eDiscovery Issue: Failure to Preserve Text Messages

The United States District Court for the District of Colorado recently sanctioned a defendant for failing to preserve text messages. The plaintiff, Regas Christou, founded several nightclubs in Denver specializing in electronic dance music. One of the defendants, Bradley Roulier, previously booked acts for the nightclubs. After Roulier started a competing nightclub, Christou filed suit against Roulier contending that Roulier was using his influence as the founder of his website to discourage top acts from performing in Christou’s nightclubs.

After filing suit, the paintiffs asked the defendants to preserve potentially relevant documents, including text messages. However, defendants did not preserve text messages on Roulier’s iPhone and did not produce any text messages in response to the plaintiff’s first discovery requests. Roulier later lost his iPhone with all the text messages on it. As a result, the plaintiffs requested that the courts sanction the defendants.

The defendants responded that because Roulier testified he did not use text messages to book acts, it was speculation that text messages were relevant. However, the court noted that the mere fact that Roulier did not book acts via text message was hardly proof that the text messages were irrelevant. While defendants stated they “found no responsive text messages,” they failed to indicate whether defense counsel actually reviewed Roulier’s iPhone at all. More importantly, because the defendants had a duty to preserve text messages, few as they might have been, but failed to do so, no one would ever know whether they were relevant. Because the defendants had a duty to preserve the text messages, the court found that sanctions were proper.

Preservation of ESI can be challenging. Companies increasingly rely on technology to conduct business and communicate. Regardless of the size of the case or amount at issue, counsel must consider a wide variety of potentially relevant storage devices.

In the absence of an agreement to the contrary counsel should account for and preserve all potentially responsive data sources, including smartphones.