Routine Deletion of Text Messages: Spoliation or Acceptable Smartphone Maintenance?
State Court Issues Notable Ruling Regarding Electronic Evidence
If a defendant readily admits to deleting electronic evidence after a preservation order is in effect, plaintiff trial attorneys could be excused in thinking that a motion for sanctions should be a cut and dry issue. However, issues of spoliation of electronic evidence are not always so clear and obvious.
In the case of PTSI, Inc. v. Haley et al., 2013 PA Super 130, No. 684 WDA 2012, plaintiff, a sports training facility, sued its former employees and their new business for breach of duty of loyalty, breach of fiduciary duty and conversion. The trial court granted summary judgment in favor of defendants regarding each claim, and dismissed Plaintiff’s motion for discovery sanctions.
Plaintiff appealed the ruling, including the denial of the motion for sanctions, arguing that defendants admitted to deleting electronic evidence, including text messages, computer files and email messages after the court’s preservation order was entered.
Majority Accepted Defendants’ Excuse That They Regularly Deleted Text Messages for Storage Space
Applying a proportionality standard which required the trial court to consider, among others, the nature and scope of the litigation, including the importance and complexity of the issues, the amounts at stake, and the relevance and importance of the electronically stored information to the court’s adjudication in the case, the majority found, in part, that because the amounts at stake involved in this legal dispute between the personal fitness businesses were relatively minor, the importance and complexity of the issues concerning the electronically stored information did not weigh in favor of granting any discovery sanction.
The majority also noted that there was no showing that defendants’ clean-up of personal electronic devices to allow them to function was unusual, unreasonable or improper under the circumstances. Id. at 11. Because of the volume of text messages that are frequently exchanged by cell phone users and the limited amount of storage on cell phones, it would be very difficult, if not impossible, to save all text messages and to continue to use the phone for messaging.
For those reasons, the majority recognized that while the defendants “deleted electronically stored information created after the May 26, 2011 protective order,” such conduct was “not motivated by bad faith.” Id. at 10.
Concurring Opinion Highlights Additional Defendant Misconduct But Affirms Trial Court Ruling
In contrast, the concurring opinion painted a very different portrait of the facts: “In my view, the trial court opinion downplays [defendants’] mis- or malfeasance.” Id. at 11. The concurring judge explained that the defendants repeatedly violated the court’s preservation order with regard to not only their smartphones, but they also deleted “computer back-ups of text massages up to the date they surrendered their phones for examination.” Id. (quoting the declaration by a computer forensics expert in this case.) The concurrence points out that extensive discovery took place prior to the summary judgment ruling, and “I believe the spoliation admitted by [defendants] might well have involved damning information…” Id. at 13.
Unfortunately, despite pointing out the instances of spoliation, since the standard of review on appeal was abuse of discretion, the concurring judge did not find that the trial court’s ruling rose to the level of abuse noting that Plaintiff’s failure to present testimonial or other evidence that Defendants improperly solicited Plaintiff’s clients, despite lengthy discovery, was an independent and sufficient factor in affirming the trial court’s ruling.
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