Nuvasive, Inc. v. Kormanis (M.D. N.C. Mar. 13, 2019) shows that when the duty to preserve is triggered, it’s imperative that parties take immediate measures to preserve data in a variety of locations including personal cell phones.


In this employment/breach of contract case, the plaintiff filed for spoliation sanctions against the defendant for deleting his “email account and willfully allow[ing] his text messages to be deleted.”

Within e-discovery, the plaintiff requested text messages between key custodians. The defendant could not produce the requested text messages, because his text messages were automatically deleted after 30 days. The plaintiff argues that the defendant failed to take reasonable steps to preserve, because the requested text messages were deleted after the duty to preserve was triggered (i.e., the notice of litigation).

Subsequently, the plaintiff filed for spoliation sanctions.


  • Spoliation Sanctions Granted. After a thorough analysis of Rule 37(e), the court found the defendant deleted relevant, irreplaceable text messages, causing prejudice to the plaintiff. The court ordered the defendant to pay plaintiff’s fees/expenses and plaintiff was given additional time to depose key custodians.
  • Wait and See Approach. Based on the evidence presented the court found it “undeterminable” to understand the full extent of the prejudice the plaintiff felt, leaving the court to defer judgment on whether more severe spoliation sanctions are warranted.  

Expert Opinion from David Cohen, Chair, Records and E- Discovery Group, ReedSmith

This well-reasoned opinion highlights the duty to take proactive steps to preserve ESI, including relevant text messages, once on notice of likely litigation. FRCP 37(e) will not protect a party from sanctions where that party has failed, negligently or intentionally, to turn off auto-deletion, causing the loss of important evidence.

Case Law Tip

Understand the requirements you must meet to prevent getting spoliation sanction like the plaintiff did in this case now.