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.

The records revealed that at least 38 messages from Plaintiff’s alleged harasser were not produced by the plaintiff, not to mention “the numerous text messages that [Plaintiff] sent in response.”  Accordingly, the court found that spoliation had occurred.  In so finding, the court explained that a duty to preserve extends to “that period before the litigation when a party reasonably should know that the evidence may be relevant to anticipated litigation.”  The court continued:

It cannot be disputed that all messages and phone calls between Polo and Rodriguez, and Polo and the prpng@hotmail.com and “Siempre Atento” users, are relevant to plaintiffs’ lawsuit. (Docket Nos. 61 & 145.) Polo admits to forwarding some messages received from prpng@hotmail.com and “Siempre Atento” to himself so that he “would be able to print” them, (Docket No. 98–1 at p. 44), and the record reflects that he did so as early as 12:09:46 p.m. on February 8, 2011. (Docket No. 92 .) The T–Mobile records also reveal that by that time, Polo had contacted his attorney. (Docket No. 158–1 at p. 65.) At a bare minimum, Polo’s decision not to forward or save the unproduced texts and photos from prpng@hotmail.com constitutes “conscious abandonment of potentially useful evidence” that indicates that he believed those records would not help his side of the case. Nation–Wide Check Corp. v. Forest Hills Distribs., Inc., 692 F.2d 214, 219 (1st Cir.1982). The record thus indicates that Polo reasonably foresaw litigation and had a duty to preserve relevant evidence, and spoliation occurred.

Considering sanctions, the court concluded that an adverse inference was appropriate.  To qualify for an adverse inference, the requesting party must “proffer[ ] evidence sufficient to show that the party who destroyed the document knew of (a) the claim (that is, the litigation or the potential for litigation), and (b) the document’s potential relevance to that claim.”  As to the plaintiff, the court concluded:

It is reasonable to conclude that the mere act of Polo forwarding himself some messages from prpng @hotmail.com on February 8, 2011—the same day that he submitted a sexual harassment complaint to CPS—reveals his understanding that those messages were relevant to a potential claim against Rodriguez. Even if Polo’s behavior does not amount to bad faith, his selective retention of certain messages over the 38 messages that had been received from prpng@hotmail.com and his respective responses, indicates his belief that the records would not help his side of the case. See Nation–Wide Check Corp., 692 F.2d at 219. Thus, Polo knew of both the potential for litigation and the potential relevance of the unproduced messages to that claim.

Finding that Plaintiff’s failure to preserve “severely” prejudiced the defendants by precluding a complete review of all relevant conversations and pictures sent between Plaintiff and his harasser; that Plaintiff’s failure to preserve prevented Defendants from introducing evidence pursuant to Fed. R. Evid. 106 (“other writings ‘that in fairness ought to be considered at the same time’ as the messages that plaintiffs seek to introduce at trial.”); and that Plaintiff’s failure to preserve impeded Defendants from offering evidence pertinent to their defense that the alleged harasser’s identity could not be determined, the court confirmed its conclusion that an adverse inference was warranted.

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