Case 1:21-cv-00565-RP Document 389 Filed 04/22/24 Page 1 of 3
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE WESTERN DISTRICT OF TEXAS
`AUSTIN DIVISION
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`1:21-CV-565-RP
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`ERIC CERVINI, et al.,
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`v.
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`ELIAZAR CISNEROS, et al.,
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`Plaintiffs,
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`Defendants.
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`ORDER
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`Before the Court is the report and recommendation of United States Magistrate Judge Mark
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`Lane concerning Plaintiffs’ motions for Rule 37 discovery sanctions against Defendant Eliazar
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`Cisneros (“Cisneros”), (Dkt. 267), and Defendant Joeylynn Mesaros, (Dkt. 271). (R. & R., Dkt. 377).
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`Judge Lane issued his report and recommendation on March 21, 2024, (id.), after holding a hearing
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`on the motions on January 31, 2024, (Minute Entry, Dkt. 318). Joeylynn Mesaros filed objections to
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`the report and recommendation on April 18, 2024, (Objs., Dkt. 388), after being granted a brief
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`extension of time to file her objections, (see Dkt. 384; Text Order dated April 5, 2024). Cisneros has
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`not filed objections to the report and recommendations nor a motion for extension of time to do so.
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`A party may serve and file specific, written objections to a magistrate judge’s findings and
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`recommendations within fourteen days after being served with a copy of the report and
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`recommendation and, in doing so, secure de novo review by the district court. 28 U.S.C.
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`§ 636(b)(1)(C). When no objections are timely filed, a district court can review the magistrate judge’s
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`report and recommendation for clear error. See Fed. R. Civ. P. 72 advisory committee’s note (“When
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`no timely objection is filed, the [district] court need only satisfy itself that there is no clear error on
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`the face of the record in order to accept the recommendation.”).
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`Case 1:21-cv-00565-RP Document 389 Filed 04/22/24 Page 2 of 3
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`Because Joeylynn Mesaros timely objected to the report and recommendation, the Court
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`reviews the portion of the report and recommendation pertaining to her de novo. As Cisneros has not
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`timely filed objections, the Court reviews the portion of the report and recommendations pertaining
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`to him for clear error. Having done those reviews and for the reasons given in the report and
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`recommendation, the Court overrules Joeylynn Mesaros’s objections and adopts the report and
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`recommendation as its own order.
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`Accordingly, the Court ORDERS that the report and recommendation of United States
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`Magistrate Judge Mark Lane, (Dkt. 377), is ADOPTED.
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`IT IS FURTHER ORDERED that Plaintiffs’ motion for Rule 37 discovery sanctions
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`against Cisneros, (Dkt. 267), and Plaintiffs’ motion for Rule 37 discovery sanctions against Joeylynn
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`Mesaros, (Dkt. 271), are GRANTED.
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`IT IS FINALLY ORDERED that, in accordance with Rule 37(e)(2)(B), the Court will
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`provide the following instructions to the jury, should this case proceed to a jury trial:
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`The Court will instruct the jury that Eliazar Cisneros intentionally deleted text
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`messages relevant to Plaintiffs’ claims in this litigation with Jason Peña, Edward Niño, and
`others from the days leading up to October 30, 2020 and on October 30, 2020, and that the
`jury may presume that Eliazar Cisneros deleted those text messages because they were
`unfavorable to his case and would have been used by Plaintiffs to establish his liability.
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`The Court will instruct the jury that Joeylynn Mesaros intentionally deleted social
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`media content relevant to Plaintiffs’ claims in this litigation and instructed her husband
`Robert Mesaros to do the same, and that the jury may presume that Joeylynn Mesaros
`deleted this social media content because it was unfavorable to her case and would have
`been used by Plaintiffs to establish her liability.
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`The Court will instruct the jury that Joeylynn Mesaros intentionally failed to preserve
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`her text messages from key time periods including shortly before, during, and after October
`30, 2020, and that the jury may presume that Joeylynn Mesaros failed to preserve these text
`messages because they were unfavorable to her case and would have been used by Plaintiffs
`to establish her liability.
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`Case 1:21-cv-00565-RP Document 389 Filed 04/22/24 Page 3 of 3
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`The Court will instruct the jury that Joeylynn Mesaros intentionally failed to preserve
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`other phone data from key time periods including shortly before, during, and after October
`30, 2020, and that the jury may presume that Joeylynn Mesaros failed to preserve this phone
`data because it was unfavorable to her case and would have been used by Plaintiffs to
`establish her liability.
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`SIGNED on April 22, 2024.
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`________________________________
`ROBERT PITMAN
`UNITED STATES DISTRICT JUDGE
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