In Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-CV-62216 (S.D. Fla. Mar. 22, 2016), the district court applied recently amended Federal Rule of Civil Procedure 37(e) and denied the plaintiff’s motion for sanctions against the defendant for alleged spoliation of text messages.  The defendant was not able to produce all text messages requested because the defendant activated, prior to the litigation, a setting on his phone to automatically delete text messages after 30 days and did not deactivate that feature when the litigation began.  The court held that, under the amended Rule 37(e), a court must answer three preliminary questions in considering a motion for sanctions:  (1) “[w]as the allegedly spoliated ESI evidence that should have been preserved?”; (2) “[w]as the allegedly spoliated ESI lost because a party failed to take reasonable steps to preserve it?”; and (3) “[i]s the allegedly spoliated ESI evidence that cannot be restored or replaced through additional discovery?”  The court held that if the answer to any of those questions is “no,” then the motion should be denied.  If the answer to each question is “yes,” then a court must go on to consider whether the moving party suffered prejudice and whether the non-moving party acted with an “intent to deprive” the other party of evidence.  The court answered each preliminary question in the affirmative, but found that there was no evidence of prejudice or an improper intent.  With respect to intent, the court held that the defendant had acted negligently and “the amended Rule 37(e) does not permit an adverse inference instruction or other severe sanctions for negligence.”  The court further held that “it is a common practice amongst many cell phone users to delete text messages as a they are received” and “there is nothing nefarious about such a routine practice under the facts presented here.”