Even if you enter into an e-discovery protocol, that protocol does you no good if key custodians in your case don’t follow the guidelines. Paisley Park Enterprises, Inc. v. Boxill (D. Minn. March 4, 2019) shows that if your key custodians can’t be trusted, you need to take precautionary measures to ensure the preservation of relevant data.
Overview
In this infringement case, centering around the deceased artist Prince and his unreleased music, the plaintiffs moved for spoliation sanctions due to the deletion of text messages from two of the defendant’s key custodians.
At the outset the sides agreed on protocols for preserving data. In the midst of e-discovery, the plaintiffs received text messages between the defendants and the defendant’s PR firm. Based on the relevance of these text messages, the plaintiffs’ requested additional text messages from the defendants’ and their PR firm. The defendants could not produce the requested text messages because the phones in question were discarded and backups were not kept.
As a result, the plaintiffs moved for spoliation sanctions.
Ruling
- Spoliation Sanction Granted in Part. The court ruled that the defendants had a duty to preserve and the plaintiffs were prejudiced by the loss of the text messages. But considering that discovery is ongoing, the court deferred ruling on an adverse inference instruction to a later date. Defendants were ordered to pay a $10,00 fine for expenses the plaintiffs incurred.
- Defendants Should’ve Preserved the Text Messages. Back in 2017, the defendant sent an email acknowledging the possibility of litigation for releasing Prince’s unreleased music. After the case was filed in 2018, the defendants’ key custodians not only failed to disengage the auto delete feature on their phones, they wiped and destroyed their phones.
Expert Opinion from Hon. Andrew Peck (Ret.), Senior Counsel, DLA Piper
When you reasonably anticipate litigation, you have a duty to preserve. Often forgotten in that duty are text messages and other “newer” forms of communication. It is not that hard to disengage the auto delete function and wiping the cellphone during litigation is never a good move. The bottom line: Texts must be preserved.
Case Law Tip
Read more cases about how the court is ruling when text messages are requested.