November 30, 2016 Practice Points

Preserve Relevant Text Messages on Secure Media

Litigants and counsel be warned: The loss or destruction of relevant cell phone texts, intentional or not, can lead to sanctions under Fed. R. Civ. P. 37(e).

By Andrew J. Felser

Litigants and counsel be warned: The loss or destruction of relevant cell phone texts, intentional or not, can lead to sanctions under Fed. R. Civ. P. 37(e).

In Shaffer v. Gaither, Docket No. 5:14cv00106 (W.D.N.C. Sept. 1, 2016), an employment-discrimination case, the plaintiff’s cell phone contained sexually suggestive texts to her married paramour. One or more witnesses who saw the texts remembered that the texts included the plaintiff’s belief about why she was fired. Neither the plaintiff nor her attorney preserved the texts other than on the phone, which the plaintiff continued to use. More than a year after she threatened to sue the defendant, and about a month before she filed her lawsuit, the texts became irretrievable when the cell phone was dropped and damaged beyond repair, purportedly by accident. The defendant moved for dismissal on the grounds of spoliation.

The court declined to dismiss the case but imposed sanctions under Rule 37(e)(1). The evidence presented to the court supported a finding that the texts themselves, of some probative value, were probably lost forever. But the evidence did not support a finding that the plaintiff destroyed the evidence on purpose. Because the plaintiff admitted the illicit affair—in itself damaging to her case—and because witnesses with firsthand knowledge remained available to testify about what the texts contained, the defendant retained some ability to develop his defense. Therefore, the court concluded, dismissal would be a disproportionate sanction. On the other hand, because the plaintiff had not taken reasonable steps to preserve the texts before they were destroyed, some remedial sanction would be necessary. At trial to the jury, the defendant would be allowed to develop and probe all available testimony about the texts and their content, and would also be allowed to probe the circumstances surrounding the phone’s destruction. And the court did not rule out instructing the jury on spoliation and its adverse inferences, depending on the evidence presented.

The key to the court’s ruling is that the destruction of the phone was not the sanctionable act. Sanctions were imposed because the plaintiff and her attorney failed to take reasonable steps to preserve the texts more securely before the phone broke, when they anticipated litigation:

Once it is clear that a litigant has ESI that is relevant to reasonably anticipated litigation, steps should be taken to preserve that material, such as printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one.

Andrew J. Felser is with Felser, P.C., in Denver, Colorado.

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