Preservation of electronically stored information (ESI) is steadily becoming a determining component in modern-day litigation. Last year, criminal and civil actions against actor Kevin Spacey Fowler arising from an alleged sexual assault were dismissed with prejudice as a result of ESI spoliation. Both actions arose following allegations that Spacey provided an 18-year-old, Little, alcohol and then groped him. Spacey claimed that the sexual contact was consensual and that Little represented himself as 23 years old.
Both proceedings (Commonwealth v. Fowler and Little v. Fowler) were dismissed with prejudice during the discovery phase of the litigation because pivotal text messages were captured from Little’s phone as screenshots. Spacey argued the screenshots of the messages had been altered to remove key information. Little’s mother admitted she had deleted information from the phone causing spoilation of the data. To add to this misstep, the phone itself disappeared at some point between the mother and the police investigators and no backup was readily available. As a result of this disappearance of evidence and spoilation of the available evidence, both cases were dismissed before a trial on the merits could occur.
To Sum It Up
If ESI determined Kevin Spacey’s litigation outcome, it could determine yours too.