Rule 37 Sanctions Awarded Arising From Plaintiff’s Failure to Preserve and Deletion of Snapchat Data
- ILS Team
In JOHN DOE v. PURDUE UNIVERSITY, No. 2:17-CV-33-JPK (N.D. Ind. Jul. 2, 2021) before the Court was Defendants’ Request for Issuance of Order to Show Cause Regarding Plaintiff’s Non-Compliance with Order and Spoliation of Evidence.
At issue was social media discovery from Plaintiff sought by Defendants, Purdue University and related parties, regarding Plaintiff’s claim that his “dream and hope . . . to serve his country as a Naval offer has been destroyed” due to Defendants’ actions.
At the outset of its analysis, the Court noted that there was no dispute that Plaintiff had a duty to preserve certain items, including data in his Snapchat account and that after this duty arose, Plaintiff took affirmative action to delete data from the account. The sole issue before the Court was what sanctions were appropriate.
In September 2019, Defendants served their first interrogatories and request for production of documents on Plaintiff, requesting “… all social media websites or applications that you used, participated on, posted photos, opinions, or statuses, or otherwise had an account with/on at any point during or after August 2015 and for each state your username, account name, or any other identifier for your account.”
In November 2019, Plaintiff’s counsel served responses to the discovery requests, but only identified Facebook and Instagram accounts.
In March 2020, Defendants served their second interrogatories and requests for production, requesting “All data from any Snapchat account owned or operated, wholly or in part, by Plaintiff, including the account with the username ‘[username],’ from August 2015 to the present.” Plaintiff’s counsel objected claiming it was not relevant to the case.
On May 19, 2020, Defendants moved for an order compelling Plaintiff to produce his Snapchat data “as may be downloaded from the platform” from August 2015 to the present.
On June 2, 2020, a Joint Stipulation filed by the parties and ordered by the Court, wherein Plaintiff agreed to provide the requested Instagram and Snapchat data from his account.
However, having subsequently failed to provide the Snapchat data per the Joint Stipulation and Order, Defendants moved for sanctions. In his response, Plaintiff and counsel asserted that Plaintiff provided his Snapchat username but represented that “Snapchat does not archive content files,” or “retain user information past 30 days.”
Defendants argued that Plaintiff had an obligation to produce the Snapchat data (i.e. Snap history, user profile, friends, account history, location history, and search history) pursuant to the Joint Stipulation and the Court’s June 3, 2020 order.
The Court denied without prejudice Defendants’ motion for sanctions but ordered Plaintiff to provide the Snapchat data consistent with the Joint Stipulation. Having failed to comply yet again, in October 2020, Defendants filed the instant motion for an order to show cause regarding Plaintiff’s non-compliance with a court order and for spoliation of evidence.
Federal Rule of Civil Procedure 37(e), permits a court to impose sanctions for electronically stored information (“ESI”) that is “lost because a party failed to take reasonable steps to preserve it.” Fed. R. Civ. P. 37(e). The Court must determine: (1) whether there was a duty to preserve the destroyed evidence; (2) whether the duty was breached; and (3) if the destruction of evidence was done in bad faith.
On September 30, 2020, Plaintiff produced a Snapchat download which contained broken html links and downloads to 86 images and videos, ranging from 2016 to 2020. But the links sent to the Defendants had expired by the time they were produced.
Plaintiff thereafter produced working links, but Defendants stated that after being notified of the missing items, Plaintiff had admitted he had deleted certain files from the Memories folder within Snapchat. Defendants argued that Plaintiff spoliated evidence and sanctions should be imposed.
In October 2020, Plaintiff attempted to explain the missing media, claiming he was unaware of the time limit for downloading and viewing the Memories folder. He also claimed that he was unaware that deleting items from the folder would delete all items from every server.
In its analysis, the Court first stated that Plaintiff had a duty to preserve relevant Snapchat data when Defendants sought the data during discovery. Additionally, Plaintiff was separately obligated to preserve the Snapchat data pursuant to at least one court order.
Although Plaintiff claimed the information sought from the deleted Snapchat files were irrelevant, the Court stated that he was not the one to decide what is relevant. Under Federal Rule of Civil Procedure 26(b)(1), “Even when information is not directly related to the claims or defenses identified in the pleadings, the information still may be relevant to the broader subject matter at hand . . . .” Thus, the Court found that “Plaintiff was under an unambiguous duty to preserve the deleted images and videos.”
Second, the Court found that Plaintiff undertook no effort to ensure that the files would be preserved elsewhere before he deleted the data. Plaintiff plainly breached his duty to preserve the 11 images and videos.
Third, to determine whether the Plaintiff acted in bad faith in the context of spoliation, the movant must show that the evidence was destroyed for the “purpose of hiding adverse information.” To determine whether the evidence was destroyed for the purpose of hiding adverse information, the Court must “(a) assess the actual evidence, which one typically cannot do because the evidence no longer exists, or (b) infer bad intent based upon when the destruction occurred in relation to the destroyer’s knowledge that the evidence was relevant to potential litigation.”
The Court found that since the Court nor the Defendant have seen what the Snapchat data depicted because Plaintiff deleted the content, no reliable assessment can be made addressing element (a).
Next, while the Court recognized that Plaintiff’s destruction of the files impeded Defendants’ argument of Plaintiff’s bad faith, the Court nevertheless found Plaintiff’s contention that the deletion of the files was to free up space on his phone was more believable than an attempt to hide content from Defendants. Thus, with nothing but Defendant’s speculative assertions to the contrary, the Court could not find that Plaintiff deleted the files with ill intention.
While the Court did not impose sanctions on Defendants’ spoliation claim, given the Court’s inherent power to impose sanctions for misconduct under Rule 37, relief was still granted. Rule 37(e) “provides that the Court can impose measures ‘no greater than necessary to cure the prejudice’ to a party when ESI that should have been preserved has been irretrievably lost due to the failure to take reasonable steps to preserve it.”
Given Plaintiff’s failure to take reasonable action to preserve the Snapchat data, particularly in light of the prior Court orders and although the Court declined Defendants’ request to strike Count I of Plaintiff’s Amended Complaint as a punishment disproportionate to Plaintiff’s deletion of the data, the Court did impose sanctions which allowed for, among others, the introduction of limited evidence and for a jury instruction related to Plaintiff’s deletion of the Snapchat data, as well as awarded reasonable expenses to Defendants.