Doe v. Bonnell, side by side

United States District Court · Southern District of Florida · No. 1:25-cv-20757-JB

Side by Side Case Argumentation

1Did he share it without her consent?

Plaintiff

Yes, and he has admitted it. She authorized no one. Her account is that she agreed he could show it to his then-fiancée and was explicit that it go no further.

Defendant

He does not deny the transmission. He argues the surrounding exchanges implied permission, and that he never identified her by name to the recipient.

CourtNo merits ruling. He testified he obtained neither verbal nor written consent.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

The statute does not recognize silence or atmosphere as consent. It defines it as an affirmative, conscious, and voluntary authorization. Nothing of that kind exists anywhere in the record, and he does not claim it does.

Rests on

His own sworn declaration admitting the transmission; his hearing testimony that he never obtained verbal or written consent; his message to her on the day of the leak, apologizing and saying there was no excuse; her declaration that she permitted his then-fiancée and no one else.

ECF Nos. 42-1, 90, 120

Authority

15 U.S.C. § 6851(a)(2) supplies the definition of consent.

Where it is weak

None of consequence. This is the strongest element of her case, and the defense does not seriously contest it.

Defendant

The argument

He is not arguing that she said yes. He is arguing that two people who had spent a year exchanging explicit material of themselves and their partners had established a shared understanding, and that he acted inside it, anonymously, without ever naming her.

Rests on

Their 2020 message history, filed as exhibits; his testimony that he believed he had implied consent given the norms of his circles; the fact that she raised no objection to his then-fiancée viewing it.

ECF Nos. 42-3, 50-2, 90

Authority

None directly. No authority is cited for implied consent under this statute, because the statute runs the other way.

Where it is weak

Fatal on this element. § 6851(b)(2)(A) says in terms that consenting to the recording is not consenting to its distribution. A court has already rejected a materially identical argument as contrary to the statute's plain language.

Logic chainhow the reasoning runs, and where it breaks

Test
Did she give affirmative, conscious, voluntary authorization to share it?
Defendant
He concedes he never asked her.
Statutory bar

§ 6851(b)(2)(A): consent to creation is not consent to distribution.

Defense route

The context of their exchanges implied permission.
Plaintiff
The implied-consent route is closed by the text of the statute itself.
Where it lands
Element satisfied, but only if the statute reaches the conduct at all. That question is Dispute 7.

2When did that transmission happen?

Plaintiff

Pleaded October 2022, then “sometime in 2022,” and in May 2026 conceded April 9, 2022, before the statute. Her own expert reached that date first.

Defendant

April 9, 2022. The screenshot reading 10/04/22 is the recipient’s side of the chat in day/month format, because the account was run from the United Kingdom.

CourtCalled the timeline “murky at best” in September 2025. The concession came eight months later.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

Her original reading was not unreasonable on the face of the document, and her objection was never really about arithmetic. It was about provenance: the exhibit he relies on contains a screenshot taken from the recipient's side of the conversation. He could not have produced that image from his own account, and the person who supposedly took it never testified.

Rests on

The ambiguity of 10/04/22 standing alone; the unexplained origin of the recipient-side image; the absence of that recipient as a witness for the defense.

ECF No. 119

Authority

No presumption of truth attaches to either side on a factual jurisdictional attack, so the evidence has to actually establish the date.

Where it is weak

She lost this one. Her own forensic expert accepted April 2022 in October 2025 and she conceded formally in May 2026. Whatever the provenance question, this route to a federal claim is now closed by her own admission.

Defendant

The argument

The date is not a matter of interpretation once you put the two sides of the same conversation next to each other. His side reads 4/9/2022 at 8:28 PM. The recipient's side reads 10/04/2022 at 1:28 am: the same messages, four hours and thirty-eight minutes apart, which is exactly Miami to London.

Rests on

The paired screenshots of the identical exchange; a control message stamped 14/04/2022, which can only be read day-first because there is no fourteenth month; the deposition of the woman whose identity was borrowed, who confirmed the account was run by a man living in the United Kingdom; and the leaker's own published post, in which every date appears in European format.

ECF Nos. 42-4, 132-3

Authority

Landgraf v. USI Film Products bars retroactive effect without clear congressional intent. Three district courts have applied that to this statute specifically.

Where it is weak

He raised jurisdiction in responses for roughly six months before filing an actual motion, which the court noted. And the provenance point the plaintiff raised was never answered: he has still not explained how he came to hold an image taken from the other side of the chat.

Logic chainhow the reasoning runs, and where it breaks

Test
The screenshot reads 10/04/22. Is that October 4 or April 10?
If October 4, 2022

After the statute. The federal claim stands on this transmission alone.

If April 10, 2022

Before the statute. This route is closed.
Defendant
Control test: a later message in the same thread is stamped 14/04/2022. There is no fourteenth month, so the format is day-first.
Defendant
Corroboration: the account holder's deposition places the correspondent in the United Kingdom.
Plaintiff
Unanswered: the exhibit includes an image from the recipient's side that he could not have captured himself, and that recipient never testified.
Where it lands
Resolved in the defendant's favor. The plaintiff conceded April 9, 2022, in May 2026. Jurisdiction must now come from somewhere else.

3Was there a second transmission, after the statute?

Plaintiff

Yes. November 2023, to “Abbymc,” supported by two sworn declarations and a message that witness sent a friend the same morning.

Defendant

It never happened. His preserved logs list every file he sent her and the video is not among them. The witness never testified, produced nothing under subpoena, and later distanced herself.

CourtUndecided. This is the question summary judgment turns on.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

The strongest piece is a clock. The witness's message to a friend is timestamped 10:41 in the morning. The two links the defendant says account for that day are logged at 2:39 in the afternoon. A message sent at 10:41 cannot be describing something that arrived four hours later. Something else came that morning.

Rests on

Two sworn declarations from the witness; the screenshot of her 10:41 message; the defendant's own log, which puts his links at 2:39 p.m.; his admission that he deleted his messages with her from Discord, which is where the direct proof would have been.

ECF Nos. 49-2, 86-1, 249-1 · Dep. Tr. 243:25–244:10

Authority

Rule 56(c)(2) requires only that evidence be reducible to admissible form at trial: it has to be capable of being put in proper form later, not already in that form now. Rule 901's authentication bar is low, and the author has twice sworn the message is hers.

Where it is weak

Serious. The witness never sat for deposition, produced nothing under a validly served subpoena, and days after signing her first declaration told the defendant she no longer wanted to be involved. A second declaration appeared after discovery had closed and after the plaintiff testified she had no recent contact with her. The clock is also less fixed than it looks. At deposition he agreed the log reads 2:39 p.m. but said he could not tell whether that was Eastern or universal time. In universal time it would be 10:39 a.m. in Miami, two minutes before her message.

Dep. Tr. 221:3–13

Defendant

The argument

The plaintiff's entire federal case rests on one witness who has never been tested and one message that does not say what she needs it to say. It names no sender, attaches no video, produces no link, and is offered for the truth of what it asserts.

Rests on

His preserved communication log, which he swore identified every media file he ever sent her and in which the video's filename does not appear; the two Drive links from that day, which he says held videos of another woman who confirmed as much; proof of service of the subpoena she ignored.

ECF Nos. 132-6, 213-5

Authority

Anderson v. Liberty Lobby requires the side opposing summary judgment to produce evidence that is significantly probative, not merely colorable: enough for a jury to act on, not just enough to sound plausible. Cases from this district exclude affidavits where the opponent was denied a meaningful chance to test the witness.

Where it is weak

Two problems. He served that subpoena a month before the cutoff and then never moved to compel or for contempt, while opposing the extension that would have allowed more pursuit, so the gap he complains of is partly his own. And his opposition to the sanctions motion concedes the log he calls complete is not.

Logic chainhow the reasoning runs, and where it breaks

Test
Is there evidence of a disclosure after October 1, 2022?
Plaintiff
The witness swears she received the video on or about November 3, 2023, and messaged a friend about it that morning at 10:41 a.m.
Defendant
The only things sent that day were two links to another woman's videos, logged at 2:39 p.m.
Plaintiff
A 10:41 message cannot describe a 2:39 event. Something arrived earlier. The reply brief does not answer this.
Defendant
But the witness was never deposed, produced nothing under subpoena, and later disavowed involvement.
If a jury could believe her

Genuine dispute of material fact. Summary judgment denied and the case goes to trial.

If the declaration is not probative

No post-statute transmission is established. Judgment for the defendant.
Where it lands
Undecided. The single most consequential open question in the case.

4Does leaving a file reachable count as sharing it?

Plaintiff

The statute defines “disclose” to include make accessible, a continuing state, not a single moment. He controlled the file and left it reachable until he deleted it in November 2024.

Defendant

A private link sent to one person is not publication. Courts have held that an unguessable, unindexed link is not public access, and no court has stretched the statute this way.

CourtUndecided, but treated as serious enough to allow the amendment that raised it.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

This is the argument that could win the case even after losing the date. Congress wrote four verbs: transfer, publish, distribute, or make accessible. If the fourth meant only the instant of sending, it would do no work the first three do not already do. Reading it as a continuing condition gives it meaning, and on that reading the defendant kept the video accessible for twenty-five months after the statute took effect.

Rests on

The statutory text; her expert's analysis of how the platform stores and serves attachments; and above all the defendant's own deposition admission that the file remained reachable on his account or the recipient's until he deleted it in November 2024.

ECF No. 139-1 · Dep. Tr. 199:15–200:11

Authority

15 U.S.C. § 6851(a)(4). A district court has held that continued post-enactment availability is itself a disclosure, regardless of when the material first went up.

Where it is weak

Her own expert conceded the link was effectively unguessable and that it is not known whether search engines ever indexed it. That guts the public accessibility half of the theory. What is left is the narrower version, that he simply failed to delete it, which is not quite what the amended complaint pleads.

Defendant

The argument

Sending one person a private link is not publishing. The plaintiff is trying to convert a single message into a continuing act so that conduct from April 2022 can be prosecuted under a statute passed six months later, which is retroactivity by another name.

Rests on

Two Arizona decisions holding that a long, non-guessable, unindexed URL is not public access, and that emailing such a link to one person is nothing like publishing in a newspaper. The plaintiff's lead authority involved posting to a public pornography site.

Authority

Wray v. Greenburg and Greenburg v. Wray; Landgraf on retroactivity.

Where it is weak

His factual premise is shakier than the brief admits. He told the court the video went only as a platform attachment and not by Drive link, but the leaker's own published post shows Drive links were in fact sent to that recipient. He also declined to engage this theory at all in his summary judgment motion and addressed it only on reply.

Logic chainhow the reasoning runs, and where it breaks

Test
Does make accessible describe a continuing state, or only the moment of sending?
If a continuing state

Then ask the next question: was it still accessible after October 1, 2022?

If only the moment

Only April 2022 counts. This route closes and everything rides on Dispute 3.
Defendant
He admits he did not delete it until November 2024, so on his own account, yes.
Defendant
But accessible to whom? Her expert concedes the link was unguessable and may never have been indexed.
Plaintiff
The statute says make accessible, not publish. It does not obviously require the public.
Where it lands
An open question of first impression. If it resolves for the plaintiff, jurisdiction survives even if Dispute 3 fails.

5Does her earlier conduct amount to consent?

Plaintiff

The statute forecloses the argument in terms: agreeing to be recorded is not agreeing to distribution, and having shared something once is not agreement to share it again.

Defendant

He has not moved for judgment on consent. He offers the history for credibility and damages, pointing to a public statement of hers he says his own exhibits contradict.

CourtNot ruled. Both sides have asked to exclude the other’s material at trial.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

Congress anticipated this defense and wrote it out of the statute in two sentences. Beyond that, the material is exactly what the rules of evidence keep out of a civil trial: sexual history offered to make a jury think less of the person it happened to.

Rests on

The statutory text; a decision rejecting an identical argument; and the defendant's own testimony that he never asked her.

ECF No. 90

Authority

15 U.S.C. § 6851(b)(2)(A) and (B); Aaron v. Ferrell; Federal Rules of Evidence 412 and 403.

Where it is weak

One exhibit her own side filed is a message in which she tells him he had been very clear about how seriously he takes consent, which the defense can use on the reasonableness of his belief, even if belief is not a defense.

Defendant

The argument

He is not asking a jury to find she consented. He is asking that a jury be allowed to hear that she publicly said she had never sent him videos of other people, when his exhibits show she did, because a case that turns on whose account to believe cannot be tried with one side's credibility sealed off.

Rests on

The 2020 message history; her January 2025 public statement; her deposition testimony.

ECF Nos. 42-3, 50-1

Authority

Rule 412's own exceptions and Rule 403 balancing, which he argues permit the material for impeachment rather than consent.

Where it is weak

The line is not as clean as the brief makes it. Roughly seven pages of a purely jurisdictional summary judgment motion are given over to her sexual history, none of which bears on the October 2022 date. The plaintiff declined to answer it on the merits and preserved her objection, which is a strong position to be in.

Logic chainhow the reasoning runs, and where it breaks

Test
Is the history relevant to consent?
Plaintiff
No. § 6851(b)(2)(A) and (B) exclude it by statute: creation is not distribution, and one disclosure is not permission for the next.
Test
Is it relevant to credibility instead?
Plaintiff

Even so, Rule 412 applies, and its balance is reversed: probative value must substantially outweigh the harm.

Defendant

Yes. She made a public statement his own exhibits contradict.
Where it lands
Turns on the motions in limine. Either way it cannot establish the defense, and at most it touches weight and damages.

6Did he destroy evidence?

Plaintiff

He deleted his side of conversations with several women after a preservation letter, and swore to a “true and correct” log of everything he sent one of them that omits two links his own production shows him sending.

Defendant

Nothing was lost. Removing material from public view at her request is not destruction, the omission was inadvertent, and the motion arrived five months after discovery closed, a discovery complaint relabeled as spoliation.

CourtArgued August 19, 2026, with evidence heard on October 2. Undecided, and now first in line.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

The centrepiece is a document he filed himself. He swore that a spreadsheet was a true and correct log of every media file and link he ever sent that witness. His own produced chat thread shows two links that are not on it, one of them introduced by a message asking whether he had already sent her a particular video. Either that link showed the plaintiff, which proves the transmission he denies, or his sworn statement of completeness is false. There is no third option.

Rests on

The conceded omission; his deposition testimony that the underlying files no longer exist; a public statement that he ran a wholesale redaction of his messages in early 2025; three productions about the same witness that disagree with each other, one carrying a different username; and the fact that he produced the attachments she sent him and none that he sent her.

ECF Nos. 263, 272 · Dep. Tr. 237:3–6

Authority

Rule 37(e)(2), which allows an adverse inference or judgment where a party acted with intent to deprive.

Where it is weak

The timing is close to indefensible. The court noted in October 2025 that no spoliation motion was on file. The motion deadline passed in March 2026. She filed in May. This is a judge who has denied such motions as untimely in his own prior opinions.

Defendant

The argument

This is a discovery dispute that was never brought, arriving as a sanctions motion after the deadline for both. Rule 37(e)(2) requires bad faith, not untidiness, and the two links she calls missing were produced to her eight months before she filed.

Rests on

The production history; his testimony that he preserved and produced everything in his possession; the court's own observation, early in the case, that someone removing intimate material after being sued is not necessarily spoliating; and her own request that he take the material down, the one exhibit he put in at the October hearing.

ECF Nos. 272, 272-1 · Dep. Tr. 366:12–367:6, 369:21–370:7

Authority

Skanska and Tesoriero hold that intent to deprive means bad faith, and that negligence is not enough. A line of decisions from this district denying spoliation motions filed after the discovery cutoff.

Where it is weak

The substance is where he is most exposed anywhere in the case. He generated no hash values, produced 2,400 pages as a flat PDF with no metadata, publicly described artificially reconstructing a log, refused a cost-shared neutral forensic examination and then argued she never conducted one, and he conceded the sworn log is incomplete. On hash values his answer at deposition was that they would be meaningless when the chain of custody starts with him.

Dep. Tr. 297:16–299:10

Logic chainhow the reasoning runs, and where it breaks

Test
Is the motion timely?
Defendant
Discovery closed December 2025. The motion deadline was March 2026. She filed in May 2026.
Plaintiff
The intent evidence came from his April 2026 deposition, which the court itself had stayed. She filed eighteen days later.
If timely

The Rule 37(e) elements are reached and the merits below are decided.

If untimely

Denied without reaching the merits at all. This is the live risk for the plaintiff.
Test
Was there a duty to preserve, was information lost, and was it lost with intent to deprive?
Plaintiff
Duty attached by the January 2025 letter at the latest. He testified the files no longer exist. He swore to a complete log that his own opposition concedes is not complete.
Defendant
Inadvertent. The links were produced. Removal from public view was at her own request.
Where it lands
If intent is found, sanctions run from an adverse-inference instruction up to judgment on liability, which would end the merits of the case in her favor.

7Should a federal court hear this at all?

Plaintiff

Yes. The November 2023 transmission and the continuing accessibility of the file both land after the statute took effect, and either is enough.

Defendant

No. The only established transmission predates the statute by nearly six months. Without the federal count, the state-law claims should be dismissed with it.

CourtWarned in October 2025 that jurisdiction may be absent. Still undecided, and stayed since September 2026 until the spoliation ruling.

Detailthe argument, what it rests on, where it is weak

Plaintiff

The argument

She accepts the burden. She needs one qualifying disclosure after October 1, 2022, and she has pleaded two independent routes to one. She also argues that a motion resting on the defendant's own documents cannot succeed while those documents are contested, and one of them he now concedes is incomplete.

Rests on

The Abbymc declarations and the timing gap; the continuing-accessibility opinion; the unrebutted expert evidence, which the defendant never answered with an expert of his own.

ECF Nos. 49-2, 139-1, 249-1

Authority

28 U.S.C. § 1331 and § 1367; Rule 56 and the principle that credibility and inferences belong to a jury.

Where it is weak

Crawford-El says a plaintiff cannot substitute attacks on the other side's credibility for affirmative evidence of the disputed fact, and a good deal of her opposition does exactly that. Her brief does not engage the case.

Defendant

The argument

Federal courts are courts of limited jurisdiction and the burden never shifts. After ten months of discovery she has produced no document, no message, no link and no file evidencing a transmission after the effective date. Rule 56 does not require him to prove a negative; pointing to the absence is enough.

Rests on

The concession that the only proven transmission was April 2022; the plaintiff's own hearing testimony that she had never personally seen a record of any later transmission; the witness's failure to produce anything.

ECF No. 90

Authority

OSI v. United States and McCormick v. Aderholt on the burden; Celotex on pointing to an absence of evidence; Crawford-El and Matsushita on what the side opposing the motion must produce.

Where it is weak

The affirmative half of his showing rests on a declaration his own later filing concedes is incomplete. If the court discounts that document, he is left with the absence of evidence alone, part of which is attributable to deletions he admits making.

Logic chainhow the reasoning runs, and where it breaks

Test
Has the plaintiff shown, by a preponderance, one disclosure after October 1, 2022?
Route A: Dispute 3

The November 2023 transmission to the witness.

Route B: Dispute 4

Continuing accessibility until November 2024.
Defendant
Route A rests on an untested declarant. Route B asks a court to read the statute more broadly than any court yet has.
If either route holds

Federal jurisdiction survives. The case proceeds to trial on the merits.

If neither holds

No federal claim. The court declines supplemental jurisdiction and the state claims go with it.
Where it lands
Undecided. Both the motion to dismiss and the motion for summary judgment turn on this single node.

Back to the case

Terms

Plain English

Words this page uses because the court uses them. Nothing here is special to this case.

The paperwork

Docket: The court’s numbered list of everything filed in a case. Entry 42 is the forty-second thing filed.
ECF No.: How a filing is cited: its docket number. A number after a dash, like 42-4, is an attachment to it — usually an exhibit.
Complaint: The document that starts a lawsuit and sets out what the plaintiff says happened. An amended complaint replaces it.
Answer: The defendant’s formal response to the complaint, admitting or denying each allegation.
Declaration: A written statement signed under penalty of perjury. It counts as evidence without the witness appearing in person.
Exhibit: A document, screenshot or record attached to a filing as proof of something asserted in it.
Transcript: The word-for-word record of a hearing or a deposition. Cited by page and line, so 55:7 means page 55, line 7.
Errata: A formal correction a witness files to their own sworn testimony after reading it back.
Under seal: Filed with the court but kept off the public record. Both sides and the judge can read it; nobody else can.

How a case moves

Motion: A formal request that the court do something. The other side files an opposition; the moving side may then file a reply.
Discovery: The stage where each side must hand over relevant evidence to the other. It has a deadline, and missing it matters.
Deposition: Sworn question-and-answer, out of court, recorded by a court reporter. Lawyers for both sides attend; there is no judge.
Subpoena: A court order compelling someone who is not a party to hand over documents or give testimony.
Evidentiary hearing: A hearing where witnesses actually testify and are cross-examined, rather than lawyers simply arguing.
Protective order: An order limiting what either side may do with the material it receives in discovery.
Injunction: A court order to do something or to stop doing it. A temporary restraining order is the emergency version, and a preliminary injunction lasts while the case goes on. Neither decides who is right.
Magistrate judge: A judge who handles pre-trial matters. On some questions they recommend, and the district judge decides.
Paperless order: A short ruling typed straight onto the docket. It has no document behind it, so its citation opens the docket entry instead.
Stay: A pause ordered by the court. Whatever is stayed sits on hold until something else is decided first.
Merits: What the case is actually about, meaning what happened and who is in the right. A ruling that a court cannot hear a case says nothing about the merits.

The motions that can end things

Motion to dismiss: Argues the case cannot proceed even if everything alleged is true — usually because the court lacks power to hear it.
Summary judgment: Argues the facts are not genuinely in dispute, so the judge can decide without a trial. If facts are disputed, it fails.
Motion in limine: Filed before trial to decide what a jury will and will not be allowed to hear.
Spoliation: Destroying or losing evidence you were obliged to keep. The duty starts once you know a lawsuit is coming.
Sanctions: A penalty for misconduct in the litigation itself. They can run from a fine to losing the case outright.
Adverse inference: A sanction where the jury is told it may assume the destroyed evidence would have hurt the side that destroyed it.
Rule 11: The rule requiring that filings have a factual basis. A Rule 11 motion says the other side asserted something it could not support.

Tests the court applies

Jurisdiction: Whether this court has the power to hear this case at all. A federal court needs a federal claim, which is why one date decides so much here.
Burden: Which side has to prove a thing. If they do not, they lose that point, even if the other side proves nothing either.
Preponderance of the evidence: More likely than not. It is the usual standard of proof in a civil case, and a lower bar than the criminal one.
Retroactive: Whether a law reaches conduct from before it existed. Usually it does not, unless Congress clearly said so.
Hearsay: Repeating what someone said outside court to prove it was true. Generally not allowed, with many exceptions.
Authentication: Showing a document or screenshot is genuinely what its proponent says it is. The bar is low, but it is not nothing.
Probative: Actually tending to prove something. Evidence can be admissible and still carry very little weight.