Do you delete pesky old text messages, hoping to clear up space on your smartphone? Well, think again, especially if you’re in active litigation. In the January decision Christou v. Beatport, LLC, Judge R. Brooke Jackson of the U.S. District Court for the District of Colorado sanctioned the defendants for not preserving text messages.  

The 29-page order addresses multiple issues, like the admissibility of expert opinions and a summary judgment motion, but the one we choose to focus on is the motion for sanctions for spoliation. We talk about spoliation in eDiscovery often, but this case is particularly compelling because it involves a type of evidence not typically invoked—text messages.

The dispute between the parties originated out of the Colorado night club circuit. Christou, the named plaintiff and a night club owner, filed suit against Roulier, a competing night club owner, and others. Christie alleged Sherman Act violations from monopolization of the electronic dance music audience—Roulier ran a website that sold electronic dance music intended for use by night club DJs, and Roulier allegedly used his site’s leverage to muscle the most-popular DJs out of Christou’s clubs and into his own.

With the suit filed on December 1, 2010, Christou served a “litigation hold letter” around the same time on the defendants that asked them to preserve text messages. No text messages were disclosed when the plaintiffs first made a discovery request on May 19, 2011, and the court found that the defendants had made no attempt to preserve the text messages in the first place.

The defendants’ excuse? The same one that has inspired countless “I NEED NUMBERS!” Facebook groups:

“In August 2011, according to Mr. Roulier, he lost his iPhone and with it any text messages saved on it. Plaintiffs contend that this ‘spoliation’ of evidence should be sanctioned by an adverse jury instruction.”

In six paragraphs, the court found that the loss of the phone was accidental, but the failure to preserve the text messages was negligent:  

“Defendants had a duty to preserve Mr. Roulier’s text messages as potential evidence, but they did not do it. Those text messages, few as they might have been, should have been preserved and either provided to the plaintiffs or potentially made the subject of further proceedings before the Court.”

Discussing sanctions:

“I agree that some sanction is appropriate. A commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents when a case like this is filed. However, an adverse jury instruction is too harsh and is unwarranted as a sanction for the negligent ‘spoliation’ of evidence in the circumstances presented here.

Accordingly, the Court grants the motion but orders as a sanction that plaintiffs will be permitted to introduce evidence at trial, if they wish, of the litigation hold letter and defendants failure to preserve Mr. Roulier’s text messages. Plaintiffs may argue whatever inference they hope the jury will draw. Defendants may present evidence in explanation, assuming of course that the evidence is otherwise admissible, and argue that no adverse inference should be drawn.”

So, while the court was unwilling to issue an adverse jury instruction, where the judge would instruct the jury that the loss of evidence was indicative of a guilty conscience, the judge still permitted the parties to raise the inference themselves via argument. Still a hefty sanction.

The court’s holding is concerning. Text messages typically appear on people’s personal devices, and they are awfully easy to delete. This order suggests that if a party is now in the wake of litigation, his or her finger better stay off that “Delete” button to avoid possible spoliation sanctions. But is that realistic? Many smartphone users routinely delete recent call lists and old text messages to free up space, clear phone caches, and increase operating speed. The options appear to be, disclose those text messages early, or hang onto them forever.

Perhaps more concerning is the court’s inference that the actual original text message—i.e., the copy on the phone—must be retained. But why wouldn’t a text message log provided by a wireless provider be just as sufficient? Right now, wireless providers are not required to maintain records of text message content—only dates and times they were sent or received. But law enforcement agencies asked Congress last year to require wireless providers to record and store text message logs for at least two years. If the proposal becomes law, legislation like that could free up the burden on litigants to manually preserve their text messages on the phones themselves. But until then, if you need to make space on your phone, delete those apps you never use and leave the text messages alone.

Written by Joey Chindamo, intern at IT-LEX.