United States District Court, D. Alaska
L. Gleason UNITED STATES DISTRICT JUDGE.
the Court at Docket 116 is Providence's Motion for
Sanctions for Destruction of Relevant Evidence. At Docket
129, Plaintiffs opposed; at Docket 133, Providence replied.
An evidentiary hearing on the motion was held on February 12,
2018, at which Plaintiff Jamie Schnider
issue are the appropriate sanctions, if any, related to Mr.
Schnider's complete deletion of all entries in his
Facebook account after April 10, 2014. Plaintiffs'
lawsuit against Providence arises from the fact that Natalie
Warner was Mr. Schnider's mental health therapist. Mr.
Schnider and Ms. Warner began a sexual relationship in
approximately April 2014. Natalie Warner died on October 9,
2014 of a self-inflicted gunshot wound. It is undisputed that
Mr. Schnider permanently deleted his Facebook account at some
point after Ms. Warner's death, and after he had hired an
attorney to represent him in this case. Mr. Schnider first
communicated with attorney James Wendt's law office on
October 17, 2014. He could not recall when he deleted the
account, but testified it was certainly within a year of Ms.
Warner's death, and probably within six months. This
lawsuit was filed in March 2015.
evidentiary hearing, Mr. Schnider testified that Tiana
Johnson, his former spouse, was a paralegal at a law firm.
Mr. Schnider testified that he was well aware in June 2014
that Ms. Johnson was considering a lawsuit against
Providence. He was cooperative with Ms. Johnson and provided
extensive electronically stored information to Ms. Johnson at
that time. He testified that Ms. Johnson spent a great deal
of time telling him why a lawsuit against Providence was
important, and that he then gave her everything she wanted to
pursue it, including full access to his Facebook account at
that time. He also testified that he was a frequent and
consistent user of Facebook throughout the time he was
travelling with Ms. Warner from April through October 2014.
He described himself as “the Facebook kid.” Mr.
Schnider testified that he also used instant messaging
through his Facebook account. And he acknowledged that if one
were able to read Mr. Schnider's Facebook account for the
period in question, one would be able to assess Mr.
Schnider's emotional health on a day-to-day basis. He
said that after Ms. Warner's death, whatever his Facebook
account would have contained would have shown the state of
his mental health at that time. Providence introduced records
that Mr. Schnider called eight different law firms several
hours prior to Ms. Warner's death on October 9, 2014. Mr.
Schnider testified that he had no memory of making those
phone calls and no idea why those phone calls would have been
made at that time, but he was certain that it was not in
connection with a possible lawsuit by him against Providence.
Providence also introduced a letter written by attorney Wendt
on behalf of Mr. Schnider to Providence dated November 17,
Schnider testified that he deleted his Facebook account
because he “couldn't stand to look at Natalie every
time I opened it.” He added that he deleted the account
because he “wanted the pain gone away from me.”
He deleted everything except “three or four
pictures” that he couldn't get rid of. After Ms.
Warner's death, Mr. Schnider indicated that he spent a
significant portion of his time in several psychiatric
intensive care units. He never provided his attorney with any
material from the Facebook account before he deleted it. But
the Court finds, based on Mr. Schnider's testimony, that
he was made aware by Tiana Johnson by no later than June 2014
that his Facebook postings and other social media were
relevant materials for any future litigation against
Schnider also testified that when he deleted the account, it
was not done with any intent to prevent Providence from
getting access to it. He also testified that he can't
remember very much at all of what happened in the months and
even years after Ms. Warner's death.
Rule of Civil Rule 37(e) addresses the failure to preserve
electronically stored information. It provides as follows:
If electronically stored information that should have been
preserved in the anticipation or conduct of litigation is
lost because a party failed to take reasonable steps to
preserve it, and it cannot be restored or replaced through
additional discovery, the court:
(1) upon finding prejudice to another party from loss of the
information, may order measures no greater than necessary to
cure the prejudice; or
(2) only upon finding that the party acted with the intent to
deprive another party of the information's use in the
(A) presume that the lost information was unfavorable to the
(B) instruct the jury that it may or must presume the
information was ...