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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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50 Lost Text Messages Leads to E-Discovery Sanctions

Schmalz v. Village of North Riverside, et al
N.D. Ill. March 23, 2018
Why This Case Is Important

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.

Overview:

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:

  • In the defendant’s deposition, he admitted that he had “at least 50” text messages that were relevant to the case.
  • When the plaintiff issued a discovery request for those text messages, the defendant responded that the text messages could not be produced because the defendant no longer had the cell phones from which the text messages were sent.
  • The defendant admitted to (1) receiving a legal hold notification and (2) not taking any steps to preserve the lost 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

Ruling:
  • Gross Negligence, Not Bad Faith. The court ruled that the evidence proved that defendant’s failure to preserve a few cell phones within their control was gross-negligence, not bad faith – no intent to deprive. Thus, the court did not find the requisite intent to order an adverse inference instruction rather a lesser sanction was appropriate.
  • Sanctions Ordered. The court did order sanctions: (1) permitting the plaintiff to present evidence at trial concerning the negligent text message loss, (2) giving plaintiff the opportunity to argue that they should presume that the contents of these texts would be contrary to defense witnesses testimony, and (3) awarding the plaintiff attorneys’ fees and costs.
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Legal Analysis
On Schmalz v. Village of North Riverside, et al
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP
BY
David Cohen, Esq., Chair - E-Discovery Group, Reed Smith LLP

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.

David's Bio
relevant resource
Case Law Tip: Want to prevent e-discovery sanctions? Download this infographic, “How to Create a REASONABLE Preservation Process Under Rule 37(e).”
Infographic
How to Create a REASONABLE Preservation Process Under Rule 37(e)
How to Create a REASONABLE Preservation Process Under Rule 37(e)
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