No Sanctions for Failure to Halt Automatic Deletion of Text Messages

Living Color Enters., Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN, 2016 WL 1105297 (S.D. Fla. Mar. 22, 2016)

In this case, text messages were deleted when Defendant failed to turn off the automatic delete function on his cellular phone. Because “the great majority” of the messages were produced from another source—and thus not lost—however, and where the court determined there was no prejudice or evidence of Defendant’s “intent to deprive” or bad faith, Plaintiff’s Motion for Sanctions was denied.

Plaintiff moved for sanctions upon Defendant’s explanation that he had few text messages to produce because of his use of a feature that automatically deletes text messages after 30 days and the fact that he had replaced his phone in 2014 and again in 2015. Notably, however, despite Defendant’s failure to preserve, many of the at-issue text messages were available from an alternative source.

With the agreement of the parties, the court undertook its analysis pursuant to newly-amended Rule 37(e), beginning with the “preliminary spoliation questions.” Specifically, the court instructed that “[i]f the alleged spoliation involves ESI”—as this case did—“the Court must proceed to the next step and answer the following three questions under Rule 37(e)”:  1) “Was the allegedly spoliated ESI evidence that should have been preserved?” 2) “Was the allegedly spoliated ESI lost because a party failed to take reasonable steps to preserve it?” and 3) “Is the allegedly spoliated ESI evidence that cannot be restored or replaced through additional discovery?”   The court continued:

If the answer to any of questions 1–3 is “no”, then the Court need proceed no further under Rule 37(e), and a motion for spoliation sanctions or curative measures must be denied. If the answer to all three of the questions is “yes”, however, then the Court must analyze the facts at hand under subsection (e)(1) if there is a finding of “prejudice” or under subsection (e)(2) if there is a finding of “intent to deprive.”

Finding that the text messages at-issue were ESI that should have been preserved and that “at least some” could not be replaced and were therefore “lost,” the court turned to its analysis of prejudice and whether Defendant intended to deprive Plaintiff of the text messages.

Turning first to subsection (e)(1), which allows for the imposition of curative measures “no greater than necessary” upon a finding of prejudice, the court found that no sanctions were warranted where Plaintiff failed to explain “any direct nexus between the missing text messages and the allegations in its Complaint” and where the missing text messages “appear[ed] to be unimportant,” and “the abundance of preserved information appear[ed] sufficient to meet the needs of the Plaintiff.”

Next, the court considered whether Defendant acted with the requisite “intent to deprive” and found there was no direct evidence of such intent or bad faith and that Defendant “simply acted negligently in erasing the text messages either actively or passively.” In so finding, the court accepted the explanation of Defendant and his counsel that the automatic delete functionality was turned on prior to the litigation, reasoning that it was “common practice amongst many cell phone users to delete text messages as they are received or soon thereafter” and that there was “nothing nefarious about such a routine practice under the facts presented here.” The court also noted that “Defendant is an individual who appears to be a relatively unsophisticated litigant.”

Finally, the court dismissed Plaintiff’s arguments regarding Defendant’s alleged second email address.

A full copy of the court’s order is available here.

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