Digital White Papers

32 WWW.ILTANET.ORG | ILTA WHITE PAPER LITIGATION AND PRACTICE SUPPORT 2015 Revisions to the Federal Rules of Civil Procedure: What They Mean to Us One Year Later established that text messages are discoverable ESI). Plaintiffs claimed destroyed text messages would have shown the defendant was actively involved in a scheme to solicit customers from them; therefore, they intentionally destroyed those messages. The defendant claimed that his personal habit was to use a feature on his phone to automatically delete text messages aer 30 days to ensure he kept his phone at optimal performance. When litigation commenced, he did not think to turn off this auto-delete function. He also admied to having replaced his phone during litigation, without retaining a backup. The opinion does a nice job of walking through the Rule 37(e) analysis, ultimately concluding that sanctions had to be denied due to the lack of negligence by the defendant. NuVasive, Inc. v. Madsen Med., Inc., 2015 WL 4479147 (S.D. Cal. July 22, 2015) and NuVasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016) provide a brilliant comparison of "the before and aer" of Rule 37(e). Prior to the amendments, Nuvasive was found to have failed to preserve text messages, and an adverse inference instruction was issued. But, aer the amendments, and as the trial approached, the court reconsidered the adverse inference instruction in light of the earlier court's analysis. The earlier court had not found that failing to preserve the text messages was intentional. Under the 37(e) analysis, an adverse inference instruction was not proper. As a result, it was withdrawn. Another case, First Financial Sec., Inc. v. Freedom Equity Group, LLC, 2016 U.S. Dist. LEXIS 140087 (N.D. Cal., Oct. 7, 2016), had an opposite outcome. There, the defendant admied to destroying text messages, but did so innocently because they routinely deleted text messages and had agreed to not communicate via text message. The court did not look favorably upon this agreement, stating, "…an explicit agreement to avoid communicating electronically suggests a shared intent to keep incriminating facts out of evidence." The court asserted that the "spoliation of evidence raises a presumption that the destroyed evidence goes to the merits of the case and was adverse to the party that destroyed it." The result was an adverse inference instruction to the jury. Courts also have reserved the right to impose sanctions outside of the Rule 37(e) analysis and have done so. What does Rule 37(e) mean for those of us managing ediscovery and consulting with legal teams and clients regarding proper preservation? The good news is it means we do not have to strive for perfection when making sure every last bit of ESI is preserved, collected, reviewed and produced. In Marten Transport, Ltd. v. The earlier court had not found that failing to preserve the text messages was intentional.

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