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Schnider v. Providence Health & Services

United States District Court, D. Alaska

March 9, 2018



          Sharon L. Gleason UNITED STATES DISTRICT JUDGE.

         Before 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 testified.[1]

         I. Background

         At 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.

         At the 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, 2014.

         Mr. 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 Providence.

         Mr. 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.

         II. Discussion

         Federal 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 litigation may:
(A) presume that the lost information was unfavorable to the party;
(B) instruct the jury that it may or must presume the information was ...

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