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Surfing for Sanctions under Federal Rule of Civil Procedure 37(e)

After the enactment in 2015 of amended Federal Rule of Civil Procedure 37(e), sanctions for failing to preserve relevant electronically stored information (ESI) could only be considered if a preserving party “failed to take reasonable steps to preserve it.”[i] Since that time, parties have sought to better understand how courts would interpret the phrase “reasonable steps to preserve.” A new case from the shores of one of Southern California’s most exclusive beaches provides particular insight regarding the measures litigants should adopt to reasonably preserve relevant ESI.

Spencer v. Lunada Bay Boys

In Spencer v. Lunada Bay Boys,[ii] the issue of reasonable steps was raised in connection with a lawsuit over the right to surf the waves of Lunada Bay free from harassment. Plaintiffs alleged that a group of local residents from the adjacent community of Palos Verdes Estates had harassed visitors to the beach for decades. Apparently unable to get the city to end the local surf gang’s tactics, plaintiffs filed suit and sought relief on various federal and state law claims.

Allegations of spoliation arose in Spencer after it became apparent that one of the defendants (Blakeman) failed to retain several text messages he exchanged with other defendants shortly before the lawsuit was filed. As defendants apparently used mobile phones to coordinate their attacks on visitors to Lunada Bay, the deleted messages were potentially relevant. While most of the deleted text messages were recovered from the other defendants, four of those messages were “lost” within the meaning of Rule 37(e).

Plaintiffs argued that sanctions should issue because Blakeman failed to take reasonable steps to keep those messages after his duty to preserve attached. Blakeman countered by arguing that he took no affirmative steps to destroy the messages. Blakeman also asserted that there was no expectation under Rule 37(e) that he – as an unsophisticated individual defendant – should incur the cost of retaining an expert to image and preserve potentially relevant text messages at the outset of litigation.

The court rejected Blakeman’s arguments, holding that his inaction on preservation was not defensible. Regardless of sophistication, litigants must take reasonable preservation steps. The court reasoned that Blakeman could have taken any number of cost-effective measures short of imaging his mobile phone to preserve the relevant text message content:

[T]here are other less expensive measures to preserve relevant evidence that Defendant Blakeman could have taken . . . he could have taken a photograph of the text messages. He could have locked the text messages so that they would not be deleted or overwritten. Or, he could have written down what he recalled about the text messages. (emphasis added).

As a result, the magistrate judge recommended that several curative measures be issued against Blakeman to address the spoliation. They included monetary sanctions, a second deposition of Blakeman (the costs of which would be covered by defendant), and that plaintiffs be permitted to present evidence and argument at trial regarding the spoliation. Those sanctions were affirmed last month by the district court.[iii]

Taking Reasonable Steps to Preserve Relevant ESI

Spencer is instructive on the nature of the steps a party must take to preserve relevant evidence. Spencer teaches that clients can adopt proportional measures to address preservation where a client’s budget is limited or if the amount in controversy is small. For text messages, a party might consider taking screenshots. For social media and email, a party could respectively download copies of its social networking activities and message history. And for some unstructured data, a party could save documents in PDF to prevent their alteration.

These measures are certainly not perfect.[iv] They may not satisfy preservation requirements in substantial matters or where litigants have means to undertake more robust preservation efforts. Nevertheless, they do offer litigants an acceptable alternative in some instances for satisfying Rule 37(e)’s reasonable steps requirement.


[i] For sanctions to issue, a moving party must also demonstrate that a duty to preserve attached and that the lost ESI “cannot be restored or replaced through additional discovery.” Fed. R. Civ. P. 37(e).

[ii] Spencer v. Lunada Bay Boys, No. 16-cv-02129-SJO-RAO (C.D. Cal. Dec. 13, 2017), ECF No. 538.

[iii] Id., 2018 WL 839862 (C.D. Cal. Feb. 12, 2018). In a companion order issued that same day, the court granted summary judgment to the City of Palos Verdes Estates and dismissed the remaining state law claims against the individual defendants. The court’s discovery rulings will apparently survive its dismissal order in order to “streamline” the discovery process in a related state court proceeding. See id., ECF No. 545.

[iv] Rule 37(e) does not require perfect preservation efforts. See Fed. R. Civ. P. 37(e) committee’s note (“This rule recognizes that ‘reasonable steps’ to preserve suffice; it does not call for perfection.”).

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.