You are not a "free bird" – the duty to preserve text messages may extend to third parties

Intellectual Property and Technology News

A recent case involving the legendary rock band Lynyrd Skynyrd is noteworthy not only for the fame of its parties, but also for its important and expansive outcome regarding an important eDiscovery issue. In Ronnie Van Zant, Inc. v. Artimus Pyle, 2017 WL 3721777 (S.D.N.Y. Aug. 28, 2017), the Southern District of New York imposed adverse sanctions on a party for failure to preserve a third party's text messages.

The blood oath

In 1977, after several members of Lynyrd Skynyrd, including Ronnie Van Zant, died in a plane crash, the remaining band members took a "blood oath" never to use the name Lynyrd Skynyrd again. In 1988, a court ordered a consent decree which stated that the surviving members and representatives of the deceased band members must all agree before the name "Lynyrd Skynyrd" could be used in connection with films or books, among other restrictions. The consent decree applied to "all others" working in concert with the surviving band members and representatives.

The film

In 2016, Cleopatra Films decided to tell the story of Lynyrd Skynyrd through the eyes of Artimus Pyle, one of the remaining living band members, and hired Jared Cohn to direct and write the film. Jared Cohn was not an employee of Cleopatra. Cohn consulted with Pyle on several occasions regarding the film, and Cleopatra even flew Pyle out to Los Angeles to discuss the film. Ronnie Van Zant's widow sued Pyle and Cleopatra for violation of the consent decree and requested an injunction to stop production.

The lost text messages

During discovery, it was revealed that Jared Cohn communicated heavily with Artimus Pyle regarding Lynyrd Skynyrd and the film through text messages. The plaintiff alleged these communications were relevant to show Pyle's involvement with the film. However, Cohn said he had lost his text messages when he switched phones. The plaintiff brought a motion for spoliation, and the defendant argued that it could not be sanctioned for the actions of Cohn, a non-party. Cohn's phone, the defendant claimed, was not within its control.

The court's adverse inference order

If documents are not under a party's direct, or legal, control, then those documents can still be considered to be under a party's control "if the party has the practical ability to obtain the documents from another, irrespective of his legal entitlement." The court ruled that Cohn's text messages were, "practically speaking," under the control of the defendant. The court reasoned that third party Cohn worked closely with the defendant, had been deposed in the litigation, had a financial interest in the outcome of the litigation and would have complied with a request to preserve the text messages. The court further noted that when Cohn transferred data to his new phone, he was able to preserve photographs, suggesting he also would have been able to preserve the text messages – and that the failure to preserve the text messages was an intentional act. Accordingly, the court ordered an adverse inference against the defendant as to the information that might have been contained in the missing text messages.

Takeaway

In this case, the court took a broad view of "possession, custody and control," serving as an excellent reminder that non-parties may have information that is relevant to your case and that there may be an obligation to preserve and/or collect that non-party data. It also serves as a reminder that in today's world, text messages cannot be overlooked as a source of potentially relevant evidence.

But what happened to the film?

Lynyrd Skynyrd fans will have to wait a bit longer for a movie on the band. While Cleopatra Films was not a signatory to the consent decree, the court found that Cleopatra: (1) was aware of the consent decree; and (2) worked in concert with Artimus Pyle, a signatory to the consent decree. A permanent injunction against release of this movie was granted.