# Automattic Fires Back at WP Engine's Sanctions Motion > [!question] Lingering Questions > - Does Rule 37(e) case law require WP Engine to name a *specific* lost message, or is a strong circumstantial case (the September 2024 X post, the inconsistent declarations) enough to shift the burden? > - What happens to the personal/romantic-partner disappearing-messages admission — walled off from the case-relevant preservation duty as Automattic argues, or does it undercut Mullenweg's credibility on the broader denial? > - Will the September 30, 2026 sanctions ruling arrive before or interact with the still-pending motions-to-dismiss rulings from the June arguments? > [!tip] Article Ideas > - "When your forensic vendor can't keep up with iOS" — the OS-version/Cellebrite tooling-lag defense as a recognizable e-discovery failure mode, useful as a plain-language explainer for legal-ops and IT teams designing executive-communications preservation policies. #articleseed > [!link] Cross Reference > - [[3. Resources/Literature Notes/WPE v Automattic Dkt 369 — Defendants Opposition to Sanctions Motion - Literature Note]] — this article reports on the exact same opposition brief (filed Aug. 11, 2026); that note is the primary-source record with verbatim quotes, this one is the journalism companion plus the Missan blog-post angle > - [[3. Resources/Literature Notes/WPE v Automattic Dkt 357 — Motion for Sanctions for Spoliation - Literature Note]] — the motion this filing opposes > - [[3. Resources/Permanent Notes/A Legal Hold Without Prompt Device Imaging Is Not Preservation]] — already captures the collection-vs-preservation mechanism both sides agree on; this article supplies the same claim from the defense side > - [[3. Resources/MOCs/Open Source Governance MOC]] > [!quote] Vocabulary > - **Spoliation** — the destruction or failure to preserve evidence relevant to litigation. > - **Rule 37(e)** — the federal civil procedure rule governing sanctions for failure to preserve electronically stored information; requires a showing the ESI was actually lost and, for severe remedies, an intent-to-deprive finding. > - **Intent-to-deprive** — the state-of-mind element Rule 37(e)(2) requires before a court can impose adverse-inference instructions or other severe spoliation sanctions. ## Bib capsule The Repository (WP Tavern network), "Automattic Fires Back at WP Engine's Sanctions Motion, Says Hosting Company Can't Identify a Single Missing Message," August 13, 2026. Source: https://www.therepository.email/automattic-fires-back-at-wp-engines-sanctions-motion-says-hosting-company-cant-identify-a-single-missing-message ## Author's thesis (Q1+Q2) Automattic's August 11, 2026 opposition to WP Engine's spoliation sanctions motion reframes the dispute around a checkable technical claim — a forensic-tooling gap, not data loss — and backs it with a later full recovery (March 2026) that surfaced almost nothing case-relevant. The article treats this as a genuinely strong rebuttal to the core spoliation claim while flagging that several threads (the two still-missing devices, a December 2025/later-declaration inconsistency, a four-day gap before a "preserved" letter) remain only partially addressed. ## Key arguments (≤3) 1. **The threshold-element attack**: WP Engine cannot point to a single case-relevant WhatsApp, Signal, or Telegram message that actually went missing — a March 2026 forensic image reached back to 2012–2019 across all three platforms and surfaced only one relevant Signal message, zero relevant WhatsApp messages. 2. **Collection delay is reframed as not equivalent to preservation failure**: the April 2025 imaging failure is attributed to Cellebrite's forensic software lacking support for a newly released iOS version — a tooling lag rather than a decision to let data disappear. 3. **The public-facing rebuttal (Missan's "WRONG AGAIN" blog post) narrows WP Engine's motion to its weakest thread** — framing it as being about unrelated personal romantic-partner messages — which the article's own reporting shows is a straw man against the fuller motion (Zoom-call timeline, October 6 letter, device losses). ## Claim atoms ### WP Engine can't name a single missing case-relevant message > [!quote] ID:rw_1 > Automattic argues WP Engine can't identify a single case-relevant message that went missing. Where/why: Paragraph 4, the opposition's core claim and the article's headline framing — mirrors the Dkt. 369 note's own threshold-element argument. ### Full forensic recovery surfaced almost nothing case-relevant > [!quote] ID:rw_2 > The search produced one Signal message and no WhatsApp messages that were relevant to the case. Where/why: Paragraph 6 — the strongest single empirical data point supporting the core claim. ### The public rebuttal narrows the motion to its weakest thread > [!quote] ID:rw_3 > a desperate attempt to get sanctions and other extreme remedies because Matt used ephemeral messaging in personal communications with romantic partners having nothing to do with this case Where/why: Paragraph 14, quoting Andy Missan's company blog post — a straw man / DARVO-Attack move that sidesteps the motion's stronger evidentiary threads. ### A disappearing-messages admission conflicts with an earlier discovery denial > [!quote] ID:rw_5 > His sworn declaration five months later acknowledged he'd enabled disappearing messages for "highly sensitive personal communications with romantic partners." Where/why: Paragraph 12, set against the December 1, 2025 discovery response denying any auto-deletion since October 2024 — the article's most credibility-relevant unresolved tension. ## Permanent candidates - The collection-delay-vs-preservation-failure claim (Automattic's framing) is already captured by [[3. Resources/Permanent Notes/A Legal Hold Without Prompt Device Imaging Is Not Preservation]], which documents both sides of the same mechanism. No duplicate created. - **New**: the "public contact invitation isn't proof anyone case-relevant used the channel" claim (rw_4 in the source deep-read) is not yet captured — promoted below as [[3. Resources/Permanent Notes/A Public Contact Invitation Does Not Prove Case-Relevant Use]]. ## Processing checklist - [x] Checked for existing Literature Note — none found (existing notes cover the primary docket filings, not this news article) - [x] Checked for existing Permanent Notes covering this source's claims — found [[3. Resources/Permanent Notes/A Legal Hold Without Prompt Device Imaging Is Not Preservation]] already covering the main mechanism; did not duplicate - [x] Connected into [[3. Resources/MOCs/Open Source Governance MOC]] ## Links - [[3. Resources/MOCs/Open Source Governance MOC]] — BDFL personal-messaging habits becoming discovery material is a governance-independence case study - [[3. Resources/Literature Notes/WPE v Automattic Dkt 369 — Defendants Opposition to Sanctions Motion - Literature Note]] — same underlying filing, primary-source companion