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

Sanctions were imposed on plaintiff for breach of the duty to preserve certain communications in Cooper v. Balt. Gas & Elec. Co., 2025 WL 2774847 (D. Md. Sep. 30, 2025)(Rubin, J.). The Court held that it would instruct the jury:

You are instructed that Plaintiff had a duty to preserve all relevant communications between her and Mr. Roberts, but failed to do so, likely resulting in a loss of evidence being available to the Defense regarding the alleged consensual nature of the relationship between Plaintiff and Mr. Roberts. You should not speculate as to what that evidence might have included or which party (if any) it might have supported. However, you should not conclude based merely on any perceived absence of evidence of additional communications between Plaintiff and Mr. Roberts that Plaintiff has carried her burden of demonstrating that their relationship was not consensual. Rather, you should consider all the evidence and testimony in this case in determining whether the parties have or have not met their respective burdens of proof without regard to which side produced it or the relative volume of information each side produced.

Cooper v. Balt. Gas & Elec. Co., 2025 WL 2774847 (D. Md. Sep. 30, 2025).

Ms. Cooper alleged sexual harassment by her former GardaWorld supervisor, Mr. Roberts. She relied heavily on Facebook and text messages with him; however, the Court wrote that: “Plaintiff has failed to produce the messages in full, as well as in native format. Instead, Plaintiff has produced screenshots of text messages with Roberts, as well as two Facebook messages post-separation, despite Plaintiff testifying that she exchanged messages with Roberts nearly every day during her employment.”

Plaintiff Cooper provided “varied” explanations for her inability to produce her cell phone. To summarize, in the Court’s words:

Thus, the current state of affairs is: (1) Plaintiff has only her screenshots of the text messages between herself and Mr. Roberts, which the Court views as an incomplete inventory given that some are cut off, some have no date, there are large gaps in time that are unaccounted for, and there are references to video attachments that were not produced…; (2) Plaintiff has produced only two post-separation Facebook Messenger messages, when her testimony was that she communicated with Mr. Roberts on Messenger “almost every day” during her employment but lost access to the messages when she blocked Mr. Roberts, well after the litigation commenced; (3) Plaintiff’s inability to recall her cell phone password and iCloud credentials renders both inaccessible; and, (4) T-Mobile is unable to produce a log of the messages because the date range sought falls outside its retention period.

Id.

Magistrate Judge Coulson recommended that Defendants be permitted to present Ms. Cooper’s failure to preserve to the jury and also suggested a related jury instruction.  Defendants, having sought dismissal, objected. The standard of review was on a clearly erroneous or contrary to law basis.

First, Defendants objected to the evidentiary determination that evidence of Ms. Cooper’s intent to deprive under Rule 37(e) was “mixed.”  The District Judge quoted the Magistrate Judge as follows and held that Defendants’ objection was overruled on this point:

To be sure, there are some circumstances surrounding Plaintiff’s lack of preservation well after the duty to preserve attached and well after she had engaged counsel that tend to support such intent. For example, Plaintiff offered shifting explanations for the whereabouts of her phone, first suggesting that she traded it in but ultimately admitting it was still in her possession. She offered no details on how it became damaged, except to verify that this occurred through multiple drops, but suggesting it nonetheless remained operable until nearly a year after suit was filed. She admits that she took the affirmative step of blocking Mr. Roberts on Facebook—again after suit had been filed—understanding that the effect of that would be to make their “almost daily messages” inaccessible yet foregoing any steps to preserve those messages beforehand. And she now claims she cannot remember either the passcode for her phone nor the code for her iCloud account.

On the other hand, Plaintiff’s counsel has actively attempted to recover the lost communications since at least January of 2025 when counsel agreed that a forensic examination of Plaintiff’s cell phone was appropriate (having already offered such an examination of the SIM card when it was believed the phone had been traded)…. Plaintiff’s counsel has actively cooperated in the forensic process to gain access, and, when that failed to be fruitful, took the extra step of contacting Apple’s general counsel. Such efforts are inconsistent with an intent to deprive.

Id.

Second, Defendants also objected to Judge Coulson’s conclusion that they had sought only Fed.R.Civ.P. 37(e)(2) sanctions.  The District Judge agreed with Magistrate Judge Coulson, writing: “That Defendants identified in a footnote that the court should impose ‘any other sanction [it] deems appropriate’ does not persuade the court that Judge Coulson was in error.”

However, Judge Coulson had, in my words, saved Defendants’ bacon by sua sponte making an alternative analysis under Fed.R.Civ.P. 37(e)(1).  See Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1) (May 19, 2025).

The District Judge wrote that: “As such, Defendants’ objection is semantical not substantive. The court discerns no error in fact or law. The court, therefore, overrules Defendants’ objection on this basis.”

Simply for clarity – in my words, as a “housekeeping” issue – the Court granted in part and denied in part Defendants’ motion so as to formally adopt Judge Coulson’s sua sponte Rule 37(e)(1) analysis.¹

Notes

1. I wrote about several prior decisions in this case. Three Motions for Sanctions Denied Under ESI Rule and Common Law (Jul. 3, 2025); Court Recommends Denial of Rule 37(e)(2) Motion, While Providing Guidance Under Rule 37(e)(1) (May 19, 2025). ↩︎

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