In a recent case, Jane Doe v. Leon Black, No. 23-CV-6418 (JGLC), 2026 WL 1102540 (S.D.N.Y. Apr. 23, 2026), a case arising under the New York City Victims of Gender-Motivated Violence Protection Law, the court considered and imposed sanctions against plaintiff and her counsel. Among other things, the court found that plaintiff’s counsel “lied repeatedly to the Court and to opposing counsel in this litigation about what was happening in a related action[,] … directed Plaintiff to destroy a relevant social media account that Plaintiff used to communicate publicly about her experiences as a purported Epstein victim,” and that plaintiff “falsified sonogram images in her personal journals, which her First Amended Complaint relies on to support the allegations in this action.”
As to the spoliation claim, the court explained:
Spoliation is the destruction or significant alteration of evidence, or failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation. In re Terrorist Bombings of U.S. Embassies in East Africa, 552 F.3d 93, 148 (2d Cir. 2008) (internal quotation marks omitted). Rule 37(e) prescribes the measures that a court can take to address spoliation of electronically stored information (“ESI”), depending on whether the party who spoliated the evidence simply failed to take reasonable steps to preserve it, Fed. R. Civ. P. 37(e)(1), or if they acted with an intent to deprive an opposing party of evidence, Fed. R. Civ. P. 37(e)(2). See Hoffer v. Tellone, 128 F.4th 433, 437–38 (2d Cir. 2025). If a party failed to take reasonable steps to preserve ESI, then a court is limited to imposing a measure against the destroying party that is no greater than necessary to cure the prejudice. See PDV USA, Inc. v. Interamerican Consulting Inc., No. 20-CV-3699 (JGK) (RWL), 2026 WL 203036, *7 (S.D.N.Y. Jan. 27, 2026). If, however, the party destroyed ESI with intent to deprive, then a court may impose severe measures, such as issuing mandatory adverse inference instructions that the lost information would have been unfavorable to the destroying party or entering default judgment against the destroying party. Id. In sum, in applying Rule 37(e), courts must decide: (1) whether a party failed to take reasonable steps to preserve ESI that should have been preserved in the anticipation or course of litigation; (2) whether another party has been prejudiced by the loss of information; and (3) whether the destroying party acted with an intent to deprive. Id.; Fed. R. Civ. P. 37(e).
Here, Plaintiff had a clear obligation to preserve her Twitter account when she was directed to, and in fact did, delete it in May 2023. The duty to preserve arises when a party reasonably anticipates that evidence may be relevant to current or future litigation. Fujitsu Ltd. v. Fed. Exp. Corp., 247 F.3d 423, 436 (2d Cir. 2001) (citing Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998)). Courts are directed to “consider the extent to which a party was on notice that litigation was likely and that the information would be relevant.” Fed. R. Civ. P. 37(e) advisory committee’s note to 2015 amendment. Plaintiff retained Wigdor in March 2023 to represent her in her civil rape cases, after which point, in May 2023, two months before filing the instant case, Plaintiff deleted her Twitter account. ECF No. 233-4 at 21; ECF No. 233-30 at 8. Neither Plaintiff nor Wigdor contests that Plaintiff was under a duty to preserve relevant documents at that point.
The communications and posts Plaintiff made on Twitter are also relevant to this case. Even assuming that Plaintiff did not discuss Black on her Twitter account, there is no dispute that Plaintiff discussed Epstein. See, e.g., ECF No. 233-33. Indeed, as discussed above, Ms. Christensen acknowledged that was the main reason Plaintiff started the account. See supra Section II.C, Motion for Case-Terminating Sanctions; ECF No. 233-30 at 8. Plaintiff consistently alleges that Epstein trafficked her to Black; her relationship with Epstein is thus relevant to this case. Plaintiff also discussed and spoke positively on Twitter about her alleged trafficker, “Elizabeth.” See ECF No. 233-31. What Plaintiff said about her relationships with these individuals before and after filing suit is certainly relevant to her claims here. Defendant likely could have used any discrepancies to cast doubt on the truthfulness of her account. Therefore, Plaintiff should have preserved her Twitter account.
It is also clear that the deletion of Plaintiff’s Twitter account prejudices Defendant. He has lost one part of a record, with timelines, that he could have used to assess and question Ms. Doe’s credibility. Although methods exist to retrieve many of Plaintiff’s public posts, such tools do not fully compensate for the deletion of her posts. See, e.g., Leidig v. Buzzfeed, Inc., No. 16-CV-542 (VM) (GWG), 2017 WL 6512353, at *13 (S.D.N.Y. Dec. 19, 2017) (finding that a website’s presence on the Wayback Machine does not mitigate prejudice for its deletion). Further, it appears that Plaintiff’s private messages are deleted forever. Thus, Defendant can only recover private messages to the extent that he discovers who Ms. Doe was messaging with and receives their records.Plaintiff, through Ms. Christensen, failed to take reasonable steps to preserve her account. Unfortunately, the deletion of Plaintiff’s Twitter account appears to be entirely attributable to Ms. Christensen’s conduct, see ECF No. 233-30 at 8—even though Ms. Christensen is an experienced attorney and law firm partner who knew better than to instruct a client to destroy evidence without preserving it.
Ms. Christensen never responded to the spoliation allegations in Wigdor’s Opposition. The record indicates that concern for Plaintiff’s safety motivated Ms. Christensen, at least in part. See id. Still, Ms. Christensen knew or should have known that the account could have been protected from online strangers without deleting it entirely, or that the account could have been deleted while preserving its contents. Ms. Christensen chose neither acceptable option. Without any other word on this topic from Ms. Christensen, it is clear that she, and therefore Plaintiff, failed to take reasonable steps to preserve this evidence.
Nevertheless, the record does not indicate that Ms. Christensen or Plaintiff deleted the account with intent to deprive Defendant of evidence. “[T]he intent to deprive standard is both stringent and specific, and contemplates not merely the intent to perform an act that destroys ESI but rather the intent to actually deprive another party of evidence.” Hoffer, 128 F.4th at 440 (cleaned up). In PDV USA, Inc. v. Interamerican Consulting, for example, the court found that “selective deletion, secrecy, shifting explanations, contradictory testimony, and obfuscation and obstruction” by the sanctioned party demonstrated an intent to defraud. 2026 WL 203036, at *17. By contrast, in Leidig v. Buzzfeed, the court found that although the plaintiffs intentionally deleted relevant emails and took down websites with news stories central to the case, those actions did not demonstrate an intent to deprive the defendant of that evidence in litigation. 2017 WL 6512353, at *11. Instead, the court credited an alternate explanation that the plaintiffs deleted emails “intentionally, to create more space” and “unintentionally as a result of corruption in those files.” Id. That the plaintiffs disabled a website relevant to the parties’ dispute also did not demonstrate intent to deprive. See id. at *5, *9. Without more, the court found, this conduct amounted to an “unreasonable” and “negligent” failure to preserve evidence, not an intent to deprive the defendant of evidence. Id. at *12.
Here, Defendant similarly has not demonstrated that Ms. Christensen or Plaintiff possessed the hallmarks of intent to deprive. Ms. Christensen admitted openly in a memorandum to the JPMC Claims Administrator that she directed Plaintiff to delete her Twitter account. ECF No. 233-30 at 8. Her explanation for this action has not changed, and she has not attempted to shift blame for the deletion onto Plaintiff. Ms. Christensen also did not selectively delete Twitter items that would have been particularly damaging to Plaintiff’s claim. Cf. Leidig, 2017 WL 6512353 at *11 (distinguishing from a case finding intent to deprive where selectively deleted emails “sought to ‘direct the exact contents of [a] witness statement.’ ” (quoting Ottoson v. SMBC Leasing & Fin., Inc., 268 F. Supp. 3d 570, 581 (S.D.N.Y. 2017)). And the Court credits Ms. Christensen’s explanation that she sought to protect Plaintiff’s safety as forming at least part of her motivation to instruct Plaintiff to delete the account.
Ultimately, as in Buzzfeed, the evidence certainly suggests that Ms. Christensen acted unreasonably and negligently. But the Court does not find that Plaintiff’s Twitter account was deleted with an intent to deprive Defendant of its use. The Court will therefore issue a remedial measure to cure the prejudice Defendant faces.
[Cleaned up.]
While the court found that sanctions were warranted, it stopped short of dismissing plaintiff’s case.