Recent accounts of a certain NY politician’s troubles with text messages brought to mind other pitfalls a party may have when deleting them. In Christou v. Beatport, LLC, 2013 WL 248058 (D. Colo. Jan. 23, 2013), the plaintiff sought an adverse inference sanction because defendants failed to preserve text messages on a key witness’s iPhone. When the case was filed in December 2010, the plaintiffs sent the defendants a legal hold letter that directed them to preserve various types of documents, including text messages. However, the defendants did not preserve text messages, and did not include any text messages among documents responsive to the plaintiffs’ discovery requests. The witness shortly thereafter claimed he lost his iPhone and any text messages on it. In response, the plaintiffs sought an adverse inference instruction for the defendants’ alleged spoliation of evidence. The defendants did not contest that the iPhone contained text messages or that they were lost when the witness lost his iPhone, and instead argued that it was “sheer speculation” that the messages contained relevant evidence. The defendants also asserted that because they “responded fully” to the plaintiffs’ discovery requests and that no responsive text messages existed. The court agreed with the defendants that the plaintiffs did not know whether the text messages contained relevant evidence, but he refused to rely on the witness’s self-serving statements as “proof” that any text messages were devoid of relevant evidence. Moreover, the defendants’ statement that they “found no responsive text messages” was not the same as a declaration that “defense counsel reviewed [the witness’s] text messages and determined that they contained nothing of relevance.” The court explained that spoliation sanctions are appropriate when “(1) a party has a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and (2) the adverse party was prejudiced by the destruction of the evidence.” The court found that both elements were satisfied, but also found that there was no evidence showing that “the loss of the phone was other than accidental, or that the failure to preserve the text messages was other than negligent.” Thus, while an adverse inference instruction would be too harsh, lesser sanctions were warranted because “[a] commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents when a case like this is filed.” Therefore, the court ordered that the plaintiffs could produce the legal hold letter at trial along with evidence of the defendants’ failure to preserve text messages and argue “whatever inference they hope the jury will draw.” The court also gave the defendants the right to present exculpatory evidence to show that no adverse inference should be drawn.
Posted on: Wed, 24 Jul 2013 17:06:08 +0000
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