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Text-messages-as-evidence has been a hot topic in the popular press lately. The Secret Service apparently lost some volume of text messages surrounding January 6 events even after congressional committees had requested preservation. JP Morgan agreed to pay a $200 million fine to regulators for failing to include broker/dealer text messages within the scope of retained data. And memories have not yet faded over NFL quarterback Tom Brady’s suspension in “Deflate-gate,” resulting in part from his failure to preserve text messages, WhatsApp text messages, and email.

Digital messaging options continue to proliferate, with ever-increasing applications for text messages, instant messages / IMs, or direct messages / DMs. For simplicity here, we call all these types of digital messages “text messages,” but lawyers need to understand that discovery can extend to all the varied applications.

Text messages – and other forms of electronic messaging – are increasingly the subject of significant court rulings, creating either huge risk or opportunity for serious sanctions (depending on which end of the issue the client finds itself). Even if sanctions are not imposed or do not affect a merits-based determination of the claims, a party’s failure properly to account for text messages creates a significant distraction from the merits and costly collateral motion practice.

Fast v., 340 F.R.D. 326 (D. Ariz. 2022), illustrates the variety of communication vehicles potentially at play, the investigative diligence required, and the range of sanctions that can be imposed. Plaintiff claimed sex and disability discrimination as well as FMLA retaliation against her former employer. Many of the communications at issue in discovery were with Fast’s friend and co-worked Mudro or concerned plaintiff’s surgery, recovery, and employment prospects.

Facebook posts: Fast had three Facebook accounts. She produced some selected posts in discovery but deleted an untold number of posts, including those similar to the ones she produced, and she acknowledged there was relevant information she may not have produced. Fast was aware of the Facebook feature allowing posts to be archived, but chose instead to delete them. Finding a duty to preserve, no alternative source of discovery for the information, prejudice, and an intent to deprive GoDaddy of the information, the court imposed an adverse inference instruction.

“Unsent” messages: Plaintiff “unsent” 109 Facebook Messenger messages to Mudro, and they were unavailable for plaintiff to produce in discovery. Mudro, however, had a copy of the messages but without time stamps because of the unsent action. Mudro could not access one attachment, which appeared to be a summary of evidence. The court rejected plaintiff’s explanations and imposed an adverse inference instruction for the missing evidence summary.

Telegram messages: Via Messenger, Fast asked Mudro to get the Telegram text messaging app. The chain of messages between the friends in Messenger then show a period where they exchanged no messages, and the court inferred that they were then exchanging messages via Telegram. The court found that Fast tried to conceal the existence of the Telegram messages because she failed to disclose her use of Telegram, deleted Messenger messages to Mudro referencing Telegram, and unsent the same messages to Mudro. By the time she admitted the use of Telegram, the messages were no longer available for discovery. Finding intent to deprive defendants of this information along with the other prerequisites for sanctions, the court ordered an adverse inference instruction.

Deleted, edited, and fake messages: Plaintiff converted Facebook Messenger messages to Word format. She then deleted 487 messages, altered others, and created a fake message. She claimed that the altered messages were “redactions” of highly personal information, but she did not disclose the fact of redaction. The deleted, edited, and fake messages were discovered when defendants obtained Messenger messages from Mudro. Finding that Mudro’s information had cured the discovery abuse, the court ordered that defendants could tell the jury about the undisclosed “redactions” as a partial sanction. The court also ruled that monetary sanctions were appropriate under Rule 37(c)(1) for failing to produce relevant discovery.

Deleted email account: During the course of the case, plaintiff moved to a location her Internet service provider did not service. Although her old email account remained available for a time, plaintiff did nothing to transfer or preserve the messages. The court again found that the requirements for sanctions were present other than the intent to deprive, the element required for the most severe sanctions.

Unproduced emails: In what the court called the “most troubling” category of discovery abuse, plaintiff repeatedly failed to produce emails with her treating physician. During the physician’s deposition, defendants learned of email communications. After plaintiff again failed to produce documents, defendants subpoenaed the physician, ultimately learning that plaintiff had ghostwritten the opinion that a medical condition was caused by working at GoDaddy. The court rejected plaintiff’s attempted explanations and imposed sanctions under Rule 37(c)(1) for failing to produce documents.

Stolen iPhone: Plaintiff claimed one of her mobile phones had been stolen and produced an insurance claim she made. Although she made backups of other phones, she did not do so for the stolen one. The court found a duty to preserve, unreasonable steps to do so, and prejudice to defendants, but found no intent to deprive defendants of evidence, thus avoiding serious sanctions.

Although the defense sought dismissal of the claims as a sanction, the court found that the lost evidence related mainly to damages and did not preclude defendants from a meaningful defense. In addition to the adverse inference instructions and informing the jury of plaintiff’s conduct, the court ordered three other forms of sanctions: plaintiff would be required to pay the fees and costs associated with the discovery dispute; defendants were permitted – at their election – to perform a forensic examination of plaintiff’s devices; and defendants were permitted an additional four third-party subpoenas.

Notwithstanding the potentially severe consequences of failing to preserve potentially relevant text messages, text messages are not automatically within the expected scope of discovery. In LaBelle v. Barclays Cap. Inc. (S.D.N.Y. 2022), the defendant was not initially required to search text messages on employees’ personal phones because it had a policy prohibiting communications concerning work on personal devices.

Sanctions decisions are beginning to emerge relating to less commonly known digital messaging applications. In Federal Trade Commission v. Noland (D. Ariz. 2021), management of a company under FTC investigation began using “ephemeral” communication applications (such as ProtonMail and Signal), so named because the communications are intended to disappear quickly after receipt. Use of the applications continued after an appointed receiver demanded that personnel preserve communications and even after a restraining order. Former management also deleted the applications from their phones the day before the phones were to be imaged to capture data. The court imposed an adverse inference instruction as a sanction.

The courts continue to respond harshly to parties that hide or distort evidence. Plaintiff’s employment claims were dismissed as a sanction in Burris v. JP Morgan Chase & Co. (D. Ariz. 2021) where a whistleblower claiming retaliation deleted data from six phones and two laptops and was deceitful about his actions. In Rossbach v. Montefiori Medical Center, a court also dismissed employment claims and imposed monetary sanctions against plaintiff and her counsel when plaintiff failed to preserve text messages and tried to submit as replacement discovery photos allegedly taken with another phone but where an expert testified that the photos could not have been accurate because the iOS operating system would not have displayed emojis as shown in the photos.

Even where spoliation sanctions are not case-dispositive, the costs can be significant. After conducting a trial on the merits and finding defendants liable, the court in ORP Surgical, LLP v. Howmedica Osteonics Corp. (D. Colo. 2022), ordered defendants to reimburse plaintiff one half of the special discovery master’s fees as a sanction for failing to preserve and/or timely produce relevant text messages from alternative sources. In Schnatter v. 247 Group, LLC (W.D. Ky. 2022), defendants were allowed to introduce evidence of plaintiff’s failure to preserve text messages and required plaintiff to pay defendants’ costs associated with litigating the issue.

If you wish any assistance with discovery of text messages, please contact Mark Brennan, counsel in the Kansas City office.

This document provides a general summary and is for information/educational purposes only. It is not intended to be comprehensive, nor does it constitute legal advice. Specific legal advice should always be sought before taking or refraining from taking any action.