Without proof of prejudice, the court would not grant an adverse inference instruction but did allow the plaintiff to present evidence that defendant failed to preserve potentially relevant text messages.
The plaintiff, a nightclub owner, filed a lawsuit against the defendant, a competing nightclub owner and others, for multiple claims including violation of the Sherman Act for threats which would lead to the monopolization of online electronic dance music sales. In December 2010, the defendant sent out a legal hold to key employees, directing them to preserve all potentially relevant data, including cell phone text messages. In May 2011, in response to the plaintiff's first discovery requests, the defendant did not disclose any text messages. Three months later, it was reported that the defendant lost his iPhone and all the text messages saved on it.
Subsequently, the plaintiff motioned for spoliation sanctions due to the loss of defendant's text messages, but the defendant argued that no relevant text messages existed on the defendant's iPhone.
The court deemed that the defendant failed in their duty to preserve, stating “Those text messages, few as they might have been, should have been preserved and either provided to the plaintiff or potentially made the subject of further proceedings before the court."
The court, however, had no basis to assume that the spoliation was nothing more than negligence, so it chose not to grant an adverse inference instruction.
The court allowed the plaintiff “to introduce evidence at trial, if they wish, of the litigation hold letter and defendant's failure to preserve Mr. Roulier's (defendant) text messages" and argue an adverse inference to the jury.