part 4 of 4: Was the Felder Defendant’s 14-Day Video Overwriting Policy Defensible? (Aug. 22, 2024);
•  M. Berman, “It is Time to Replace Maryland’s ‘Safe Harbor’ Rule,” Maryland State Bar Ass’n. White Paper (2022);
• It’s Time to Replace Maryland’s “Safe Harbor” Rule (Nov. 8, 2022).

The Mia Aesthetics III court also considered the secondary evidence provision of Rule 37(e). That clause bars sanctions if the missing ESI can be restored or replaced.

Mia Aesthetics argued that there was satisfactory secondary evidence about the feasibility of remote work, contending: “Ms. Webb herself can testify to how she performed her duties and what tools she used. The EEOC has deposed or can depose Ms. Webb’s supervisors and co-workers about how work was done and whether being in-office made a difference.”

The court disagreed:

[D]eposing workers well after an event is not a perfect substitute for reviewing more contemporaneous data points…. Moreover, it is not hard to see how after-the-fact deposition testimony, from Webb, would pale in comparison to the potential persuasiveness of concrete data showing Webb’s attendance or sales performance.

Id. at *7 (cleaned up).

The Mia Aesthetics III court explained: “Here, it is at the very least conceivable that the lost data could show, among other things, whether Webb performed tasks remotely, whether Defendants’ operations could have been performed remotely, and whether Webb was working remotely with Defendants’ approval at times Defendants now claim she was absent.”

Thus, the Mia Aesthetics III court held that “the lost data here cannot be restored or replaced through additional discovery.”

For more information on the secondary evidence principle, please visit:

• Secondary Evidence of Missing Video Permitted (Dec. 10, 2023);
• Secondary Evidence as a “Gap Filler” (Mar. 11, 2022);
• Satisfactory Secondary Evidence Prevents Sanction (Sep. 4, 2021);
• Damage Control Method (May 13, 2021);
• M. Berman and R. Shapiro, Rachel Shapiro, Esq., reprinted as Apx. F to M. Berman, et al., eds., “Electronically Stored Information in Maryland Courts” (Maryland State Bar Ass’n. 2020).

The Mia Aesthetics III court wrote: “Incredibly, counsel for Defendants noted in his September 25, 2025 letter that Defendants ‘discarded’ all computers used in 2021, presumably to include Webb’s, in 2023—one to two years after receiving notice of Webb’s [EEOC] charge.” Id. at n. 2.

After a lengthy discussion, the court held that “intent to deprive” had not been shown for sanctions under Rule 37(e)(2). Instead, it found prejudice and recommended curative sanctions under Rule 37(e)(1).

Mia Aesthetics filed objections to the Magistrate Judge’s Report and Recommendation. ECF 66 (Apr. 22, 2026). The EEOC has replied. ECF 67 (Apr. 30, 2026). The issues were submitted to the District Judge on May 7, 2026.

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