Defined policies and procedures for identifying if relevant mobile data exists and taking proactive steps to preserve are a must have in today’s litigation world. Without them, opposing parties will file for sanctions, and, as in this case, you will be sanctioned.
In this employment law case, the defendant admitted to failing to preserve any text messages, leading to the spoliation of 50 text messages.
The following events led to the defendant’s loss of relevant text messages:
As a result, the plaintiff asked for dispositive sanctions under Rule 37(e)(2), either striking the defense or ordering an adverse inference instruction
Download the PDF version of the Klipsch Group, Inc. v. ePRO E-Commerce case law alert here.
In light of the gross negligence and bad faith findings, the defendant was fortunate that Magistrate Judge Rowland limited sanctions to those allowed by new FRCP 37(e) absent proof of intent to deprive. Some courts have relied on their “inherent authority” to impose greater sanctions in comparable circumstances.