Plaintiff Who Deleted Text Messages Avoids Serious Sanctions Because No Intent to Deprive Defendant
In Sinclair v. Cambria County, et al., Case No. 3:17-cv-149 (W.D. Pa, September 28, 2018), the United States Superior Court for the Western District of Pennsylvania granted Defendant’s Motion for Sanctions after finding that Plaintiff violated Rule 37(e) of the Federal Rules of Civil Procedure by failing to preserve electronically stored text messages during the course of litigation, resulting in prejudice to Defendant.
Plaintiff alleged employment discrimination against her on the grounds of age and gender. The instant motion stems from events that took place during and after Plaintiff’s deposition, at which Plaintiff testified that she communicated with former co-workers via text messages before her deposition. During the deposition, Defendant’s counsel noted that they planned to submit a discovery request to obtain copies of the text messages between Plaintiff and her former co-workers.
Following the deposition, Defendant’s counsel sent Plaintiff a request for production of documents seeking “any and all communication, including text messages…between Plaintiff and any current or former employee of Cambria County or Cambria County Prison.” In response, Plaintiff notified Defendant that she could not obtain the text messages sought by Defendant because the messages were deleted from her phone. However, Plaintiff’s counsel obtained phone company records listing text messages and calls to and from Plaintiff’s phone during the relevant timeframe. Further, Plaintiff’s counsel attempted to recover copies of the texts from the individuals to whom Plaintiff sent them. According to the phone records, however, Plaintiff failed to produce copies of at least 78 text messages that she exchanged with her former co-workers. Plaintiff maintains that the text messages were automatically deleted from her phone due to a setting that deletes text messages after a certain period of time passes.
In ruling on the motion for sanctions, the court quickly held that Plaintiff had a duty to preserve the text messages under Rule 37(e) and that Plaintiff failed to preserve the texts. Further, the court held that the deletion of the text messages between Plaintiff and her former co-workers prejudiced Defendants because the text messages were relevant to the litigation and because Defendants offered a plausible, good-faith explanation of what the missing texts may have contained. Accordingly, the court determined to impose sanctions pursuant to Rule 37(e), under which a court “may order measures no greater than necessary to cure the prejudice.”
Under Rule 37(e)(2), the Court may presume the missing information was unfavorable to the party, order an adverse jury instruction, dismiss the action, or enter a default judgment-but “only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation.” When deciding what sanction to impose, the Court should consider: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party and…deter such conduct by others in the future.” Capogrosso v. 30 River Court E. Urban Renewal Co., 482 F. App’x. 677, 682 (3d Cir. 2012).
In the instant matter, the court held that sanctions under Rule 37(e)(2) were not appropriate because there was no evidence that Plaintiff intentionally deleted the messages. As such, the court held that the sanctions of an adverse jury instruction, dismissal of the action, or entry of a default judgment would be too severe and prejudicial to the Plaintiff. In explaining its reasoning, the court found that Defendants were not severely prejudiced by the deletion of the texts because Plaintiff’s counsel recovered and produced at least half of the text messages between Plaintiff and her co-workers. Finally, the court found it unlikely that the text conversations contained information that would materially damage Plaintiff’s case against Defendants. Instead, the court imposed a sanction by assessing attorneys’ fees and costs associated with the deletion of the text messages by Plaintiff.