Harris v. Landmark Recovery of Carmel LLC, No. 3:23-cv-00862 (N.D. Ind. July 6, 2026), full opinion (PDF)
A resident died at a substance-abuse facility, and the facility issued a litigation hold three days later. Years later, it had produced none of the Microsoft Teams messages or surveillance video sought in discovery. The court found no bad faith and no intent to destroy anything. It sanctioned the facility anyway. For litigators, the lesson is that a hold is only as good as the preservation that follows it, and the data most likely to slip through is exactly the collaboration-platform chatter and short-cycle video that modern facilities run on.
What Happened
William Harris died by suicide on July 9, 2023, while a resident at Landmark Recovery’s Mishawaka rehabilitation facility. Two other residents had died in the preceding six days, and Landmark’s own incident report identified a system breakdown as contributing to his death. On July 12, 2023, three days after Harris died, Landmark’s in-house counsel enacted a litigation hold.
His estate later sought two categories of ESI, the facility’s video surveillance and its Microsoft Teams messages. Teams was not incidental to the case. Testimony established it was the primary way on-site and off-site staff coordinated patient care, and a telehealth nurse practitioner had used it to order Harris moved to a higher level of care and placed on suicide watch, orders that on-site staff resisted over the same platform. Landmark produced none of it.
Its explanation shifted over the course of the litigation. Landmark first logged the materials as privileged, then attributed the gap to “technological and institutional limitations”, then told the court the video had been overwritten in the normal course under a retention policy. At a February 2026 evidentiary hearing, its own vice president admitted the opposite. Landmark had no retention policy for video surveillance or Teams communications during June and July 2023. Landmark had also transferred its IT infrastructure to a management company in July 2025, two years into the hold, and could not say whether the held data survived the move.
Fault Without Intent
Magistrate Judge Andrew Teel found the duty to preserve had attached by July 12, 2023 at the latest, and that Landmark breached it. The harder question was culpability. The court accepted that the estate had not shown intentional or bad-faith destruction, but that did not end the matter. Landmark’s conduct, the court held, evinced “fault, but not willful destruction of documents or bad faith.” The failure to create and implement any retention policy was “extraordinarily poor judgment”, and the failure to preserve Harris’s records was “gross negligence”. The court added, quoting a prior decision, that the absence of a reasonable understanding of a client’s information systems is strong evidence that counsel did not conduct a reasonable inquiry.
The estate’s prejudice was real but partial. The court acknowledged the estate was prejudiced to some degree, but declined to find that it could not prove its claims without the evidence, given the medical records, testimony, and expert analysis still available.
Rule 37(e)’s Two Tiers
That mix of fault and partial prejudice drove the remedy. The estate asked for a default or an adverse-inference instruction. The court refused both, explaining that intent must be established before a court can impose sanctions such as adverse jury instructions, default, and dismissal under Rule 37(e)(2). Absent proof that Landmark meant to deprive the estate of the evidence, the severe sanctions were off the table.
Rule 37(e)(1) supplied what remained. On a finding of prejudice, a court may order measures no greater than necessary to cure it. The court imposed a curative jury instruction allowing the jury to consider Landmark’s duty to preserve the evidence, the circumstances surrounding its loss, and its relevance to the estate’s claims. It also ordered Landmark to pay the reasonable attorney fees and costs of bringing the motion.
Why It Matters
The decision shows how far a party can fall short without ever intending to. A hold issued promptly earns little credit if preservation never reaches the systems it names. Collaboration platforms like Teams and Slack, and video that overwrites on a one- or two-week cycle, are the first things to vanish and among the hardest to reconstruct, so they belong at the front of a preservation plan. Counsel who cannot describe how a client stores and retains that data are exposed twice over, because the gap in knowledge is itself evidence of an unreasonable inquiry. Intent may spare a party the adverse-inference instruction, but Rule 37(e)(1) still carries a curative instruction and a fee award, and both were enough here to make the failure expensive.
The full opinion is available as a PDF.
