Montgomery v. Iron Rooster-Annapolis, LLC, No. RDB-16-3760, 2017 WL 1902699 (D. Md. May 9, 2017)

Key Insight: Court found Plaintiff failed to take reasonable steps to preserve ESI when she turned her phone in to Verizon on August 15, 2016. Defendants claimed text messages on the Plaintiff?s phone could have shown she was acting as a manager and was hence an exempt employee. Defendants discussed their position with Plaintiff?s counsel in June, 2016 and the phone was de-activated two months later. Plaintiff testified she did not know she had to keep the phone to preserve the ESI. The Court found this testimony credible and recommended, pursuant to Rule 37(e)(1) that the ??[C]ourt order measures no greater than necessary to cure the prejudice? and proposed an instruction to the jury that Plaintiff had a duty to maintain potential ESI contained on her phone, but failed to do so and indicated the court could also instruct the jury as to any inference to draw from Plaintiff?s failure to preserve texts on her phone.

Nature of Case: Employment litigation, unpaid overtime

Electronic Data Involved: Text messages