Cellco Partnership v. County of Monmouth, No. 23-18091 (ESK/EAP) (D.N.J. Sept. 25, 2026), full opinion (PDF)
A local group and nearby residents who intervened in Verizon's suit against Monmouth County, New Jersey, moved to exclude Verizon's network expert as a sanction for spoliation. They argued that Verizon had failed to keep the raw network data behind the spreadsheets the expert relied on. On September 25, a District of New Jersey magistrate judge denied the motion. The court treated it as an untimely motion to compel. The intervenors, it noted, had never sought the data during fact discovery or moved to compel its production. As an additional ground, the court rejected the spoliation claim on its merits.
An export format the producing and requesting parties agree on during discovery can defeat a later spoliation claim. Testimony that the export is the raw data can answer the argument that different source data was lost.
What happened
Verizon is challenging the county's denial of its application to install small wireless facilities. Its expert relies on network performance data to support Verizon's claim of a gap in service.
During fact discovery, the county requested the data behind Verizon's capacity determination. Verizon agreed with the county to produce the data as spreadsheets. Verizon generates those spreadsheets with a proprietary extraction tool that pulls the data from its network.
The intervenors requested nothing about the data before fact discovery closed. Their first request for the original data, as it existed before export, came months later, with a deposition notice to the expert. Verizon responded that the spreadsheets held the raw data. According to Verizon, the data had no other form anyone could view. The intervenors renewed the request at the deposition. No motion to compel followed. Their motion to exclude came about five months after the deposition, at the dispositive motion deadline.
The court's analysis
The court concluded that the motion to exclude was in effect an untimely motion to compel. In the court's words, the motion "signals an improper strategic maneuver to eliminate Plaintiffs' key expert". A timely motion to compel that the court grants, the court explained, is a prerequisite to discovery sanctions under Rule 37. The intervenors identified no order that Verizon had violated. In the court's account, they left the data requests to the county during fact discovery. They raised no objection when Verizon and the county agreed to use the spreadsheets.
The intervenors' reply brief stated that they did not seek to reopen discovery or have Verizon produce the data. The court said that statement confirmed its suspicion that the motion was tactical.
On the merits, the court rejected the spoliation claim under Rule 37(e). Declarations from Verizon engineers stated that the spreadsheets contain the raw data Verizon collects in the normal course of business, without manipulation by any person. Against that record, the court concluded, the intervenors offered only speculation that different data existed. That speculation, in the court's words, "does not establish spoliation". On the element of reasonable steps, the court relied on the county's explicit agreement that the spreadsheets would preserve the data.
In the court's view, Rule 34 supported the format Verizon chose, because the county's request had not specified one. Rule 34(b)(2)(E)(ii) then permits production in a form in which ESI is ordinarily maintained or in a reasonably usable form. Verizon's declarants attested that the spreadsheets are the only practical and usable means of preserving the data.
Even if spoliation had occurred, the court added, the intervenors had shown neither intent to deprive nor prejudice. Their own expert testified that he had no reason to believe the data Verizon provided was inaccurate or had been changed. A hoped-for advantage in cross-examination, the court reasoned, does not prove prejudice. The court rejected the intervenors' remaining challenges under Rule 26 and the Federal Rules of Evidence, denying the motion in its entirety.
Why it matters
A producing party whose data is usable only through an extraction tool should settle the production format with the requesting party during discovery. That agreement can answer the reasonable-steps element of a later Rule 37(e) claim. Testimony from the engineers who run the extraction can rebut the argument that the source data differed from the production. That testimony should state that the export reproduces the data without alteration.
A party that doubts an export should test it while fact discovery is open. Serve a request that specifies the form of production, and move to compel if the response falls short. A motion to exclude filed after discovery closes invites treatment as a late motion to compel.
A spoliation movant needs evidence that the data it says was lost differs from what was produced. Before moving, the movant should learn what its own expert will say about the produced data. A concession at deposition can defeat the showing of prejudice.
The full opinion is available as a PDF.
