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Thursday
Jul162015

Deflategate (Part Two): My texts runneth over

As I talked about in the prior post, key personnel involved in the Deflategate scandal put essential evidence in their text messages.

The spontaneous nature of texts, often with photos, and sending them before anyone thinks about the consequences, means the texts can be a very revealing source of eDiscovery.

Several courts have addressed the discoverability of employee text messages. In this post and in the final one of this series, I'll look at some of those cases.

As the court noted in In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation (S.D. Ill. Sept. 25, 2013), “texting has become the preferred means of communication.” Practitioners need to view texts as subject to discovery.

In Regas Christou v. Beatport LLC (D. Colo. Jan. 23, 2013), a dispute between two nightclub owners, the plaintiffs brought a motion for spoliation sanctions against the defendant. The plaintiffs had served a litigation hold letter, but the defendant took no steps to preserve text messages on his iPhone, which he claimed had been lost along with any texts on it.

The court granted the plaintiffs’ motion for spoliation sanctions, noting that the defendants had a duty to preserve the text messages no matter what they contained.

However, instead of imposing an adverse jury instruction as a sanction, the court ordered that the plaintiffs be permitted at trial to introduce evidence of the litigation hold letter and the defendants’ failure to produce.

In Polo-Calderon v. Corporacion Puertorriqueña de Salud (D. P. R. Jan. 16, 2014), the court found that there was in fact spoliation that warranted an adverse inference instruction. The plaintiff had deleted certain text messages from his phone, but the defendants received records from the plaintiff’s cell phone carrier in response to an ex parte subpoena which showed the plaintiff’s actions on his phone before filing the lawsuit.

The court noted that the plaintiff had forwarded some messages to himself in order to print them before deleting them, and that his failure to preserve the texts indicated that he knew they were not helpful to his case.

Regas Christou and Polo­-Calderon show that courts take text message spoliation seriously, and litigants who fail to preserve text messages do so at their peril.

In my next (and final) post about Deflategate, I'll look at other cases that shed light on how courts treat these issues.

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Joshua C. Garbarino, Esq. is director of managed review at eTERA Consulting in its Washington, D.C. office. eTERA is an end-to-end litigation consulting firm. Garbarino has experience in various aspects of eDiscovery, including review, case management, strategic planning, and government investigations. He can be reached here.