Archive: January 24, 2014

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Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages

Text Messaging/Phone Records Establish Anticipation of Litigation; Spoliation Sanctions for Selective Preservation of Messages

Calderon v. Corporacion Puertorrique a de Salud, —F. Supp. 2d—, 2014 WL 171599 (D.P.R. Jan. 16, 2014)

In this case, Defendants sought to exclude all messages between Plaintiff and a particular email address/unknown person (the alleged harasser) and also asked that the case be dismissed with prejudice because of Plaintiff’s (apparently selective) failure to preserve more than 38 messages. The court found that Plaintiff had violated his duty to preserve and that an adverse inference was warranted.  Notably, the court’s determination that Plaintiff reasonably anticipated litigation turned on the analysis of his phone and messaging records, which were produced to Defendants by Plaintiff’s service provider.

Plaintiff alleged sexual harassment. The messages at issue were relevant to those claims.  Plaintiff admitted deleting some messages from his phone, prompting Defendants to file a motion in limine seeking the exclusion of all messages and arguing that the case should be dismissed.  While that motion was pending, Defendants received Plaintiff’s phone and text messaging records from the relevant time period from Plaintiff’s service provider.  Based on those records, Defendants filed a supplemental motion seeking dismissal of the case as a sanction for Plaintiff’s spoliation of evidence. Read More

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