Data Preservation: Don’t Treat Discovery Like It’s 1999

Cell phones have been around for a long time, but preserving the data they contain for discovery purposes is still often overlooked or avoided due to expense and inconvenience. Two recent decisions highlight the importance of preserving relevant data, including text messages, as soon as litigation is anticipated. In both cases, courts imposed harsh sanctions for failure to preserve and actual destruction of cell phone data. These cases should serve as cautionary tales for those implementing legal holds — take the time to consider cell phone data.

In Paisley Park Enterprises, Inc. v. Boxill, 2019 WL 1036058 (D. Minn.), the personal representatives for Prince sued David Staley and Gabriel Wilson of Rogue Music Alliance in April 2017 to prevent an unauthorized release of the late musician’s music. The parties stipulated that they had taken “reasonable steps to preserve reasonably accessible sources of electronically-stored information (ESI),” and the court’s pretrial scheduling order directed the parties to preserve “all electronic documents that bear on any claims, defenses, or the subject matter of the lawsuit.”

After production, the plaintiffs asked why they had not received text messages from Staley or Wilson. The defendants admitted they could not produce the text messages because they did not turn off auto-delete on their phones and the text messages were deleted. Furthermore, Staley wiped and discarded his phone in October 2017, and Wilson wiped and discarded his phone in January 2018 and again in May 2018.

The court found that the defendants had a duty to preserve evidence as of Feb. 11, 2017, based on an email Staley sent stating that he intended to release Prince’s music and that Prince’s estate could challenge the release. Since the defendants used their phones to conduct business, the court determined they knew or should have known that text messages would be discoverable. The court found it particularly egregious that, not only did they not take reasonable steps to preserve the texts, but they knowingly wiped and discarded their phones after the plaintiffs filed suit.

Similarly, in Brewer v. Leprino Food Co., 2019 WWL 356657 (E.D. CA), the plaintiff filed claims against her employer after she was terminated for what she alleged was retaliation for taking family leave and confronting her boss about an alleged affair. In discovery, the plaintiff failed to produce any text messages despite her own testimony that several coworkers had texted her about the alleged affair and about similar situations related to employees taking family leave. (She also neglected to produce the contents of a Dropbox account and a diary).

The court found that the plaintiff should have reasonably anticipated litigation as of the date she was terminated and should have preserved her texts from that date. The court did not buy the plaintiff’s claim that her phone had been lost when she left it on top of her vehicle and drove off. Her argument that the defendants could obtain the texts from her former coworkers or her cell phone service provider also failed because she would not identify the coworkers, her service provider or her former cell phone number.

In both cases, the opposing party moved for and was awarded sanctions under FRCP Rule 37 because the courts deemed the conduct of the spoliating party intentional. The Paisley Park court awarded monetary sanctions but punted on the adverse inference ruling until trial. The Brewer court awarded fees and costs, monetary sanctions and an adverse inference instruction.

The time when phones could be ignored in discovery has passed. Does this mean that all phones must be imaged for every legal hold? Of course not. However, once parties reasonably anticipate litigation, they should consider whether they have relevant phone data and, if so, take affirmative actions to preserve that data. Early interviews with or questionnaires by key custodians will help to identify whether phone data is at issue.

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