In Ronnie Van Zant, Inc. v. Pyle, 17 Civ. 3360 (RWS), 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017), former members of the band Lynyrd Skynyrd sued another former member and a music and film production company for breach of a consent order the band members had entered in 1988. The plaintiffs alleged that the defendants had begun developing an unauthorized film in violation of the consent order. The matter proceeded to a bench trial, in which the plaintiffs requested that the court draw an adverse inference with respect to lost cell phone text messages between the defendant band member and a non-party screenwriter with whom he was collaborating on the film. The text messages were lost when the non-party screenwriter switched phones. The defendants maintained that they could not be sanctioned for the actions of the non-party screenwriter, whose phone was not “within their control.” The court disagreed, following case law that has held documents to be under a party’s control where “the party has the practical ability to obtain the documents from another, irrespective of legal entitlement.” The non-party screenwriter’s text messages, the court found, were practically within the control of the defendant music and film production company because the screenwriter was under contract with the production company to work on the film and the screenwriter had a financial stake in the litigation’s outcome because he was entitled to a percentage of the film’s eventual net receipts. Accordingly, the court held that “common sense” indicated that the screenwriter’s text messages should have been preserved in the face of pending litigation regarding the film. Furthermore, the court held that the plaintiffs had been prejudiced because the text messages would demonstrate the “quality of interaction between” the screenwriter and the defendant band member bound by the consent order. Finally, the court held that the screenwriter’s efforts to preserve photos but not text messages when switching phones after the onset of litigation showed “the kind of deliberate behavior” weighing in favor of an adverse inference.