Even if you enter into an e-discovery protocol, that protocol does you no good if key custodians in your case don’t follow the guidelines. If your key custodians can’t be trusted, take precautionary measures to ensure the preservation of relevant data.
In this infringement case, centering around the deceased artist Prince and his unreleased music, the plaintiffs motioned for spoliation sanctions due to the deletion of text messages from two of the defendant’s key custodians.
At the outset the sides agreed on protocols for preserving data. In the midst of e-discovery, the plaintiffs received text messages between the defendants and the defendant’s PR firm. Based on the relevance of these text messages, the plaintiffs’ requested additional text messages from the defendants’ and their PR firm. The defendants could not produce the requested text messages because the phones in question were discarded and backups were not kept.
As a result, the plaintiffs moved for spoliation sanctions.
Download the PDF version of Paisley Park Enterprises, Inc. v. Boxill case law alert here.
When you reasonably anticipate litigation, you have a duty to preserve. Often forgotten in that duty are text messages and other “newer” forms of communication. It is not that hard to disengage the auto delete function and wiping the cellphone during litigation is never a good move. The bottom line: Texts must be preserved.