When the duty to preserve is triggered, it’s imperative that parties take immediate measures to preserve data in a variety of locations including personal cell phones.
In this employment/breach of contract case, the plaintiff filed for spoliation sanctions against the defendant for deleting his “email account and willfully allow[ing] his text messages to be deleted.”
Within e-discovery, the plaintiff requested text messages between key custodians. The defendant could not produce the requested text messages, because his text messages were automatically deleted after 30 days. The plaintiff argues that the defendant failed to take reasonable steps to preserve, because the requested text messages were deleted after the duty to preserve was triggered (i.e., the notice of litigation).
Subsequently, the plaintiff filed for spoliation sanctions.
Download the PDF version of Nuvasive, Inc. v. Kormanis case law alert here.
This well-reasoned opinion highlights the duty to take proactive steps to preserve ESI, including relevant text messages, once on notice of likely litigation. FRCP 37(e) will not protect a party from sanctions where that party has failed, negligently or intentionally, to turn off auto-deletion, causing the loss of important evidence.