Electronic Discovery Law
No Sanctions for Routine Deletion of Text Messages "so as not to unduly encumber" Cell Phones
PTSI, Inc. v. Haley,---A.3d---, 2013 WL 2285109 (Pa. Super. Ct. May 24, 2013)
Plaintiff sued its former employees after they opened a competing sports training facility. In the course of litigation, Plaintiff sought sanctions for Defendants’ alleged spoliation of ESI, including text messages. The trial court found that “the level of importance and complexity of the issues did not weigh in favor of imposing sanctions and that the deleted material was not relevant or important to its decision” and dismissed the claim for sanctions. On appeal, the appellate court found no abuse of discretion and affirmed the order.
Upon turning to the issue of spoliation in its opinion, the appellate court identified the relevant factors for consideration when determining an appropriate sanction, including the “degree of fault” of the allegedly spoliating party, which in turn requires consideration of the extent of the duty to preserve and the presence or absence of bad faith. The appellate court also noted the Explanatory Comment preceding Pa.R.C.P. 4009.1, which states that “[a]s with all other discovery, electronically stored information is governed by a proportionality standard” and which goes on to identify relevant factors for consideration. Turning then to the decision of the trial court, the appellate court indicated that the trial court “rendered its analysis using the proportionality standard.” In relaying its own opinion, the appellate court excerpted liberally from the opinion of the trial court.
Plaintiff alleged before the trial court that Defendants had violated that court’s May 26, 2011 preservation order "by intentionally deleting text messages and electronic records from their phones and/or computers" and moved for sanctions accordingly. Applying the proportionality standard, the trial court first considered the “nature and scope of the litigation, including the importance and complexity of the issues and the amounts at stake” and, reasoning that the dispute was “brought by a large established multi-location personal fitness training business attempting to derail a small start-up competing business,” found that “the amounts at stake involved [sic] are relatively minor and that the level of importance and complexity of the issues concerning the electronically stored information” did not “weigh in favor” of sanctions.
Notably, the trial court further reasoned that “[t]he doctrine of spoliation only applies to the improper intentional destruction of evidence that could be relevant to the case” and that there had been no showing that “the innocent clean up of personal electronic devices to allow them to function was unusual, unreasonable or improper under the circumstances.” The trial court continued:
The record is clear that both [Haley and Piroli] routinely deleted text messages, often on a daily basis, so as not to unduly encumber their iPhones. Because of the volume of text messages that are frequently exchanged by cell phone users and the limited amount of storage on cell phones, it would be very difficult, if not impossible, to save all text messages and to continue to use the phone for messaging. Pennsylvania’s Rule of Civil Procedure 4011 bars discovery that causes “unreasonable annoyance, embarrassment, oppression, burden or expense to the deponent or any person or party .” Pa. R. Civ. P. 4011. See also The Sedona Conference, The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production (2005) (Sedona Principle 5 provides that “[t]he obligation to preserve electronic data and documents requires reasonable and good faith efforts ... [but] it is unreasonable to expect parties to take every conceivable step to preserve all potentially relevant data.”). The cost, burden and difficulty of producing all electronically stored information was a factor that weighed in favor of the decision to deny the Motion for Sanctions.
The trial court next considered the relevance of the ESI “and its importance to the Court’s adjudication” and concluded that “[t]he record shows that [Defendants] could not have destroyed any evidence related to the subject matter of the Amended Complaint.” In so concluding, the trial court reasoned that all alleged unlawful conduct (as plead by Plaintiff) occurred while Defendants were still employed; that potentially relevant ESI would therefore have been created during that time; that the May 2011 preservation order was not issued until approximately one month after Defendants’ employment ended; and that by that time, any spoliation of potentially relevant information would have already occurred.
The trial court further reasoned that “substantially similar” information was available from other sources, noting that “more than one thousand” emails had been recovered from Defendants’ computers by the forensic examiner and reviewed. Finally, the trial court indicated that even if an adverse inference had been warranted, it would not have defeated Defendants’ Motion for Summary Judgment.
Affirming the trial court’s denial of the motion for sanctions, the appellate court concurred in the reasoning that the most relevant ESI would have been created at a time before litigation was pending or foreseeable and before the preservation order was in effect. The appellate court went on to “note” that Defendants had also deleted ESI created after the May 26, 2011 order to preserve, but reasoned that “the trial court believed that [Defendants’] conduct was routine and not motivated by bad faith, that they deleted only non-relevant electronically stored information and turned over all relevant electronically stored information” and again noted that Plaintiff did acquire “some” of Defendants’ ESI. Thus, given the ”deferential standard of review,” the appellate court found no abuse of discretion.
It should be noted that a concurring opinion strongly questioned the reasoning of the trial court but ultimately concluded that there was no abuse of discretion.
A copy of the appellate court’s opinion is available here.
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