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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION – IN ADMIRALTY 

IN RE SKANSKA USA CIVIL 

SOUTHEAST INC. AND 

SKANSKA USA, INC., AS 

OWNERS OF THE BARGE M8030 

PRAYING FOR EXONERATION 

FROM OR FOR LIMITATION OF 

LIABILITY

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ADMIRALTY RULE 9(H) 

CIVIL ACTION NO. 

3:20-CV-05980 – RV/MJF 

SENIOR DISTRICT JUDGE 

LACEY A. COLLIER 

MAGISTRATE JUDGE 

HOPE THAI CANNON 

CLAIMANTS’ SPOLIATION AND RULE 37 MOTION FOR SANCTIONS 

COMES NOW, Claimants, by and through undersigned counsel, who move 

this Court, pursuant to Rule 37 of the Federal Rules of Civil Procedure and the 

common law doctrine of spoliation of evidence, for an award of sanctions against 

Defendants for violation of the discovery process by the destruction of and/or failure 

to preserve or make available requested documents during discovery. 

 

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CLAIMANTS’ MEMORANDUM IN SUPPORT OF 

SPOLIATION AND RULE 37 MOTION FOR SANCTIONS 

I. INTRODUCTION 

The issues at play in the instant motion are best articulated by J. Schendlin in 

Zubulake IV: 

‘Documents create a paper reality we call proof.’ The absence of such 

documentary proof may stymie the search for the truth. If documents 

are lost or destroyed when they should have been preserved because a 

litigation was threatened or pending, a party may be prejudiced. The 

questions presented here are how to determine an appropriate penalty 

for the party that caused the loss and-the flip side-how to determine an 

appropriate remedy for the party injured by the loss. 

Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 214 (S.D.N.Y. 2003) (“Zubulake 

IV”) (citation omitted). 

Text messages—the most important evidence of the most important events in 

this litigation—have been destroyed for over half of Skanska’s self-selected

custodians in this litigation, despite Skanska having actual knowledge of its duty to 

preserve such evidence. These witnesses each played a critical role in preparing for 

Hurricane Sally, including development of the Hurricane Preparedness Plan, the 

decision not to implement the Hurricane Preparedness Plan in preparation for 

Hurricane Sally, implementation of the plan that it instituted instead of the Hurricane 

Preparedness Plan, efforts following Hurricane Sally to determine what Skanska did 

or did not do to result in 22 barges to become unmoored leaving damage and 

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destruction in their wake, and efforts to revise the Hurricane Preparedness Plan 

following Hurricane Sally. Despite legal holds and anticipation of litigation, 

Skanska allowed for these crucial witnesses’ cell phone data to be forever destroyed. 

Each witness’s cell phone data was destroyed after a verbal legal hold was issued, 

after a written legal hold was issued, and after litigation had been filed against 

Skanska for destruction of the Pensacola Bay Bridge.1

 The cell phone data of two 

witnesses was destroyed after discovery was served. 2 Perhaps most egregious, 

Skanska proposed three witnesses as key custodians in this litigation when their cell 

phone data had already been destroyed.

3

 There is no legitimate good faith 

explanation for this conduct. 

Compounding the spoliation and providing further evidence of bad faith intent to 

deprive Claimants of relevant evidence is Skanska’s repeated material 

misrepresentations concerning the destruction, availability, and recoverability of 

such evidence.4

 These misrepresentations, and the resulting delay in producing 

discoverable evidence, have imposed significant costs and prejudice to Claimants, 

not the least of which is their loss of the most important evidence of the most 

                                                            

1 See Ex. 1, Skanska Spoliation Timeline. 

2

 Pat McGlynn and Eduardo Rubio. See id. 

3

 Sarah Stephens, Will Bender, and Nicholas Johnson. See id. 

4

 Skanska’s serial inconsistent representations are so convoluted that a timeline is 

attached as Exhibit 1 (“Skanska Spoliation Timeline”) for assistance in following 

the chronology of the misrepresentations and spoliation. 

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important events in this litigation. Meaningful restoration of such critical evidence 

is impossible, and the resulting prejudice of Skanska’s spoliation is extraordinary. 

Claimants submit that such egregious misconduct warrants dismissal of Skanska’s 

Limitation of Liability Action, cost-shifting,5

 fees, and a fine. Yet, if this Court finds 

that dismissal is not warranted, Claimants request an adverse inference or 

presumption that the spoliated evidence was unfavorable to Skanska. 

II. FACTS 

A. Text Messages of the Most Critical Witnesses in this Litigation

Have Been Destroyed. 

Skanska chose to produce documents from thirteen custodians who they 

contend were the employees “most likely to have generated or maintained the most 

critical, discoverable ESI”6

 regarding Skanska’s negligence in failing to secure its 

construction barges leading up to Hurricane Sally. 

Months after litigation was initiated and discovery had been served, Claimants 

learned that cell phone data had been destroyed for five of those custodians, and 

Skanska represented that a sixth did not have a cell phone. Claimants later 

uncovered evidence that the sixth individual, Robert Hill, did in fact have a personal 

cell phone that he used to send and receive text messages regarding the Pensacola 

                                                            

5

 Should this Court find an award of costs is appropriate, Claimants will submit a 

bill of costs. 

6

 Ex. 1-J, May 4, 2021 Skanska Proposed Revisions to ESI Order at 12-13. 

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Bay Bridge project, proving false Skanska’s repeated representations to the 

contrary.7

 These witnesses played a critical role in the actions that are subject to this 

litigation. 

Skanska Field Engineer, Sarah Stephens, compiled the data for the 2019 

and 2020 Hurricane Preparedness Work Plans,8 and was listed as the preparer and a 

plan reviewer on its front page.9

 Consistent with Skanska’s policies and practices, 

Ms. Stephens’ iPhone was reset by Skanska Business Manager in her presence 

upon her last day at Skanska on November 11, 2020, deleting all content.10 Ms. 

Stephens’ iPhone data was not backed up or preserved.11 

Skanska Superintendent, William Bender, was described by Thomas 

DeMarco, Skanska’s Project Executive and Construction Manager, as a discipline 

                                                            

7

 Skanska’s representations concerning Rob Hill’s cell phone are subject to a 

separate motion for sanctions for discovery misconduct. See Ex. 2, July 21, 2021 

Discovery Conference Transcript at 38:19-48:22 (Claimants’ Oral Motion); ECF 

No. 1210 (“Order to Show Cause”); ECF No. 1214 (“Skanska’s Response”); ECF 

No. 1220 (“Claimants’ Reply”). Only after Claimants moved for sanctions did 

Skanska agree to produce a subset of text messages from Mr. Hill’s phone. 

Skanska’s concession amounts to “too little, too late.” As set forth below, Mr. Hill 

has already been deposed without the benefit of such evidence and admitted that he 

did not back up his phone and that it is possible that he deleted relevant text 

messages. Based on this testimony, Claimants assert spoliation claims for Mr. Hill’s 

cell phone as well. 

8

 Ex. 3, June 18, 2021 DeMarco Deposition Transcript (“Demarco Deposition 

Transcript”) at 104:3-9. 

9

 Ex. 4, SKANSKA_00000001. 

10 Ex. 1, Skanska Spoliation Timeline at 2. 

11 Ex. 5, June 22, 2021 Discovery Conference Transcript at 85:25-86:2. 

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superintendent with a supervisory role with respect to preparing the site in advance 

of Hurricane Sally.12 He was responsible for use of marine equipment in advance of 

Hurricane Sally, 13 which included actually being on the tug boats and securing 

equipment.14 Consistent with Skanska’s policies and practices, Mr. Bender reset his 

iPhone “as a matter of practice” upon his last day at Skanska on December 24, 2020, 

deleting all content.15 Mr. Bender’s iPhone data was not backed up or preserved.16 

Skanska General Superintendent, Eduardo Rubio, according to Mr. 

DeMarco, was among the three Skanska General Superintendents whose roles and 

responsibility involved the application of nautical skill.17 He was present and 

involved in the meetings on Sept. 13, 2020 about the implementation of the 

Hurricane Preparedness Plan.18 Mr. Rubio allegedly accidentally lost his phone 

aboard a barge on May 23, 2021, and Skanska personnel was informed the same 

day.19 Mr. Rubio’s iPhone data was not backed up or preserved.20

                                                            

12 June 18, 2021 DeMarco Deposition Transcript (“Demarco Deposition Transcript”) 

at 137:4-15. 

13 Id. at 152: 14-23 

14 Id. at 161: 25-162:3. 

15 Skanska Spoliation Timeline at 2. 

16 June 22, 2021 Discovery Conference Transcript at 85:25-86:2. 

17 DeMarco Deposition Transcript at 51:14-52:14. 

18 Id. at 171:16-24. 

19 Skanska Spoliation Timeline at 4. 

20 Ex. 1-E, “Francis 30b6 Transcript” at 264:11-13. 

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Skanska Superintendent, Nick Johnson had responsibility for use of marine 

equipment in advance of Hurricane Sally,21 which included actually being on the tug 

boats and securing equipment.22 During the daytime, he provided Skanska tugboat 

captains with tasking, as their immediate supervisor.23 Mr. Johnson left his phone 

behind April 15, 2021, his last day at Skanska. At some point, Mr. Johnson’s phone 

became “disabled.”24 According to Counsel, Mr. Johnson’s phone was “disabled in 

the process of trying to reset it on his last day” because he was “not very tech 

savvy.”25 Mr. Johnson testified that he left his phone on his desk and did not delete 

or reset his phone.26 He was never informed that his phone was “disabled,” did not 

personally disable his phone, and was never asked for a password to his phone.27 

Mr. Johnson’s iPhone data was not backed up or preserved.28

Skanska General Superintendent (Bridge), Patrick McGlynn was 

involved with planning and preparations ahead of Hurricane Sally29 and was 

responsible for use of marine equipment in advance of Hurricane Sally.30 He 

                                                            

21 Ex. 3, DeMarco Deposition Transcript at 152: 14-23. 

22 Id. at 161: 25-162:3. 

23 Ex. 6, July 29, 2021 Deposition of Rob Hill (“Hill Deposition Transcript”) at 

54:14-22. 

24 Ex. 1, Skanska Spoliation Timeline at 3. 

25 Id. 

26 Id. 

27 Id. 

28 Ex. 1-H, Johnson Deposition Transcript – Rough at 23:11-20. 

29 Ex. 3, DeMarco Deposition Transcript at 77:19-22. 

30 Id. at 152: 14-23. 

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provided Skanska tugboat captains with tasking for the evenings.

31 Captain Hill 

referred to Mr. McGlynn as “second in command” with Ronnie Benton.32 Mr. 

McGlynn was a reviewer for the 2020 Hurricane Preparedness Plan.

33 Mr. McGlynn 

was terminated from his employment with Skanska on May 4, 2021 and was required 

to contemporaneously turn over his phone.34 All text messages are deleted from Mr. 

McGlynn’s cell phone.35 Skanska failed to back up or preserve Mr. McGlynn’s cell 

phone during his employment.36

Skanska Tug Boat Captain, Rob Hill. Rob Hill “runs all of [Skanska’s] 

tugboats.37 Rob Hill was called by Skanska Superintendent Nick Johnson on

Sunday, September 13, 2020 and arrived on site by noon.38 On Tuesday, September 

15, 2020, Captain Hill moved a free floating, fully loaded slide barge to Butcherpen 

Cove.39 Skanska, for months, allowed Claimants to labor under the false impression 

that Mr. Hill had no cell phone, when in fact he did have a cell phone that he used 

to communicate on the Pensacola Bay Bridge Project, and that Skanska listed as a 

point of contact in the Hurricane Preparedness Plan. Mr. Hill testified that it is 

                                                            

31 Ex. 6, Hill Deposition Transcript at 54:14-22. 

32 Id. at 64:17-18. 

33 Ex. 4, SKANSKA_00000001. 

34 Ex. 1, Skanska Spoliation Timeline at 4. 

35 Id. 

36 Ex. 1-E, Francis 30b6 Transcript at 258:12-260:1. 

37 Ex. 6, Hill Deposition Transcript at 7:24-8:4. 

38 Id. at 175:15-2; 259:19-260:16. 

39 Id. at 162:1-168:24. 

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possible he deleted text messages from his phone since Hurricane Sally,40 and that 

he has never backed up his phone.41 

B. Skanska Has Withheld and Misrepresented the Extent of the 

Spoliation from Claimants and this Court. 

Skanska has made a variety of inconsistent representations—not always 

voluntarily—which has culminated in confirming widespread spoliation. Notably: 

 Skanska represented that it “has complied, and will continue to comply, with 

its discovery and evidentiary obligations including ‘legal hold’ and 

preservation of evidence” on June 1, 2021.42 At that time, the cell phone data 

of the five custodians had been destroyed. 

 Skanska represented to this Court for the first time on June 2, 2021 that there 

were “issues with a minority number of cell phones” but that “we do have 

cell phone data for the 13 custodians.” 43 Skanska did not have cell phone 

data for all 13 custodians. 

 Skanska represented on June 10, 2021 that “[n]o documentation relating to 

Skanska's storm preparations or efforts has been deleted or destroyed.”44 At 

that time, the cell phone data for all five custodians had been destroyed. 

                                                            

40 Id. at 28:18-25. 

41 Id. at 27:24-28:17; 32:3-5 

42 Ex. 1, Skanska Spoliation Timeline at 4. 

43 Id. at 5. Claimants contend that Skanska knew and should have disclosed the full 

extent of the “issues” with the cell phones at this time. 

44 Id. at 6. 

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Skanska knew or should have known that the cell phone data had been 

destroyed, as full images of all available cell phones had submitted between 

Skanska’s ESI vendors for processing on June 7 and 8, 2021,45 and Counsel 

represented on June 2, 2021 to this Court that there were “issues” with some 

of the cell phones.46 . 

 Skanska continued to represent on June 18, 2021 that “all of Skanska’s 

electronic information, documents, things, and other submissions related to 

the PBB Replacement Project were preserved from September 16, 2020, to 

the present,” but noted “the status of certain cell phone data is being 

investigated.”47 Skanska represented that it was “unaware of any document 

intentionally discarded or destroyed.”48 Both statements were demonstrably 

false. 

Skanska further misrepresented to this Court not only that Mr. Hill did not have 

a cell phone, but also the extent to which the destroyed cell phone data for the 

remaining five custodians could be recovered from other custodial productions.49 

                                                            

45 Id. at 5. 

46 Id. 47 Id. at 8. 

48 Id. 

49 These representations are subject to a pending motion for sanctions for discovery 

misconduct. See Ex. 2, Claimants’ Oral Motion at 38:19-48:22; ECF No. 1220 

(Claimants’ Reply). 

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Taken together, this conduct evidences intent to deprive Claimants of discoverable 

evidence and bad faith on the part of Skanska. 

III. ARGUMENT 

A. The Court’s Authority 

“The authority to sanction litigants for spoliation arises jointly under the 

Federal Rules of Civil Procedure and the court's own inherent powers.” Zubulake v. 

UBS Warburg LLC, 220 F.R.D. 212, 216 (S.D.N.Y. 2003) (“Zubulake IV”). This 

Court may impose sanctions for spoliation under F.R.C.P. 37 or through its 

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

expeditious disposition of cases,’ which provides broad discretion to sanction a party 

for spoliation.” AXIS Ins. Co. v. Terry, 2018 WL 9943825, at *4 (N.D. Ala. Apr. 

23, 2018) (quoting Oil Equip. Co. Inc. v. Modern Welding Co. Inc., 661 F. App’x 

646, 652 (11th Cir. 2016)); Alabama Aircraft Indus., Inc. v. Boeing Co., 319 F.R.D. 

730, 739 (N.D. Ala. 2017) (citing Flury v. Daimler Chrysler Corp., 427 F.3d 939, 

944 (11th Cir. 2005)).50 In the Eleventh Circuit, when determining whether 

sanctions should be imposed pursuant to inherent authority, courts have considered 

the following factors: 

                                                            

50 The Eleventh Circuit has “not yet had the opportunity to determine whether, given 

the [2015] amendment, the multi-factor test relied upon in Flury is still applicable 

when a party seeks sanctions based on the spoliation of electronically stored 

evidence.” AXIS Ins. Co., 2018 WL 9943825, at *4 (quoting ML Healthcare Servs., 

LLC v. Publix Super Markets, Inc., 881 F.3d 1293, 1308 (11th Cir. 2018)). 

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(1) whether the [party seeking sanctions] was prejudiced as a result of the 

destruction of evidence; (2) whether the prejudice could be cured; (3) the 

practical importance of the evidence; (4) whether the [spoliating party] acted 

in good or bad faith; and (5) the potential for abuse [if the evidence is] not 

excluded. 

AXIS Ins. Co., 2018 WL 9943825, at *11 (quoting McLeod v. Wal-Mart Stores, Inc., 

515 F. App’x 806, 808 (11th Cir. 2013) and citing Flury., 427 F.3d at 945). 

B. Skanska Spoliated Discoverable Evidence. 

“Spoliation is the destruction or significant alteration of evidence, or the 

failure to preserve property for another's use as evidence in pending or reasonably 

foreseeable litigation.” Graff v. Baja Marine Corp., 310 F. App'x 298, 301 (11th Cir. 

2009); see Zubulake IV, 220 F.R.D. at 216. A party requesting sanctions under Rule 

37(e) must establish that: 

(1) the information sought constitutes ESI;51 (2) the ESI should have 

been preserved in anticipation of litigation; (3) the ESI is lost because 

a party failed to take reasonable steps to preserve it; and (4) the ESI 

cannot be restored or replaced through additional discovery.” 

Easterwood v. Carnival Corp., No. 19-CV-22932, 2020 WL 6781742, at *4 (S.D. 

Fla. Nov. 18, 2020). Skanska both failed to preserve evidence, and actually 

destroyed evidence, and should be properly sanctioned for spoliation. 

i. Skanska Had a Duty to Preserve Discoverable Evidence. 

                                                            

51 It is not disputed that the cell phone data constitutes ESI. See ECF No. 1153 (ESI 

Protocol) at 19. 

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In determining whether a party has a duty to preserve evidence, “the test is 

whether litigation was ‘pending or reasonably foreseeable’ when the spoliation 

occurred.” Alabama Aircraft, 319 F.R.D. at 740 (quoting Graff, 310 F. App’x 298, 

301 (11th Cir. 2009)). Skanska represented that its Assistant General Counsel Steve 

Lunsford “was immediately managing the fallout as a result of Hurricane Sally and 

specifically directing the preservation of evidence” as early as September 15.52 

Skanska also represented that it began preparing for litigation “before the winds died 

down:” 

MR. REMINGTON: We started preparing for this litigation before the 

winds started dying down. And claimants were coming forward and 

lawyers were signing up claimants before the winds died down.53

Skanska additionally informed outside counsel of the destruction caused by 

its barges as early as September 17, 2020.54 Yet Skanska waited until October 14, 

2020 to issue a legal hold.55 On November 4, 2020, the first lawsuit was filed against 

Skanska for damages caused by the destruction of the Pensacola Bay Bridge.56 Cell 

phone data for each of the custodians at issue were destroyed after November 4, 

2020. 

                                                            

52 Ex. 1, Skanska Spoliation Timeline at 1. 

53 Id.; see also Ex. 7, May 26, 2021 Discovery Conference Transcript at 54:19-22. 54 See Skanska Spoliation Timeline at 1. 

55 Id. at 2. 

56 Id. 

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An obligation to preserve evidence arises when a party “has notice that the 

evidence is relevant to litigation or when a party should have known that the 

evidence may be relevant to future litigation.” Zubulake IV, 220 F.R.D. at 16 

(citation omitted). When the cell phone data was destroyed, Skanska knew or should 

have known that the text messages on these custodians’ phones were relevant to 

pending litigation. Skanska’s knowledge is further supported by fact that Skanska 

unilaterally identified these custodians as the individuals those “expected to have 

generated or maintained the most critical, discoverable ESI.”57 This is undeniable 

evidence of bad faith. 

ii. Skanska Failed to Take Reasonable Steps to Preserve 

Evidence. 

 “The ‘duty to preserve evidence extends to those [persons] likely to have 

relevant information – the key players in the case, and applies to unique, relevant 

evidence that might be useful to the adversary.’” Paisley Park Enterprises, Inc. v. 

Boxill, 330 F.R.D. 226, 233 (D. Minn. 2019) (quotation omitted); Steves and Sons, 

Inc. v. JELD-WEN, Inc., 327 F.R.D. 96, 108 (E.D. Va. 2018)) (“The principles of 

the ‘standard reasonableness framework’ require a party to ‘suspend its routine 

document retention/destruction policy and put in place a “litigation hold” to ensure 

the preservation of relevant documents.’”). Here, Skanska failed to take reasonable 

                                                            

57 Id. at 4. 

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steps to ensure the preservation of relevant evidence for the “key players” in the 

litigation. 

1. Skanska Failed to Take Affirmative Steps to Monitor 

Compliance with the Legal Hold. 

Despite Skanska anticipating litigation as early as September 15, 2020, 

Skanska did not issue a legal hold to Pensacola Bay Bridge employees until October 

14, 2020.58 But Skanska’s duty to preserve does not end with issuance of the legal 

hold: 

A party's discovery obligations do not end with the implementation of 

a “litigation hold”—to the contrary, that's only the beginning. Counsel 

must oversee compliance with the litigation hold, monitoring the party's 

efforts to retain and produce the relevant documents. 

Zubulake v. UBS Warburg L.L.C., 229 F.R.D. 422, 432 (S.D.N.Y 2004) 

(“Zubulake V”). “In short, it is not sufficient to notify all employees of a litigation 

hold and expect that [they] will then retain and produce all relevant information.” 

Id. (emphasis in original). Rather, Counsel must “take affirmative steps to monitor 

compliance so that all sources of discoverable information are identified and 

searched.” In re Seroquel Prod. Liab. Litig., 244 F.R.D. 650, 663 (M.D. Fla. 2007). 

 Here, Skanska effectively took no action to oversee compliance with the legal 

hold despite its obligations to do so not only under the relevant law, but also under 

its internal policies. Skanska’s Project Records Management Policy states that when 

                                                            

58 See Ex. 1, Skanska Spoliation Timeline at 2. 

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a legal hold is issued, employees must “acknowledge receipt of and abide by the 

Legal Department’s directives”:59 

 Skanska’s corporate representative Daniel Francis confirmed that Skanska 

policy required employees to acknowledge receipt of legal holds,

60 but he admitted 

that Skanska did not implement a process for employees to acknowledge receipt of 

the legal hold that issued on October 14, 2020: 

 Q Were there any processes in place to monitor whether employees, in 

fact, read and acknowledged the legal hold notice? 

MR. REMINGTON: Object to the form. 

A I don't believe -- I don't -- I don't know if there was any response, 

other than their presence and -- and discussion about it, you know. As 

far as formal communication back to someone, I'm not aware of -- of 

that. But I – I know that it was discussed at multiple meetings and it -

- we were -- people were aware of it. So...61 

                                                            

59 Ex. 8, Francis Ex. 18, Pensacola Bay Bridge Project Operations Manual at 52; 

see also Ex. 9, Francis Ex. 13, Skanska Project Records Management Policy at 4. 

60 Ex. 1-E, Francis 30b6 Transcript at 150:20-25. 

61 Id. at 132:2-15. 

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Q At any time did Skanska employees who received this legal hold 

notice have to acknowledge that they received and read the notice? 

A That's kind of like your last question about -- there was no written 

document that I am aware of that -- formal communication back to 

managers or legal to -- to -- to acknowledge that, other than being in 

the meetings and discussing it and, you know, face-to-face.62

Q Mr. Lunsford did not send any additional emails to the Pensacola 

Bay Bridge project email Listserv concerning the need for continued 

preservation after this October 14th email; correct? 

A I don't recall one. But I know that it was discussed at the meeting. 

So I -- I don't -- as far as a formal -- a formal document, I don't know 

of any other document.63 

Claimants have had the opportunity to depose Mr. Johnson and Mr. Hill. Both 

confirmed Skanska failed to follow up on the legal hold or to preserve their 

documents and communications. Mr. Johnson testified that he did not recall ever

receiving any instructions to preserve documents and communications relating to the 

project.64 He did not recall any verbal instructions to preserve evidence on 

September 16-18, 202065 or ever seeing the October 14, 2020 legal hold letter.66 Mr. 

Johnson testified that Skanska never backed up his iPhone, instructed him to back 

up his iPhone, or instructed him not to delete text messages.67 

                                                            

62 Id. at 135:1-10. 

63 Id. at 145:8-16. 

64 Ex. 1-H, Johnson Deposition Transcript – Rough at 29:8-17. 

65 Id. at 28:9-29:7 

66 Id. at 30:18-31:4. 

67 Id. at 32:6-23. 

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Mr. Hill testified that he did not recall ever being instructed to preserve 

documents and communications or not to delete text messages.68 Mr. Hill similarly 

did not recall ever seeing the October 14, 2020 legal hold letter, whether in email or 

hardcopy.69 Mr. Hill testified that Skanska never took affirmative steps to ensure 

his emails or text messages were preserved and not deleted,70 and Skanska never 

instructed Mr. Hill to back up his phone.71 

Furthermore, Mr. Francis confirmed that Skanska does not have a policy—

and did not initiate a policy—for automatically requiring employee cell phone 

backup during a legal hold.72 Skanska also did not have a system for recovery of 

text messages that are deleted during a legal hold.73 Mr. Francis testified that the 

only way to recover deleted text messages is potentially by using a forensic expert, 

but even forensic experts could not recover the data from these phones, as no 

backups were available.74

Skanska was required to take affirmative steps to monitor compliance with its 

legal hold under the relevant law and under its own policies and procedures but 

utterly failed to do so. 

                                                            

68 Ex. 6, Hill Deposition Transcript at 20:21-21:4. 

69 Id. at 21:15-21; 24:5-9; 25:15-25. 

70 Id. at 26:18-25. 

71 Id. at 30:25-31:4. 

72 Ex. 1-E, Francis Deposition Transcript at 54:24-55:3. 

73 Id. at 56:19-57:4. 

74 See id. at 58:21-60:3.

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2. Skanska Failed to Suspended Routine Document 

Destruction Policies. 

 “Once a party reasonably anticipates litigation, it must suspend its routine 

document retention/destruction policy and put in place a ‘litigation hold’ to ensure 

the preservation of relevant documents.” Zubulake IV, 220 F.R.D. at 216 (emphasis 

added). Skanska was obligated to suspend its routine document retention and 

destruction policies not only under relevant law, but also under its internal policies, 

which provide that Skanska’s procedures relating to destruction of records “shall 

NOT apply when any litigation ... is pending or when Litigation relating to a 

particular claim or issue is reasonably anticipated” and states that “NO 

POTENTIALLY RELEVANT PAPER OR ELECTRONIC RECORD MAY 

BE DESTROYED OR DISPOSED OF ON ANY CLAIM OR ISSUE THAT IS 

SUBJECT TO PENDING OR REASONABLY ANTICIPATED 

LITIGATION”:75 

                                                            

75 Ex. 8, Francis Ex. 18 at 51-52 (emphasis in original); see also Ex. 9, Francis Ex. 

13 at 4. 

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Skanska should have suspended two relevant policies: (1) Skanska’s policy 

not to back up or archive employee cell phone data, and (2) Skanska’s policy to 

delete all cell phone data from employee phones when an individual leaves the 

company. Skanska suspended neither of these policies despite ongoing litigation 

and issuance of a litigation hold. 

Mr. Francis confirmed it was Skanska’s policy not to back up or archive 

employee cell phone data, and not to require employees to back up their own cell 

phone data.76 On top of this, Skanska does not have any policies forbidding 

employees from deleting text messages on company-issued or personal cell 

phones.77 In light of these policies, and the fact that a legal hold letter was not issued 

                                                            

76 Ex. 1-E, Francis 30b6 Transcript at 53:9-20; 155:3-6. 

77 Id. at 52:8-12; 64:24-65:23. 

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until nearly a month after litigation was anticipated, Skanska was under a heightened 

obligation to ensure that employee phones were backed up and text messages were 

not deleted going forward. Skanska, knowing its obligation, permitted the cell phone 

data for every custodian at issue to be permanently and irretrievably destroyed. 

Mr. Francis also confirmed that it is Skanska’s policy to “reset” companyissued phones when an employee leaves.78 Resetting an iPhone necessarily requires 

that all content and data be deleted from those phones.79 If the data is not backed 

up—as was the case with all the iPhones at issue—it is permanently destroyed.80 

Allowing this policy to remain in place assured destruction of evidence. Skanska 

should have, but failed to, suspend its policies of wiping employee cell phones upon 

departure from the company, resulting in the destruction of at least Mr. Bender and 

Ms. Stephens’ cell phone data. In fact, Ms. Stephens’ cell phone was actually reset 

by Skanska’s business manager. 

                                                            

78 Id. at 226:19-227:13. 

79 “Resetting” or “restoring” a phone to factory settings “erases the information 

and settings” on the device and asks the individual resetting the phone, “Are you 

sure you want to restore the iPhone . . . All of your media and other data will be 

erased.” https://support.apple.com/en-us/HT201252, published March 1, 2020; 

last accessed Aug. 1, 2021. If an individual resets the phone from the phone itself, 

and not a computer, it requires the user to select “Erase All Content and Settings.” 

https://support.apple.com/en-us/HT201274, published June 7, 2019, last accessed 

Aug. 1, 2021. 

80 See Ex. 1-E, Francis 30b6 Transcript at 154:13-155:1. 

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3. Skanska Failed to Take Affirmative Steps to Ensure 

Preservation of Documents and Communications from 

Key Players. 

Skanska’s duty to preserve evidence extended to “any documents or tangible 

things” made by individuals “likely to have discoverable information that the 

disclosing party may use to support its claims or defenses.” Zubulake IV, 220 F.R.D. 

at 218 (quoting Fed.R.Civ.P. 26(a)(1)(A)). Skanska self-identified the “key 

custodians” in this litigation as “those expected to have generated or maintained the 

most critical, discoverable ESI.”81 

Skanska was obligated to “communicat[e] with the ‘key players’ in the 

litigation, in order to understand how they stored information.” Id. “Unless counsel 

interviews each employee, it is impossible to determine whether all potential sources 

of information have been inspected.” Id. “Although this sounds burdensome, it need 

not be;” the extent to which such interviews are feasible depends on the size of the 

company or the scope of the lawsuit. See Id. Here, it was certainly within reason to 

interview thirteen individuals serving as custodians in a litigation with hundreds of 

Claimants. Skanska should have taken steps to communicate with these “key 

players” but failed to do so. 

                                                            

81 Ex. 1-J, May 4, 2021 Skanska Proposed Revisions to ESI Order at 12-13. 

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Mr. Johnson testified that he was not aware that Skanska agreed to produce 

his cell phone data until July 29, 2021, the day before his deposition.

82 Nobody 

asked him for the password to access his phone, and he was not aware that his phone 

ever became disabled.83 At no point between Hurricane Sally and the day before 

Mr. Johnson’s deposition did Skanska or its counsel inform Mr. Johnson of the 

obligation to preserve evidence, ask him to back up his cell phone, or ask whether 

his cell phone data was backed up. 

Similarly, Mr. Hill was not aware that Skanska would be producing his 

documents and communications or that Claimants had requested his cell phone 

data.84 Mr. Hill was never instructed not to delete communications relating to the 

Pensacola Bay Bridge project.85 In fact, Mr. Hill was never even asked whether he 

used a personal cell phone on the job until Mr. Francis called him in preparation 

for his 30(b)(6) deposition on July 23, 2021.

86

As Judge Sheindlin explained in Zubulake V, 229 F.R.D. at 432: 

Proper communication between a party and her lawyer will ensure (1) 

that all relevant information (or at least all sources of relevant 

information) is discovered, (2) that relevant information is retained on 

a continuing basis; and (3) that relevant non-privileged material is 

produced to the opposing party.... 

                                                            

82 Ex. 1-H, Johnson Deposition Transcript – Rough at 18:12-16. 

83 Id. at 22:18-23:5. 

84 Ex. 6, Hill Deposition Transcript at 22:25-23:9. 

85 Id. at 23:10-14.

86 Id. at 30:10-31:7. 

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Skanska clearly failed to have the most basic conversations with its “key 

custodians”—conversations that likely would have prevented the destruction of 

critical, discoverable evidence or, at the minimum, would have alerted Claimants to 

the document destruction issues early on. 

In Zubulake V, documents were destroyed despite explicit instructions not to

so on multiple occasions from both in-house and outside counsel, and counsel 

interviewed certain “key players.” Id. at 434-35. Notwithstanding, the Court 

concluded that Defendant “failed to preserve plainly relevant e-emails” and “acted 

willfully in destroying potentially relevant information.” Id. Moreover, because the 

spoliation was found to be willful, the lost information was presumed relevant. Id. 

 The facts here are even more egregious than those described in Zubulake 

V: Skanska issued a single litigation hold, did not monitor compliance with the legal 

hold, did not enact policies to back up employee phones or retrieve deleted messages, 

did not suspend its document destruction policies, actually deleted a custodian’s cell 

phone data, and never spoke to its self-chosen custodians regarding their cell phone 

data. As such, this Court should find that Skanska spoliated evidence willfully and 

in bad faith, with an intent to deprive Claimants of relevant evidence. 

iii. The Destroyed Evidence Cannot Be Restored or Replaced 

Through Additional Discovery. 

The final prerequisite to a spoliation finding is that the information “cannot 

be restored or replaced through additional discovery.” Fed.R.Civ.P. 37(e); Alabama 

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Aircraft Indus., 319 F.R.D. at 742. “[C]ourts must not hold the prejudiced party to 

too strict a standard of proof regarding the likely contents of the destroyed evidence 

because doing so allows the spoliators to profit from the destruction of evidence.” 

Id. (citing Southeastern Mechanical Services, Inc. v. Brody, 657 F.Supp.2d 1293, 

1300 (M.D. Fla. 2009); Kronisch v. United States, 150 F.3d 112, 128 (2d Cir. 1998)). 

The Court in Alabama Aircraft found that the spoliated evidence could not be 

“restored or replaced through additional discovery” and was “essentially lost 

forever” where Defendant did not index the information, could not identify with any 

specificity what ESI was destroyed, did not search and produce documents from key 

personnel with whom the custodian with missing ESI had communicated, and did 

not preserve the ESI of other key personnel. Id. Similarly, here, Defendants have 

no backups of the destroyed text messages and cannot identify who each custodian 

sent text messages to during the relevant time period. The prejudice of the spoliation 

is compounded by the fact that multiple custodians are missing text messages, so 

any text messages between or among those custodians are not recoverable. 

The fact that certain missing text messages might be found in other custodial 

sources is not dispositive of whether the text messages may be restored: 

The fact that the information contained in the missing text messages 

might also be cumulative to e-mails that [Defendants] already produced 

is insufficient to restore or replace the text messages. First, it will never 

be known whether such information would or would not have been 

cumulative because it is impossible to know what it was or to whom it 

may have been communicated. 

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Second, even when the information lost is “cumulative to some extent,” 

the loss of the information still has an impact because Plaintiffs 

“cannot present the overwhelming quantity of evidence [they] 

otherwise would have to support [their] case.” 

At most, Plaintiffs now can obtain only “scattershot texts and [emails],” rather than “a complete record of defendants’ written 

communications from defendants themselves.” The Court therefore 

finds that the missing text messages cannot be replaced or restored by 

other sources. 

Boxill, 330 F.R.D. at 235 (emphasis added) (internal citations omitted). 

It will never be known the full extent of the communications that have been 

lost, but one thing is clear: the most critical evidence in this case has been 

permanently destroyed. 

C. Remedies 

Under Rule 37 and the Court’s inherent powers, the range of available 

sanctions for spoliation include further discovery, cost-shifting, fines, adverse 

inference presumptions or instructions, preclusion, and the entry of default judgment 

or dismissal. See Tesoriero v. Carnival Corp., 965 F.3d 1170, 1184 (11th Cir. 2020) 

(quoting Flury, 427 F.3d at 945); Morrison v. Veale, No. 3:14-cv-1020-TFM, 2017 

WL 372980, at *5 (M.D. Ala. Jan. 25, 2017); Easterwood, 2020 WL 6781742, at *2. 

The appropriateness of sanctions depends on whether the spoliation party “acted 

with the intent to provide another party” of the evidence or, if not, whether the 

moving party was prejudiced from loss of the evidence. F.R.C.P. 37(e). 

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i. Claimants have been Prejudiced by Skanska’s Spoliation. 

“Determining the content of lost information may be a difficult task in some 

cases, and placing the burden of proving prejudice on the party that did not lose the 

information may be unfair.” Fed. R. Civ. P. 37(e), 2015 Notes of Advisory 

Committee. Rather, “the rule leaves judges with discretion to determine how best 

to assess prejudice in particular cases.” Id.; see also Alabama Aircraft, 319 F.R.D. 

at (“While the burden of establishing prejudice generally falls on the party seeking 

sanctions, the court is cognizant that [Plaintiff] will likely never be able to prove 

what was contained in the destroyed evidence. In such a situation, only the party that 

engaged in the destruction knows how much prejudice has been caused (or 

potentially caused) by the destruction.”). 

In a similar case, the court in Boxill found “no doubt that Plaintiffs [were] 

prejudiced by the loss of text messages”: 

Neither the Court nor Plaintiffs can know what ESI has been lost or 

how significant that ESI was to this litigation. The RMA Defendants' 

claim that no prejudice has occurred is “wholly unconvincing,” given 

that “it is impossible to determine precisely what the destroyed 

documents contained or how severely the unavailability of these

documents might have prejudiced [Plaintiffs'] ability to prove the 

claims set forth in [their] Complaint.” 

330 F.R.D. at 236. 

Here, Claimants have been indisputably prejudiced by the fact that text 

messages—some of the most important evidence of the most important events in this 

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litigation—have been destroyed for at least five of the thirteen individuals Skanska 

identified as custodians. Text messages were used more readily on the construction 

site than email, and cell phones were issued to Skanska employees as a tool to be 

used on site: 

MR BRANNING: [T]hese phones are another tool that Skanska gives

to its employees similar to, you know, a safety jacket and a hammer.87

MR REMINGTON: This is a construction site. People don’t use e-mail 

as a tool. They use boats, and they use welders. They’re going to get 

text messages, absolutely.88

Instead of treating these cell phones as what they are—sophisticated electronic 

devices that stored some of the most important discoverable evidence in this 

litigation—Skanska allowed for the text messages and documents for five key 

custodians to be irrevocably destroyed. 

ii. Skanska Destroyed Evidence with the Intent to Deprive 

Claimants of that Evidence. 

 If the Court finds that a spoliation party acted with “intent to deprive” the 

opposing party of evidence, it may order more severe sanctions, including dismissal 

or a presumption the lost information was unfavorable. Fed. R. Civ. P. 37(e)(2).89 

                                                            

87 Ex. 1-M, June 16, 2021 Discovery Conference Transcript at 34:7-10. 

88 Ex. 10, June 22, 2021 Discovery Conference Transcript at 74:6-9. 

89 The adverse inference instruction may apply to bench trials as well. Fed. R. Civ. 

P. 37(e), 2015 Notes of Advisory Committee (“This finding may be made by the 

court when ruling on a pretrial motion, when presiding at a bench trial, or when 

deciding whether to give an adverse inference instruction at trial.”). 

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It is also presumed that such evidence would have been relevant, and its destruction 

is prejudicial to Claimants.90 

“The spoliation of evidence germane ‘to proof of an issue at trial can support an 

inference that the evidence would have been unfavorable to the party responsible for 

its destruction.’” Zubulake IV, 220 F.R.D. at 216 (citation omitted). Here, it is 

undisputed that destroyed evidence at issue is germane to the issues at trial; Skanska 

admitted that these “key custodians” were “expected to have generated or 

maintained the most critical, discoverable ESI” in this litigation.91 

 “At least one court has suggested that “the “intent to deprive” standard in Rule 

37(e)(2) may very well be harmonious with the ‘bad faith’ standard ... established 

by the Eleventh Circuit [with respect to (e)(1)].” Alabama Aircraft, 319 F.R.D. at 

746 (quoting Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., 2016 WL 

1105297, at *6 (S.D. Fla. Mar. 22, 2016)); see also AXIS Ins. Co., 2018 WL 

9943825, at *12 (quoting Mann v. Taser Int’l, Inc., 588 F.3d 1291, 1310 (11th Cir. 

                                                            

90 Fed. R. Civ. P. 37(e), 2015 Notes of Advisory Committee (“Subdivision (e)(2) 

does not include a requirement that the court find prejudice to the party deprived of 

the information. This is because the finding of intent required by the subdivision 

can support not only an inference that the lost information was unfavorable to the 

party that intentionally destroyed it, but also an inference that the opposing party 

was prejudiced by the loss of information that would have favored its position. 

Subdivision (e)(2) does not require any further finding of prejudice”). 

91 Ex 1-J, May 4, 2021 Skanska Proposed Revisions to ESI Order. 

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2009). Direct proof of bad faith is not required, and courts in this Circuit have held 

that following constitutes circumstantial evidence of bad faith: 

(1) evidence once existed that could fairly be supposed to have been 

material to the proof or defense of a claim at issue in the case; (2) the 

spoliating party engaged in an affirmative act causing the evidence to 

be lost; (3) the spoliating party did so while it knew or should have 

known of its duty to preserve the evidence; and (4) the affirmative act 

causing the loss cannot be credibly explained as not involving bad faith 

by the reason proffered by the spoliator. 

Alabama Aircraft, 319 F.R.D. 730, 746 (N.D. Ala. 2017) (quoting Managed Care 

Solutions, Inc. v. Essent Healthcare, Inc., 736 F.Supp.2d 1317, 1323 (S.D. Fla. 

2010)). 

Even so, direct proof of bad faith exists here. Skanska knew these text messages 

would be material to the claims at issue. Skanska engaged in affirmative acts, 

including physically resetting an employee’s phone, and maintaining its regular 

policies regarding cell phone backup, resulting in spoliation of evidence, despite 

actual knowledge of its duty to preserve evidence. Skanska’s affirmative acts 

resulting in spoliation cannot be, and has not been, credibly explained by Skanska. 

In Alabama Aircraft, the Court found “sufficient circumstantial evidence” to find 

an intent to destroy ESI where Defendant anticipated litigation, the parties had 

agreed to an ESI protocol, Defendant instituted a firewall plan, and the ESI was 

intentionally destroyed by an affirmative act that had not been credibly explained. 

The facts are nearly identical to the instant case. The Court held: 

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This type of unexplained, blatantly irresponsible behavior leads the 

court to conclude that Boeing acted with the intent to deprive Pemco 

of the use of this information in connection with its claims against 

Boeing. And, because the information is irretrievably lost, AAI (not to 

mention this court) is left to speculate as to why the data was destroyed. 

For all of these reasons, the court believes firm measures, such as those 

discussed in subdivision (e)(2), are appropriate to remedy the wrong 

that has occurred in this case. Specifically, the giving of an adverse 

inference jury instruction, such as the one outlined in Rule 37(e)(2)(B), 

is a proper sanction. If this case goes to trial, the court will instruct the 

jury that it may presume that the lost information contained in Blake's 

Pemco-related ESI was unfavorable to Boeing. The court also finds it 

appropriate for Boeing (not Boeing's counsel) to pay AAI's reasonable 

attorney's fees and costs in prosecuting this motion. 

Id. at 746–47 (emphasis added). 

The Court in Boxill similarly held that Defendants acted with an intent to deprive

Plaintiffs of text message evidence where Defendants failed to disengage auto-delete 

functions on cell phones “when they anticipated litigation” and Defendants “wiped 

and discarded their phones ... after Plaintiffs filed suit.” 330 F.R.D. at 237. The 

Court found “from these circumstances alone” that Defendants “intentionally 

destroyed evidence.” Id. The court found that “wiping” the phones was “egregious” 

evidence of Defendants’ intent to deprive Plaintiff of evidence: 

The wiping and destruction of Wilson's phone for a second time are 

perhaps the most egregious or unkindest acts of all. Wilson got rid of 

his phone in May 2018, after: (1) litigation had commenced; (2)

Plaintiffs served discovery; (3) Plaintiffs expressly informed the RMA 

Defendants that they intended to seek discovery regarding Wilson and 

Staley's text messages; and (4) the Court ordered the parties to preserve 

all relevant electronically stored information in its pretrial scheduling 

order. Any one of these events should have been sufficient to put the 

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RMA Defendants on notice that they needed to preserve their text 

messages and phones. The Court can draw only one conclusion from 

this set of circumstances: that they acted with the intent to deprive 

Plaintiffs from using this information. Rule 37(e)(2) sanctions are 

particularly appropriate as to Wilson, RMA, and Deliverance for this 

reason as well. 

330 F.R.D. at 237 (emphasis added). 

All the cell phone data at issue was destroyed after litigation had commenced, 

after Claimants had served discovery, and after a legal hold was in place. This 

occurred both from affirmative acts of Skanska and by Skanska’s failure to act to 

preserve evidence. The only conclusion that can be drawn from Skanska’s 

unexplained, blatantly irresponsible behavior is that Skanska intended to deprive 

Claimants of that evidence. 

 “Intent rarely is proved by direct evidence, and a district court has substantial 

leeway to determine intent through consideration of circumstantial evidence, witness 

credibility, motives of the witnesses in a particular case, and other factors.” Boxill, 

330 F.R.D. at 236 (quoting Morris v. Union Pacific R.R., 373 F.3d 896, 901 (8th Cir. 

2004)). “There need not be a ‘smoking gun’ to prove intent[,] [b]ut there must be 

evidence of ‘a serious and specific sort of culpability’ regarding the loss of the 

relevant ESI.” Id. (quoting Auer v. City of Minot, 896 F.3d 854, 858 (8th Cir. 2018)). 

Skanska’s serial misrepresentations to Claimants and to this Court evince not 

only a lack of credibility and candor, but also a “serious and specific sort of 

culpability” that cannot be explained by anything other than bad faith. Skanska 

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improperly withheld documents as “work product” that this Court were “simply 

internal communications about what Skanska believes may be necessary to bolster 

its reputation with state and local public officials in light of the events surrounding 

Hurricane Sally.”92 Skanska falsely represented that Mr. Hill did not have a cell

phone. Skanska misrepresented the extent to which destroyed cell phone data could 

be recovered by looking to other custodial productions. And Skanska 

misrepresented the extent of the destruction of the cell phones at issue.93 Skanska’s 

blatant disregard for its discovery obligations in this litigation is astounding and 

cannot be explained by anything other than a bad faith intent to deprive Claimants 

of relevant evidence. 

Not only has Skanska spoliated evidence; it has also been “purposely 

sluggish” in production despite a looming trial date and aggressive discovery 

schedule. Skanska’s actions beg the question of whether it has allowed for discovery 

issues to mount in an effort to get a continuance of the trial date. In Seroquel, the 

Court noted: 

Given the Court's mandate of a tight schedule in this case, AZ's various 

decisions and problems that resulted in this sluggishness appears to 

have benefitted AZ by limiting the time available to Plaintiffs to review 

information and to follow up.” Courts have inferred prejudice and 

imposed sanctions in the fact of such “purposeful sluggishness.” Id.

at 664-665. 

                                                            

92 ECF No. 1212. 

93 See Skanska Spoliation Timeline. 

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244 F.R.D. 650, 661 (M.D. Fla. 2007). 

Skanska’s purposeful sluggishness, improper withholding of documents as 

work product, varied discovery misrepresentations, and spoliation of relevant 

evidence has resulted in Claimants moving forward with depositions, expert reports, 

and eventually cross-examination in trial without the benefit of such evidence.94 The 

spoliation of critical evidence, and resulting prejudice, is further compounded by 

Skanska’s purposeful sluggishness. 

IV. This Court Should Dismiss Skanska’s Limitation of Liability Action or, 

in the Alternative, Impose Sanctions Including Cost-Shifting, Fees, and a 

Fine. 

Skanska’s conduct far exceeds a display of indifference to this Court’s authority 

and the rule of law; it evidences utter contempt for a system of justice and 

fundamental fairness to advance its own interests, whatever the costs. Skanska’s 

spoliation of critical evidence has not only resulted in material prejudice to 

claimants; it constitutes abuse of the judicial process and a breach of Skanska’s duty 

to this Court to preserve relevant evidence. 

Such egregious misconduct warrants dismissal of Skanska’s Limitation of 

Liability Action, cost-shifting, fees, and fines. An expeditious resolution of 

                                                            

94 At this time, Skanska still has not produced cell phone data from Mr. Hill’s phone, 

and the parties are awaiting this Court’s further in camera review of additional 

documents Claimants contend Skanska has improperly withheld. 

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Skanska’s limitation petitions must not come at the high cost of Claimants’ right to 

fairly oppose each. Dismissal ensures Skanska will not profit from its misconduct 

or otherwise enjoy a limitation trial on its own terms, denying from the Court and 

Claimants evidence crucial to understanding the truth. 

WHEREFORE, Claimants respectfully pray the Court grants the relief requested 

and award sanctions against the Defendants and any other relief the Court deems 

appropriate under the circumstances. 

Dated: August 2, 2021 Respectfully Submitted, 

/s/ D. Nicole Guntner 

D. NICOLE GUNTNER, FBN 1028925 

E. SAMUEL GEISLER, FBN 83817 

BRYAN F. AYLSTOCK, FBN 78263 

Aylstock, Witkin, Kreis & Overholtz, PLLC 

17 East Main Street, Second floor 

Pensacola, Florida 32502 

Office: (850) 202-1010 

Fax: (850) 916-7449 

nguntner@awkolaw.com 

sgeisler@awkolaw.com 

baylstock@awkolaw.com 

sallyteam@awkolaw.com 

 

Case 3:20-cv-05980-LC-HTC Document 1228 Filed 08/02/21 Page 35 of 38
36 

/s/ Thomas F. Gonzalez 

THOMAS F. GONZALEZ, FL Bar #173878 

J. NIXON DANIEL, III, FL Bar # 228761 

Beggs & Lane, RLLP 

501 Commendencia Street 

Pensacola, Florida 32502 

Office: (850) 432-2451 

tfg@beggslane.com 

jnd@beggslane.com 

/s/ Brian H. Barr 

BRIAN H. BARR, FL Bar 493041 

EMMANUELLA J. PAULOS, FL Bar 99010 

Levin Papantonio Rafferty Proctor 

Buchanan O’Brien Barr & Mougey, P.A. 

316 S. Baylen Street, Suite 600 

Pensacola, FL 32502 

Office: (850) 435-7000 

bbarr@levinlaw.com 

epaulos@levinlaw.com

Attorneys for Claimants 

 

Case 3:20-cv-05980-LC-HTC Document 1228 Filed 08/02/21 Page 36 of 38
CERTIFICATE OF COMPLIANCE WITH COURT’S WORD LIMIT

I hereby certify that the foregoing contains 7780 words and complies with Local 

Rule 7.1(F) and 56.1(B) that any memorandum of law in support of a motion not 

exceed 8,000 words. 

/s/ D. Nicole Guntner 

D. Nicole Guntner

Aylstock Witkin Kreis & Overholtz, PLLC

CERTIFICATE OF COUNSEL CONFERENCE 

I hereby certify that Counsel for Claimants have conferred with Counsel for 

Petitioners prior to filing this motion, pursuant to Local Rule 7.1(B), and have not 

been able to resolve the issues raised. 

/s/ D. Nicole Guntner 

D. Nicole Guntner

Aylstock Witkin Kreis & Overholtz, PLLC

Case 3:20-cv-05980-LC-HTC Document 1228 Filed 08/02/21 Page 37 of 38
CERTIFICATE OF SERVICE

I hereby certify, on this 2nd day of August 2021, that the foregoing Motion, 

Memorandum and Proposed Order for Spoliation and Rule 37 Sanctions was filed 

via the Court’s CM/ECF system, which will automatically serve and send 

notification of such filing to all registered attorneys of record. 

/s/ D. Nicole Guntner 

D. Nicole Guntner

Aylstock Witkin Kreis & Overholtz, PLLC

Case 3:20-cv-05980-LC-HTC Document 1228 Filed 08/02/21 Page 38 of 38