In Criminal Case, Failure to Preserve Results in Exclusion of All Text Messages, Possible Adverse Inference
United States v. Vaughn, No. 14-23 (JLL), 2015 WL 6948577 (D.N.J. Nov. 10, 2015)
In this criminal case, a pro se defendant sought sanctions, including dismissal of the indictment, for the Government’s failure to preserve text messages relevant to its investigation. Upon examination of the facts, including the Government’s acknowledged failure to preserve certain text messages and constantly changing explanations surrounding that failure as well as the “different level of diligence” applied to different text messages (care was taken to preserve certain messages, but not others), the court determined sanctions were warranted. Accordingly, the court ordered that the Government would be precluded from using any text messages in its case-in-chief and reserved judgment until trial regarding the propriety of an adverse inference instruction.