Yesterday the Louisiana Court of Appeals upheld a lower court’s denial of a motion for sanctions for the failure of a defendant to preserve data on an iPhone 4, in Johnston v. Vincent, 2017 La. App. LEXIS 2336, No. 17-391 (La.App. 3 Cir. 12/13/17), a suit for defamation and unfair trade practices.
The preservation order required the parties to prevent the destruction or alteration of any data in their work and personal email accounts as well as on their smartphones. One of the defendants conceded in a deposition that he had failed to retain an iPhone 4 containing relevant data. He was however able to produce some text messages from the time period he used this phone from a backup on his computer with an iPhone 5 he purchased later.
The plaintiffs forensic expert testified that all text messages from iPhone are backed up, even deleted ones, and the user has no way of controlling what is backed up. A file on the iPhone indicates when the back-up occurred. Emails cannot be collected from an iPhone for security reasons.
Judge Ulysses Gene Thibodeaux's opinion emphasizes that the primary purpose of the preservation order was to prevent the destruction or alteration of text messages in the relevant time period. He notes that:
"all the text messages from August 2014 through October 2014 sought by the plaintiffs in their motion to compel and ordered to be produced by the trial court should have theoretically been preserved in the Kiersted image of the backup of Mr. Vincent's iPhone 5 taken in November 2015. As defense counsel explained during his closing arguments on October 31, 2016, the defendants are producing, in spreadsheet fashion, text messages from this time period and all the way back to October 2013,from that image, albeit in a less than timely or forthcoming manner."
The court also stressed the importance of the fact that the plaintiffs could not prove the iPhone 4 existed at the time the preservation order was issued. It agreed with the trial court that the evidence did not show that the defendants had not been forthcoming, efficient, or effective in their discovery. Judge Thibodeaux did however find good cause for the appointment of a special discovery master who would be allowed to inspect, copy and test the image databases of both parties.
Interestingly, a footnote in the opinion quoted the plaintiff's attorney as stating that AT&T had agreed to provide them with text messages, and that it had the ability produce things that had been deleted from the phone.