Kinzie Advanced Polymers, LLC v. Calyx Containers, LLC, No. 1:24 CV 1887 (N.D. Ohio Sept. 30, 2026), full opinion (PDF)
A company that hires a consultant can share responsibility for preserving the phone he uses in its business. A September 30 order in a trade secrets suit in federal court in Ohio applied that principle to a consultant's iPhone. The consultant's former employer sued both him and the company that hired him. He had used one iPhone for work at both companies. After agreeing through counsel to a forensic review, he replaced the phone before any review took place.
On the spoliation motion that followed, the court concluded that the hiring company shared control of the phone. It relied on the consultant's business use of the device and on an email in which the company reminded him to honor his obligations to former employers. The court concluded that both defendants failed to take reasonable steps to preserve the phone. It ordered curative measures under Rule 37(e)(1).
What happened
Kinzie Advanced Polymers, which does business as Grove Bags, sued its former employee, Michael Ryan Tatum. It also sued Calyx Containers, the company that later engaged him as a consultant. According to Grove Bags, a business app had synced the Grove Bags customer list to Tatum's phone.
Witnesses testified about the phone at a preliminary injunction hearing. Grove Bags then asked for a forensic review, which Tatum's counsel accepted subject to a protocol. After a fall damaged the phone, Tatum says, he traded it in at an Apple Store. By his account, he restored his contacts, messages, and photos to the replacement from backups.
The court's analysis
The court determined that Tatum was on notice of his duty to preserve the phone once the complaint was filed. In the court's view, his business use at both companies meant the phone held relevant ESI.
Calyx's duty turned on control. The court framed control as the right, authority, or practical ability to obtain the evidence. Grove Bags had asked Calyx to respect Grove Bags' contracts with Tatum. Calyx's president then sent Tatum a similar reminder about his obligations to former employers. The court reasoned that the reminder made sense only if Calyx had some control over Tatum's conduct. With Tatum also using the phone for Calyx work, the court concluded that Calyx shared control of the phone. That control, as the court saw it, carried a duty to preserve the device.
The court acknowledged that Tatum took some reasonable steps by moving the phone's data. Because he had already agreed to the forensic review, trading in the phone shortly after the hearing was still unreasonable, the court concluded.
The court found that Calyx also failed to take reasonable steps to preserve the phone. The hearing testimony told Calyx that the phone was in dispute, the court found, yet Calyx kept engaging Tatum as a consultant. In the court's view, Calyx should have talked with him about preserving the phone.
The court found that disposing of the phone deprived Grove Bags of other electronic records on the device, such as evidence of any deletions. A Grove Bags employee declared that the business app Tatum used synced customer contacts to phones by default. Tatum submitted a competing declaration. The court read the employee's account as a plausible, concrete suggestion that the phone might have held the customer list. Because the customer list is one of the claimed trade secrets, the court concluded that losing the phone prejudiced Grove Bags.
The court concluded that Grove Bags had not proven an intent to deprive, partly because Tatum's data transfer may have preserved some information. Grove Bags may present evidence about the lost phone and argue for an inference, while the defendants may argue against one. A magistrate judge will compare the contacts on Tatum's new phone with the customer list. The defendants must pay Grove Bags' reasonable fees.
Why it matters
A court may read a company's reminder to its consultant to honor a former employer's agreements as evidence of control. Combined with his business use of a phone, that control can reach the phone itself. Once testimony or a demand puts such a device in dispute, the company should raise preservation with the consultant, through his counsel if he has one. It should then confirm in writing the steps he has taken.
Counsel for the party holding a device flagged for forensic review should treat the device itself as evidence. Beyond backing up its data, that party should have the device imaged or set aside before any repair or replacement. Opposing counsel should hear about any replacement promptly.
A movant seeking sanctions for a lost phone should build a concrete account of what the device plausibly might have held. A declaration from someone who knows how an app synced data can supply that account. It can do so even when competing evidence prevents a finding about what the phone contained.
The full opinion is available as a PDF.
