A U.S. District Court judge in Shaffer v. Gaither, 14-0106 (Sept. 1, 2016 W.D.N.C.) ruled this past September on the plaintiff's failure to preserve text messages on her phone. The court denied the defendant's motion to dismiss which was based on her failure to preserve ESI, that the court could not conclude was intentional. The messages on the phone were relevant to a defamation claim which alleges that the plaintiff's employer stated she was fired for having a sexual relationship with a married man. The plaintiff was an Assistant District Attorney and the person with whom she had the relationship was a defense attorney. The relationship itself was not denied, just the basis for her termination of employment.
The text messages on the plaintiff's phone were said to contain statements in which the plaintiff conceded the relationship was the reason for her dismissal. The plaintiff's phone was unavailable because she damaged it in a bathroom, and she turned it over to her insurer. The case is interesting because of what it shows about the recoverability of text messages and how a court will interpret the recently amended F.R.C.P. 37
The plaintiff's service provider could not produce copies of the text messages. It only kept records of when text messages were sent. There were no back-ups of the texts in cloud storage. Forensic techniques could not recover the body of the texts from the available SIM card. [Oddly, the court's decision does not indicate whether or not attempts were made to recover the phone from the insurer.]
The plaintiff's phone was broken more than a year after she had first threatened litigation. The court noted that FRCP 37 requires that steps be taken to preserve ESI when litigation is reasonably anticipated, but stated that dismissal should not the first resort. FRCP 37(e) requires courts to only take such action as necessary to cure the prejudice resulting from the lost ESI. It did not conclude the plaintiff's destruction of her phone was intentional. It set aside the question of whether any sanctions at all were necessary because other witnesses were available who had seen the text messages - more than just the plaintiff and a single recipient. The need for sanctions was to be determined after witness testimony before a jury on the content of the messages and the circumstances of the phone's loss.
The court's recommended preservation techniques for counsel consisted of, "printing out the texts, making an electronic copy of such texts, cloning the phone, or even taking possession of the phone and instructing the client to simply get another one."