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E-⁠Discovery Case Law Library
A collection of simple, easy to understand analyses and resources on e-⁠discovery case law.
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The Duty to Preserve Extends to 3rd Parties and Their Texts

Ronnie Van Zant, Inc. v. Artimus Pyle
S.D.N.Y. August 28, 2017
Why This Case is Important

With the increasing amount of information stored on various data sources, it’s paramount when implementing legal holds to consider including third parties who may have relevant data.


In this action for a breach of a consent order involving the famous Southern Rock band, Lynyrd Skynard, the defendant is accused of failing to have a third party preserve relevant text messages when the third party switched to a new phone after the lawsuit commenced.

The defendant argued that they should not be sanctioned for spoliation of the text messages, because the alleged lost data was from a third party, making the text messages outside their custody or control.

  • Preservation Duty Extended to Third Party. Even though the third party was not a party in the case, the court imposed adverse inference sanctions on the defendant for the third party’s failure to preserve the text messages.
  • Defendant had “Control” of the Text Messages. Under FRCP 34, a party must produce documents in its “custody, possession, or control.” Based on the "practical ability" test for "control," the judge ruled that the defendant had the practical ability to ensure the third party’s preservation of the text messages.
  • Intent to Deprive Based on Deletion of Texts, But Not Photos. To issue an adverse inference under FRCP 37(e), the judge must find that the offending party acted with an intent to deprive. The basis for this intent stemmed from the fact that the third party did not have the texts but kept photos from the phone, which was “evidence of deliberate behavior that sanctions are intended to prevent.”
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Download the PDF version of Ronnie Van Zant, Inc. v. Artimus Pyle case analysis here.

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