As bad actors become savvier hiding their communications, it’s imperative that legal teams thoroughly investigate whether relevant communications existed and then prove its existence to successfully win a spoliation claim. In this case, the moving party used corroborating testimony to do so.
In this antitrust case around anti-competitive agreements with companies in the pharmaceutical market, the plaintiffs sought spoliation sanctions based the defendant deleted relevant text messages on two mobile phones.
The defendant received notice of litigation in the fall of 2015. The two mobile phones at issue: (1) Company issued phone, (2) Contraband phone.
1. Company Issued Phone: After a key custodian from the defendant left the company he took his company issued phone with him. Subsequently the key custodian was incarcerated and the key custodian’s family took possession of the phone. When the phone was forensically imaged, the phone showed that it was wiped of all data around 2016 to 2017. No messages were produced in discovery from the phone.
2. Contraband Phone: While incarcerated, an executive from the defendant testified that he talked to the key custodian about business dealings via What’sApp in 2018. The key custodian invoked his Fifth Amendment right when asked if he had a cell phone in prison.
Based on these events, the plaintiffs filed for spoliation sanctions, specifically an adverse inference about the key custodian’s role in the case.
Download the PDF version of this case law alert here.
An important take away is that no sanctions were imposed for the company issued phone which automatically backs up to the company’s survey. “No party has suggested that the back up would not include text messages.” I am not sure that that would be true for all device management systems, but to the extent that can be done, it will make preservation and production in discovery so much easier.