In a recent decision from the Western District of North Carolina, the Court discussed the importance of preserving text messages from accidental destruction due to a loss of a party’s cell phone. In Shaffer v. Gaither, 2016 U.S. Dist. LEXIS 118225 (W.D.N.C. Sept. 1, 2016), the plaintiff brought sexual harassment claims against her former employer under Title VII of the Civil Rights Act. The defendant employer moved to dismiss the action when it was discovered that relevant text messages that were on the plaintiff’s cell phone had been destroyed. The plaintiff claimed that her cell phone had been accidentally destroyed when she dropped it in the bathroom in May 2014, well after both she and her counsel knew of the impending litigation. She sent the broken phone and SIM card to her insurance company, and therefore no longer had access to the content of the relevant text messages.

The Court considered the amendments to Federal Rule of Civil Procedure 37(e), which states that the duty of a party to preserve electronically stored information (“ESI”) arises when litigation is “reasonably anticipated” and the loss of ESI is sanctionable when “reasonable steps to preserve” are not taken and such information cannot be restored or replaced through additional discovery. The Court held that the plaintiff had not taken reasonable steps to preserve the relevant text messages, as the text messages only resided in the plaintiff’s cell phone, even after litigation was anticipated. The Court stated that the plaintiff and her counsel should have taken steps to protect against destruction of the texts, such as printing the texts out, making an additional electronic copy of the texts, cloning the cell phone, or even placing the cell phone in the possession of her attorneys and getting a new personal phone for the plaintiff.

Despite the plaintiff’s failure to take reasonable steps under Rule 37(e), the Court declined to dismiss her case because the sanction of dismissal was not the sanction of first resort. Rule 37(e)(1) and 37(e)(2) allow courts to take no greater action than necessary to cure the prejudice from the loss of the ESI, and there was no evidence of intentional spoliation. The Court believed that the defendant may be able to cure the prejudice through testimony, as it was believed that several individuals read the relevant text messages before they were destroyed. The Court nevertheless reserved the right to make a spoliation instruction at the trial if necessary to correct the prejudice from the destruction (that is, an instruction to the jury that they should infer the text messages contained prejudicial information for the plaintiff).

It is crucial to take reasonable steps to preserve ESI as soon as litigation is reasonable anticipated. This decision makes it clear that relying on individuals to preserve relevant text messages in their personal cell phones is not sufficient under Rule 37(e) to satisfy this obligation as text messages may be lost through accidental destruction of the phone and its contents. If the party is aware of relevant text messages, they should print out the text messages and preserve the copies or make an additional electronic copy of the text messages to ensure they are complying with their ESI preservation obligations.