In Benefield v. MStreet Entertainment, LLC et. al., Case No. 13-1000 (M.D. Tenn., Feb. 1, 2016), a wrongful termination lawsuit in which Plaintiff alleges she was fired in retaliation for reporting sexual harassment to human resources, Plaintiff filed an EEOC charge on June 27, 2013 and filed suit three months later under both the federal Civil Rights Act and the Tennessee Civil Rights Act. After Defendants filed a Motion for Summary Judgment, Plaintiff filed a Motion to Exclude Testimony and for Sanctions, seeking to exclude the use of a former employee’s testimony in motion practice and at trial, and seeking sanctions for spoliation of evidence.
The spoliation charge related to failure to preserve text messages between key officers and employees of Defendants. The court found the following facts: within five days after the filing of Plaintiff’s lawsuit, Plaintiff’s attorneys made written demand to defense counsel that all electronic communications between Plaintiff and Defendants or Defendants’ employees relevant to the issues be preserved. Defendants responded with a request that Plaintiff not destroy or “make unavailable” her cell phone or any electronic data. Several months later, defense counsel asked for Plaintiff’s text messages and Facebook posts; in turn, Plaintiff requested that Defendants produce their text messages. Defense counsel advised Plaintiff’s counsel that no such text messages likely existed, as they had been “unable” to preserve them. Defendants never produced any text messages during the discovery period. In its response to the Motion for Sanctions, Defendants stated that creating a policy for preservation of private text messages was unduly burdensome and invasive.
The court held that Defendants had notice very early in the case that they needed to preserve electronic communications and that they did not take appropriate measures to preserve the text messages. The court disagreed with Defendants that privacy concerns outweighed the importance of the messages in the case. The court held that Defendants should have preserved the messages and had provided no justification for their failure to do so. Accordingly, the court ordered a spoliation instruction for the jury, although declined to order further sanctions.