Page 1 of 11

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

IN THE MATTER OF IN RE 

SKANSKA USA CIVIL 

SOUTHEAST INC. AND 

SKANSKA USA, INC. AS 

OWNERS OF THE BARGE KS 

5531 PRAYING FOR 

EXONERATION FROM OR 

LIMITATION OF LIABILITY 

§

§

§

§

§

§

§

§

ADMIRALTY RULE 9(H)

§

§

CIVIL ACTION NO.

3:20-CV-05980-LC/HTC

ORDER ON CLAIMANTS’ ORAL MOTION FOR SANCTIONS

This matter is before the Court on Claimants’ oral motion for sanctions against 

Skanska. The Court gave Skanska an opportunity to file a written response, which it 

did. ECF Doc. 1214. And, the Claimants filed a written reply. ECF Doc. 1220. 

Additionally, the Court heard argument on the motion during the July 28, 2021 status 

conference. 

The basis of Claimants’ motion is two-fold.1

 First, Claimants argue Skanska 

misrepresented the importance of missing cell phone data from five of thirteen agreed 

1 Unlike Claimants’ spoliation motion (ECF Doc. 1228), filed August 2, 2021, which seeks 

sanctions or dismissal of this limitations action based on the destruction of cell phone data, this 

motion seeks sanctions for Skanska’s alleged misrepresentations regarding the availability of that 

data. 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 1 of 11
Page 2 of 11

2

Case No. 3:20-cv-05980-LC/HTC 

upon custodians.2 Second, Claimants argue Skanska should have known when it told 

the Court and the parties that Tugboat Captain R. Hill did not have a cell phone, that 

he did in fact have one. As clarified by the Claimants in their reply and at the July 

28, 2021 status conference, Claimants seek sanctions under Federal Rule of Civil 

Procedure 37 and the Court’s inherent power. Claimants are not seeking sanctions 

under Rule 11, 26(g), or 28 U.S.C. § 1927. 

I. COURT’S AUTHORITY TO ISSUE SANCTIONS

Federal Rule 37 authorizes a court to impose sanctions for discovery abuses. 

E.E.O.C. v. Jacksonville Shipyards, Inc., 690 F. Supp. 995, 997 (S.D. Fla. 1988). 

Skanska argues Rule 37 is inapplicable because Claimants did not file a motion to 

compel. Skanska’s argument is disingenuous. As Skanska is well aware, this Court 

streamlined discovery issues in this matter through the weekly status conferences,

and regardless of whether Claimants submitted a written motion to compel, the 

Claimants clearly sought during those status conferences to compel Skanska to 

produce cell phone data from the agreed upon custodians. Indeed, cell phone data 

was the subject of the Court’s Discovery Order No. 1. Thus, as an initial matter, the 

Court finds Rule 37 to be applicable here. See In re Seroquel Prods. Liab. Lit., 244 

F.R.D. 650, 657 (M.D. Fla. 2007) (noting that a district court could impose discovery 

2 Cell phones were lost or data was wiped for the following custodians: McGlynn, Stevens, 

Johnson, Bender, and Rubio. 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 2 of 11
Page 3 of 11

3

Case No. 3:20-cv-05980-LC/HTC 

sanctions on drug manufacturer for its failure to meet its own commitments regarding 

electronic discovery in multi-district products liability suit regardless of whether 

court had granted motion to compel).

Regardless of Rule 37, a court may sanction litigation misconduct under its 

inherent power “to manage [its] own affairs so as to achieve the orderly and 

expeditious disposition of cases.” Eagle Hosp. Physicians, LLC v. SRG Consulting, 

Inc., 2009 WL 613603, at *5 (11th Cir. Mar.12, 2009) (citing Chambers v. NASCO, 

Inc., 501 U.S. 32 (1991)); EEOC v. Jacksonville Shipyards, Inc., 690 F. Supp. 995, 

997 (S.D. Fla. 1988) (“Conduct of the kind which ordinarily would be sanctionable 

under Rule 37, but falls outside the express terms of the rule, can be sanctioned by 

proper exercise of this Court’s inherent powers.”); Malautea v. Suzuki Motor Co., 

Ltd., 987 F.2d 1536, 1545 (11th Cir.1993) (noting that courts have the inherent 

authority to control the proceedings before them, which includes the authority to 

impose “reasonable and appropriate” sanctions); Carlucci v. Piper Aircraft Corp., 

Inc., 775 F.2d 1440, 1447 (11th Cir. 1985) (discussing court’s inherent power to 

“impose sanctions for bad faith conduct during discovery”). 

Sanctionable conduct is not limited to what a party does or says in motions, 

papers, and other filings. Sanctionable conduct can and does include oral 

representations made directly to the court. See In re Engle Cases, 283 F. Supp. 3d 

1174, 1183 (M.D. Fla. 2017) (finding counsel’s misrepresentations at hearing were

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 3 of 11
Page 4 of 11

4

Case No. 3:20-cv-05980-LC/HTC 

in bad faith and appropriate for sanctions); Kipperman v. Onex Corp., 260 F.R.D. 

682, 692 (N.D. Ga. May 27, 2009) (same). 

Skanska argues that prior to issuing sanctions, the Court must first make a 

finding of bad faith. A finding of bad faith is required before a court imposes any 

sanctions under its inherent powers. See Eagle Hosp. Physicians, LLC, 2009 WL 

613603, at *5 (determining evidence supported finding of bad faith). A party may 

demonstrate bad faith by showing the other’s conduct disrupted litigation or 

hampered the enforcement of a court order. See In re Sunshine Jr. Stores, Inc., 456 

F.3d 1291, 1304 (11th Cir. 2006). The Court, however, does not have to find that 

Skanska acted in bad faith to issue a sanction under Rule 37, unless the sanction is a 

dismissal of the action. Adolph Coors Co. v. Movement Against Racism & the Klan, 

777 F.2d 1538, 1542 (11th Cir. 1985) (noting that dismissal as a sanction should be 

limited to a “willful or bad faith disregard of court orders”). 

II. ANALYSIS

Based on the information presented, the Court cannot say that Skanska made 

a willful misrepresentation regarding the availability of the missing cell phone data 

from other custodians. Nor can the Court say that Skanska’s representation abused 

the discovery process. While Skanska may have been aggressive in their view of the 

availability of such information from other custodians, there is no evidence that 

Skanska’s representations delayed discovery, was made to influence any favorable 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 4 of 11
Page 5 of 11

5

Case No. 3:20-cv-05980-LC/HTC 

ruling from this Court, or increased discovery costs. In other words, regardless of 

Skanska’s representation regarding the missing cell phone data, Claimants would 

have reviewed the same information and pursued the same information. 

Thus, the Court finds the facts here to be different from those in Kipperman v. 

Onex Corp., where the court sanctioned counsel for “misrepresenting the scope and 

value of email discovery” to affect the Court’s decision on whether discovery of 

backup tapes would be cumulative or duplicative and whether the burden or expense 

of the discovery outweighed its likely benefit. Id. at 692. Moreover, it is unclear

whether there is a true difference in the number of text messages Skanska contends 

was available from other custodians. Regardless, whether there is, in fact, missing 

data that cannot be obtained from other custodians and whether Skanska failed to 

preserve such data is the subject of Claimant’s recent spoliation motion (ECF Doc. 

1228), and thus, will be addressed in a separate order. 

The Court also does not find the requested sanction—that Skanska produce 

additional cell phone data from other custodians—to be appropriate at this time. 

There is insufficient information from which the Court can conclude that the cell 

phone data from these additional custodians will produce a significant number of 

new, rather than duplicative, messages, or that these additional cell phones will 

provide the Claimants with any texts or data that were contained in those phones that 

have been lost or wiped clean. 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 5 of 11
Page 6 of 11

6

Case No. 3:20-cv-05980-LC/HTC 

Whether Skanska should be sanctioned for misrepresenting that Hill did not 

have a cell phone is a closer call. While it is true that an attorney may rely on 

representations of their clients, attorneys cannot do so blindly. It is, after all, 

counsel’s obligation to “take affirmative steps to monitor compliance so that all 

sources of discoverable information are identified and searched.” Zubulake v. UBS 

Warburg LLC, 229 F.R.D. 422, 432 (S.D.N.Y. 2004). “[A]ttorneys are the filter 

upon which courts rely to maintain the integrity of, and trust in, our judicial process.” 

Peer v. Lewis, 606 F.3d 1306, 1316 (11th Cir. 2010). Thus, counsel should proceed 

with caution when relying on representations made by clients. 

Here, there is no indication counsel did any more than ask its client contacts 

whether Hill had a cell phone. There is no evidence, for example, that anyone asked 

Hill. Also, as the Claimants point out, a phone number was identified for Hill in 

Skanska’s Hurricane Plan, and counsel admits that their review team identified 

fourteen (14) text messages to/from Hill from/to other custodians. Thus, it does 

appear counsel should have been more diligent in its inquiry. Lack of diligence, 

however, is not the equivalent of bad faith or the type of abusive conduct that the 

Court finds sanctionable. 

Finally, regardless of any misconduct, there is no dispute Hill is one of the 

agreed upon custodians and that some information from Hill’s cell phone is 

responsive. Thus, Claimants seek to have Skanska extract and search Hill’s cell 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 6 of 11
Page 7 of 11

7

Case No. 3:20-cv-05980-LC/HTC 

phone data as it has done with the other agreed upon custodians. Since the parties 

filed their written submissions, Skanska has agreed to download, search, and produce 

relevant text messages from September 10 to September 30, 2020, located on Hill’s 

cell phone.

3

 Skanska, however, objects to extracting and searching all cell phone 

data from Hill’s cell phone, arguing the phone is Hill’s private cell phone, over which 

they have no possession, custody, and control, and Hill has a privacy interest in his 

phone.

Federal Rule of Civil Procedure 34(a) requires a party to produce relevant 

documents and other physical items that are in the possession, custody, or control of 

the party upon whom the request is served. See Fed. R. Civ. P. 34(a). “Control is 

defined not only as possession, but as the legal right to obtain documents upon 

demand,” and courts have construed it broadly. Searock v. Stripling, 736 F.2d 650, 

653 (11th Cir. 1983). The burden of establishing control over the documents sought 

is on the party seeking production. See Mamani v. De Lozada Sanchez Bustamante,

2017 WL 3456327, at *2 (S.D. Fla. Aug. 11, 2017).

As an initial matter, an employer has “control” of a current employee and the 

legal right to obtain business communications from a current employee regardless of 

whether the communication is located on a personal cell phone. See State Farm 

Mutual Automobile Ins. Co. v. Precious Physical Therapy, 2020 WL 7056039, at * 5 

3 See email from E. Billhimer, dated July 29, 2021. 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 7 of 11
Page 8 of 11

8

Case No. 3:20-cv-05980-LC/HTC 

(E. D. Mich. Dec. 2, 2020) (granting motion to compel production of emails from 

employees’ personal email accounts). As the district court in State Farm stated: 

The fact that responsive emails, if they exist, will be in the employees’ 

personal email accounts is of no moment. As a practical matter, if an 

employer were able to avoid producing business documents by simply 

maintaining anything potentially discoverable in an employee’s 

personal email account, this could have the potential to incentivize 

employers to require the use of personal accounts for business purposes 

or to store business documents in personal accounts. Such evasive 

measures would cut against the purpose of the federal civil rules that 

allow for broad discovery and would inhibit the resolution of cases on 

the merits.

Id. at *5, n.4; see also Waymo LLC v. Uber Techs., Inc., 2017 WL 2972806, at *2 

(N.D. Cal. July 12, 2017) (“Otto Trucking must produce responsive documents in the 

custody, control or possession of its officers. . . . It cannot hide responsive documents 

simply because these officers’ work for Otto Trucking was done using their personal 

email accounts.”). 

Thus, Skanska cannot shuck its discovery obligations simply because it did not 

issue the cell phone to Hill. See Int’l Longshore & Warehouse Union v. ICTSI 

Oregon, Inc., 2018 WL 6305665, at *3 (D. Or. Dec. 3, 2018) (“The Court 

acknowledges, however, that a company’s officer or agent should not be able to avoid 

the rules of discovery by using personal email, which is in the custody and control of 

that officer or agent, for work purposes.”). Regardless of whether responsive

information is on Hill’s personal cell phone, Skanska has an obligation to produce 

the information. 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 8 of 11
Page 9 of 11

9

Case No. 3:20-cv-05980-LC/HTC 

That obligation, however, does not extend to requiring Skanska to extract and 

review all the cell phone data on Hill’s cell phone. Instead, even in those cases where 

the court has found that an employer has “control” over an employee’s personal 

device,4 courts have only required the employer to ask the employee to search and 

produce the responsive information. See, e.g., ID Ventures, LLC v. Chubb Custom 

Ins. Co., 2018 WL 8807125, at * 2 (E.D. Mich. Oct. 12, 2018) (requiring plaintiff to 

ask relevant employees to search their personal email accounts for responsive 

documents and to provide defendant with an affidavit from each employee attesting 

that a search was made and all relevant documents were provided to plaintiff’s 

counsel); Union Home Mortg. Corp. v. Jenkins, 2021 WL 1110440, at *9–10 (N.D. 

Ohio Mar. 23, 2021) (directing employer to ask current employees to search for and 

provide for production of all relevant emails and text messages in their personal email 

and cell phone accounts that are responsive and, if no documents exist, to certify as 

4 Federal courts are divided on when an employer has “possession, custody, or control” of an 

employee’s personal device. See Stinson v. City of New York, 2016 WL 54684, at *5 (S.D.N.Y. 

Jan. 5, 2016) (noting divide and citing cases); Sriram, 2021 WL 3129940, at *2 (denying motion to 

compel where employer did not issue the cell phone and there was no evidence the phone was used 

routinely for business purposes or to what extent); Cotton v. Costco Wholesale Corp., 2013 WL 

3819974, at *6 (D. Kan. July 24, 2013) (finding it “likely” that Costco does not have possession, 

custody, or control of text messages employees’ cell phones were plaintiff did not contend cell 

phones were used for work or were issued by Costco); Sriram Krishnan v. Cambia Health Solutions, 

Inc. & Regence Bcbs Of Oregon, 2021 WL 3129940, at *2 (W.D. Wash. July 23, 2021) (finding 

lack of control where employer did not issue cell phone and no evidence was presented showing 

cell phones were routinely used for business or to what extent); Int’l Longshore & Warehouse 

Union v. ICTSI Oregon, Inc., 2018 WL 6305665, at *7 (D. Or. Dec. 3, 2018) (finding lack of control 

of the requested cell records or calendars because there was no evidence members used their 

personal cell phones or calendars for more than de minimis work purposes).

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 9 of 11
Page 10 of 11

10

Case No. 3:20-cv-05980-LC/HTC 

much in writing); Bank of Mongolia v. M&P Global Financial Services, Inc., 2009 

WL 10682131, at *7 (S.D. Fla. Dec. 22, 2009) (directing defendants to “make all 

reasonable efforts to obtain responsive documents” from any officer or individual 

employed by defendants from personal computers); Goolsby v. County of San Diego, 

2019 WL 3891128, at * 4 (S.D. Cal. August 19, 2019) (finding lack of control where 

plaintiff offered only speculation that personal devices were used by the deputies and 

noting that, regardless, county had already asked employees to search for and produce 

relevant information). The Court was unable to find any case where an employer was 

ordered to take possession of an employee’s personal device for purposes of 

searching the entire data on the device. 

Moreover, while there is evidence Hill sent or received work-related text 

messages on the phone, there is no evidence other cell phone data on Hill’s phone 

would produce responsive information. Thus, the burden of requiring all the data to 

be extracted and reviewed outweighs any potential benefit. See Shackleford v. Vivint 

Solar Dev., LLC, 2020 WL 6273892, at *5 (D. Md. Oct. 26, 2020) (“Not only would 

this be a potential invasion of privacy to which the employees might lodge an 

objection or seek a protective order, but it would be expensive and time-consuming. 

And it is unclear whether it would yield any benefit to plaintiff. . . . To the extent a 

search of the phones did result in some relevant information, its likely benefit is 

outweighed by the burden and expense of obtaining it.”). 

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 10 of 11
Page 11 of 11

11

Case No. 3:20-cv-05980-LC/HTC 

Since Skanska has already agreed to review and produce responsive text 

messages from Hill’s phone and Claimants have already deposed Hill, the Court does 

not find any additional orders to be necessary as it relates to the production of 

information from Hill’s cell phone. 

Accordingly, it is ORDERED:

Claimants’ oral motion for sanctions is DENIED.

DONE and ORDERED this 5th day of August, 2021.

/s/ Hope Thai Cannon

HOPE THAI CANNON

UNITED STATES MAGISTRATE JUDGE

Case 3:20-cv-05980-LC-HTC Document 1235 Filed 08/05/21 Page 11 of 11