Case 1:21-cv-00568-RP Document 107 Filed 06/29/23 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

ERIC CERVINI, WENDY DAVIS, DAVID §

GINS, and TIMOTHY HOLLOWAY, §
Plaintiffs, §
v. §
§ 1:21-CV-568-RP
CHASE STAPP, BRANDON §
WINKENWERDER, MATTHEW §
DAENZER and CITY OF SAN MARCOS, §
Defendants. §

ORDER

Before the court is Plaintiffs’ Motion for Rule 37 Discovery Sanctions Against Defendant the City

of San Marcos (“San Marcos”) (Dkt. #97)1 and related briefing. The court held a hearing on the motion

on June 29, 2023.

In their Motion, Plaintiffs assert that San Marcos failed to preserve evidence, specifically the email

accounts and other electronically stored information of three individuals employed or formerly employed

by San Marcos. Those individuals are Nakelia Evelyn, Kelly Bomersbach (aka Kelly Minor), and Cole

Stapp. Dkt. #97 at 3–4.

At the hearing, Plaintiffs’ counsel did not contest the court’s conclusion that issues related to

Bomersbach’s (Minor’s) ESI pre-dated the filing of the lawsuit and are not actionable. Similarly,

Plaintiffs’ counsel acquiesced to the court’s belief that issues related to Evelyn’s ESI were not ripe absent

additional information. Accordingly, the hearing focused on the propriety of sanctions related to Stapp’s

ESI.

For the reasons stated at the hearing and contained in the parties’ briefing, the court makes the

following legal and factual findings:

1
The Motion was referred by United States District Judge Robert Pitman to the undersigned for disposition
pursuant to 28 U.S.C. § 636(b)(1)(A), Federal Rule of Civil Procedure 72, and Rule 1(c) of Appendix C of the Local
Rules of the United States District Court for the Western District of Texas. Text Order June 20, 2023.
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 Case 1:21-cv-00568-RP Document 107 Filed 06/29/23 Page 2 of 2

1. Stapp’s email account and cell phone were ESI that should have been preserved in
anticipation of litigation. See FED. R. CIV. P 37(e).

2. That ESI was lost and cannot be restored or replaced through additional discovery. See id.

3. San Marcos failed to take reasonable steps to preserve it. See id.

4. Plaintiffs’ are prejudiced by San Marcos’s failure. See id. (1).

Accordingly, the court may order—and will order—punitive measures. See id.

The court also concludes that San Marcos’s conduct was completely out of line. Further, the

court expresses its dismay and disappointment in counsel for San Marcos’s failure to achieve their

client’s compliance with a properly issued preservation letter. It is without question that San Marcos

was obligated to retain, inter alia, the cell phones, phone records, text messages, and emails of any

employee who may have information relevant to this litigation. At this, San Marcos failed miserably.

To be clear, San Marcos was negligent, and its conduct is sanctionable. But despite San

Marcos’s misconduct, Plaintiffs have failed to establish San Marcos’s behavior was motivated by bad

faith. Thus, the court will decline to recommend to the District Court a negative inference instruction

be made. However, Plaintiffs are authorized to argue to any factfinder that San Marcos’s failure to

preserve ESI was because San Marcos viewed the unpreserved information as unfavorable to their

case.

In order to, inter alia, determine “measures no greater than necessary to cure the prejudice.”

See id. The court ORDERS the parties to meet and confer by July 14, 2023 to determine:

1. Whether there exists any other measure to cure the prejudice; and

2. What attorney’s fees, based on the court’s instructions at the hearing, are appropriate.

SIGNED June 29, 2023.

_______________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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