In the era of Twitter and Instagram, it should come as no surprise that a party’s cell phone data, including text messages, may prove invaluable to an adverse party during the course of litigation. As with any other Electronically Stored Information (“ESI”), text messages are subject to a litigation hold, and, as a consequence, if the party fails to preserve the text messages, the party would likely be liable for spoliation and sanctions. A recent case out of the U.S. District Court for Colorado highlights the affirmative responsibility of a party in control of ESI to not destroy potential sources of evidence – whether a computer or a cell phone.
In the case of Christou, et al. v. Beatport, LLC, et al., former business partners (a nightclub owner and a DJ) had a falling out, and the club owner (Christou) sued the DJ (Roulier) under a myriad of theories arising out of Roulier’s alleged threats to fellow DJs that if they played in the Christou’s club, Roulier would not play or promote their music on the popular website “Beatport,” which Roulier had helped to create.
Soon after the Complaint was filed, Christou sent Roulier a “litigation hold letter” that instructed Roulier to preserve several categories of documents, including Roulier’s text messages. Roulier, however, made no effort to preserve the text messages, and he failed to produce any of the same despite multiple requests. Eight months after he received the litigation hold letter, Roulier instructed the court that he had lost his iPhone, and as a consequence his text messages.
In an act of sheer hubris, Roulier testified that he never used text messages to book another DJ, and therefore the texts would not have been relevant to the instant litigation anyhow. Although Roulier testified under oath, the court was not persuaded that the text messages did not contain any “relevant evidence.”
Nevertheless, the court held that it had “no basis to assume that the loss of the phone was other than accidental, or that the failure to preserve the text messages was other than negligent.” In sanctioning Roulier, the judge settled on a rather odd arrangement. Because the judge felt that ordering the jury to make an adverse inference was too harsh a sanction, he permitted Christou to introduce evidence at the trial of the litigation hold letter as well as Roulier’s failure to preserve the text messages. The judge further permitted Christou to introduce and argue whatever inference he hoped the jury would draw. Likewise, Roulier would be permitted to “present evidence in explanation” and argue that no adverse inference should be drawn.
The takeaway from Christou is simple: once you are obligated to preserve certain documents, the duty is yours and yours alone. Emails, texts, photographs, tweets and even Facebook posts (more on this in the next post) are all considered “documents” which are not only discoverable (if not subject to privilege), but must be preserved under the litigation hold or else spoliation sanctions may be levied.