A recent decision issued by the district court of the Southern District of California should serve as a wake-up call to companies, and their counsel, nationwide to become e-competent and immediately update their practices as soon as their clients are put on notice of possible litigation involving potentially relevant electronically stored information (ESI).
In NuVasive, Inc. v. Madsen Medical, Inc., 2015 WL 4479147 (S.D. Cal. July 22, 2015), the court issued an adverse inference instruction to a jury, in part, due to the plaintiff company’s failure to properly preserve text messages from its employees who were classified as key data custodians. Thus, the jury was allowed to infer that the evidence would have been adverse to the plaintiff and to adopt the defendants’ reasonable interpretation of what the text messages would have said.