1

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT PIERCE DIVISION

SARABETH DEMARTINO,

 Plaintiff,

vs.

EMPIRE HOLDINGS AND 

INVESTMENTS, LLC; and JUAN 

CARLOS MARRERO, 

 Defendants. /

CASE NO: 22-cv-14301-CANNON

JUDGE AILEEN M. CANNON

PLAINTIFF’S MOTION FOR SANCTIONS PURUSANT TO RULE 37(e)

Plaintiff, SARABETH DEMARTINO (“Ms. DeMartino” or “Plaintiff”), by and through 

undersigned counsel, and pursuant to Rule 37(e) of the Federal Rules of Civil Procedure (“Rule 

37”), moves this Honorable Court for an Order awarding sanctions against Defendant JUAN 

CARLOS MARRERO (“Defendant Marrero”), and in support thereof, states:

PRELIMINARY STATEMENT

Based on Plaintiff’s own experience, Defendant Marrero “would text employees of 

Christi’s on an ongoing basis regarding various matters related to Christi’s, including on some

occasions Sara DeMartino.” Yet, when it came time to produce these text messages in the 

litigation, the only text messages preserved by Defendant Marrero were those with Plaintiff. 

Defendant Marrero knew he had an obligation to preserve documents related to Plaintiff’s legal 

claims, but he lost and/or deleted the text messages from two separate iPhones. Plaintiff cannot 

reasonably obtain the deleted text messages from every other Empire employee, or candidate who 

applied for the manager position, and it is questionable whether these individuals would have 

preserved text messages from almost two years ago. Even though Defendant Marrero denies 

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seeking candidates for a manager position at Christi’s, at least one candidate who applied for a 

manager position at Christi’s no longer has his text messages with Defendant Marrero. Defendant 

Marrero’s completely implausible explanations for how or why the text messages were deleted 

from his two iPhones fare no better. As detailed below, sanctions are warranted under Rule 37(e). 

ARGUMENT

Rule 37(e) governs sanctions for spoilation of electronically stored information (“ESI”). 

To warrant sanctions under Rule 37(e), four threshold conditions must be met: (1) there must have 

been a duty to preserve ESI; (2) the ESI must have been lost or destroyed; (3) the ESI must have 

been lost due to the party’s failure to take reasonable steps to preserve it; and (4) the ESI must not 

have been restorable or recoverable through additional discovery. See Burns v. Medtronic, Inc.,

2017 WL 11633269, at *3 (M.D. Fla. Aug. 9, 2017); Akkasha v. Bloomingdales, Inc., 2019 WL 

11215918, at *4 (S.D. Fla. Oct. 18, 2019); Sosa v. Carnival Corp., 2018 WL 6335178, at *10 (S.D. 

Fla. Dec. 4, 2018). If the four conditions are met, “a court may only award sanctions under 

subsection (e)(1) if it finds ‘prejudice’ to another party, or under subsection (e)(2) if it finds that 

the spoliating party acted with the ‘intent to deprive’ the opposing side of ESI.” Doe v. Willis, 

2023 WL 2918507, at *5 (M.D. Fla. April 12, 2023) (quoting Rule 37(e)); Akkasha, 2019 WL 

11215918, at *4. As discussed below, because Plaintiff can establish each of the four elements, 

sanctions are warranted for Defendant Marrero’s intentional deletion of text messages relevant to 

this action. 

A. Defendant Marrero Admits He Was Under a Duty to Preserve Text Messages

Defendant Marrero knew he had a duty to preserve documents related to this action, 

including the text messages at issue here, at the time they were deleted. His written discovery 

responses and sworn deposition testimony confirm the same. See Relevant Excerpts from 

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Response to First Request for Admission to Defendant Juan Carlos Marrero, attached as Exhibit

(“Ex.”) A, at No. 1; see also Relevant Excerpts from Deposition of Juan Carlos Marrero (“Marrero 

Dep. II”), September 14, 2023, attached as Ex. B, at 35:23-25 (testifying that he knew not to delete 

text messages). Thus, Defendant Marrero was unquestionably aware of his duty to preserve the 

text messages from his employment with Empire. 

B. Defendant Marrero Both Lost and Destroyed Text Messages He Sent and

Received During his Employment with Empire

The second element—that ESI was lost or destroyed—is also met. Here, Defendant 

Marrero used two iPhones (an old iPhone and a new iPhone) that contained text messages he sent 

and received during the relevant time period. Exactly when Defendant Marrero purchased a new 

iPhone is subject to inconsistent evidence but, at his deposition on June 12, 2023, Defendant

Marrero testified that he bought a new phone in the “the beginning of year,” referring to the 

beginning of 2023. See Relevant Excerpts from Deposition of Juan Carlos Marrero (“Marrero 

Dep.”), June 12, 2023, attached as Ex. C, at 265:11-12. Thereafter, Defendant Marrero produced 

a Verizon contract showing that he last purchased an iPhone on December 24, 2021. While one 

would think that Defendant Marrero should be able to remember whether he got a new phone in 

the beginning of 2023 (six months prior) versus the end of 2021 (eighteen months prior), this 

inconsistency remains unexplained. 

Even assuming the new iPhone was purchased at the end of 2021, as the Verizon contract 

shows, Defendant Marrero testified that he transferred everything from his old iPhone to his new 

iPhone, including text messages he sent and received during his employment at Empire. See 

Marrero Dep. at 265:11-12; Marrero Dep. II at 33:10-17. Defendant Marrero lost and/or deleted 

text messages since they were no longer accessible on his new iPhone. Marrero Dep. II at 33:18-

21. As for his old iPhone, Defendant Marrero testified that he wiped the device. Marrero Dep. II 

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at 36:12-19. Thus, Defendant Marrero lost or deleted the text messages on both his old iPhone 

and new iPhone despite knowing he had an obligation to preserve his text messages. The 

implausible explanation for these actions is discussed infra. 

C. Mr. Marrero Failed to Preserve His Text Messages 

The third element examines whether the offending party failed to take reasonable steps to 

preserve his text messages. The advisory committee notes to Rule 37 explain that reasonable 

efforts do “not call for perfection,” and instruct that a “court should be sensitive to the party’s 

sophistication with regard to litigation in evaluating preservation efforts; some litigants, 

particularly individual litigants, may be less familiar with preservation obligations than others who 

have considerable experience in litigation.” Doe, 2023 WL 2918507, at *7 (citing Advisory Notes). 

Here, Defendant Marrero’s testimony about his search for responsive text messages is both 

troubling and misleading. While Defendant Marrero may not be a sophisticated litigant, he was

fully aware of his obligation to preserve his text messages. See Marrero Dep. II at 35:23-25.

During his deposition, Defendant Marrero admitted that he did not check his text messages for 

responsive documents in connection with this litigation. Marrero Dep. at 265:2-10. Specifically, 

Defendant Marrero testified, “No, I did not check my text messages, no. I have a new phone. I 

don’t have, like, things that I can go back track through text messages or anything like that. So, I 

don’t have records on my phone.” Marrero Dep. at 265:7-10. He further testified that he made no 

attempt to search his computer to look for text messages once he was named a defendant in this 

action. Marrero Dep. at 265:21-24. And worse, Plaintiff was not alerted to the fact that Defendant 

Marrero had lost or deleted his text messages until Plaintiff’s counsel learned about the missing 

documents during his deposition. 

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To mitigate against deleting the text messages, Defendant Marrero testified that he took 

screen shots based on instructions given by his counsel and that he believed he did not miss 

anything “because my lawyers filtered everting out and they looked through everything, and we 

had many, many conversations about this for – for several times.” Marrero Dep. II at 15-22. Thus,

Defendant Marrero had the text messages at a point when he knew he was implicated in this

litigation and had a duty to preserve documents. However, when questioned about the attorney 

with whom he allegedly reviewed his text messages, Defendant Marrero’s incompatible testimony 

only furthered Plaintiff’s suspicion. Specifically, Defendant Marrero testified that he reviewed the 

text messages with his attorney, Ranjiv Sondhi, to make sure “we had everything.” Marrero Dep. 

II at 36:3-5. However, Mr. Sondhi was not the first lawyer assigned to the case and only entered 

his appearance on November 4, 2022, well after the action was filed. Marrero Dep. II at 33:21-

23. Thus, Defendant Marrero’s testimony about reviewing the text messages with his current 

counsel either cannot be true or is inconsistent with his other testimony about not reviewing the 

text messages in connection with this litigation. 

Moreover, some of the text messages that Defendant Marrero claimed he preserved no 

longer exist. Defendant Marrero testified that he saved over 100 pages (screenshots) of text 

messages, only 64 of which were text messages with Ms. DeMartino. Marrero Dep. II at 34:5-19.

Defendants ultimately produced the 64 pages of text messages with Ms. DeMartino, on August 

14, 2023—two months after Defendant Marrero’s deposition and nearly eleven months into the 

litigation. Worse, the other 36 (or more) pages of text messages with individuals other than 

Plaintiff have not been produced and purportedly no longer exist. 

Even assuming Defendant Marrero reviewed his text messages at one point, Defendant 

Marrero did not review them in connection with Plaintiff’s First Requests for Production of 

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Documents, served on December 9, 2022. It would, therefore, be impossible for Defendant

Marrero or his attorney to be able to search for all text messages responsive to the requests. Ahrens 

Enters., Inc. v. Winning, 2019 WL 12520080, at *4 (S.D. Fla. Apr. 18, 2019) (finding that a party 

did not meet his reasonable preservation obligations where he deleted emails prior to a forensic 

review because “[it] was not for [him] to unilaterally decide what might or might not be relevant”); 

Paisley Park Enter., Inc. v. Boxill, 330 F.R.D. 226, 235 (D. Minn. 2019) (“[T]he [defendants] do 

not get to select what evidence they want to produce, or from what sources. They must produce all 

responsive documents or seek relief from the court.”) (citing Fed. R. Civ. P. 26(c)). And, given 

that the only text messages produced were those between Defendant Marrero and Ms. DeMartino, 

one can assume that Mr. Marrero was only instructed to provide his text messages with Ms. 

DeMartino. 

The obvious deficiencies in Defendant Marrero’s collection and retention efforts are

supported by his own admissions. Notably, Defendant Marrero claimed he “preserved all of [his] 

text messages related to Sara DeMartino before acquiring a new phone in the beginning of 2022.” 

See Ex. A, Response No. 2. But Defendant Marrero also asserted that, during his employment, he 

“would text employees of Christi’s on an ongoing basis regarding various matters related to 

Christi’s, including on some occasions Sara DeMartino.” Id. at Nos. 3 and 4 (emphasis added). 

Therefore, Defendant Marrero essentially admits that he did not review and preserve all his text 

messages related to Christi’s that may be responsive to Plaintiff’s document requests, including 

text messages with other Empire employees about the club’s performance or with potential

candidates for the Manager position at Christi’s during Plaintiff’s employment. Thus, Defendant 

Marrero failed to preserve all potentially relevant text messages before they were lost or deleted. 

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D. All of Defendant Marrero’s Potentially Relevant Text Messages Cannot Be 

Retrieved from Another Source

As mentioned above, the only text messages preserved by Defendant Marrero were those

with Plaintiff, which she also has, and produced, in this litigation. Empire has not produced a 

single text message between Defendant Marrero and any other employee of Empire. Defendant 

Marrero also claims he does not have any backup that would enable him to recover the missing 

text messages. See Relevant Excerpts from Defendant’s Objections and Responses to Plaintiff’s

Second Requests for Production, attached as Ex. D, at No. 8. And, theoretically, even if Plaintiff 

were able to identify the potential universe of people with whom Defendant Marrero may have 

communicated, via text message, about issues relevant to this case, Plaintiff cannot possibly 

subpoena text messages from every employee of Empire, or applicant for the Manager position, 

and it is also doubtful that all of individuals still have their text messages. Plaintiff only recently 

learned that an applicant interviewed by Defendant Marrero remembers texting with him about the 

position, but that applicant no longer has those text messages. See Declaration of Kyle Burney, 

attached as Ex. E, at ¶ 12. Plaintiff has no idea how many other candidates Defendant Marrero 

texted, and as discussed infra, Plaintiff was only provided a full list of the candidates at the end of 

discovery. 

Based on the above, Defendant Marrero is the most viable source through which relevant 

text messages could be produced in the litigation. This is sufficient to meet the third threshold 

element. See Living Color, 2016 WL 1105297, at *5 (finding that even where the “great majority” 

of missing text messages were provided by another party and therefore were not “lost,” it was 

appropriate to continue the Rule 37(e) analysis since “it appear[ed] that at least some of the text 

messages at issue were not replaced”); Laub v. Horbaczewski, 2020 WL 9066078, at *4 (C.D. Cal. 

July 22, 2020) (agreeing with the defendants that the plaintiff’s “destruction of his iPhone, without 

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first backing up the information on it, likely resulted in the loss of ESI—namely, text conversations 

between [the p]laintiff ... and third parties—and [that] those conversations cannot now be restored 

or replaced”) (citation omitted); In re Skanska, 340 F.R.D. 180, 187 (N.D. Fla. 2021) (“At best, 

[the defendant] can merely represent that some of the text messages ... were produced from other 

custodians. Thus, ‘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.’”) (quoting Paisley Park, 330 F.R.D. at 235). 

Because Defendant Marrero took no affirmative steps to attempt to preserve his text 

messages, Plaintiff has arranged for a forensic data recovery company to attempt to recover the 

deleted text messages once stored on Defendant Marrero’s new iPhone.1 In the event Defendant

Marrero’s texts can be recovered, Plaintiff will update the Court accordingly. 

E. In Addition to Prejudice, the Record Supports that Defendant Marrero Acted

with the Intent to Deprive

After the four threshold requirements for sanctions are met, “the Court must analyze the 

facts at hand under subsection (e)(1) if there is a finding of ‘prejudice’ or under subsection (e)(2) 

if there is a finding of ‘intent to deprive.’” Keim v. ADF Midatlantic, LLC, No. 12-CV-80577, 

2016 WL 7048835, at *6 (S.D. Fla. Dec. 5, 2016). The two subsections of Rule 37(e) operate 

independently, and a finding that there was an intent to deprive does not require a finding of 

prejudice. See Fed. R. Civ. P. 37(e), advisory committee notes to 2015 amendment (noting that 

Rule 37(e)(2) “does not include a requirement that the court find prejudice to the party deprived 

of the information”); Tripp v. Walmart, Inc., 2023 WL 399764, at *8 (M.D. Fla. Jan. 25, 2023) 

1 Since data from an iPhone cannot be restored after it is wiped through a factory reset, the 

text messages that existed on Defendant Marrero’s old iPhone are permanently deleted and cannot 

be recovered. 

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(“Rule 37(e)(2) applies regardless of whether [a c]ourt finds prejudice[.]”) (citing Fed. R. Civ. P. 

37(e), advisory committee notes to 2015 amendment); Nationwide Life Ins. Co. v. Betzer, 2019 

WL 5700288, at *10 (M.D. Fla. Oct. 28, 2019) (commenting that a finding of prejudice is not 

necessary for a finding of an intent to deprive); O’Berry v. Turner, 2016 WL 1700403, at *4 (M.D. 

Ga. Apr. 27, 2016) (stating that subsection (e)(2) is not predicated upon “a finding that the 

opposing party was prejudiced by the failure to preserve [ESI]” and that “[p]rejudice is inferred 

by [a] court’s finding of intent”). Because there is an ample basis for the Court to find Defendant 

Marrero acted with intent to deprive, Plaintiff begins her analysis, there. 

1. Intent to Deprive

Defendant Marrero’s intent to deprive Plaintiff of relevant documents manifests through 

his incongruent explanations related to the missing text messages and a broader pattern of either 

not producing documents that exist (based on witness testimony), or partially producing documents 

responsive to Plaintiff’s document requests.

a. The iCloud Storage Explanation for the New iPhone

As to the loss of text messages on his new iPhone, Mr. Marrero testified that he transferred

everything from his old iPhone to his new iPhone at the time he purchased his new iPhone. 

Marrero Dep. II at 33:10-17. However, Mr. Marrero also testified that he no longer had text 

messages with Ms. DeMartino and other relevant employees of Empire. Marrero Dep. II at 33:18-

21. When asked what happened to the text messages, Defendant Marrero responded that “[f]or 

some reason my new phone, my ICloud, ICloud storage is full.” Marrero Dep. II at 33:25-34:1. 

But Defendant Marrero’s full iCloud storage would have no impact on and certainly would not

delete, the text messages saved on the iPhone memory, and about which Defendant Marrero 

testified were transferred when he purchased the new iPhone (Defendant Marrero did not claim 

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his iPhone storage was full). Since Defendant Marrero offered an implausible explanation for the 

deletion of the text messages on his new iPhone, it is more likely than not that he was not truthful 

about what caused the deletion in order to cover up his intentional act of deleting the text messages. 

b. Wiped Old iPhone to Upgrade a Friend’s Phone

Defendant Marrero’s story on his admitted deletion of the text message on his old iPhone 

is similarly implausible. Defendant Marrero testified that he wiped his old iPhone because he 

wanted to give it to a friend to upgrade her phone. Marrero Dep. II at 36:12-19. Defendant Marrero

then testified that, after handing his old iPhone to his friend, she immediately gave it back to him 

because the camera did not work. Marrero Dep. II at 36:25-37:3. This testimony is remarkable for 

two reasons. First, Defendant Marrero would not have provided the iPhone to a friend as an 

“upgrade” if the camera was not functioning. Second, and more concerning, Defendant Marrero 

testified that his friend was immediately able to determine that the camera was not working before 

she even set up the iPhone. Marrero Dep. II at 37:6-24. But, a person cannot access the camera 

function on iPhone, or any other function or application, until after the iPhone is set up (if the 

phone was wiped, it would be like a new phone).2 Thus, Defendant Marrero’s explanation for

wiping the text messages on his old iPhone makes no sense and further supports that Defendant 

Marrero was really trying to hide his text messages on the old and new iPhones in order to deprive 

Plaintiff of evidence material to the litigation. 

c. Broader Pattern of Missing or Partially Produced Documents

Defendant Marrero’s deletion of his text messages is part of a broader pattern of either not 

producing documents testified to exist or partially producing relevant documents. As noted above, 

2 Defendant Marrero still has possession of his old iPhone and Plaintiff intends to have 

Defendant Marrero bring the old iPhone to trial to demonstrate the impossible nature of the

explanation.

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there are more than 36 pages of text messages that Defendant Marrero testified to having, but that 

no longer exist. Neither Defendant Marrero nor Empire have produced Defendant Marrero’s 

contract with Empire, about which multiple witnesses testified. See Relevant Excerpts from 

Deposition of Anthony Messina (“Messina Dep.”), June 2, 2023, attached as Ex. F, at 224:22-

225:6 (former Vice President testifying that Defendant Marrero signed contract with Empire);

Marrero Dep. at 55:22-56:2. There is also no record of Defendant Marrero transmitting a final 

performance warning to Empire that he claims should exist, including possibly in his text 

messages. See Marrero Dep. at 255:14-22, 260:18-24, 261:25-262:12, 263:7-13, 264:11-265:10.

The deletion of text messages also appears to be part of Defendants’ attempt to hide the 

fact that Defendants were actively searching for Plaintiff’s replacement during her employment 

and were untruthful to her about doing so. Plaintiff requested all job posting and related documents 

in her document requests. See Relevant Excerpts from Defendants’ Objections and Responses to 

Plaintiff’s First Requests for Production, attached as Ex. G, at Nos. 13 and 14. Defendants agreed 

to produce responsive documents during the relevant period. However, Defendants did not 

produce any documents related to the Manager position posted during Plaintiff’s employment,

instead producing only a screenshot of the position. Only after discovering that Defendants had 

used the wrong date for an ESI search of emails that resulted in an extension of discovery (see

D.E. 54), did Plaintiff receive emails about candidates who applied for the position. Even then, 

Plaintiff received information for only 13 of the 27 applicants. At the supplemental deposition of 

Leah Molino, Plaintiff also learned that Ms. Molino believed she provided a list of candidates for 

the Manager position to her first attorneys. See Relevant Excerpts from Deposition of Leah Molino 

(“Molino Dep.”), September 13, 2023, attached as Ex. H, at 25:3-15. While after the deposition 

Ms. Molino took a screenshot of the list of candidates from Indeed, Defendants have not provided

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an explanation for why the list of candidates (either previously produced or readily accessible) was

not produced. 

And most relevant to the spoilation of text messages, Defendant Marrero at his 

supplemental deposition denied that he was interviewing candidates for a Manager position at 

Christi’s and claimed that the posting was part of a general effort to look for talent even if a specific 

position did not exist. Marrero Dep. II at 12:12-13:24. But Plaintiff was able to obtain a declaration 

and documents from one candidate showing that the position was specifically for Christi’s. See 

Ex. E, at ¶¶ 4, 7-10. This candidate also remembers texting with Mr. Marrero about the Manager 

position but cannot locate those text messages. Id. at ¶ 12. And, of course, Defendant Marrero 

cannot produce the text messages since he deleted them.

The above evidence strongly supports that Defendant Marrero’s deletion of his text 

messages was no accident, but rather, was intentional conduct designed to deprive Plaintiff from 

obtaining relevant information that would contradict Defendant Marrero’s testimony. 

2. Prejudice 

“It is well accepted that discerning what ESI has been lost and the possible probative value 

of that information can be quite challenging. As a result, neither party is automatically tasked with 

the burden of proof on the issue of prejudice under Rule 37(e)(1).” Doe, 2023 WL 2918507, at 

*11. Thus, Rule 37 affords the Court “discretion to determine how best to assess prejudice in 

particular cases.” Id. This approach reflects a recognition that “[t]ypically, only the spoliator 

knows how much prejudice has been caused by the destruction.” Doe, 2023 WL 2918507, at *11 

(quoting Nationwide, 2019 WL 5700288, at *10 (citation omitted).

Here, Defendant Marrero started supervising Plaintiff days after she disclosed that she was 

pregnant and was a decisionmaker in the termination decision. Defendant Marrero would therefore 

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be the individual most likely to have documents relevant to the claims and defenses in this action. 

The fact that Defendant Marrero admits he did not have those text messages, and did not review 

them in connection with Plaintiff’s Document Requests, necessarily prejudiced Plaintiff from 

obtaining evidence that could reasonably have been expected to support her claims or contradict 

the defenses, or both. Moreover, preserving only the text messages with Plaintiff is insufficient 

for communications with others about Plaintiff, or the relevant topics identified in Plaintiff’s 

document requests, about which Defendant Marrero admitted to texting others on an ongoing basis. 

See generally, Exs. D and G (document requests); Ex. A (admissions). As mentioned above, there 

is at least one candidate that Defendant Marrero contacted about a manager position at Christi’s 

during Plaintiff’s employment and there are probably numerous others. Thus, in addition to 

showing an intent to deprive, Plaintiff was also prejudiced by Defendant Marrero’s conduct. 

F. Sanctions Requested 

If the Court determines that Plaintiff satisfied only the prejudice element in subsection 

(e)(1), Plaintiff requests that she be permitted to present evidence regarding the missing text 

messages at trial, which would allow the jury to “consider the loss of that evidence, and the 

circumstances under which it was lost, in evaluating witness credibility and making other factual 

determinations.” Charlestown Cap. Advisors, LLC v. Acero Junction, Inc., et al., 337 F.R.D. 47, 

68-69 (S.D.N.Y. 2020).

3

 Importantly, granting Plaintiff the right to present such evidence would 

3

 See, e.g., Wilson v. HH Savannah, LLC, No. CV420-217, 2022 WL 3273714, at *2 (S.D. Ga. 

July 28, 2022) (“The Court agrees that the appropriate sanction in this case is to “allow[ ] the 

parties to present evidence to the jury concerning the loss and likely relevance of information and 

instructing the jury that it may consider that evidence, along with all the other evidence in the case, 

in making its decision.”); Manning v. Safelite Fulfillment, Inc., 2021 WL 3557582, at *10 (D.N.J. 

Apr. 29, 2021) (“The Court concludes that the appropriate sanction here is to permit defendants to 

present evidence to the jury regarding [the] deletion[.]”); Karsch v. Blink Health Ltd., 2019 WL 

2708125, at *27 (S.D.N.Y. June 20, 2019) (“As an additional sanction, defendants will be 

permitted to present evidence to the jury concerning [the spoliation], and the jury will be permitted 

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“ensure that the [jury would] have the full context for the [potential] evidentiary imbalance that 

[may] become apparent at trial, which is itself relevant evidence going to the parties’ credibility 

and other factual issues.” Id. Plaintiff also requests that the Court give a jury instruction to “assist 

in its evaluation of such evidence or argument.” Advisory Notes to Rule 37 (“In an appropriate 

case, it may be that serious measures are necessary to cure prejudice found by the court, such as 

forbidding the party that failed to preserve information from putting on certain evidence, 

permitting the parties to present evidence and argument to the jury regarding the loss of 

information, or giving the jury instructions to assist in its evaluation of such evidence or argument, 

other than instructions to which subdivision (e)(2) applies.”).

If the Court determines there was an intent to deprive, Plaintiff requests an adverse 

inference instruction requiring the jury to infer that the information lost was unfavorable to 

Defendants, in addition to presenting the evidence to the jury. The record is also replete with 

Defendant Marrero’s implausible explanations regarding the missing text messages, which 

Plaintiff submits should warrant such an instruction.

CONCLUSION

Plaintiff respectfully requests that this Court grant her motions for sanctions pursuant to 

Rule 37(e) and any other such further relief as this Court deems just and proper under the 

circumstances. 

RULE 7.1(a) CERTIFICATION

Pursuant to Local Rule 7.1(a)(3), counsel for the movant has conferred with Defendants’ 

to consider that evidence[.]”); Franklin v. Howard Brown Health Ctr., 2018 WL 4784668, at *7 

(N.D. Ill. Oct. 4, 2018) (“it is recommended that parties be allowed to present evidence and 

argument to the jury regarding the defendant's destruction/failure to preserve electronic evidence 

in this case[.]”).

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counsel in a good faith effort to resolve the issues raised in the motion and Defendants oppose the 

requested relief. 

Dated: October 11, 2023 Respectfully Submitted,

_____________________

Bryan Arbeit, Esq.

Florida Bar No. 1010329

Telephone: (954) 694-9610

Facsimile: (954) 694-9695)

Email: barbeit@forthepeople.com

Allison M. Rattet, Esq.

Florida Bar No. 1023573

Telephone: (954) 807-7774

Facsimile: (954) 807-7797

Email: arattet@forthepeople.com

Morgan & Morgan, P.A.

8151 Peters Road, 4th Floor

Plantation, FL 33324

Attorneys for Plaintiff 

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on the 11th day of October 2023, a true and correct copy of the 

foregoing has been served via the Court’s CM/ECF system, which counsel understands will 

transmit copies to counsel of record.

____________________

Bryan Arbeit, Esq.

Florida Bar No. 1010329

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