Organizations must be prepared to preserve, collect, process and analyze mobile data from employees when that data is considered under the organization's possession, custody, or control (e.g. data on company-issued smart phones).
In this employment discrimination case, the plaintiff deleted 38 relevant text messages before the lawsuit. During discovery, the plaintiff, Calderon, produced several incriminating text messages; however, the defendants accused the plaintiff of knowingly not producing all relevant text messages, arguing that the plaintiff only produced text messages that helped prove his sexual harassment claim. The defendants then filed a motion to dismiss the case based on the plaintiff's alleged spoliation of text messages.
While the court acknowledged that spoliation had occurred, the court ordered an adverse jury instruction instead of a case dismissal.
38 text messages between the plaintiff and his alleged harasser were not produced by the plaintiff, not including "the numerous text messages that Polo (plaintiff) sent in response."
"At a bare minimum, Polo's (plaintiff) decision not to forward or save the unproduced texts…constitutes 'conscious abandonment of potentially useful evidence' that indicates he believed those records would not help his side of the case."