Kelly Twigger: #CaseoftheWeek Episode 106: Whether a Lost or Stolen Device Lead to Sanctions under FRCP 37(e)

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Extract from Kelly Twigger’s article “#CaseoftheWeek Episode 106: Whether a Lost or Stolen Device Lead to Sanctions under FRCP 37(e)”

In episode 106 of our Case of the Week series, we delve into why early preservation of mobile devices is key to avoiding sanctions in a wage-an-hour class action lawsuit. We’ll discuss whether the loss of a cell phone containing relevant text messages can be considered sanctionable spoliation under Rule 37, and emphasize the importance of taking active steps to preserve text messages when there’s even a remote chance they could be relevant, and why it’s up to counsel to know the sources of ESI at issue.


Hi, and welcome to this week’s episode of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys.

Our goal, as always, with the Case of the Week is to choose a decision and talk about practical tips and things that we can take away from that decision that will help us, no matter who you are touching the eDiscovery process. The decisions that we’re finding this year are flying fast and furious, and we are already over 1,500 decisions in our database for 2023.

Let’s dive into this week’s decision from Fowler v. Tenth Planet. This is a decision that comes to us from United States Magistrate Judge Mark Coulson. It is from March 29, 2023, so just over a month ago. Judge Coulson has 27 decisions in our database and writes this decision on referral from the United States District Court judge.

As always, we tag the issues to each decision in our database, and the issues for this week’s case include sanctions, failure to preserve, spoliation, dismissal, and text messages.

Read more here