Klimenko v. Glanbia Foods, Inc., No. 1:24-cv-00037-AKB, D. Idaho (July 20, 2026), full opinion (PDF)
A federal court in Idaho granted spoliation sanctions on July 20 over a personal cellphone that a defendant sold while the case was pending. The same ruling refused the adverse-inference instruction the plaintiff had asked for. In its place the court set out a Rule 37(e)(1) curative instruction that recites the preservation history to the jury and lets the jury consider the very fact the lost ESI would have addressed.
What Happened
Sergey Klimenko sued Luis Rodriguez and his employer, Glanbia Foods, Inc., after Rodriguez drove a commercial truck into the rear of Klimenko's stopped pickup at roughly 64 miles per hour. Whether Rodriguez was distracted, and by what, was the contested question.
Klimenko's counsel sent Glanbia preservation letters in August 2023 asking that the driver's physical cellphone be preserved. Klimenko filed suit in January 2024. That March the parties submitted a stipulated discovery plan in which the defendants, represented by the same counsel, agreed to preserve any phone, specifically including the driver's. The court adopted the plan by order.
Rodriguez was deposed in July 2024. He testified that the phone sat in a box in the truck console and that he sent and received no texts or emails while driving. A call he had made that evening ended roughly 20 to 30 minutes before the collision, he said. Toll records put the end of that call under two minutes before the crash. Rodriguez sold the phone in November 2024. He later responded in discovery that he did not know the buyer's name, address, or phone number, and that he had tried to delete his personal information from the phone before selling it. The same order that resolved the spoliation motion also decided the parties' summary judgment and punitive damages motions.
The Court's Analysis
The ESI at issue was never the handset. The opinion identifies it as "any application usage, text messaging, screen activity, or other non-call activities occurring at or near the time of the collision".
Litigation was reasonably foreseeable given the nature of the incident, and both defendants had agreed in the adopted plan to preserve the phone's ESI, so the duty to preserve attached. As to reasonable steps, the court found that "Defendants provide no explanation about what reasonable steps they took to preserve the cellphone's ESI". The defendants argued instead that Klimenko had been slow to press for the device. The court answered that both defendants had agreed to preserve the ESI and that their counsel knew about the agreement.
Prejudice turned on what the surviving records could not reach. Toll records establish call activity, not texting or social media use in the minutes before impact. The court also declined to treat Rodriguez's denial of distraction as a cure, reasoning that his testimony "makes the ESI, which might have shown his usage, more relevant, not less".
Klimenko lost on intent. Glanbia never possessed the phone, and Rodriguez sold it several months after answering questions about it under oath. Those circumstances fell short of the specific intent to deprive that Rule 37(e)(2) requires. The court therefore denied default judgment, an order striking the defenses, and the adverse-inference instruction.
Under Rule 37(e)(1), the court anticipates telling the jury that Klimenko asked Glanbia to preserve the phone before the litigation began, that both defendants specifically agreed to preserve its ESI, that the court ordered preservation by adopting the stipulation, and that Rodriguez sold the phone anyway without preserving anything. Based on that conduct, the opinion states, "the jury may consider whether Rodriguez was using his cellphone at or near the time of the collision despite that there is no ESI to confirm that fact".
Why It Matters
Read a preservation commitment in a discovery plan as an order once the court adopts it. The duty in Klimenko reached a personal phone the employer never held and the employee could dispose of at will. Shared counsel made the commitment binding on both defendants.
Preserve the device data, not the device. The opinion separates the phone from its ESI at the start of its spoliation analysis. Application usage, message content, and screen activity are what a distraction case turns on. A forensic image taken while the phone is still in hand is what captures them.
Call records prove calls and nothing else. A party claiming that other evidence replaces lost device data has to address what the records cannot show.
A Rule 37(e)(1) instruction can do substantial work. Losing the intent argument cost Klimenko the adverse-inference instruction Rule 37(e)(2) would have allowed. That loss did not keep the sale of the phone from the jury. The instruction the court described invites the jury to draw the inference on its own.
The full opinion is available as a PDF.
