Rodriguez v. Sabre Industries, Inc. et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JESSICA RODRIGUEZ,
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Plaintiff,
vs. 	Case No. 4:24-cv-2852
SABRE INDUSTRIES, INC., et al.,
Defendants.
JUDGE PALERMO’S
REPORT AND RECOMMENDATION
This is a sex-discrimination and sexual-assault case. Pending before the Court
are competing spoliation motions.1 ECF No. 68 (Plaintiff’s motion);2 ECF No. 69
(Defendants’ motion).3 Having considered the briefing and applicable law, the Court
recommends granting Plaintiff’s motion and denying Defendants’ motion.
I. 	BACKGROUND
Both sides accuse each other of spoliation. Plaintiff Jessica Rodriguez worked
for Sabre Industries Inc. (“Sabre”) as a human resources specialist. She alleges that
1 The district judge referred all pretrial proceedings under 28 U.S.C. § 636. ECF No. 27. Spoliation
motions are appropriate for Reports and Recommendations. See, e.g., Viann’K Mansur LLC v.
Estiloisabella LLC, No. 4:23-CV-2914, 2025 WL 3197877, at *12–13 (S.D. Tex. Oct. 21, 2025),
adopted, No. 4:23-CV-2914, 2025 WL 3194420 (S.D. Tex. Nov. 14, 2025); 	Sanchez v. Thomas,
No. 1:22-cv-1197, 2024 WL 4706583, at *6 (W.D. Tex. Oct. 9, 2024), adopted, No. 1:22-cv-1197,
2024 WL 4701909 (W.D. Tex. Nov. 5, 2024).
2 Defendants responded. ECF No. 72.
3 Plaintiff responded. ECF No. 73.
United States District Court
Southern District of Texas
ENTERED
June 13, 2026
Nathan Ochsner, Clerk
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the Vice President and General Manager of Sabre’s Conroe, Texas plant—Chris
Brown—sexually assaulted her on June 28, 2022, after a work-related dinner.
Assault or not, Brown admitted to taking a nude photograph of Plaintiff with his
work phone that night, ECF No. 68 at 6; ECF No. 72-1 at 86:6–87:1, and sending it
to A.J. Escamilla and Chris Mosby, his nephew and friend, respectively, ECF No. 72
at 11; ECF No. 72-1 at 88:1–6, 103:22–24.
When Plaintiff returned to work the following day, her friend Juan Carlos
Garcia told her rumors were swirling about the event that occurred the night before.
Rodriguez, using her personal cellphone, exchanged several text messages with
Garcia about those rumors. ECF No. 69 at 6; ECF No. 69-1 at 136:3–138:5, 140:2–
20, 154:23–155:16, 156:7–15. She also texted Brown and another coworker, Iris
Valdez. ECF No. 69 at 7; ECF No. 69-1 at 140:21–141:15, 142:4–15. Plaintiff left
work early and never returned, resigning formally on June 30, 2022. ECF No. 69
at 6. At some point over the next two days, she deleted the messages with Garcia,
Brown, and Valdez because rereading them distressed her. ECF No. 73 at 6–7; ECF
No. 73-1 at 143:1–23.
Plaintiff 	filed 	an 	EEOC 	charge 	and 	sent 	Sabre 	a 	demand 	letter 	in
January 2023. ECF No. 72 at 12; ECF No. 55 at 2 (“On January 30, 2023—seven
months after her resignation—Sabre received a demand letter from Plaintiff’s
counsel notifying Sabre for the first time of the alleged events on June 28, 2022.”).
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“Sabre subsequently conducted an investigation and issued a litigation hold to
Brown” on February 9, 2023. ECF No. 72 at 12; ECF No. 72-1 at 39.
The litigation hold minced no words. It informed Brown that Sabre thought
he “may have potentially relevant” documents related to Plaintiff and that Sabre “is
legally required to make reasonable efforts to preserve all” documents relevant to
Plaintiff “that [are] in the Company’s possession, custody, or control.” ECF No. 72-
1 at 39. It directed Brown to “NOT DELETE” any “ESI IN [HIS] POSSESSION,”
including “text messages,” “UNLESS SPECIFICALLY REQUESTED TO DO
SO,” explaining that Sabre would “work with its IT professionals and/or legal
counsel to determine how best to preserve th[e] information and retrieve it from [his]
systems, if needed.” Id. at 40 (emphasis in original). With respect to text messages
with Plaintiff, the notice warned Brown to “NOT reset any personal or Company
phone . . . containing information or records related to [Plaintiff] or the employment-
related claims” and to change any “automatic destruction settings” to “keep
messages ‘forever.’” Id. at 40–41 (emphasis in original). “If [Brown] need[ed] to
reset an electronic device,” like his company phone, Sabre advised contacting “Lisa
Harrison immediately” so she could “decide if the Company needs to take additional
steps to preserve” any relevant information. Id. at 41. Noting that legal matters can
“take years to resolve,” Sabre cautioned Brown to “NOT ASSUME at any point that
the matter is closed simply because [he] ha[d] not received updates in some time,”
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stating that “[i]f [he] wish[ed] to confirm . . . that the Legal Hold remains active, he
should “contact one of the attorneys noted at the end of th[e] notice.” Id.
Jumping ahead to July 31, 2024, Plaintiff sued Sabre, Sabre Communications
Corporation, and Brown. ECF No. 1. Nine days later, before Sabre or Brown had
been served, Sabre fired Brown “for performance reasons,” collected his work phone
“as part of the normal exiting process,” and wiped it—“mistakenly” forgetting about
its own litigation hold and destroying the photo of Plaintiff and the record to whom
Brown sent it. ECF No. 72 at 13; ECF No. 72-1 at 51, ¶¶ 4–5; id. at 53, ¶¶ 2–3.
Brown later disclosed Escamilla and Mosby as individuals “with knowledge
regarding the consensual relationship between Plaintiff and” him. ECF No. 72 at 14;
ECF No. 72-1 at 64. Brown asked Escamilla and Mosby “for the texts” regarding
Plaintiff, but neither had “access to them” at the time. ECF No. 72-1 at 72. Plaintiff
did not pursue third-party discovery from either Escamilla or Mosby. ECF No. 72
at 14.
When Defendants deposed Plaintiff, she revealed her phone “contained
numerous other text messages . . . with Garcia discussing the alleged rumor[s]” from
July through October 2022 as well as messages with her friend J.D. Solis. ECF
No. 69 at 8; ECF No. 69-1 at 62:12–14, 64:11–22. Defendants requested those
messages, but Plaintiff reportedly lost her phone “in a storage facility somewhere in
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Midland, Texas,” which she had been unable to access. ECF No. 69 at 8; ECF No. 65
at 2.
Plaintiff alleges that Sabre intentionally reset Brown’s phone to destroy the
picture of her and hide to whom he sent it. ECF No. 68. Defendants assert that
Plaintiff intentionally deleted her messages with Garcia from June 29, 2022, as well
as her later texts with Garcia, Brown, and Valdez. ECF No. 69. Both move for
spoliation sanctions. The Court held a pre-motion hearing on the parties’ positions
on November 13, 2025. ECF No. 67.
II. 	SPOLIATION STANDARD
“Spoliation of evidence is the destruction or the significant and meaningful
alteration of evidence.” Miller v. Michaels Stores, Inc., 98 F.4th 211, 219 (5th Cir.
2024) (quoting Van Winkle v. Rogers, 82 F.4th 370, 374 (5th Cir. 2023)). To prove
spoliation, a party must show “(1) the spoliating party controlled the evidence in
question and had an obligation to preserve the evidence at the time it was destroyed;
(2) the spoliating party intentionally destroyed the evidence; and (3) the spoliating
party destroyed the evidence in bad faith.” Brenyah v. Columbia Hosp. Corp. of Bay
Area, No. 2:21-CV-00087, 2024 WL 5516008, at *5 (S.D. Tex. Oct. 7, 2024),
adopted, No. 2:21-CV-00087, 2025 WL 830552 (S.D. Tex. Mar. 17, 2025). “Bad
faith . . . generally means destruction for the purpose of hiding adverse evidence.”
Miller, 98 F.4th at 219 (quoting Van Winkle, 82 F.4th at 374).
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In the Fifth Circuit, courts may use their inherent power to issue sanctions
where a party acts in bad faith. Calsep A/S v. Dabral, 84 F.4th 304, 311 (5th Cir.
2023). Bad faith generally refers to destruction for the purpose of hiding adverse
evidence. Miramontes, 2023 WL 3855603, at *6. “Typically, courts do not draw an
inference of bad faith when documents are destroyed under a routine policy.” Id.
(alteration adopted) (quoting Russell v. Univ. of Tex. of Permian Basin, 234 F. App’x
194, 208 (5th Cir. 2007)). Nonetheless, courts may find a party acted in bad faith if
it destroyed the evidence after receiving notice that the evidence was relevant to the
movant’s claim. Id. For example, “[a] company’s failure to direct employees to
preserve evidence as requested in a hold letter can constitute bad faith.” Id.
Courts may impose a range of sanctions on a party that intentionally destroys
evidence. 	See 	Miramontes 	v. 	Peraton, 	Inc., 	No. 	3:21-CV-3019-B, 	2023 WL
3855603, at *3 (N.D. Tex. June 6, 2023). In selecting a sanction, courts consider the
spoliating party’s degree of fault, the prejudice caused to the other party, and whether
a lesser sanction will avoid substantial unfairness and deter such conduct by others
in the future. Id. (citing Coastal Bridge Co., L.L.C. v. Heatec, Inc., 833 F. App’x 565,
573 (5th Cir. 2020)).
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III. 	PLAINTIFF’S 	MOTION 	SHOULD 	BE 	GRANTED 	AND
DEFENDANTS’ MOTION SHOULD BE DENIED.
A. Plaintiff’s Motion Should Be Granted.
Once Plaintiff sent her demand letter containing a preservation notice on
January 30, 2023, Defendant had a duty to preserve evidence relevant to Plaintiff’s
claims. ECF No. 55 at 2.4 Defendant admits it was required to preserve relevant
evidence. ECF No. 72 at 12 (explaining Sabre “issued a litigation hold to Brown”);
ECF No. 72-1 at 39 (acknowledging Sabre “is legally required to make reasonable
efforts to preserve all” documents relevant to Plaintiff, including text messages
between her and Brown on his “personal or work phone” (emphasis added)).
When Sabre fired Brown on August 9, 2023, Plaintiff had filed this suit but
had not yet served Sabre. ECF No. 7 (Sabre served on September 6, 2024).
Nonetheless, Sabre had been on notice and under a duty to preserve since
February 9, 2023, at the latest. ECF No. 72 at 12; ECF No. 72-1 at 39. Once the duty
attached, Sabre was obligated to notify custodians not to delete any evidence, and it
did so. Id. It also should have collected relevant data from those custodians’ work
devices. In Re Skanska USA Civ. Se. Inc., 340 F.R.D. 180, 186 (N.D. Fla. Aug. 23,
2021) (ordering adverse inference sanction where the custodians knew they had a
duty to preserve cellphone data but employer took no steps to collect the data and
4 At the very least, the preservation duty attached no later than February 9, 2023, when Sabre issued
a litigation hold to Brown. ECF No. 72 at 12; ECF No. 72-1 at 39.
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preserve it). Thus, by the time it fired Brown, Sabre should have already searched
his phone, retrieved any relevant texts with or about Plaintiff, and preserved them.
Id. Or, at a minimum, it should have preserved those texts after it fired him but before
recycling his phone in the ordinary course of business. Skanska USA Civ. Se. Inc. v.
Bagelheads, Inc., 75 F.4th 1290, 1313 (11th Cir. 2023) (explaining that courts are
“highly skeptical” when a defendant claims “evidence was unintentionally destroyed
“‘pursuant to a routine policy’ after a request that the evidence be preserved”
(quoting Tesoriero v. Carnival Corp., 965 F.3d 1170, 1186 (11th Cir. 2020))).
Sabre did not do so. Instead, it factory reset Brown’s phone “as part of the
normal exiting process,” claiming it “mistakenly” forgot about the litigation hold.
ECF No. 72 at 13; ECF No. 72-1 at 51, ¶¶ 4–5; id. at 53, ¶¶ 2–3. Notably, though,
Defendants fail to explain how the litigation hold was “mistakenly” forgotten. As
explained above, Sabre should have tagged Brown’s phone for preservation since it
issued the litigation hold in February 2023, yet Sabre fails to clarify why it made no
effort to collect and preserve data from his phone for 18 months after issuing that
hold but before firing Brown. In Re Skanska, 340 F.R.D. at 188 (“[W]hat is woefully
missing from [defendant’s] explanation is the fact that [defendant] made no effort to
collect the data until at least seven (7) months after [it] anticipated litigation and a
litigation hold was in place.”). Not only that, but after firing Brown, Sabre violated
its own preservation notice by deleting all the ESI on his work phone without first
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contacting Harrison or the company’s attorneys to check if the litigation hold had
terminated. Incredibly—as in, not credible—the Court is supposed to believe that
this convenient confluence of whoopsies just so happened to play into Defendants’
favor.
Pigs do not fly, and litigants do not selectively delete unfavorable evidence by
mistake. Miramontes, 2023 WL 3855603, at *6 (“[T]he selective preservation of
relevant evidence in the face of imminent litigation can evince bad faith, even if
destruction was pursuant to routine policy.”). “Here, like in other similar cases,
Defendant[s] ‘had both the motive and opportunity’ to either preserve and collect
[Brown’s] message[] data, or delete it.” Pete v. Cooper, No. 1:24-CV-24228, 2025
WL 3755435, at *16 (S.D. Fla. Oct. 9, 2025). They “chose the latter” and offer no
credible explanation why. Id. “The Court finds the lack of any cogent explanation
for [Defendants’] failures, other than ‘oops,’ points to one answer—[Defendants]
acted in bad faith.” In Re Skanska, 340 F.R.D. at 188; Pete, 2025 WL 3755435, at
*16 (“Defendant’s lack of a credible explanation for her actions gives the Court no
other 	avenue 	than 	to 	infer 	that 	the 	deletions 	were 	made 	purposefully 	and
knowingly.”); Swofford v. Eslinger, 671 F. Supp. 2d 1274, 1284 (M.D. Fla. 2009)
(imposing adverse inference for destruction of laptop computer and finding “no
cogent, benign explanation for the failure to exempt [the] computer from that routine
purging of old computers in light of the preservation demand”).
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Moreover, as Plaintiff points out, Defendants have provided inconsistent
explanations about whether they deleted Brown’s phone data in the first place. ECF
No. 68 at 6. On a break during Brown’s deposition, Plaintiff’s counsel apparently
asked Defense counsel why the photo of Plaintiff “had not been produced in written
discovery.” Id. at 6–7. Defense counsel allegedly responded that Sabre could not
produce it because Sabre had reset Brown’s phone. Id. at 7. But Defense counsel
subsequently denied that admission in a follow up email exchange. ECF No. 68-2
at 2. Then, in a letter brief filed with the Court, Defendants backtracked again,
stating that counsel “acknowledges . . . she misspoke by stating the phone had been
wiped.” ECF No. 55 at 3–4. As if three 180’s were not enough, Defendants also
asserted in the same letter that “Harrison”—Sabre’s HR Vice President and corporate
representative—“testified that no one at Sabre ha[d] tampered with, deleted, or
destroyed any data from Brown’s phone.” Id. at 3. Defendants now insist that
Harrison “correctly testified that Sabre did not intentionally or unintentionally delete
the photograph from Brown’s phone or otherwise tamper with [his] phone.” ECF
No. 72 at 17. Except Defendants admit that they did reset the phone, twice. Id. at 13.
Defendants’ shifting version of events gives the Court whiplash—and further
evinces bad faith. White v. Regul. Adjustment Bureau, Inc., 641 F. App’x 298, 299
(5th Cir. 2015) (finding of bad faith where attorney committed “numerous instances
of alleged wrongdoing,” including “making misrepresentations to the district
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court”). Ultimately, the Court concludes that Defendants acted with intent to deprive
when Sabre wiped Brown’s work phone.
In a last-ditch effort, Defendants argue spoliation did not occur because the
photo is irrelevant to Plaintiff’s claims. ECF No. 72 at 26–29. But they miss the
point. Not only was the photo of Plaintiff lost but so too were all the accompanying
data, including to whom Brown sent the photo along with other potential text
messages and call records related to Plaintiff—all gone. That information may have
been relevant to Plaintiff’s claims against the remaining Defendants because it would
have illuminated who at Sabre knew about the alleged sexual assault and may have
revealed who started the workplace rumors. See Miller, 98 F.4th at 219 (discussing
possible circumstances in which unproduced evidence may have been relevant for
spoliation purposes). “Indeed, how ‘crucial’ [Brown’s] messages are is something
only Defendant[s] will ever know, which is precisely the issue.” Pete, 2025 WL
3755435, at *16; Pac. Coast Marine Windshields Ltd. v. Malibu Boats, LLC, 2012
WL 10817204, at *10 (M.D. Fla. Nov. 30, 2012) (“As a result of Plaintiff’s
intentional spoliation of relevant evidence, it would be impossible for this Court to
ensure that the most relevant facts were being presented and for Defendant to be sure
they were presenting their strongest defense. In fact, it would be impossible for this
Court to conclude that the trier of fact were being presented the truth.”). Therefore,
sanctions are warranted.
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Plaintiff requests default judgment as a sanction. ECF No. 68 at 13. Under
Rule 37, the Court has discretion in determining what sanction to impose for
spoliation. FED. R. CIV. P. 37(e)(2); see also Kellar v. Union Pac. R.R. Co., No. CV
21-02045, 2024 WL 3818535, at *16 (E.D. La. July 26, 2024) (“The determination
of an appropriate sanction for spoliation, if any, is confined to the sound discretion
of the trial judge and is assessed on a case-by-case basis.”) (collecting cases),
adopted, No. CV 21-2045, 2024 WL 4649244 (E.D. La. Oct. 17, 2024). “A
heightened standard applies when a party seeks the imposition of litigation-ending
(‘death penalty’) sanctions.” Little & Gorgeous Inc. v. Wild Tribe Screen Prints LLC,
No. 5:23-CV-00533-MA-RBF, 2026 WL 752255, at *4 (W.D. Tex. Mar. 10, 2026)
(quoting 	L. Funder, L.L.C. v. Munoz, 924 F.3d 753, 758 (5th Cir. 2019), as
revised (June 6, 2019)), adopted, No. 5:23-CV-00533-MA, 2026 WL 839200 (W.D.
Tex. Mar. 26, 2026). Generally, “a default judgment is an appropriate sanction under
Rule 37(e) only when the destruction of evidence is intentional, thorough, and
unsuccessfully concealed.” Id. Otherwise, “the Court must ‘determine the sanctions
are just and related to the particular claim which was at issue in the order to provide
discovery.’” Id. (quoting L. Funder, 924 F.3d at 758).
“Default judgment against a noncompliant party is appropriate when no lesser
sanction could achieve the appropriate level of deterrence.” Calsep, Inc. v. Intellgient
Petroleum Software Sols., LLC, No. 4:19-CV-1118, 2021 WL 1729169, at *9 (S.D.
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Tex. Apr. 29, 2021), adopted, No. 4:19-CV-01118, 2021 WL 3493153 (S.D. Tex.
Aug. 6, 2021). “Rule 37 death penalty sanctions are ‘justified only in the most
egregious cases, such as . . . intentionally destroying evidence by burning, shredding
or wiping out computer hard drives.’” Id. (ellipsis in original) (quoting Arya Risk
Mgmt. Sys., Pvt., Ltd. v. Duffossat Cap. P.R., LLC, No. H-16-3595, 2019 WL
6840395, at *8 (S.D. Tex. Aug. 22, 2019)). In less egregious cases, courts have found
an “adverse instruction” appropriate. See, e.g., Sanchez v. Thomas, No. 1-22-CV-
01197-DII, 2024 WL 4706583, at *5–6 (W.D. Tex. Oct. 9, 2024) (recommending
adverse-inference instruction where defendant intentionally deleted video footage
despite clear relevance to plaintiff’s claim), adopted, No. 1:22-CV-1197-RP, 2024
WL 4701909 (W.D. Tex. Nov. 5, 2024); Lowtech Studios, LLC v. Kooapps Inc., No.
1:23-CV-01437-DAE, 	2025 	WL 	3145882, 	at 	*5 	(W.D. 	Tex. 	Oct. 	9, 	2025)
(recommending 	adverse-inference 	instruction 	where 	social 	media 	posts 	were
intentionally deleted and unrecoverable), adopted sub nom. Lowtech Studios, LLC v.
Kooapps LLC, No. 1:23-CV-1437-DAE, 2025 WL 3124849 (W.D. Tex. Nov. 7,
2025).
Here, Defendants failed to preserve evidence despite being on notice for over
a year-and-a-half. The Court finds an adverse instruction appropriate. FED. R. CIV.
P. 37(e)(2)(A)–(B). Thus, the Court recommends that the District Judge instruct the
jury it may presume that the photo, text messages, and other data related to Plaintiff
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on Brown’s work phone were unfavorable to Defendants. This sanction rectifies the
prejudice to Plaintiff Defendants’ spoliation caused and is tailored to achieve the
appropriate level of deterrence. Sanchez, 2024 WL 4706583, at *6 (explaining that
an adverse inference is a typical remedy “granted in cases where, as here, courts
have determined that defendants intentionally spoliated relevant evidence”); Moody
v. CSX Transp., Inc., 271 F. Supp. 3d 410, 432 (W.D.N.Y. 2017) (“[A]n adverse
instruction appropriately addresses the evidentiary gap caused by defendants’ loss of
such material evidence.”).
B. Defendants’ Motion Should Be Denied.
For their part, Defendants ask the Court to sanction Plaintiff for deleting her
June 29, 2022 text messages with Garcia as well as her later messages with Garcia,
Brown, and Valdez. ECF No. 69 at 12. Plaintiff responds that she deleted a limited
number of texts the day after the rape while she was traumatized from learning of
the sexual assault and the rumors about it circulating at her workplace. ECF No. 73
at 6–7; ECF No. 73-1 at 143:1–23. This occurred two years before she filed suit and
long before she had hired counsel. ECF No. 73 at 17. Further, she asserts that,
although originally inaccessible, she has found her cellphone and has “begun a
rolling production of additional text messages.” ECF No. 73 at 6, 9–10. It appears
she has produced, or at least started to produce, texts from July 1, 2022, onwards.
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ECF No. 73-3. However, she still has not produced the deleted texts from June 29,
2022.
Under Rule 37(e), there are four requirements for sanctions for loss of
electronically stored information (“ESI”): “(1) there is ESI that should have been
preserved; (2) that ESI has been lost; (3) the ESI was lost because of a party’s failure
to take reasonable steps to preserve it; and (4) the ESI cannot be restored or replaced
through additional discovery.” Kirksey v. Nat’l Multiple Sclerosis Soc’y, No. 4:24-
CV-00871, 2026 WL 765267, at *10 (S.D. Tex. Jan. 15, 2026) (quoting BHI Energy
I Power Servs. LLC v. KVP Holdings, LLC, 730 F. Supp. 3d 308, 319–20 (N.D. Tex.
2024)), adopted, No. 4:24-CV-00871, 2026 WL 712860 (S.D. Tex. Mar. 13, 2026).
“The party seeking sanctions must prove, by a preponderance of evidence, that those
requirements are met.” Id.
The “threshold question is whether the disputed ESI was lost at a time when”
there was a duty to preserve it. Id. The “duty to preserve arises ‘when the party
charged with spoliation should have reasonably anticipated litigation,’” a fact-
intensive inquiry. Id. (quoting Etheridge v. Dolgencorp L.L.C., 699 F. Supp. 3d 492,
498 (E.D. La. 2023)). “The duty to preserve material evidence arises not only during
litigation, but also during the period before litigation when a party knew or should
have known that litigation was imminent.” EEOC v. Ryan’s Pointe Hous., LLC, No.
4:15-CV-2782, 2025 WL 783429, at *22 (S.D. Tex. Jan. 21, 2025) (quoting Lou v.
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Lopinto, No. 21-cv-80, 2022 WL 16685539, at *5 (E.D. La. Nov. 2, 2022)), adopted,
No. 4:15-CV-02782, 2025 WL 586031 (S.D. Tex. Feb. 21, 2025). “When a party
should reasonably anticipate litigation, it must preserve what it knows, or reasonably
should know, is relevant in the action or reasonably likely to be requested during
discovery and/or is the subject of a pending discovery request.” Id. (quoting Lou,
2022 WL 16685539, at *5).
Defendants make no showing as to whether there was any duty to preserve the
evidence in question when Plaintiff deleted her texts with Garcia from June 29, 2022;
instead they assume it is so. See generally ECF No. 69. They contend the messages
are relevant and should have been preserved but fail to show Plaintiff knew or
reasonably 	should 	have 	anticipated 	litigation 	was 	imminent 	such 	that 	the
preservation duty attached. Id. At the earliest, her duty to preserve attached when
she hired counsel or filed her EEOC charge. See, e.g., Ottoson v. SMBC Leasing &
Fin., Inc., 268 F. Supp. 3d 570, 581 (S.D.N.Y. 2017) (“The Plaintiff had control over
the evidence and an obligation to preserve it from July 9, 2012, the date that her
counsel sent a demand letter to Defendants threatening litigation and requesting
Plaintiff’s personnel file.”); Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 216
(S.D.N.Y. 2003) (“[T]he duty to preserve evidence arose, at the latest, on August 16,
2001, when Zubulake filed her EEOC charge.”); Disedare v. Brumfield, No. CV 22-
2680, 2024 WL 1526699, at *7 (E.D. La. Apr. 9, 2024) (“[R]easonable notice of a
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party’s duty to preserve evidence may arise when the plaintiff files a formal
complaint, informs the defendant that [s]he has retained counsel, threatens litigation,
or requests information relevant to the incident.” (quoting Autin v. La. Dep't of Pub.
Safety & Corr., No. CV 20-1214, 2021 WL 12278996, at *3 (E.D. La. June 17,
2021))). As Defendants concede, however, Plaintiff hired counsel and filed her
charge several months after she deleted the texts. ECF No. 69 at 10 (explaining
Plaintiff hired counsel in September 2022 and filed EEOC charge in February 2023).
In their reply, Defendants argue for the first time that Plaintiff’s HR background
means she should have known the messages would be relevant to any litigation or
claim she may bring. ECF No. 74 at 3. However, the Court need not consider
arguments raised for the first time in a reply. De Leon v. Trahan, No. PE-21-CV-
00086-DC, 2024 WL 5454655, at *3 (W.D. Tex. Aug. 28, 2024) (citing Jones v.
Cain, 600 F.3d 527, 541 (5th Cir. 2010)). Regardless, the fact that Plaintiff may have
understood in the abstract that text messages might be relevant to future litigation
does not mean that she anticipated litigation in her specific case. Put simply,
Defendants point to no evidence demonstrating Plaintiff knew or reasonably should
have anticipated litigation when she deleted the texts. Indeed, that she did not retain
counsel for at least another two months strongly suggests she did not.
Thus, the Court recommends that Defendants’ motion for sanctions be denied.
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IV. 	CONCLUSION
Accordingly, 	the 	Court 	RECOMMENDS 	that 	Plaintiff’s 	motion 	for
sanctions, ECF No. 68, should be GRANTED and that Plaintiff is entitled to an
adverse inference instruction regarding Defendants’ destruction of the evidence on
Brown’s cell phone. The Court further RECOMMENDS that, Defendants’ motion
for sanctions, ECF No. 69, should be DENIED.
Signed at Houston, Texas, on June 12, 2026.
_________________________________
Dena Hanovice Palermo
United States Magistrate Judge
Case 4:24-cv-02852 Document 83 Filed 06/12/26 in TXSD Page 18 of 18